Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Sep 23 2014, 9:30 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOSHUA I. TOURKOW ROBERT S. GARRETT
Tourkow Crell Rosenblatt & Johnston Bowers, Brewer, Garrett & Wiley, LLP
Fort Wayne, Indiana Huntington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RICHARD L. SMART, )
)
Appellant-Petitioner, )
)
vs. ) No. 35A02-1403-DR-171
)
KRISTINA L. SMART, )
)
Appellee-Respondent. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-1205-DR-408
September 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Richard L. Smart (“Husband”) appeals the trial court’s judgment and division of
assets and debts entered following the dissolution of his marriage from Kristina L. Smart
(“Wife”).
We vacate and remand.
FACTS AND PROCEDURAL HISTORY
Husband and Wife were married on June 27, 2009. Husband filed a petition for
dissolution of marriage on May 14, 2012. A hearing was held on the petition on November
1, 2013, and the parties submitted proposed division of assets balance sheets. On January
17, 2014, the trial court entered its Dissolution Judgment, which included certain findings,
and its division of the marital estate, which the trial court appended to its Judgment as
Exhibit 1.1 The trial court found “no compelling reason not to divide the assets and debts
on an equal basis considering the marriage was less than 3 years.” Appellee’s App. at 2.
DISCUSSION AND DECISION
Husband argues on appeal that the trial court abused its discretion when it divided
the couple’s marital assets and liabilities. When it divides a marital estate, “first, the trial
court determines what property is to be included in the marital pot; second, the trial court
must divide the property.” Pitcavage v. Pitcavage, 11 N.E.3d 547, 565 (Ind. Ct. App.
2014) (quoting Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans.
denied). The marital pot includes property owned by either spouse before the marriage,
property acquired by either spouse in his or her own right after the marriage but before the
1
We note that the copies of Exhibit 1 that Husband included in his Appendix and attached to his
Brief included handwritten notes that impeded our review of this case.
2
final separation, and property acquired by their joint efforts. Ind. Code § 31-15-7-4(a)(1)-
(3). The division of the marital pot is subject to a presumption that an equal split is just
and reasonable. Ind. Code § 31-15-7-5. An unequal division of the marital pot may be
justified by the factors listed in Indiana Code section 31-15-7-5. If a trial court deviates
from an equal split, it must state why it did so. Troyer v. Troyer, 987 N.E.2d 1130, 1139
(Ind. Ct. App. 2013) (citations omitted), trans. denied.
Here, the trial court’s judgment deviates from the statutory requirement that all
assets and liabilities of the parties acquired before filing must be included in the marital
pot. The full value of the home, Wife’s savings account containing her tuition
reimbursement, Husband’s 1923 Ford, and the Kiss tickets must be included in the marital
pot. Because the issues may reoccur on remand, we make the following observations:
First, the valuation of all of the property of the parties, including the home, must be made
as of a date between the date of filing and the date of the final hearing. Eyler v. Eyler, 492
N.E.2d 1071, 1074 (Ind. 1986). Second, the entire value of the home, less the mortgage
debt thereon, should be included in the marital pot. Finally, we direct the trial court to the
fact that it found that Wife caused $1,244.89 worth of damage to Husband’s truck, but that
it does not appear that the trial court factored that damage into its division of the marital
assets. We remand for entry of a judgment that is consistent with the dissolution statute.
Vacated and remanded.
BAKER, J., and ROBB, J., concur.
3
Richard L. Smart v. Kristina L. Smart
Combined Opinion