MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 23 2017, 5:35 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Dorothy Ferguson
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Franklin Branham, October 23, 2017
Appellant, Court of Appeals Case No.
48A05-1702-DR-434
v. Appeal from the Madison Circuit
Court
Dianne Ross Branham, The Honorable Angela Warner
Appellee. Sims, Judge
Trial Court Cause No.
48C01-1501-DR-36
Barnes, Judge.
Case Summary
[1] Franklin Branham (“Husband”) appeals the dissolution decree entered in his
divorce from Dianne Ross Branham (“Wife”). We reverse and remand.
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Issues
[2] The dispositive issue we address is whether the trial court properly denied
Husband’s motion to continue the final hearing. For purposes of guidance on
remand, we also discuss the appropriate means of addressing a spouse’s alleged
dissipation of marital assets.
Facts
[3] Husband and Wife were married in 1999. They had no children together. At
the beginning of the marriage, Husband was unemployed, but he had
previously worked for Chrysler and had a pension of $299 per month. During
the marriage, Husband began working at a car dealership and earned more than
$100,000 annually in the last few years of the marriage. He also received
approximately $30,000 annually in Social Security benefits. Husband had a
401(k) retirement account through the dealership, from which he frequently
made substantial withdrawals. In 2013, he withdrew $110,000; in 2014,
$50,000; in 2015, $21,400; in 2016, $75,000. Husband also accrued
approximately $60,000 in credit card debt. Husband’s tax returns also reflect
that he earned $55,900 in gambling income in 2014; such income apparently
was not received in any other year. During the marriage, Wife began a horse
boarding business, from which she earns approximately $10,000 per year. The
parties kept their finances separate during the marriage, although Husband paid
the mortgage and other household expenses.
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[4] Wife filed for divorce on January 21, 2015. In March 2015, the parties agreed
to a provisional order that allowed Wife to continue living in the marital
residence but required Husband to continue making mortgage, tax, insurance,
and utility payments. Husband also was required to pay Wife $500 monthly in
maintenance and $750 in attorney fees. The order also continued a previous
restraining order prohibiting the parties from “damaging, destroying,
concealing, transferring, or encumbering any marital property other than such
income as is required to meet the regular conduct of their employment and the
necessities of day-to-day life.” App. Vol. II p. 200.
[5] A final dissolution hearing originally was scheduled for June 2, 2015. This was
continued at Wife’s request, and the hearing eventually was rescheduled for
December 8, 2015. Meanwhile, on June 30, 2015, Wife filed a petition to hold
Husband in contempt for failing to comply with the provisional order with
respect to paying the mortgage, maintenance, and attorney fees. The trial court
held a contempt hearing on August 13, 2015, and took the matter under
advisement. Husband moved to continue the December final hearing date; the
trial court granted that motion and gave the parties thirty days to reach an
agreement and, if they did not, they were to enter mediation. On December 16,
2015, the trial court denied Wife’s contempt petition.
[6] It does not appear the parties actually entered mediation, and another final
hearing was scheduled for July 22, 2016. However, on July 13, 2016, Wife filed
a second contempt petition. She subsequently moved to continue the final
hearing but to have a hearing on the contempt petition. The trial court
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continued the final hearing but did hold a contempt hearing on July 22, 2016.
The trial court thereafter found Husband in contempt for failing to pay the
mortgage and maintenance as required. It also found Husband had improperly
cashed out his retirement accounts in order to purchase a residence for himself,
in violation of the restraining order. After this hearing, Husband retired from
his position at the car dealership and began living solely off his Chrysler
pension and Social Security benefits of approximately $2,500 per month. 1
[7] A final hearing again was scheduled, this time for October 21, 2016. On
October 17, 2016, Husband filed a motion to have the parties’ real and personal
property appraised, as well as a motion to continue the final hearing. The trial
court denied the continuance motion.
[8] On the morning of October 21, 2016, Husband’s attorney filed an emergency
motion to continue. The motion alleged that Husband “has been admitted to
Community North Psychiatric Ward for suicidal evaluation” and that “Counsel
will submitted [sic] documentation upon receiving this documentation from
Community North.” Id. at 60. Wife and the parties’ attorneys appeared at the
hearing. Counsel for Husband stated:
Your Honor, my office was contacted earlier this morning by Mr.
Branham’s sister indicating that Mr. Branham had been placed
on hold at Community North Hospital due to what she believed
at the time, suicidal thoughts with an active plan. Um, we then
1
Husband turned seventy-two years old in October 2016.
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contacted Community North and obtained documentation that,
in fact, he was admitted to the hospital. They didn’t necessarily
go into depth at that time due to HIPPA [sic] and other
requirements saying what he was in there for. His sister then
called back after I received the documentation and confirmed
that he was in the hospital. It was her understanding he wasn’t
doing well, and that he was gonna be there for some time. Um,
based on that, it would be my position that the matter be
continued today. I would certainly be at a disadvantage without
Mr. Branham here. . . . If the Court does not feel inclined to
continue it, that the Court at least allow us—the matter be
bifurcated so that the Petitioner can put on her evidence and I
have the opportunity to come back with Mr. Branham and put
on his evidence and cross examine at that point in time.
Tr. Vol. I p. 113.
[9] Wife objected to the continuance request. Her counsel did not deny that
Husband was hospitalized but claimed he had severely dissipated the marital
estate, was behind on his maintenance, had intentionally retired in order to
avoid paying maintenance, and had incurred the credit card debt without
Wife’s knowledge. Counsel further stated, “I’m not aware that Mr. Branham
has a history of any type of mental disability. So, it’s very coincidental, uh, if
that’s the—last night is the night that he suddenly became suicidal. I think Mr.
Branham’s afraid of the consequences of the Court, doesn’t wanna be here.” Id.
at 114-15. The trial court denied the continuance request, noting that the
matter had been pending for almost two years and that Husband had been
found in contempt at the parties’ last hearing. The trial court further stated,
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the Court is concerned that there’s been . . . an attempt to avoid
coming to court today, again, either fearful of the consequences
or, maybe under the, the stress or weight of what information I
know that [counsel for Wife] has indicated that she has . . .
uncovered through the discovery process and investigation of this
case.
Id. at 117. The trial court then received evidence from Wife, which included
testimony alleging that Husband had been financially supporting another
woman during the marriage, and took the matter under consideration.
[10] On February 1, 2017, the trial court entered its dissolution decree. It found in
part:
The Court finds that Husband has been unable to document what
he spent his retirement withdraws [sic] on except for a $40,000
house. The Court concludes that Husband dissipated marital
assets which is evidenced by the large retirement withdraws [sic]
during the past 3 years, without explanation; gambling winnings
in the amount of $55,000 in 2014; overwhelming charges on his
credit card statements, and his unwillingness to abide by the
property restraining order entered by this Court.
App. Vol. II p. 45. The trial court calculated the total amount of dissipation as
$312,300, based on Husband’s 401(k) withdrawals in 2013-2016, plus his 2014
gambling winnings. The trial court proceeded to award every item of marital
property to Wife, including the marital residence and the residence Husband
had subsequently bought for himself, and awarded her the entirety of
Husband’s Chrysler pension. As for the credit card debt, the court found that
Husband should not “be entitled to credit for this debt or that Wife should have
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to contribute to the debt.” Id. at 46. Furthermore, the court found “that in
order to create a fair and equitable division of the marital estate Husband owes
a judgment to Wife in the sum of $100,000 in addition to the assets that have
been ordered set over to her above.” Id. at 47. The court also ordered Husband
to pay $5,000 in attorney fees for Wife, combined with past due maintenance of
$21,225. Husband now appeals.
Analysis
[11] Wife has not filed an appellee’s brief. In such a case, we need not undertake the
burden of developing an argument on the appellee’s behalf. Riggen v. Riggen, 71
N.E.3d 420, 422 (Ind. Ct. App. 2017). “Instead, ‘we will reverse the trial
court’s judgment if the appellant’s brief presents a case of prima facie error.’”
Id. (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)).
This means error at first sight, on first appearance, or on the face of it. Id.
I. Continuance
[12] Husband contends the trial court erred in denying both his motion to continue
for the purpose of appraising property and his emergency motion to continue
on the day of the hearing. We need only address the emergency motion.
Indiana Trial Rule 53.5 provides in relevant part:
Upon motion, trial may be postponed or continued in the
discretion of the court, and shall be allowed upon a showing of
good cause established by affidavit or other evidence. The court
may award such costs as will reimburse the other parties for their
actual expenses incurred from the delay.
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We review the denial of a continuance request for an abuse of discretion. J.P. v.
G.M., 14 N.E.3d 786, 789 (Ind. Ct. App. 2014). An abuse of discretion occurs
if a decision is clearly against the logic and effect of the facts and circumstances
or the reasonable and probable deductions that may be drawn therefrom. Id. at
790. “If good cause is shown for granting the motion, denial of a continuance
will be deemed to be an abuse of discretion.” Id.
[13] Generally, “the unavoidable absence of a party is good cause for a
continuance.” Breezewood Mgmt. Co. v. Maltbie, 411 N.E.2d 670, 672 (Ind. Ct.
App. 1980). “[A] continuance should not be denied, except for weighty
reasons, when the application therefore is proper and shows good cause since, it
is an important privilege of a party to be present at his own trial.” Flick v.
Simpson, 145 Ind. App. 698, 705, 252 N.E.2d 508, 512 (1969). “But it is not
error to deny a continuance when the party fails to show a sufficient reason for
his absence.” Id. “It cannot be doubted that under proper circumstances, the
illness of a party litigant is sufficient grounds for a continuance.” Terry v. Terry,
160 Ind. App. 653, 666, 313 N.E.2d 83, 91 (1974). We also note, “[c]itation of
authority is not required to sustain the proposition that a party to an action is
entitled to be personally present in court when a trial is held in which he, or she,
is a party of record.” Jordan v. Deery, 778 N.E.2d 1264, 1272 (Ind. 2002).
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“Absent waiver or extreme circumstances, a party may not be excluded.” In re
Change of Name of Fetkavich, 855 N.E.2d 751, 755–56 (Ind. Ct. App. 2006).2
[14] Here, the denial of Husband’s continuance request also impacted his right to be
present at his final dissolution hearing. Although Husband’s counsel did not
submit an affidavit in support of the continuance motion, Trial Rule 53.5 does
not specify what “other evidence” can be used to support such a motion. There
was no dispute that Husband was in fact hospitalized at the time of the hearing
due to alleged suicidal ideations, as represented by Husband’s counsel on the
record. Both Wife’s counsel and the trial court speculated that Husband
actually was malingering or faking his suicidal intentions, but there was no
evidence to support such speculation.3 Although it was true, as the trial court
noted, that this case had been pending for almost two years, it was Wife who
had moved to continue two out of three of the previously-scheduled final
hearings. There is no indication Husband had ever failed to appear at previous
hearings, and so the emergency continuance was not part of a regular pattern by
him. As for Husband’s previous contempt citation and allegations of
dissipation of marital property, they seem to have little bearing on the question
of his hospitalization. It may very well be true that the stress of the occasion
prompted Husband’s hospitalization, but we cannot discern why that would
2
Although Jordan specifically addressed the right to be present at a jury trial, we held in Fetkavich that the
right clearly applied to all types of proceedings. Fetkavich, 855 N.E.2d 755 n.4.
3
If, indeed, it was later discovered that Husband had been malingering, the trial court could have devised a
sanction to address that misconduct.
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justify denying the continuance request, any more than if Husband had suffered
a heart attack. Husband’s situation was nothing like, for example, being absent
from a hearing because he was attending a convention. Cf. Loudermilk v. Feld
Truck Leasing Co. of America, 171 Ind. App. 498, 506-07, 358 N.E.2d 160, 165-66
(1976) (noting that continuance based on absence of moving party may be
denied if absence was result of party “exercising his free will and discretion in
choosing his whereabouts on the trial date”). In sum, and keeping in mind that
we are reviewing this issue for prima facie error, we conclude Husband has
established that the trial court abused its discretion in denying his emergency
motion to continue. We reverse the final dissolution decree and remand for
further proceedings consistent with this opinion, including a new final
dissolution hearing.
II. Dissipation of Assets
[15] Although we are remanding for further proceedings, and it is possible Husband
could produce evidence at a new hearing to establish that he did not dissipate
marital assets, we believe it is necessary to make some observations with respect
to dissipation in the event the issue arises again on remand. Here, the trial
court’s calculation of the marital estate was that it consisted of $108,819 in
assets, plus Husband’s Chrysler pension of $299 monthly. 4 The court did not
indicate a valuation date for the estate. The trial court did not assign any debt
4
The trial court did not assign a present-day total value to the pension.
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to the estate, save for the mortgage on the marital residence, although there was
evidence of Husband having incurred $60,000 in credit card debt. It also found
Husband had dissipated a total of $312,300 in so-called assets, based on 401(k)
withdrawals and his 2014 gambling winnings.5 Of this amount, $96,400 was
dissipated in 2015 and 2016, after Wife filed the dissolution petition, and the
other $215,900 was dissipated in 2013 and 2014, before she filed it. The trial
court awarded 100% of the marital assets it listed to Wife. It also ordered that
Husband “owes a judgment to Wife in the sum of $100,000 in addition to the
assets that have been ordered set over to her above” based on his dissipation of
assets, incurring of debt, and superior earnings. App. Vol. II p. 18.
[16] The trial court’s findings and conclusions do not seem to support a judgment
against Husband for $100,000. As a general rule, if there is a finding that one
spouse dissipated marital assets, such finding may be used by the trial court in
determining what is a just and reasonable distribution of the property owned by
the parties at the time of dissolution. In re Marriage of McNanama, 272 Ind. 483,
487, 399 N.E.2d 371, 373 (1980); see also Ind. Code § 31-15-7-5(4). However,
this can only affect the marital assets in which a vested present interest exists at
the time of dissolution, not the future income of either party. McNanama, 272
Ind. at 487, 399 N.E.2d at 373. In other words, a trial court may not award a
judgment to one spouse for the other spouse’s dissipation that exceeds the total
5
It is not clear that Husband’s gambling winnings were an “asset,” as opposed to income. See Kondamuri v.
Kondamuri, 852 N.E.2d 939, 953 (Ind. Ct. App. 2006) (noting that gambling winnings are taxable income).
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value of the marital assets. Id. A judgment above the value of the martial estate
can be entered only if the distinct criteria for awarding maintenance are met.
Id.; see I.C. § 31-15-7-2. In valuing the marital estate, the trial court may use
any date between the date of the filing of the dissolution petition and the date of
the final hearing. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A trial
court may not directly compensate a party for pre-separation dissipation, but it
may do so for post-separation dissipation if dissipation occurred after the date
the court utilizes for valuing the marital estate. In re Marriage of Sloss, 526
N.E.2d 1036, 1040 (Ind. Ct. App. 1998).
[17] Here, in addition to awarding Wife all of the identified marital assets, using an
unspecified valuation date, the trial court also set aside the $60,000 in credit
card debt solely to Husband, and furthermore awarded a $100,000 judgment to
Wife. It also appears the trial court may have intended to compensate Wife at
least partially for dissipation that occurred before the dissolution petition was
filed. As currently entered, and without information as to what date the trial
court used to value the marital estate, the $100,000 judgment is effectively an
award of maintenance to Wife in excess of the marital estate that necessarily
would come out of Husband’s future income. This was improper. On remand,
should there be another finding of dissipation, the trial court must confine itself
to the legal parameters outlined in this opinion when addressing that
dissipation.
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Conclusion
[18] Husband has established prima facie error in the trial court’s denial of his
emergency continuance motion. We reverse the final dissolution decree and
remand for the trial court to conduct a new hearing and enter a new dissolution
decree in accordance with this opinion.
[19] Reversed and remanded.
May, J., and Bradford, J., concur.
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Franklin Branham v. Dianne Ross Branham (mem. dec.)
Combined Opinion