Pursuant to Ind. Appellate Rule 65(D), this Aug 14 2013, 5:32 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
JASON P. HOPPER SERGEY GRECHUKHIN
ERIK H. CARTER Kirtley, Taylor, Sims, Chadd & Minnette,
Cordell & Cordell, P.C. P.C.
Noblesville, Indiana Lebanon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES TICEN, )
)
Appellant-Respondent, )
)
vs. ) No. 06A01-1212-DR-564
)
VICKI TICEN, )
)
Appellee-Petitioner. )
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable Matthew C. Kincaid, Judge
Cause No. 06D01-1108-DR-413
August 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
James Ticen appeals the trial court’s division of assets in the dissolution of his
marriage to Vicki Ticen. We affirm.
ISSUES
James presents one issue for our review, which we restate as two:
I. Whether the trial court abused its discretion in awarding Vicki 50% of the
appreciation in value of the farm land.
II. Whether the trial court erred by ordering James to pay Vicki an
equalization payment of $150,000.
FACTS AND PROCEDURAL HISTORY
The parties were married on October 15, 1983, and they separated on August 8,
2011. As there were no children born of the marriage, the only issue before the trial court
at the final hearing was the division of the marital assets. Following the hearing, the trial
court issued findings of fact and conclusions of law and awarded 65% of the marital
property to James and 35% to Vicki. In doing so, the trial court awarded to James farm
land that he had acquired during the marriage with funds he received from his mother’s
estate. Although the trial court awarded the farm land to James, it awarded Vicki 50% of
the appreciation in the value of the farm land and ordered James to pay Vicki $150,000
over time as an equalization payment. It is from this order that James now appeals.
DISCUSSION AND DECISION
Upon review, the trial court’s division of marital property is subject to an abuse of
discretion standard. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). When the trial
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court enters findings, the findings or judgment are not to be set aside unless clearly
erroneous. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). Stated another way, we
disturb the judgment only where there is no evidence supporting the findings or the
findings fail to support the judgment. Id. We do not reweigh the evidence; rather, we
consider the evidence most favorable to the judgment with all reasonable inferences
drawn in favor of the judgment. Id.
I. PROPERTY DIVISION
James contends that the trial court erred in its division of the marital property.
Particularly, James asserts that the trial court erred by giving Vicki 50% of the
appreciation in the value of the farm land.
Indiana Code section 31-15-7-5 (1997) mandates that the court presumes an equal
division of the marital property unless this presumption is rebutted by evidence that an
equal division would not be just and reasonable. Here, the trial court found that James
rebutted the presumption of an equal division and determined that a just and reasonable
division of the parties’ marital estate is 65% to James and 35% to Vicki. Although the
court awarded him 65% of the marital estate, James argues that the trial court abused its
discretion by awarding to Vicki 50% of the appreciation in value of the farm land.
James asserts that Vicki should not be awarded any portion of the appreciation in
value of the farm land, and cites to the trial court’s findings and conclusions in support of
his contention. The trial court found that Vicki made no contribution to the acquisition of
the farm land. Appellant’s App. pp. 9, 10 (Finding 18(d), (i)). James paid for the farm
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land with his inheritance from his mother’s estate by making a large down payment using
his inheritance money and then securing a mortgage for the balance due. He paid off the
mortgage using further inheritance disbursements and rental proceeds from the rental of
the farm land. Id. at 10 (Finding 18 (e), (f), (g), (h)). Vicki did not contribute to the
negotiation of the rental agreements for the farm land, and rent from the rental
agreements was deposited directly into an account maintained solely by James. Id.
(Finding 18 (j), (k), (l)). James purchased the farm land for a total of $320,349.88, id.
(Finding 18(f)), and the parties agreed that at the time of separation the farm land was
worth $619,500.00. Id. at 7-8 (para. 10(b), (c)). The court determined that the
$300,000.00 appreciation in the value of the farm land was a “passive windfall” because
neither party contributed to it. Id. at 10 (Finding 18(m)). In addition, the trial court
found that Vicki stands in a superior economic position and that James’ only income is
his Alcoa pension and farm rental proceeds. Id. at 11-12, 13 (Findings 20, 22).
Based upon these findings, James suggests that this case is similar to Doyle v.
Doyle, 756 N.E.2d 576 (Ind. Ct. App. 2001), such that Vicki should receive none of the
appreciation in the value of the farm land; however, Doyle is distinguishable from the
case at hand. In Doyle, the wife appealed the trial court’s division of property arguing
that the trial court abused its discretion by setting over to the husband 50% of the
appreciation in value of the wife’s investment accounts. The wife based her argument on
the fact that eleven years prior to the marriage she was involved in a serious accident that
caused injuries for which she received a settlement. The wife opened investment
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accounts with the settlement money, and she left the funds untouched. The evidence at
the hearing showed that the wife acquired the accounts eleven years prior to her four-year
marriage to her husband, the accounts were titled and maintained solely in the wife’s
name, the funds were never commingled with any other assets, the funds were earmarked
for the wife’s future medical expenses as a result of her injuries, and no marital funds
were contributed to the accounts. On appeal, this Court determined that “[t]he character
and sequestration of the personal injury settlement funds at issue present ‘unique
circumstances’ which clearly fall within the criteria set forth in Indiana Code § 31-15-7-
5.” Id. at 580. Therefore, the funds and their appreciation were awarded exclusively to
the wife and were not used to reduce the amount of marital property to which she was
otherwise entitled.
Here, there exist no such “unique circumstances.” James acquired the farm land
during his 28-year marriage to Vicki. Moreover, although James receives rental income
from the farm land which supplements his monthly pension benefit, there was neither
evidence at the hearing nor findings by the trial court that the farm land was earmarked
for James’ retirement. Rather, the evidence shows that the farm land had been in James’
family for several generations and although James does not farm, the land had personal
and sentimental value to him. The trial court took all of this into consideration in setting
over the farm land to James. Absent unique circumstances like those present in Doyle
and in order to accomplish a 65/35 division of the parties’ assets, it was not improper for
the court to divide the appreciation in the value of the farm land. Even in situations
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where the assets at issue are premarital assets, this Court has determined that the
appreciation occurring during the marriage is a divisible marital asset. See Wanner v.
Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008) (observing that even where trial
court properly sets aside value of premarital assets to one spouse, appreciation of assets
over course of marriage is divisible marital asset). The trial court did not abuse its
discretion in giving Vicki 50% of the appreciation in the value of the farm land.
II. EQUALIZATION PAYMENT
James also asserts that the trial court erred by ordering him to pay Vicki an
equalization payment of $150,000. He claims that the court’s order results in his monthly
farm rental income being consumed by the monthly payment to Vicki, which he argues
contradicts several of the court’s findings.
The trial court made extensive findings concerning each factor contained in
Indiana Code section 31-15-7-5 and issued a detailed, well-reasoned, and thoughtful
order. The court found that James retired in 2009, and his income at the time of the final
hearing was $390.82 per week from his pension and $292.50 per week from farm rental
income. Appellant’s App. p. 12 (Finding 20(a), (c)). The court also found that James’
weekly income is dependent upon his keeping possession of the farm land; if ordered to
sell the farm land, James would be left with only his pension income. Id. at 13 (Finding
22(a)). In addition, the court found that if James were forced to sell the farm land or to
obtain a mortgage on the farm land, his monthly expenses would exceed his monthly
income. Id. (Finding 22(b)). After carefully considering all of the factors, the court
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awarded James 65% of the marital estate. In ordering James to pay the equalization
payment, the court acknowledged that it may be difficult for him to pay $150,000.00 in a
single lump sum and gave him the option to pay over time.
It is well-settled that the trial court has broad discretionary powers in the just and
reasonable division of marital property. See Fobar, 771 N.E.2d at 59. Guidance for the
trial court’s decision is found in Indiana Code section 31-15-7-4(b) (1997), which
provides:
The court shall divide the property in a just and reasonable manner by:
(1) division of the property in kind;
(2) setting the property or parts of the property over to one (1) of the
spouses and requiring either spouse to pay an amount, either in gross or in
installments, that is just and proper;
(3) ordering the sale of the property under such conditions as the court
prescribes and dividing the proceeds of the sale; or
(4) ordering the distribution of benefits described in IC 31-9-2-98(b)(2) or
IC 31-9-2-98(b)(3) that are payable after the dissolution of marriage, by
setting aside to either of the parties a percentage of those payments either
by assignment or in kind at the time of receipt.
Subsection 2 of this statute allows the trial court to divide the marital property by
awarding physical assets to one of the spouses and a money award representing a portion
of those physical assets to the other spouse. The trial court has the discretion to divide
the property in this way even when the party receiving the noncash property must
liquidate a portion of that property in order to pay the monthly installments of the cash
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award to the former spouse. Neffle v. Neffle, 483 N.E.2d 767, 769 (Ind. Ct. App. 1985),
trans. denied.
Further, we are mindful that the trial court’s disposition is to be considered as a
whole, not item by item. Fobar, 771 N.E.2d at 59. In fashioning a just and reasonable
property distribution, a trial court is required to balance several different considerations,
including the allocation of items of property or debt based upon the disposition of other
items, as well as factors identified by statute as permitting an unequal division. Id. at 60.
Consequently, on appeal, we cannot view these items in isolation as it may upset the
balance struck by the trial court. Id.
Here, James requested and received the farm land whose value had appreciated
$300,000.00 since he had acquired it, and the trial court correctly determined that Vicki is
entitled to 50% of this appreciation. Before the equalization payment, the trial court had
awarded James marital assets with a total value of $993,487.86, including the
$619,500.00 in unencumbered farm land, and had awarded Vicki marital assets with a
value of $305,322.70. Based upon the division of the parties’ assets, an equalization
payment was necessary to achieve the 65/35 split determined by the trial court.
The evidence showed and the trial court found that James’ current weekly farm
rental income is $292.50. Thus, James’ monthly farm rental income is $1,267.50. Rather
than requiring James to sell all or part of the farm land or to obtain a mortgage on the
land, the trial court ordered payments according to an amortization schedule. Pursuant to
the court’s order and amortization schedule, the first payment to Vicki was due April
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2013 in the amount of $1,000.00. From there, the monthly payments decrease in amount
until March 2028 when a balloon payment is due for the balance of the equalization
payment. Therefore, rather than contradicting the court’s findings that James’ weekly
income is dependent upon his keeping possession of the farm land and that selling the
land or obtaining a mortgage to make the equalization payment would cause his expenses
to exceed his income, the ordering of these payments supports the goal of James keeping
possession of the farm land. Moreover, the payment amount on the court’s amortization
schedule never exceeds or even equals James’ monthly income from the rental of the
farm land, and the payment amount decreases each month so that James is able to make
manageable payments for fifteen years before the balloon payment is due. The trial court
acted within its discretion in ordering James to pay Vicki an equalization payment over
time, and it did not contradict its findings by doing so.
CONCLUSION
For the reasons stated, we conclude that the trial court acted within its discretion
when it divided the parties’ marital assets and when it ordered James to pay Vicki an
equalization payment over time. Further, the trial court’s order did not contradict its
findings.
Affirmed.
ROBB, C.J., and BRADFORD, J., concur.
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