MEMORANDUM DECISION
Jun 30 2015, 7:46 am
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 the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Robert A. Plantz Samantha M. Joslyn
Robert A. Plantz & Associates, LLC Rensselaer, Indiana
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Starla Gough, June 30, 2015
Appellant-Petitioner, Court of Appeals Case No.
37A03-1411-DR-414
v. Appeal from the Jasper Superior
Court
Dale Gough, The Honorable Robert M. Hall,
Appellee-Respondent. Senior Judge
Cause No. 37D01-1212-DR-1156
Najam, Judge.
Statement of the Case
[1] Starla Gough (“Mother”) appeals the dissolution court’s final decree, which
ended her marriage to Dale Gough (“Father”). Mother presents the following
issues for our review:
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1. Whether the dissolution court abused its discretion when it
awarded Father parenting time pursuant to the Indiana
Parenting Time Guidelines.
2. Whether the dissolution court abused its discretion when it
calculated Father’s child support obligation.
3. Whether the dissolution court abused its discretion when it
divided the marital pot.
4. Whether the dissolution court abused its discretion when it
denied Mother’s request that Father pay her attorney’s
fees.
[2] We affirm.
Facts and Procedural History
[3] Father and Mother married in 1996, and they have three children together:
W.G., born November 20, 2000; and twins C.G. and L.G., born January 22,
2003 (collectively “the children”). During the marriage, Father worked full
time and, after W.G.’s birth, Mother was a stay-at-home mom. In January
2012, Mother was hospitalized for a serious illness, and, after undergoing three
surgeries during early 2012, Mother suffered a stroke in June 2012. As a result
of the stroke, Mother developed various mental and physical impairments.
[4] On December 13, 2012, Mother filed a petition for dissolution of the marriage.
Following a hearing, the dissolution court issued a provisional order whereby
Mother was awarded physical custody of the children; Father was awarded
parenting time every other weekend, but with “no overnights until further court
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order”; Father was ordered to pay $475 per week in child support; Father was
ordered to pay certain “ongoing marital debts and obligations”; and Father was
ordered to pay $1500 to Mother’s attorney for fees. Appellant’s App. at 19-20.1
Mother and the children continued to reside in the marital residence, with
Father paying the mortgage and bills. Father moved in with his fiancée, who
was living in a one-bedroom apartment.
[5] At the final hearing in June 2014, Mother testified that, as a result of the stroke
she suffered in 2012, she is unable to work. Mother presented evidence that she
is currently seeking employment through a program called IMPACT, which
helps disabled2 people seek employment. But Mother testified that IMPACT
has been unsuccessful in finding her work that she is able to do. Still, when
asked to describe her daily activities, Mother testified that she “do[es] laundry
and cook[s], clean[s], take[s] care of the dogs, the cats, the birds, the fish tank,
the kids—help[s] them with their [sic] driving them for their games [and other
activities].” Tr. at 48. Mother did not testify that she had any difficulty
completing those tasks. And Mother submitted two child support obligation
worksheets to the trial court—one worksheet listed her income as zero and the
second listed her income at minimum wage.
1
We note that we had difficulty finding relevant pleadings in the Appendix submitted on appeal because, in
her table of contents, Mother did not specify the page numbers associated with each pleading.
2
Mother has applied for Social Security disability benefits, but she has been denied.
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[6] Mother did not submit a list of marital assets to the trial court. Father
submitted a list of personal property that he wanted the trial court to award
him, but neither party submitted evidence of the value of any of those items. It
is undisputed that the parties have no equity in the marital residence. The
evidence shows that Father used to have a 401(k) account, but that account had
no value as of the final hearing. And the evidence shows that Father has a
pension through his employment, but neither party presented any evidence
regarding the value of that pension or whether Father’s interest in the pension
has vested.
[7] Following the hearing, the dissolution court took the matter under advisement
and subsequently issued the decree, which provides in relevant part:
CUSTODY, SUPPORT AND VISITATION
As to custody, the court finds the parties should have joint legal
custody with primary physical possession with Mother subject to
Father’s rights as provided in the Indiana Parenting Time
Guidelines, with no restrictions thereon.
Support is established pursuant to Wife’s Exhibit 4 with Father to
pay Four Hundred Forty-seven Dollars ($447.00) per week
commencing on Friday July 11, 2014. . . .
***
PROPERTY:
The court finds there are no assets of the marriage with any
value, based on the evidence submitted. The court finds that
there are debts incurred by the parties during the marriage that
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need to be determined, including the payment of the debts
ordered in the Provisional Order. The court finds that the
marital residence, which has no equity, should be and hereby is
awarded to Father subject to the debt thereon. Father shall hold
Mother harmless thereon. Mother has requested and Father has
agreed that Mother may continue to reside in the marital
residence. Father shall keep Mother informed as to the status of
the foreclosure on the marital residence. Absent a court order
evicting Mother from said residence, of which Father is unaware,
he shall give her at least thirty (30) days notice of any
requirement to vacate said residence.
Father may have a 401k Pension and the evidence discloses that
there is no value therein for division by the court. The court
finds that the same should be set over to Father as his sole and
separate property.
As to the van that is in possession of Mother, she has had it
refinanced, it is in her name, and shall be set over to her as her
sole and separate property subject to the debt thereon. Mother
shall hold Father harmless on said debt.
As to the personal property set forth in Husband’s Exhibit C, the
court finds the tangible property listed thereon, with the
exception of the thirty-nine (39) inch TV, shall be set over to
Father and all remaining tangible personal property, including
the thirty-nine (39) inch TV, shall be set over to Mother. Counsel
stipulated in open court that they would make arrangements for
Father to acquire the property set over to him and are to do so.
All intangible personal property shall remain in the possession of
whoever currently has any such property in his or her name.
MARITAL DEBT:
Father shall be responsible for paying all bills of the marriage,
specifically including those set forth in the Provisional Order and
shall hold Mother harmless from any such debts. Further the
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court notes that Father’s requirement to pay any ongoing bills
during the pendency of the case pursuant to the Provisional
Order terminates on the entry of this Decree.
ATTORNEY FEES:
The court further finds that each of the parties shall be
responsible for his or her own attorney fees, except for the
allowance made in the Provisional Order herein.
Appellant’s App. at 25-27. Father and Mother filed cross motions to correct
error, which the dissolution court denied. This appeal ensued.
Discussion and Decision
Standard of Review
[8] The dissolution court entered findings and conclusions sua sponte. Sua sponte
findings control only as to the issues they cover and a general judgment will
control as to the issues upon which there are no findings. Mullin v. Mullin, 634
N.E.2d 1340, 1341 (Ind. Ct. App. 1994). A general judgment entered with
findings will be affirmed if it can be sustained on any legal theory supported by
the evidence. Id. When a court has made special findings of fact, an appellate
court reviews sufficiency of the evidence using a two-step process. First, it must
determine whether the evidence supports the trial court’s findings of fact;
second, it must determine whether those findings of fact support the trial court’s
conclusions of law. Estate of Reasor v. Putnam Cnty., 635 N.E.2d 153, 158 (Ind.
1994). Findings will only be set aside if they are clearly erroneous. Id.
Findings are clearly erroneous only when the record contains no facts to
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support them either directly or by inference. Id. A judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts. State v.
Van Cleave, 674 N.E.2d 1293, 1296 (Ind. 1996), reh’g granted on other grounds, 681
N.E.2d 181 (Ind. 1997). In order to determine that a finding or conclusion is
clearly erroneous, an appellate court’s review of the evidence must leave it with
the firm conviction that a mistake has been made. Id. at 1295.
Issue One: Parenting Time
[9] Mother first contends that the dissolution court abused its discretion when it
awarded Father parenting time pursuant to the Indiana Parenting Time
Guidelines (“the Guidelines”). In particular, Mother objects to Father having
overnight visits with the children. We review a trial court’s determination of a
parenting time issue for an abuse of discretion. J.M. v. N.M., 844 N.E.2d 590,
599 (Ind. Ct. App. 2006), trans. denied. No abuse of discretion occurs if there is
a rational basis in the record supporting the trial court’s determination. Id. We
will neither reweigh evidence nor judge the credibility of witnesses. Id. In all
parenting time controversies, courts are required to give foremost consideration
to the best interests of the child. Id.
[10] Mother begins by directing us to Indiana Code Section 31-17-4-1(a), which
provides that a parent who is not granted custody of the child is entitled to
reasonable parenting time rights unless the court finds, after a hearing, that
parenting time by the noncustodial parent might endanger the child’s physical
health or significantly impair the child’s emotional development. Mother
asserts that Father’s “one bedroom apartment with his girlfriend is not a proper
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or safe environment, physically or emotionally, for these three small children.”
Appellant’s Br. at 12. Thus, she maintains that the dissolution court abused its
discretion when it ordered parenting time under the Guidelines.
[11] Mother’s contention on this issue is merely a request that we reweigh the
evidence, which we will not do. Mother supports her argument on appeal with
her self-serving testimony at the final hearing. The dissolution court was
entitled to discredit that testimony. Moreover, Father testified that he would
provide air mattresses and a couch for the children to use when they stayed at
his residence, and he also testified that he was seeking a new residence with
more than one bedroom to accommodate the children. Mother has not
demonstrated that the dissolution court abused its discretion when it awarded
Father parenting time under the Guidelines, including overnight visits.
Issue Two: Child Support
[12] Mother next contends that the dissolution court abused its discretion when it
calculated Father’s child support obligation. In particular, Mother asserts that
the dissolution court erred when it imputed her income at a minimum-wage
level. Mother states that, because of her physical disabilities, she is unable to
work, even at a minimum-wage job. But at the final hearing, Mother submitted
as Exhibit 4 a child support obligation worksheet that attributed minimum-
wage income to her. The dissolution court adopted the calculation of Father’s
child support obligation as indicated on that exhibit. As such, any error was
invited, and Mother cannot now complain. Balicki v. Balicki, 837 N.E.2d 532,
541 (Ind. Ct. App. 2005) (reiterating doctrine of invited error is grounded in
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estoppel and precludes a party from taking advantage of an error that she
commits, invites, or which is the natural consequence of her own neglect or
misconduct), trans. denied.
Issue Three: Marital Pot
[13] Mother appears to raise several issues regarding the marital pot. We address
each in turn. Mother first contends that the dissolution court abused its
discretion when it excluded Father’s pension from the marital pot. In an action
for dissolution of marriage under Indiana Code Section 31-15-2-2, the court
shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
[14] This statute requires all property to be considered in the marital estate. Fobar v.
Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002). With certain limited exceptions, the
“one-pot” theory of Indiana family law specifically prohibits the exclusion of
any asset from the scope of the trial court’s power to divide and award.
Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied.
“Only property acquired by an individual spouse after the final separation date
is excluded from the marital estate.” Id.
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[15] Here, Mother asserts that Father has a pension and that the dissolution court
abused its discretion when it excluded that pension from the marital pot. But it
is well established that, for a pension to be included in the marital pot, the
pension must be vested. See Ind. Code § 31-9-2-98; Dowden v. Allman, 696
N.E.2d 456, 458 (Ind. Ct. App. 1998). And neither party presented evidence to
show that Father’s interest in his pension is vested.3 Absent any evidence that
Father’s interest in his pension is vested, the trial court appropriately excluded it
from the marital pot. See Dowden, 696 N.E.2d at 458; see also Grammer v.
Grammer, 566 N.E.2d 1080, 1083 (Ind. Ct. App. 1991) (holding trial court
erroneously included the husband’s pension plan in the marital assets where the
record was not clear that the pension had vested); Livingston v. Livingston, 583
N.E.2d 1225, 1228 (Ind. Ct. App. 1992) (holding trial court did not err by
excluding husband’s 401(k) plan from the marital assets where the “evidence
does not establish unequivocally a vesting or present value of the plan”), trans.
denied. Therefore, the dissolution court did not err when it excluded from the
marital pot the value of Father’s pension plan, if any.4
[16] Next, to the extent Mother contends that the dissolution court erred when it
found that there are no assets of the marriage with any value, Mother does not
support that contention with cogent argument, and the issue is waived. Ind.
Appellate Rule 46(A)(8)(a). Waiver notwithstanding, Mother did not present
3
There is no indication that Mother attempted to obtain this crucial information through discovery.
4
We also note that neither party presented evidence regarding the value of Father’s pension.
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evidence showing that the parties had any assets other than items of personal
property of unknown value discussed at the hearing. And the parties stipulated
to the division of the bulk of the personal property during the hearing. Because
Mother did not present any evidence regarding the values of various marital
assets to the dissolution court, again, any error was invited, and she cannot now
complain. Balicki, 837 N.E.2d at 541; see also In re Marriage of Church, 424
N.E.2d 1078, 1081-82 (Ind. Ct. App. 1981) (noting “that any 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”).
[17] Finally, to the extent Mother contends that the dissolution court abused its
discretion when it “order[ed] an equal division of the parties’ debts,” again, that
contention is not supported by cogent argument. Appellant’s Br. at 14.
Regardless, the evidence clearly shows that the dissolution court ordered Father
to pay the majority of the parties’ marital debts, totaling approximately $20,000,
and it ordered Mother to pay only the debt associated with her van, which is
approximately $5,000.5 Thus, the dissolution court did not order an equal
division of the parties’ debts. This contention is entirely without merit. Mother
has not demonstrated that the dissolution court abused its discretion when it
divided the marital pot.
5
The evidence does not show the present value of that van, which was awarded to Mother.
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Issue Four: Attorney’s Fees
[18] Mother contends that the dissolution court abused its discretion when it denied
her request that Father pay her attorney’s fees. Indiana Code Section 31-15-10-
1 provides that a trial court may order a party to pay a reasonable amount to
the other party for the cost of maintaining or defending any action in
dissolution proceedings. We review a trial court’s award of attorney fees in
connection with a dissolution decree for an abuse of discretion. Hartley v.
Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007). The trial court abuses its
discretion if its decision is clearly against the logic and effect of the facts and
circumstances before it. Id. When making such an award, the trial court must
consider the resources of the parties, their economic condition, the ability of the
parties to engage in gainful employment and to earn adequate income, and
other factors that bear on the reasonableness of the award. Id.
[19] Mother’s sole contention on this issue is that, because she is unable to work and
Father makes approximately $100,000 per year, the dissolution court should
have ordered Father to pay her attorney’s fees. But this court has held that,
“while disparity of income may be considered in awarding attorney[’s] fees, a
trial court is not required to award fees based on disparity of income alone.”
Russell v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App. 1998), trans. denied. There
is no abuse of discretion for the trial court not to do that which it is not required
to do. Id.
[20] Affirmed.
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Baker, J., and Friedlander, J., concur.
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