Mark A. Rittenhouse v. Rosetta D. Rittenhouse (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 04 2018, 8:32 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul J. Watts John R. McKay
Watts Law Office Daniel Cyr
Spencer, Indiana Hickam & Lorenz, P.C.
Spencer, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Mark A. Rittenhouse, April 4, 2018
Appellant-Plaintiff, Court of Appeals Case No.
60A04-1708-DR-1840
v. Appeal from the Owen Circuit
Court
Rosetta D. Rittenhouse, The Honorable Kelsey B. Hanlon,
Appellee-Defendant Judge
Trial Court Cause No.
60C02-1512-DR-149

May, Judge.

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[1] Mark A. Rittenhouse appeals the division of marital assets ordered pursuant to

the dissolution of his marriage to Rosetta D. Rittenhouse. He asserts the court

abused its discretion by awarding Rosetta thirty percent of the marital estate.

We affirm.

Facts and Procedural History
[2] In January of 1994, Mark purchased a house. At that time, he and Rosetta

were already dating, and she moved into the house with him. In 1999 or 2000,

Rosetta moved out for approximately three months and then returned to Mark’s

house, where she lived until “two thousand eleven or twelve,” (Tr. at 7), when

she moved out for “the best part of two years.” (Id. at 8.) Mark and Rosetta

began dating again in 2013, married on September 17, 2013, and separated on

December 5, 2015. Mark filed a petition for dissolution of their marriage on

December 29, 2015.

[3] On July 17, 2017, the trial court entered an final order that included the

following pertinent findings of fact:

2. The Petitioner, Mark A. Rittenhouse, is 62 years of age
and is currently self-employed as a contractor. Last year [Mark]
earned approximately $56,862.00.

3. He has had arthritis for several years, currently has lost the
use of one hand and anticipates neck surgery in the immediate
future, causing a decrease in income.

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 4. The Respondent, Rosetta D. Rittenhouse, is 70 years of
age and has held different jobs both before and during the
pendency of this action. [Rosetta] receives SSI benefits of
$770.00 per month with medicare plus income from cleaning
houses, averaging $75.00 per house. In recent years [Rosetta] has
cleaned between 1 and 3 houses per week.

5. [Rosetta] has heart problems that have impacted her
employment options.

6. On or about January 1, 1994, [Mark] purchased the
residence . . . for $100,000.00. The remaining balance on the
mortgage is approximately $34,011.00. The home’s present
value is $150,000.00[.]

7. The Parties maintained a relationship for approximately
20 years, residing together in the residence for most of that time
with the exception of two periods, the first of approximately 1
year and the second of approximately 2 years just prior to the
marriage. During their cohabitation, they maintained separate
accounts and did not comingle their debts or property other than
the various items of personal property maintained in the home.

8. [Rosetta] did not make financial contributions to the
acquisition, improvements or costs of maintenance of the marital
residence prior to or during their marriage. [Rosetta] paid some
utilities and regularly bought groceries but, otherwise, retained
her income for her own benefit and did not make significant
contributions to the household expenses.

9. [Rosetta] made non-monetary contributions to the
household as a homemaker during the marriage.

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 10. During the time the parties resided together prior to the
marriage, [Mark] assisted [Rosetta] with payments on her
delinquent credit card accounts and bills.

11. [Rosetta] had issues with overspending. [Rosetta] opened
a Sears Mastercard account in [Mark]’s name without [Mark]’s
knowledge or permission. [Mark] subsequently settled the
balance of $4,553.11 by paying $2,276.56.

12. Pursuant to this Court’s provisional order, [Rosetta]
removed approximately $4,895.00 of personal property and
home décor from the residence. The Court adopts the values
contained in [Mark]’s Exhibit 1, excluding the $5,000.00 value
placed on the MISCELLANEOUS items contained in [Mark]’s
Ex. 1. The Court finds those items to be worth $2,500.00.

13. [Mark] has pensions to which he has made no
contributions for many years. [Rosetta] did not contribute to the
acquisition of either pension.

14. The debts of the parties total $61,487.50. The Court is not
considering the loan against [Mark]’s IRA as marital debt, as he
took that loan out after the filing of his Petition.

(Appellant’s App. Vol. 2 at 8-9) (emphasis in original). After a number of

statements regarding the law controlling the court’s decision, the court then

entered the following conclusions:

4. Although the Parties cohabited for a substantial time
period prior to the marriage, [Mark] established his business and
purchased his home, vehicles and pension prior to the marriage
and without significant contribution from [Rosetta] during any

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 period of cohabitation. The Parties did not commingle their
property and debts before or during the marriage.

5. [Mark]’s pension accounts should be a set-off in this favor
and not included in the Court’s calculation of the distribution of
the marital estate.

6. Both Parties appear to have diminishing earning capacities
due to health concerns. [Mark] has a superior earning capability
to [Rosetta].

7. [Mark] has rebutted the presumption that an equal division
of the marital estate would be just and reasonable.

8. Considering the factors enumerated in I.C. 31-15-7-5,
including the contribution of the parties to acquisition of the
property, the extent to which the property was acquired before
the marriage, the health and earning abilities of the parties and
the dissipation of assets, the Court concludes that a just and
reasonable distribution of marital assets would be as follows: a
70% distribution to [Mark] and a 30% distribution to [Rosetta]
(percentage calculated after setting off [Mark]’s pension
accounts). The net value of the marital estate after the pension
account’s set-off is $135,357.50 (see attached balance sheet).

9. Said distribution of assets and debts should be made as
follows:

a. [Rosetta] shall be awarded all the personal property
as contained in the proposed division in [Mark]’s
Exhibit 1, the same having a total value of
$4,895.00 (see paragraph 11 in Findings).

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 b. [Mark] shall be awarded all the personal property as
contained in the proposed division outlined in
[Mark]’s Exhibit 1, plus the tractor, which was not
included, the same having a total value of
$4,050.00.

c. [Mark] shall be awarded the marital residence and
shall be sole[ly] responsible for the associated
mortgage and all other costs associated with the
same. The marital residence is valued at
$150,000.00 and was encumbered at the time of
final separation in the amount of $34,011.00.

d. [Mark] shall be awarded as his sole and separate
property his retirement accounts. These shall be set-
off from the marital estate for calculation purposes.

e. [Rosetta] shall be awarded the 2007 VW
Convertible worth approximately $7,700.00.
[Mark] shall pay the balance on the vehicle note
within 60 days of this Order and execute any
necessary documentation to effectuated [sic] the
transfer [of] full ownership of the vehicle to
[Rosetta]. [Rosetta] shall also be awarded the Ford
Explorer Sport Track worth approximately
$2,500.00.

f. [Mark] shall be awarded the 2013 Chevy Truck
worth approximately $14,000.00 and shall be
responsible for the associated lien in the amount of
$14,000.00. [Mark] shall also be awarded the 1999
Ford Expedition worth approximately $2,500.00.

g. [Mark] shall be responsible for the Sears Mastercard
Debt in the amount of $2,276.50, the Care Credit

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 Card in the amount of $3,200.00, and the Visa Card
in the amount of $1,000.00.

h. [Mark] shall have as his sole and separate property
the intangible property including the bank account
(#[ . . . ]) containing $1,200.00 and the Business
account containing $10,000.00.

i. [Mark] shall pay to [Rosetta] a cash payment of
$25,512.25 within 90 days of this Order.

(Id. at 10-12) (emphases in original).

Discussion and Decision
[4] Mark asserts the court’s division of the marital estate was an abuse of discretion

because the court misapplied the law. Where, as here, a party requested

findings and conclusions pursuant to Trial Rule 52, we cannot set aside the

findings or judgment unless clearly erroneous. Quinn v. Quinn, 62 N.E.3d 1212,

1220 (Ind. Ct. App. 2016). Our review is two-tiered: first, we decide “whether

the evidence supports the findings, and second, whether the findings support

the judgment.” Id. We affirm the trial court’s findings unless no facts or

inferences from the record support them, but we review legal conclusions de

novo. Id.

[5] Indiana subscribes to a “one-pot” theory of marital property. Morey v. Morey, 49

N.E.3d 1065, 1069 (Ind. Ct. App. 2016) (citing Ind. Code § 31-15-7-4). Thus,

when parties petition for dissolution of marriage,

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 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.

Ind. Code § 31-15-7-4(a); see also Ind. Code § 31-9-2-98 (defining “property” for

the purposes of dissolution as “all the assets of either party or both parties”).

Even if the court later determines that it will set a particular asset aside to one

of the parties, it must first include such asset in the marital estate and assign it a

value. Quinn, 62 N.E.3d at 1223. This “one-pot” theory ensures that all assets

are subject to the trial court’s power to divide and award. Morey, 49 N.E.3d at

1069.

[6] Then, when the court divides the property, it

shall presume that an equal division of the marital property
between the parties is just and reasonable. However this
presumption may be rebutted by a party who presents relevant
evidence, including evidence concerning the following factors,
that an equal division would not be just and reasonable:

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 (1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.

(2) The extent to which the property was acquired by each
spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the
disposition of the property is to become effective, including the
desirability of awarding the family residence or the right to dwell
in the family residence for such periods as the court considers just
to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to
the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the
parties.

Ind. Code § 31-15-7-5. If the court determines that one party rebutted the

presumption of equal division, “then the court must state its reasoning in its

findings and judgment.” Morey, 49 N.E.3d at 1072.

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[7] The trial court has discretion to divide marital property, and we reverse only if

the court abused its broad discretion. Love v. Love, 10 N.E.3d 1005, 1012 (Ind.

Ct. App. 2014). An abuse of discretion occurs if the trial court: (1) entered a

ruling clearly against the logic and effect of the facts and circumstances before

the court, (2) misinterpreted the law, or (3) disregarded evidence of factors listed

in the controlling statute. Id. When we review a claim that the trial court

improperly divided marital property, we consider only the evidence most

favorable to the trial court’s disposition. Morey, 49 N.E.3d at 1069. Even if the

facts and reasonable inferences might allow for a different conclusion, “we will

not substitute our judgment for that of the trial court.” Id.

[8] Division of marital property is highly fact sensitive, and we review a trial

court’s division “as a whole, not item by item.” Love, 10 N.E.3d at 1012. We

will not weigh evidence or consider evidence that conflicts with the trial court’s

judgment. Id. The party challenging the division of marital property “must

overcome a strong presumption that the court considered and complied with

the applicable statute.” Id. at 1012-13 (quoting Wanner v. Hutchcroft, 888 N.E.2d

260, 263 (Ind. Ct. App. 2008)). In essence, we may not reverse a property

distribution unless there is no rational basis for it. Id. at 1013.

[9] The trial court concluded Mark’s pension plans should be excluded from the

marital estate and Mark had rebutted the presumption of equal division of the

remaining marital assets. The court also concluded:

4. Although the Parties cohabited for a substantial time
period prior to the marriage, [Mark] established his business and
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 purchased his home, vehicles and pension prior to the marriage
and without significant contribution from [Rosetta] during any
period of cohabitation. The Parties did not commingle their
property and debts before or during the marriage.

*****

8. Considering the factors enumerated in I.C. 31-15-7-5,
including the contribution of the parties to acquisition of the
property, the extent to which the property was acquired before
the marriage, the health and earning abilities of the parties and
the dissipation of assets, the Court concludes that a just and
reasonable distribution of marital assets would be as follows: a
70% distribution to [Mark] and a 30% distribution to [Rosetta]
(percentage calculated after setting off [Mark]’s pension
accounts). The net value of the marital estate after the pension
account’s set-off is $135,357.50 (see attached balance sheet).

(Appellant’s App. Vol. 2 at 10-11) (emphasis in original).

[10] Mark asserts the trial court erred by giving Rosetta thirty percent of the marital

assets remaining after his pensions were set aside to him: “Rose admittedly

contributed nothing to the acquisition or costs of maintenance of the property

and . . . [w]hile she paid some utilities and bought groceries, Rose’s ‘non-

monetary contributions to the household’ as a homemaker were as much for

her and her children’s benefit as for Mark.” (Appellant’s Reply Br. at 5.)

[11] We decline Mark’s invitation to alter the percentage of marital assets to which a

homemaker is entitled based on the bread-winning spouse’s post-hoc

assessment of whether the homemaker’s presence in the home brought

adequate benefit to the bread-winner. The court identified and valued the
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 assets, determined the pensions Mark earned prior to cohabiting with Rosetta

should be set aside to him, evaluated the statutory factors that control whether

the presumption of equal division has been rebutted, determined justice

required Mark receive seventy percent of the marital assets, and explained its

decision in the final order. Mark has not demonstrated the court erred as a

matter of law. Cf., e.g., Quinn, 62 N.E.3d at 1224 (reversing and remanding for

recalculation of property disposition because court failed to include all property

in the marital pot).

[12] Mark also claims that affirming the trial court’s decision “effectively

discourage[s] cohabiting couples in those circumstances from marrying.”

(Appellant’s Br. at 8.) The “circumstances” to which Mark refers are the facts

that the parties had cohabited for nearly twenty years prior to their 2013

marriage, that during cohabitation the parties had intentionally kept their

finances separate because of Rosetta’s compulsive spending, and that Mark had

only married her when he thought the spending “problem was resolved.” (Id. at

7.) He asks us to “balance that public policy [of acknowledging the

contributions made during lengthy cohabitation if the parties later marry] with

the equally important policy in favor of encouraging marriage.” (Id. at 6.)

We are not unsympathetic to the frustration Mark undoubtedly feels about the

decision he made in 2013 and the impact it has had on his finances. We

cannot, however, ignore the policy decisions made by our Legislature.

Indiana’s legislature adopted the “one-pot” theory of marital property, which

defines all the assets produced before or during the marriage, by one or both of

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 the parties, as marital property. Ind. Code § 31-15-7-4(a). It also created a

presumption that all the marital assets should be divided equally between the

parties. Ind. Code § 31-15-7-5. To the extent Mark is asking us to ignore the

presumption that a wife is entitled to half of the assets owned by a married

couple, his arguments are better addressed to the legislature.

Conclusion
[13] Mark has not demonstrated the trial court abused its discretion when it assigned

to Rosetta thirty percent of the marital assets remaining after Mark’s pensions

were set aside to him. Accordingly, we affirm.

[14] Affirmed.

Vaidik, C.J., and Altice, J., concur.

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