MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 25 2015, 10:02 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 ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu Katherine A. Harmon
Alex Beeman Jared S. Sunday
Ciobanu Law, P.C. Mallor Grodner LLP
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael C. Feldhake, February 25, 2015
Appellant-Respondent, Court of Appeals Case No.
49A04-1405-DR-250
v. Appeal from the Marion Superior
Court.
The Honorable Michael D. Keele,
Meryle Feldhake, Judge.
Appellee-Petitioner The Honorable Victoria M.
Ransberger, Magistrate.
Cause No. 49D07-1304-DR-15091
Baker, Judge.
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[1] Michael Feldhake (Husband) appeals the trial court’s denial of his motion to
correct error. Husband argues that 1) the trial court erred when it valued
certain assets; 2) the trial court erred when it found that Husband had been
allowed to obtain his personal property and did not divide all of the parties’
personal property; 3) the trial court erred when it failed to find that Meryle
Feldhake (Wife) had failed to pay certain amounts to Husband as required by
the provisional order; and 4) the trial court erred when it did not list the tax
liability incurred by Husband and Wife as a debt incurred during the marriage.
We affirm the judgment of the trial court, but remand for the limited purpose of
allowing the trial court to address the matters of payment pursuant to the
provisional agreement and joint tax liability.
Facts
[2] Husband and Wife were married on June 10, 2010, and separated on or about
April 2013. The marriage did not result in children. On April 24, 2013, Wife
filed her verified petition for dissolution of marriage, request for preliminary
hearing, and request for mutual temporary restraining order. She requested that
her marriage to Husband be dissolved and that the trial court divide the assets.
On May 7, 2013, Husband filed his verified counter-petition for dissolution of
marriage, which also requested that the marriage be dissolved and a division of
assets.
[3] At some point before the final hearing, the trial court accepted a preliminary
agreement between the parties, issuing a provisional order. Under the terms of
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the agreement, Wife was to pay Husband $600 a month to help with the
mortgage on a property in Indianapolis.1
[4] Both parties submitted financial declarations on January 14, 2014. Husband
had previously submitted a financial declaration on May 30, 2013. In addition,
Husband had prepared a document on April 1, 2013, less than a month prior to
filing, which listed the value of his assets. The May 2013 filing listed a
corporate bond in the amount of $30,000. This bond was not included in the
January 2014 filing. Additionally, the list of assets created in April 2013 listed
husband’s “coins and collectibles” at a value of $30,000. A list of the valued
coins created by husband in January 2013 lists the value of the coins alone at
$20,108. Pet. Ex. 8, 9. However, the financial declaration filed in January
2014 listed the value of the coins at $8,500.
[5] A final hearing was held on January 14, 2014. The parties did not request
specific findings of fact and conclusions of law pursuant to Indiana Trial Rule
52. The trial court issued its decree dissolving the marriage and dividing certain
assets on February 12, 2014; in its decree, the trial court made limited sua
sponte findings of fact. In enumerating and dividing the marital assets, the trial
court took note of the list of assets created in April 2013, as well as the financial
declarations Husband filed in May 2013 and January 2014. The trial court
included the $30,000 corporate bond listed in the May 2013 filing in the marital
1
This preliminary agreement is not in the record. However, both parties stipulate to the existence of a
preliminary or provisional order, and Wife testified to its existence at the final hearing. Tr. p. 38.
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estate. It also included the coin collection in the list of marital assets and
valued it at $20,108.
[6] The trial court also noted that Wife had provided the court with bank account
statements showing the value of the accounts on or around the date when the
petition for dissolution was filed. Based on these statements, the trial court
found that:
A total of $34,718.23 existed in Husband’s Fifth Third savings account
as of the date of filing. Shortly after the divorce was filed, Husband
depleted this account. Wife did not have access to this account and
did not benefit from the use of any of the funds in this account.
Husband failed to present any documentation showing that these
funds were used for any purpose related to the marriage or for any
valid purpose.
Appellant’s App. p. 23. The trial court included the $34,718.23 in the Fifth
Third savings account in the marital estate.
In addition to the above findings, the trial court found that Husband had been
allowed to pick up his “personal property and certain other property” from the
marital home. Id. at 25. It ordered that the parties should, within ten days,
exchange any other property that the parties had agreed to transfer or that the
court had ordered to be transferred.
[7] On March 17, 2014, Husband filed his motion to correct error, as well as a
request for a temporary restraining order and preliminary injunction. In his
motion, Husband included new exhibits regarding his finances, as well as
affidavits from himself and his son. Wife filed a motion to strike those
affidavits and exhibits and response to the motion to correct error on April 4,
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2014. On May 16, 2014, the trial court denied Husband’s motion in its entirety.
It determined that Husband’s attempts to introduce new evidence or exhibits
was inappropriate, finding that:
Husband was non-cooperative during discovery and simply did not
present evidence at trial as to his accounts. . . . After the trial is over,
the Decree is entered, Husband seeks to revisit and now add
documents that clearly should have been provided prior to trial if he
wanted them admitted or wanted to challenge Wife’s exhibits.
Id. at 85. The trial court also determined that “Husband’s attempts to detail
lists of the items that he wanted or now lists as his son’s property is not
appropriate and not considered by the court.” Id. Wife’s motion to strike was
granted, and the trial court ordered Husband to pay Wife $650 in attorney fees.
Husband now appeals.
Discussion and Decision
[8] Husband argues that the trial court abused its discretion when it denied his
motion to correct error. He contends that the trial court erred when it 1) valued
and ascertained certain assets; 2) found that Husband had been allowed to
obtain his personal property; 3) failed to find that Wife had failed to pay certain
amounts to Husband as required by the provisional order; and, 4) did not list
the tax liability incurred by Husband and Wife as a debt incurred during the
marriage.
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I. Standard of Review
[9] Where, as here, the trial court issues findings of fact sua sponte, the specific
findings control only the conclusions they cover, while a general judgment
standard applies to any issue on which the court has not entered findings.
Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002). In reviewing the
judgment, we will determine if the evidence supports the findings, and then,
whether those findings support the conclusion and judgment. Id. This Court
will only reverse a judgment when it is shown to be clearly erroneous. Dewbrew
v. Dewbrew, 849 N.E.2d 636, 640 (Ind. Ct. App. 2006). In determining the
validity of the findings or judgment, we consider only the evidence favorable to
the judgment and all reasonable inferences to be drawn from that evidence; we
do not reweigh the evidence or assess the credibility of witnesses. Id. A
judgment is clearly erroneous if it applies the wrong legal standard to properly
found facts. Id. A general judgment may be affirmed on any theory supported
by the evidence presented at trial. Id.
[10] Similarly, the standard of appellate review of the trial court’s ruling on a motion
to correct errors is abuse of discretion. Paragon Family Restaurant v. Bartolini,
799 N.E.2d 1048, 1055 (Ind. 2003). An abuse of discretion has occurred “if the
trial court’s decision is against the logic and effect of the facts and
circumstances before the court or if the court has misinterpreted the law.” Bales
v. Bales, 801 N.E.2d 196, 198 (Ind. Ct. App. 2004).
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II. Valuation of Assets
[11] Husband argues that the trial court erred when it valued and ascertained certain
assets. He maintains that it erred when it found that a corporate bond existed at
the time the petition for dissolution of marriage was filed, when it valued
Husband’s savings account, and when it valued Husband’s coin collection. We
note that the burden of producing evidence as to the value of marital assets is
upon the parties to the dissolution proceeding. In Re Marriage of Church 424
N.E.2d 1078, 1082 (Ind. Ct. App. 1981). The trial court has broad discretion in
ascertaining the value of property in a dissolution action. Keown v. Keown, 883
N.E.2d 865, 868 (Ind. Ct. App. 2008). Its valuation will not be disturbed absent
an abuse of that discretion. Hartley v. Hartley 863 N.E.2d 274, 283 (Ind. Ct.
App. 2007). The trial court does not abuse that discretion if there is sufficient
evidence and reasonable inferences therefrom that supports the result. Id.
A. Corporate Bond
[12] Husband first argues that the trial court erred when it determined that a
corporate bond in the amount of $30,000 was in existence at the time of filing
and included the bond in the marital estate. He maintains that there was no
evidence that a corporate bond existed as of the date of filing. However, in the
financial declaration Husband filed on May 30, 2013, he lists “[c]orporate
bond, from accident” in the amount of $30,000 as an asset. Appellee’s App. p.
3. Furthermore, during the final hearing, Husband affirmed that he had listed
the $30,000 corporate bond in his May 2013 financial declaration. Tr. p. 98.
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[13] Husband argues that the trial court should not have found that the corporate
bond was in existence because, while it was discussed during the final hearing,
“it was not clear from the record when the corporate bond came to existence or
whether it even still existed.” Appellant’s Br. p. 17. In short, Husband seems
to be arguing that the trial court should have somehow found specific evidence
of the value and origin of the bond. This is simply incorrect. As this court has
previously held:
[A]ny party who fails to introduce evidence as to the specific value of
the marital property at the dissolution hearing is estopped from
appealing the distribution on the ground of trial court abuse of
discretion based on that absence of evidence. This rule places the
burden of producing evidence as to the value of the marital property
where it belongs on the parties, rather than on the trial court. It is
appropriate to require the parties to bear the burden of gathering and
presenting to the trial court evidence as to the value of the marital
property rather than to place upon the trial court the risk of reversal if
it distributes the marital property without specific evidence of value.
In re Marriage of Church, 424 N.E.2d at 1081-82.
[14] Here, the trial court had before it evidence of the existence of the corporate
bond in the form of Husband’s May 2013 financial declaration, evidence which
Husband acknowledged at the final hearing. Husband failed entirely to
produce any contrary evidence suggesting that the bond did not exist or had
been otherwise disposed of. Therefore, the trial court did not err in listing the
$30,000 corporate bond among the marital assets.
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B. Savings Account
[15] Husband also argues that the trial court erred when it valued his Fifth Third
savings account at $34,718.23, which was the value of the account on March
31, 2013. He argues that, as the filing date, April 24, 2013, was after the
valuation date, the trial court abused its discretion by valuing the account prior
to the date of filing. It is true that, for purposes of choosing a date upon which
to value marital assets, the trial court may select any date between the date of
filing the petition for dissolution and the date of the final hearing. Hiser v. Hiser,
692 N.E.2d 925, 928 (Ind. Ct. App. 1998). However, Husband admitted at trial
that he had not provided the trial court with any evidence regarding the value of
the savings account on April 24, 2013, the date of filing.
[16] Moreover, the trial court determined that Husband had been depleting the
account. Appellant’s App. p. 23. It found that, shortly after the divorce,
Husband had drained money from the account, but had provided no
documentation showing that the funds were used for any valid purpose. Id.
Wife introduced bank statements showing that on March 31, 2013, the savings
account contained $34,718.23. Yet, on April 30, 2013, the savings account
contained $5,115.08 dollars. At the final hearing, Husband testified that the
approximately $29,603.15 drop in value was attributable to living expenses. Tr.
p. 96. He admitted that he had provided no documentation regarding the value
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of the savings account on the date of filing. Id. at 97. Therefore, we do not find
that the trial court erred by valuing the savings account at $34,718.23.2
C. Coin Collection
[17] Husband also argues that the trial court erred when it valued his coin collection
at $20,108. He maintains that in doing so, the trial court impermissibly valued
the collection before the date of filing. Husband created a document listing his
assets for his own purposes on April 1, 2013. Pet. Ex. 8. In that document, he
listed the value of coins and collectibles at $30,000. Wife also submitted a
document, created in January 2013, in which Husband individually valued the
coins in his coin collection, which had a total value of $20,108. As noted
above, for purposes of choosing a date upon which to value marital assets, the
trial court may select any date between the date of filing the petition for
dissolution and the date of the final hearing. Hiser, 692 N.E.2d at 928.
[18] Here, once again, Husband failed to provide the trial court with any
documentation regarding the value of the coins on the date of filing. Instead,
he argues that the trial court, since it was only provided with documentation
valuing the coins in January 2013, should have relied exclusively on his
January 2014 financial declaration and his testimony at the final hearing in
2
As noted, Husband testified at the final hearing that he used the money in the savings account for living
expenses. Tr. p. 96. In his brief, Husband now makes a contrary assertion—that he used the money in the
savings account to purchase the $30,000 corporate bond. No such evidence was presented at the final
hearing, and we will not entertain evidence of this assertion now.
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determining the value of the coins. In his January 2014 financial declaration
and at the final hearing, Husband asserted that the value of the coin collection
was $8,500. Appellant’s App. p. 21; Tr. p. 81. However, when questioned by
opposing counsel, Husband admitted that he had valued the coins at $20,108
for “[i]nsurance purposes.” Id. at 101. He stated that the value of the coins was
dependent upon gold and silver prices, which fluctuate. Id. When asked if he
would sell the coins for $8500, he responded in the negative, but when asked if
he would sell them for $20,000, he testified that he would. Id. at 101-102.
[19] Here, the trial court was presented with a document that Husband had prepared
prior to the filing of the petition for dissolution. Husband did not provide any
evidence to suggest that the value of the coins had diminished since he himself
had valued them individually and collectively in January 2013. Under these
circumstances, we find that the trial court did not err in valuing the coins at
$20,108.
D. Affidavits and Exhibits Outside the Record
[20] When Husband filed his motion to correct error, he filed affidavits and exhibits
outside of the record in support of his claims that the trial court erred in valuing
certain assets. He now asserts that the trial court erred when it struck these
affidavits and exhibits attached to his motion to correct error, which he
intended to “clarify matters already before [the trial court].” Appellant’s Br. p.
17. We note that “motions predicated upon newly discovered material
evidence are viewed with disfavor.” Kimmel v. State, 418 N.E.2d 1152, 1157
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(Ind. 1981). Whether to grant a new trial on the grounds of newly discovered
evidence is within the discretion of the trial court. Id. To prevail on a motion
to correct error based on newly discovered evidence, Husband needed to
demonstrate that the evidence could not have been discovered and produced at
trial with reasonable diligence; that the evidence is material, relevant, and not
merely cumulative or impeaching; that the evidence is not incompetent; that he
exercised due diligence to discover the evidence in time for final hearing; that
the evidence is worthy of credit; and, that the evidence raises the strong
presumption that a different result would have been reached upon retrial.
Laudig v. Marion Cnty. Bd. of Voters Registration, 585 N.E.2d 700, 712 (Ind. Ct.
App. 1992).
[21] Here, Husband makes no argument as to why this evidence is newly discovered
and he asserts no claim that it could not have been discovered and produced at
trial with reasonable diligence. The trial court noted in its findings that
“Husband was non-cooperative during discovery and simply did not present
evidence at trial as to his accounts.” Appellant’s App. p. 85. The record shows
that Husband offered no explanation as to the existence of the corporate bond
on his May 2013 financial declaration or to its absence on his January 2014
declaration. We agree with the trial court that his motion to correct error was
an attempt to revisit matters discussed at the final hearing by attaching
documents that should have been presented at the final hearing but were not.
Therefore, the trial court did not err in relying exclusively on the evidence
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before it at the final hearing, nor did it err when it granted Wife’s motion to
strike affidavits and exhibits outside the record.
III. Personal Property
[22] Next, Husband argues that the trial court erred when it determined that he had
previously been allowed to obtain his personal property from the marital
residence and failed to divide all personal property from the marital residence.
The division of marital assets is within the trial court’s discretion, and we will
reverse only for an abuse of that discretion. O’Connell v. O’Connell, 889 N.E.2d
1, 10 (Ind. Ct. App. 2008). The challenger must overcome a strong
presumption that the trial court considered and complied with the applicable
statute, and that presumption is one of the strongest available on appeal. Id. In
reviewing the trial court’s division, we will neither reweigh the evidence nor
assess witness credibility; instead, we will consider only the evidence most
favorable to the trial court’s disposition of the marital property. Id.
[23] Here, the trial court divided the marital property in accordance with an
agreement reached by the parties, determined at the final hearing and through
previous correspondence between the parties’ counsel. The trial court listed
specific items in its decree: “chair, end tables/lamps, chest of drawers, queen
bed, Comcast adapter and remote.” Appellant’s App. p. 25. These were the
items specifically mentioned at the final hearing and requested by Husband’s
Attorney in emails to Wife’s Attorney. Tr. p. 118-119; Pet. Ex. 15. The trial
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court ordered in the decree that the above items should be transferred to
Husband within ten days.3
[24] Evidence at the final hearing showed that Husband had previously obtained at
least some personal property from the marital residence, so the trial court’s
finding is not erroneous. Tr. p. 117. However, even if Husband had not
previously taken any property from the marital residence, the parties stipulated
to the items that the parties would transfer during the final hearing, and the trial
court did not abuse its discretion in ordering the parties to abide by that
stipulation. Tr. p. 118-119.
IV. Wife’s Compliance with Provisional Order
[25] Husband also argues that the trial court erred when it failed to address his claim
that Wife had not complied with a provisional order to pay Husband $600 a
month to help pay the mortgage on a property in Indianapolis. He maintains
that the trial court was presented with evidence that wife was not current in her
payments, and that the trial court should have awarded him the amounts not
paid pursuant to the provisional agreement in the final decree. In general, a
provisional order terminates when the final decree is entered, subject to right of
appeal, or when the petition for dissolution or legal separation is dismissed.
Ind. Code § 31-15-4-14. This means that a provisional order is merged and
3
Husband attached affidavits laying claim to certain items of property in his motion to correct error. We will
not consider these lists, as they are not newly discovered evidence as discussed in paragraphs twenty and
tweny-one of this memorandum decision.
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extinguished in the final decree. Dillon v. Dillon, 696 N.E.2d 85, 87 (Ind. Ct.
App. 1998).
[26] At the final hearing, there was some discussion regarding when and if Wife had
paid Husband according to the terms of the provisional order. However, it is
clear that Wife testified that she had not paid Husband the $600 for December
or January. Tr. p. 49-52. Yet, the trial court made no findings with respect to
the payments required by the provisional order. As such, we remand this case to
the trial court so that it may amend its final decree to include a finding
regarding wife’s responsibilities under the provisional order.
V. Tax Liabilities
[27] Husband and Wife both stipulate to the existence of a tax liability incurred
during the marriage, and both request that we remand this matter to the trial
court. The parties testified regarding the tax liability at the final hearing. Tr. p.
41-42, 64. The trial court also had before it a letter from the Internal Revenue
Service addressed to Husband and Wife asserting a joint tax liability. Resp. Ex.
D. The trial court incorrectly determined that the parties had “no joint debts.”
Appellant’s App. p. 26. Therefore, we remand this case to the trial court to
determine joint tax liability.
[28] The judgment of the trial court is affirmed and remanded for the limited
purposes of determining wife’s responsibilities under the provisional agreement
and determining joint tax liability.
[29] Vaidik, C.J., and Riley, J., concur.
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