MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 12 2019, 10:03 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 ATTORNEYS FOR APPELLEE
Cassandra Hine Brian M. Smith
San Pierre, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis Challoner, September 12, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-DR-1241
v. Appeal from the Porter Superior
Court
Wendy Challoner, The Honorable Roger Bradford,
Appellee-Petitioner. Judge
The Honorable Mary DeBoer,
Magistrate
Trial Court Cause No.
64D01-1601-DR-694
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019 Page 1 of 26
STATEMENT OF THE CASE
[1] Appellant-Respondent, Dennis Challoner (Father), appeals the trial court’s
Decree of Dissolution of Marriage (Decree) dissolving his marriage to Appellee-
Petitioner, Wendy Challoner (Mother).
[2] We affirm.
ISSUES
[3] Father presents three issue on appeal, which we restate as:
(1) Whether the trial court abused its discretion by imputing income to
Father;
(2) Whether the trial court abused its discretion by not holding Mother in
contempt for violating a parenting time order; and
(3) Whether the trial court abused its discretion in distributing the marital
estate.
FACTS AND PROCEDURAL HISTORY
[4] Father and Mother married on February 23, 2013. One child, J.C. (the Child),
was born during the marriage. At the time, the parties were residents of Porter
County, Indiana. On January 27, 2016, Mother filed a verified petition for
dissolution of marriage and requested a hearing on provisional orders. An
agreed provisional order (Provisional Order) was entered on March 28, 2016
wherein, among other things, Mother was granted temporary sole legal and
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physical custody of the Child; Father was to exercise parenting time every other
weekend from Friday 4:30 p.m. to Sunday 6:00 p.m.; and Father was ordered
to pay child support of $130 per week.
[5] Father has historically had income tax liabilities with the Internal Revenue
Service (IRS) and Indiana Department of Revenue (IDR). Between 2013 and
2014, Father had accrued an outstanding tax liability of $10,000.63. On the
other hand, Mother has no outstanding tax liabilities, and she timely files her
federal and state income tax returns. In 2013, 2014, and 2015, Mother timely
filed her federal and state tax returns. In all those filings, Mother designated
her status as married filing separately, and she received tax refunds from those
filings, which she used to pay off marital obligations.
[6] In the Spring of 2016, without Mother’s knowledge, Father filed amended tax
returns for 2013 and 2014. In that amendment, Father indicated that he was
filing as married filing jointly. As a result of that amendment, for the 2013 tax
year, the IRS issued a tax refund of $6,637, and IDR issued a refund of $555.48.
The “State of Indiana intercepted the tax refund and applied it to Father’s
outstanding child support” for his two children from his previous marriage, and
to Father’s other “outstanding tax obligations owed to the State of Indiana.”
(Appellant’s App. Vol. II, p. 26). After paying those obligations, the parties
were provided with the “remaining $1,124.37 of the refund.” (Appellant’s App.
Vol. II, p. 35). When Mother became aware of Father’s tax filing, she
contacted the IRS and IDR and complained that she had not consented to the
amended tax return filed by Father.
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[7] On May 26, 2016, Mother filed a Motion to Set Hearing on Tax Refunds.
Following a hearing on June 8, 2016, the trial court issued an order on July 18,
2016, reserving its ruling on issues pertaining to the parties’ tax returns until the
final hearing, however, the trial court ordered the balance of the tax refund, the
sum of $1,124.37, to be deposited into Mother’s counsel’s trust account. The
trial court also ordered among other things, that Father should not have any
contact with Mother during the pendency of the dissolution proceedings, and
all parenting time exchanges should occur at the Porter County Sherriff’s
Department. Shortly after the hearing, and before the entry of the no-contact
order, Father hacked into Mother’s email account, and posing as Mother,
attempted to “fire” Mother’s divorce attorney. (Appellant’s App. Vol. II, p.
42). Father then sent a series of harassing text messages to Mother between
July 1 and July 6, 2016. On August 22, 2016, Mother filed a motion for
temporary and permanent restraining order (TRO), alleging that Father had
violated the no-contact order since Father had on numerous occasions harassed
her through text messages.
[8] On October 25, 2016, the trial court appointed Scott Wagenblast to serve as the
Guardian Ad Litem (GAL Wagenblast) and to investigate and file
recommendations with the court regarding custody and parenting time. On
October 31, 2016, pursuant to another order, the parties stipulated that GAL
Wagenblast would have the authority to act in the following manner: (1)
recommend that one or both parties undergo co-parenting classes (2)
recommend that one or both parties perform anger management counseling and
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(3) recommend either party undergo a psychological evaluation to determine
fitness for parenting. The parties also agreed to comply with any of GAL
Wagenblast’s recommendations. Further, exchanges for purposes of parenting
time were moved to Family House in Valparaiso, Indiana.
[9] On the same day, and by a separate order, the trial court entered an Order of
Permanent Injunction in which Father was enjoined from threatening or
harassing Mother, entering the marital home or Mother’s place of work,
contacting Mother’s family, slandering Mother, or hacking into Mother’s email
account. On December 2, 2016, GAL Wagenblast filed his interim report with
the trial court and recommended, among other things, that the parties undergo
psychological evaluations.
[10] On May 10, 2017, the parties agreed to participate in mediation, but during a
four-hour mediation session that occurred in July 2017, Father “stormed out.”
(Tr. Vol. III, p. 81). In that same month, Father was evicted from his home.
Father’s mother either bought or gave Father some money to buy a large
camper which he was able to place in the backyard of a friend’s home. Father
failed to disclose his new location to Mother, and that prompted Mother to file
a Verified Petition to Modify Parenting Time, where Mother requested Father’s
parenting time to be supervised since Father had refused to disclose his new
address. Around this time, the Department of Child Services (DCS) opened a
case against Father alleging that there were bedbugs in Father’s home. In late
June 2017, DCS closed its case after determining that the allegations were
unsubstantiated. Mother’s attorney sent interrogatories to Father’s attorney to
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flesh out the details of the DCS’s investigation and facts pertaining to Father’s
eviction from his apartment. Those interrogatories went unanswered. During
this time, Mother denied Father parenting time on several occasions.
[11] Sometime in June or July 2017, while awaiting a hearing on her motion to
modify parenting time, Mother contacted GAL Wagenblast and requested that
he investigate Father’s living conditions. After conducting a visit, GAL
Wagenblast determined that Father’s camper was habitable, and he notified the
parties’ attorneys of his findings and he further stated that Father’s parenting
time should resume.
[12] On August 21, 2017, Father filed a Verified Motion for Rule to Show Cause,
alleging that Mother had denied him parenting time in the summer of 2017. On
September 19, 2017, GAL Wagenblast filed a detailed report comprised of
multiple recommendations and observations. GAL Wagenblast stated that
Mother should have sole legal and physical custody of the Child, Father should
have parenting time according to the Indiana Parenting Time Guidelines with
parenting time exchanges to occur at Family House, and Father to regularly
pay his child support. On September 29, 2017, the trial court conducted a
hearing regarding parenting time issues. Following that hearing, the trial court
issued an order adopting GAL Wagenblast’s recommendations regarding
parenting time.
[13] A final dissolution hearing was held on March 7, 2018, March 22, 2018, and
April 6, 2018, where all pending matters were addressed. The parties
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subsequently submitted their proposed findings of facts and conclusions
thereon. On April 23, 2018, the trial court entered its findings of fact and
conclusions of law dissolving the parties’ marriage.
[14] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[15] Here, the trial court made findings of fact and conclusions of law thereon
pursuant to Indiana Trial Rule 52(A) in its dissolution decree and its
amendment thereof. Our standard of review is therefore two-tiered. “We first
determine whether the evidence supports the findings and then whether those
findings support the judgment.” Bertholet v. Bertholet, 725 N.E.2d 487, 495 (Ind.
Ct. App. 2000). On review, we do not set aside the trial court’s findings or
judgment unless clearly erroneous. T.R. 52(A). A finding is clearly erroneous
when there is no evidence or inferences reasonably drawn therefrom to support
it. Bertholet, 725 N.E.2d at 495. The judgment is clearly erroneous when it is
unsupported by the findings of fact and conclusions entered on the findings. Id.
We may affirm the judgment on any legal theory supported by the findings if
that theory is consistent with “all of the trial court’s findings of fact and the
inferences reasonably drawn from the findings[,]” and if we deem such a
decision prudent in light of the evidence presented at trial and the arguments
briefed on appeal. Id. In addition to the standard of review set forth in Indiana
Trial Rule 52, there is a longstanding preference in family law matters that the
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trial court’s determinations are entitled considerable deference. Swadner v.
Swadner, 897 N.E.2d 966, 971 (Ind. Ct. App. 2008). By virtue of their “unique,
direct interactions with the parties fact-to-face, over an extended period of
time[,]” trial courts are in a better position than appellate courts “to assess
credibility and character through both factual testimony and intuitive
discernment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).
II. Father’s Imputed Income
[16] The Indiana Child Support Guidelines (the Guidelines) provide,
If a court finds a parent is voluntarily unemployed or
underemployed without just cause, child support shall be
calculated based on a determination of potential income. A
determination of potential income shall be made by determining
employment potential and probable earnings level based on the
obligor’s work history, occupational qualifications, prevailing job
opportunities, and earnings levels in the community.
Ind. Child Support Guideline 3(A)(3). “Potential income may be determined if
a parent has no income, or only means-tested income, and is capable of earning
income or capable of earning more.” Id. cmt 2c. “But the Guidelines do not
require or encourage parents to make career decisions based strictly upon the
size of potential paychecks, nor do the Guidelines require that parents work to
their full economic potential.” Sandlin v. Sandlin, 972 N.E.2d 371, 375 (Ind. Ct.
App. 2012). “Obviously, a great deal of discretion will have to be used in this
determination.” Ind. Child Support Guideline 3(A)(3), cmt 2c. Indeed, we will
reverse a trial court’s decision regarding a parent’s unemployment or
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underemployment and imputation of potential income only for an abuse of
discretion. In re Paternity of Pickett, 44 N.E.3d 756, 762 (Ind. Ct. App. 2015). In
determining whether the trial court abused its discretion, we do not reweigh the
evidence or judge the credibility of witnesses, and we consider only the
evidence and reasonable inferences favorable to the judgment. Id.
[17] In the Decree, the trial court entered the following pertinent findings regarding
Father’s work history and income:
42. Father worked at Budd Mechanical Services from January 1,
2017 through April 20, 2017 (when Father was fired from his job
prompting him to file the petition to modify child support) and
during these 37 weeks, 1 Father earned $10,818.75 or $676.19 per
week. Father asks this [c]ourt to show him having a gross weekly
income of $208.00 by distributing his $10,818.75 over the course
of the entire year. The [c]ourt is not inclined to do so.
43. Father filed for unemployment, but he was denied because
Budd Mechanical Services disputed it. Father failed to appeal
the denial because he claimed he was too stressed out from the
divorce proceedings.
44. Father blamed Mother for his loss of employment and
accused her of sending letters to his employer containing Father’s
criminal history and a copy of the Order for Protection Mother
obtained against Father. However, these two letters were
received by Budd Mechanical Services in December of 2016 and
late January or early February of 2017. Father was fired in late
1
We note a scrivener’s error. Father was employed by Budd from January 1, 2017, through April 20, 2017.
This was about sixteen weeks and not thirty-seven weeks.
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April of 2017 for failing to answer his telephone when his
employer tried to call him. Father claimed that he was not “on
call” when his employer tried to reach him, yet still they fired
him.
45. Mother testified that since she has known Father, he has
always earned substantially more than $10,000.00 per year. It is
Mother’s belief that Father was intentionally underemployed.
The [c]ourt agrees.
46. Father is a qualified HVAC systems mechanic who is trained
to repair, modify and install HVAC systems. Father also
possesses OSHA certifications which would only enhance
Father’s employability. Father is a handy tradesman who has
performed odd jobs for his attorney, landlord, and others during
the pendency of this dissolution.
47. Although Father made some efforts to get a job, the [c]ourt
finds these efforts fell far short of what he could have done to
secure any kind of paying job from May of 2017 through April of
2018. Father testified that he was afraid potential employers
would not want to deal with his record or with Mother mailing
incriminating documents or calling his employer to report him
for various behaviors. Father also testified that he was
“depressed” and “did very little” to find employment despite
having no issues finding employment before April of 2017.
48. On December 17, 2017, Father filed [sic] to register his new
HVAC business, Arctic Fire Heating & Air, LLC, with the
Indiana Secretary of State. However, Father could not indicate
how many hours a week he put toward his business nor could he
describe what kind of plan he had in place to grow his business.
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49. The [c]ourt finds that Father’s lack of efforts to obtain
employment, in the context of this particular case with this
particular Father, constitute voluntary underemployment.
(Appellant’s App. Vol. II, pp. 28-29).
[18] Father contends that the trial court erred when it determined that he was
voluntarily underemployed and imputed income to him based on his earnings
from previous years.
[19] In support of his claim that he was not voluntarily unemployed, Father blames
Mother for his unemployment in 2016 and 2017. Specifically, Father states that
it was Mother who sent the anonymous letters to Parkway and Budd which
resulted in him being terminated from his employment. First, we note that
while the letters sent to Budd and Parkway containing Father’s criminal history
were printouts, the address on the envelope was handwritten. According to
Father, the handwriting on both envelopes was Mother’s. Other than his
testimony, Father did not offer any corroborating evidence to support his claim,
and Mother denied sending those letters at the final hearing. Further, we note
that when Parkway terminated Father in September 2016, other than being
notified of Father’s past criminal history, Parkway ended Father’s employment
due to the fact that Mother had notified Parkway by phone call, that Father had
stalked her using Parkway’s truck. In addition, we find that while Budd
received the same anonymous letter containing Father’s criminal history in
January or February 2017, Budd terminated Father after he failed to answer its
call in April 2017.
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[20] Father additionally claims that he was not voluntarily underemployed since he
“actively sought employment even to the point of starting his own company,”
after being terminated by Budd in April 2017. (Appellant’s Br. p. 20). The
record shows that Father applied for unemployment benefits but was denied
because Budd disputed the claim. When asked why he did not appeal the
denial, Father’s excuse was that he “was just stressed out” from the divorce
proceeding to pursue an appeal. (Tr. Vol. II, p. 189). Father admitted that he
stopped his job search because he was fearful that another anonymous letter
regarding his criminal background would be sent to his potential future
employer once he secured employment. At the final hearing, he admitted that
he was “depressed” and “did very little” to find employment despite having no
issues finding employment before April 2017. (Tr. Vol. IV, p. 4).
[21] Moreover, the trial court heard evidence indicating that Father was qualified to
repair, modify, and install HVAC systems. Also, evidence was presented that
Father possessed “OSHA certifications which would only enhance Father’s
employability.” (Appellant’s App. Vol. II, p. 28). Notably, although Father
had been unable to find employment between April 2017 and December 2017,
Father traded his services and performed “odd jobs for his attorney, landlord,
and others during the pendency of this dissolution.” (Appellant’s App. Vol. II,
p. 28). Father has not established that the trial court abused its discretion in
finding him to be voluntarily underemployed.
[22] In addition to finding that Father was voluntarily unemployed, the trial court
imputed a weekly gross income of $791 per week. Because Father was self-
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employed at the time of the dissolution hearing, the trial court arrived at
Father’s imputed weekly gross income by averaging Father’s annual gross
income from 2015 through 2017 based on his tax return filings. Father
contends that the trial court’s use of income averaging to calculate his child
support obligation was clearly erroneous. We disagree.
[23] In Trabucco v. Trabucco, 944 N.E.2d 544, 547 (Ind. Ct. App. 2011), trans. denied,
the husband, a urologist, was arrested for maintaining a marijuana growing
operation and convicted of marijuana possession. Husband’s income fluctuated
after the conviction because his medical license was briefly suspended, he had
difficulty obtaining medical malpractice insurance, he lost patients, and he
experienced other problems. Id. at 547-48. The trial court calculated husband’s
gross weekly income by taking the income reported on husband’s tax returns
over a five-year period, disregarding the highest and lowest annual incomes,
and averaging the incomes for the remaining three years. Id. at 548. We
affirmed the trial court’s income calculation. Id. at 553. Courts often use
income averaging to determine the gross weekly income of self-employed child
support obligors. Id. at 552. We noted that “all forms of self-employment
create some level of unpredictability in income, and such factual determinations
are best left to the trial court.” Id. Contrary to Father’s contention, the
Trabucco holding allows courts to use the income averaging method to
determine the gross weekly income of self-employed child support obligors.
[24] In the Decree, the trial court entered the following pertinent findings:
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40. Neither party presented evidence as to what Father earned
for the entire year in 2015. However, Father worked at least part
of the year at Hamstra Builders, Inc. as evidenced by a
September 18, 2015 paystub which showed Father’s gross year-
to-date income was $32,763.39 or $885.50 per week
($32,763.39÷37 weeks).
41. The [c]ourt finds that Father’s gross income in 2016 was
$42,234.00 or $812.19 per week.
42. Father worked at Budd Mechanical Services from January 1,
2017 through April 20, 2017 (when Father was fired from his job
prompting him to file the petition to modify child support) and
during these 37 weeks, 2 Father earned $10,818.75 or $676.19 per
week. Father asks this [c]ourt to show him having a gross weekly
income of $208.00 by distributing his $10,818.75 over the course
of the entire year. The [c]ourt is not inclined to do so.
****
50. The [c]ourt therefore finds it appropriate to average Father’s
weekly gross income for the past three years in determining and
imputing an equitable income to put in Father’s column for
calculating child support.
51. Using . . . Father’s weekly gross income for 2015 ($886),
2016 ($812) and 2017 ($676) comes to $791.00 per week.
(Appellant’s App. Vol. II, pp. 28-29).
2
As noted, this is a scrivener’s error and it should be sixteen weeks instead of thirty-seven weeks.
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[25] Upon finding that Father was voluntarily unemployed, and in applying the
income-averaging methodology in calculating Father’s potential weekly gross
income, the trial court used Father’s income tax returns from 2015 through
2017, which showed a weekly gross income of $886, $812, and $676
respectively. The average gross income earned during those three years
amounted to $791.00. per week. Here, the trial court considered all the relevant
evidence relating to Father’s income for child support purposes, thus, we affirm
the trial court’s calculation.
III. Contempt
[26] Father argues that the trial court erred when it failed to hold Mother in
contempt for denying him parenting time in the summer of 2017. Contempt of
court “involves disobedience of a court which undermines the court’s authority,
justice and dignity.” Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct.
App. 2010) (citing Srivastava v. Indianapolis Hebrew Congregation, Inc. 779 N.E.2d
52, 60 (Ind. Ct. App. 2002), trans. denied). There are two types of contempt:
direct and indirect. Id. Direct contempt involves actions occurring near the
court that interfere with the business of the court and of which the judge has
personal knowledge. Id. Contempt is indirect if it involves actions outside the
trial court’s personal knowledge. Id. “Willful disobedience of any lawfully
entered court order of which the offender had notice is indirect contempt.” Id.
(citing Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind. Ct. App. 2001), reh’g
denied, trans. denied). The determination of whether a party is in contempt of
court is a matter within the trial court’s discretion, and the trial court’s decision
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will only be reversed for an abuse of discretion. Piercey v. Piercey, 727 N.E.2d
26, 31 (Ind. Ct. App. 2000).
[27] The Provisional Order entered on March 28, 2016, granted Mother temporary
sole legal and physical custody of the Child, and Father was to exercise
parenting time every other weekend from Friday 4:30 p.m. to Sunday 6:00 p.m.
In May 2017, Father was evicted from his apartment, and Father refused to
divulge his address to Mother. Father’s actions prompted Mother to file a
Verified Motion to Modify Parenting Time, where she sought Father’s
parenting time to be supervised at Family House since Father had failed to
disclose his address. Sometime in June 2017, DCS initiated an investigation
against Father based on a claim that his camper was infested with bed bugs. In
the wake of that investigation, and concerned for the Child’s safety and
wellbeing, Mother enlisted the help of GAL Wagenblast, who, in turn,
inspected Father’s new residence and confirmed that it was habitable. During
this time, Mother denied Father parenting time on several occasions. On
August 21, 2017, Father filed a Verified Motion for Rule to Show Cause,
alleging that Mother had denied him parenting time in the summer of 2017.
[28] Other than her concern about the Child’s safety, Mother’s other defense to
Father’s contempt action was that she partly relied on GAL Wagenblast’s
advice to deny Father parenting time in the summer of 2017. During the
dissolution hearing, when questioned about Mother’s claim, GAL Wagenblast
testified as follows
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I don’t remember exactly what I said. It is possible that at one
point I told her . . . that if she chose not to allow parenting time
while the [DCS] investigation was going on, I would understand
that.
(Tr. Vol. II, p. 31). In the Decree, the trial court found that:
135. During the summer of 2017, Father had been evicted from
his apartment but did not notify Mother that he was no longer
going to live there, he was investigated by the Indiana
Department of Child Services for having bedbugs in his home
(which was later unsubstantiated), he purchased and moved into
a camper on a friend’s property but at least initially he did not
inform Mother of his address or location, and Father was
involved in litigation in another court in which Father’s
parenting time was restricted with his two prior born children.
136. Mother’s concern related to the goings-on in that unrelated
case caused her to withhold parenting time from Father until
things were sorted out further.
137. The [c]ourt agrees that Mother withheld parenting time
from Father for a portion of the summer of 2017. However, the
[c]ourt finds that she did not do so to punish Father. Rather,
between May and August of 2017, there were numerous things
going on in Father’s life that were suspect and needed fleshing
out before Mother would allow [the Child] to have parenting
time with Father as previously ordered. Therefore, the [c]ourt
does not find Mother in contempt.
(Appellant’s App. Vol. II, p. 45). Father does not directly challenge these
findings, and we hold that they are supported by the evidence and not clearly
erroneous. While we do not condone Mother’s actions of denying Father
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parenting time in the summer of 2017, we cannot say that Mother’s actions
amounted to willful disobedience considering her valid concerns between May
and August of 2017 when numerous things were going on in Father’s life.
Here, we find that Mother met her burden of showing that her conduct did not
amount to willful disobedience of the parenting time order; therefore, we affirm
the trial court’s decision.
IV. Division of the Marital Estate
[29] Father contends that the division of the marital estate was clearly erroneous for
three reasons: (1) the trial court ignored the parties agreement regarding the
division of the marital estate; (2) the trial court erroneously assigned to him the
debt on the Verizon bill rather than dividing it equally between the parties; and
(3) the trial court erred when it included a construction bill which had been
incurred by Mother after the dissolution petition had been filed. We shall
address each issue in turn.
A. Parties’ Agreement
[30] The division of marital assets lies within the sound discretion of the trial court,
and we will reverse only for an abuse of that discretion. J.M. v. N.M., 844
N.E.2d 590, 602 (Ind. Ct. App. 2006), trans. denied. An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances presented. Id. When we review a challenge to the
trial court’s division of marital property, we may not reweigh the evidence or
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assess the credibility of witnesses, and we will consider only the evidence most
favorable to the trial court’s disposition of marital property. Id.
[31] Pursuant to Indiana Code section 31-15-7-5, a trial court shall presume that an
equal division of the marital property between the parties is just and reasonable.
The court may deviate from the statutory presumption of equal distribution if a
party presents relevant evidence to show that an equal division would not be
just and reasonable. Such evidence may include evidence of: (1) each spouse’s
contribution to the acquisition of property; (2) acquisition of property through
gift or inheritance prior to the marriage; (3) the economic circumstances of each
spouse at the time of disposition; (4) each spouse’s dissipation or disposition of
property during the marriage; and (5) each spouse’s earning ability. I.C. § 31-
15-7-5; Chase v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App. 1998).
[32] In 2010, prior to her marriage to Father, Mother purchased the marital
residence (House) which was covered by a Chase mortgage (First Mortgage).
There was also another mortgage by 1st Merchant’s Bank (Second Mortgage)
which was taken out during the parties’ marriage. Prior to the dissolution
hearing, Mother’s counsel prepared a spreadsheet listing all the parties’ assets
and debts. While every asset and liability were assigned to either Father or
Mother, the House, the First and Second Mortgage were not assigned to either
party. Without factoring these three items, and pursuant to the parties’
spreadsheet, the total marital assets and liabilities subject to equitable division
was $93,391.62 and $122,447.28, respectively. Father was required to pay
Mother and equalization payment of $7,288.71. At the dissolution hearing, the
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parties stipulated to that spreadsheet, agreeing to the division of the marital
estate in accordance with that spreadsheet.
[33] Father’s sole contention on appeal is that the spreadsheet ostensibly divided all the
parties’ assets and debts, and that the trial court abused its discretion in dividing
the marital estate in light of the parties’ agreement. In support, Father cites
Nornes v. Nornes, 884 N.E.2d 886 (Ind. Ct. App. 2008) where this court held that
in the absence of an agreement of the parties to the contrary, where the
parties divide between themselves a part of the marital estate and
leave the division of the balance to the discretion of the trial
court, the trial court should assume that the property that the
parties have already divided was divided justly and reasonably
and shall divide the remainder of the assets and liabilities of the
parties as if they were the entirety of the marital estate.
Id. at 889 (emphasis in original). Father continues to argue
like the court espoused in [Nornes], the trial court should have
refrained from interfering with the parties’ right to enter into
agreements nor should it have second guessed the wisdom of the
parties in entering into agreements on how to divide marital
property. Accordingly, the trial court was required to assume
that [Father] and [Mother] had already equitably divided the
marital estate, including the marital residence, the first mortgage,
and any money needed to equalize the estates.
(Appellant’s Br. p. 29). Mother counters Father’s argument by claiming that
while she stipulated to the spreadsheet, that spreadsheet was “never intended to
be a full agreement as to the division of all assets and debts in the marital
estate.” (Appellee’s Br. p. 30). We agree.
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[34] A close examination of the spreadsheet shows that several items were excluded
from the parties’ spreadsheet. In particular, the House, First and Second
Mortgage were listed on the spreadsheet; however, those items were not
assigned to either party. This evidence counters Father’s claim that the
spreadsheet proposed a complete division of the parties’ marital estate. In
dividing the parties’ marital estate, the only task that the trial court had at the
parties’ dissolution hearing was to divide the items not stipulated in the
spreadsheet.
[35] Like the Nornes’ holding, the trial court was within its discretion to divide other
marital property not stipulated or allocated in the spreadsheet. See Nornes, 884
N.E.2d at 889 (holding that the trial court has discretion to divide the balance of
the marital estate not falling within the parties’ agreement). In sum, because
the spreadsheet did not fully divide of all the parties’ marital property, and
consistent with the Nornes’ holding, the trial court properly exercised its
discretion in allocating, and dividing the items left out from parties’
spreadsheet. Therefore, we find no abuse of discretion.
B. Verizon Bill
[36] At the final hearing, the trial court was presented with a Verizon bill, in
Father’s name, amounting to $1,222.38. Father requested the trial court to
include that amount in the marital pot. Notwithstanding his request, the trial
court did not include the bill in the marital estate and wholly allocated that
expense to Father. Father claims that the trial court erred.
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[37] Marital property includes both assets and liabilities. McCord v. McCord, 852
N.E.2d 35, 45 (Ind. Ct. App. 2006), trans denied. Again, in Indiana, all marital
property goes into the marital pot for division, even if it was purchased with
funds that one spouse brought into the marriage. See I.C. § 31-15-7-4(a). In
determining how to divide a marital estate, the trial court “shall presume that
an equal division of the marital property between the parties is just and
reasonable.” I.C. § 31-15-7-5 (emphasis added). However, this is a rebuttable
presumption, and a party may present relevant evidence to establish that an
equal division would not be just and reasonable. I.C. § 31-15-7-5. If the trial
court determines that a party opposing an equal division has met his or her
burden under the statute, the court must state in its findings and judgment its
reasons for deviating from the presumption of an equal division. Hartley v.
Hartley, 862 N.E.2d 274, 285 (Ind. Ct. App. 2007). The trial court must
consider all the statutory factors, rather than focusing on just one factor, but
need not explicitly address all the factors in every case. Eye v. Eye, 849 N.E.2d
698, 701-02 (Ind. Ct. App. 2006).
[38] In the present case, there is no dispute that the Verizon bill is marital property
since it was an expense incurred during the parties’ marriage and was subject to
the presumption of an equal division. However, the trial court found that
Mother had rebutted the presumption, and it allocated that liability to Father in
its entirety. In support of its decision to deviate from the presumption of an
equal division, the trial court made the following findings:
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77. Father contends that a Verizon bill in the amount of
$1,222.38 was due at the time Mother filed the petition for
dissolution, therefore, Mother should be responsible for one-half
of that debt.
78. The [c]ourt includes the Verizon bill of $1,222.38 in the
marital estate.
79. Mother testified that she and Father each had their own cell
phones and separate cell phone accounts throughout the
marriage and each paid for his or her own bills related to those
accounts. Mother also testified that this particular Verizon
account which Father wants included in the division of the
marital estate provided Father and Father’s two prior born
children with cell phones—not her.
80. The [c]ourt finds this account belonged exclusively to Father
and was treated as his own account throughout the marriage.
Further it was only after the parties separated that Father felt
Mother should be responsible for his delinquent bill. The [c]ourt
removes the Verizon bill of $1,222.38 from the division of the
marital estate and finds that Father is solely responsible for the
payment of that bill and he shall hold Mother harmless
therefrom.
(Appellant’s App. Vol. II, p. 34).
[39] Mother testified that each party was responsible for their own cellphone bills
during their marriage, and that the parties continued with this same
arrangement post-filing. In addition, the record shows that Father’s Verizon
account also included a third user, Father’s mother. Based upon the record and
given that the trial court indicated that it intended to divide the marital estate
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equally and did find that the presumption of equal division had been rebutted,
with respect to the Verizon invoice. In short, the trial court’s determination
that the Verizon bill should be set aside to Father has evidentiary support, and
we hold that the trial court did not abuse its discretion in failing to include that
bill in the marital pot
C. Total Development Construction Bill
[40] Father contends that the trial court erred by including a construction bill
incurred by Mother after the filing date of the dissolution as a marital debt.
Father claims that this construction bill was a post-filing expense.
[41] When a party challenges the trial court’s division of marital property, he must
overcome a strong presumption that the court considered and complied with
the statute. Galloway v. Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006).
We may not reweigh the evidence or assess the credibility of witnesses, and we
will consider only the evidence most favorable to the trial court’s judgment. Id.
Although the facts and reasonable inferences might allow for a different
conclusion, we will not substitute our judgment for that of the trial court. Id.
In general, any debt incurred by one party after the filing date of the dissolution
petition is not to be included in the marital pot. Sanjari v. Sanjari, 755 N.E.2d
1186, 1192 (Ind. Ct. App. 2001).
[42] On the construction expenses at issue, the trial court entered the following
findings:
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102. At some point during the marriage, Mother obtained a
second mortgage on the marital residence to be used to improve
and repair the property. Before the parties separated, Father
began doing some work inside and outside of the residence.
Before he completed the work, the parties separated and Father
left an unfinished garage, basement, siding and driveway.
103. The condition of the marital residence was such that the
City of Valparaiso Inspector threatened to issue citations to
Mother for the work that was left unfinished.
104. In order to avoid being cited by the City, Mother hired
Total Development Construction, Inc. to complete enough work
on the residence to bring it into compliance with the City. These
repairs cost Mother $3,400.00.
105. The [c]ourt finds the debt of $3,400 should be included in
the division of the marital estate despite being incurred after the
parties separated because these expenses were specifically
incurred due to work that was in progress before the dissolution
proceedings began and necessary to prevent the marital residence
and the home of the parties’ minor child from being the subject of
fines and/or litigation with the City of Valparaiso.
(Appellant’s App. Vol. II, pp. 37-38).
[43] Father claims that Mother did not present any evidence that the “structure
violated any city codes when construction began.” (Appellant’s Br. p. 31).
Father also argues that Mother did not object to any of the home repairs during
the marriage. Father’s arguments on appeal essentially ask us to reweigh his
evidence and judge his credibility, which we will not do. While the repair
expenses were post-filing expenses, Mother testified that all the repairs related
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019 Page 25 of 26
to unfinished projects commenced by Father during their marriage. Indeed, we
presume the trial court followed the law and made all the proper considerations
in making its decision. See Maxwell v. Maxwell, 850 N.E.2d 969, 973 (Ind. Ct.
App. 2006), trans. denied. Therefore, we are satisfied that the trial court properly
included the construction repair costs in the marital estate.
CONCLUSION
[44] Based on the foregoing, we conclude that the trial court properly found that
Father was voluntarily underemployed, and we affirm the trial court’s
calculation of Father’s imputed weekly gross income. Also, we conclude that
the trial court did not abuse its discretion by finding Mother was not in
contempt of the parenting time order. Lastly, we hold that the trial court did
not abuse its discretion in dividing the marital estate.
[45] Affirmed.
[46] Vaidik, C. J. and Bradford, J. concur
Court of Appeals of Indiana | Memorandum Decision 18A-DR-1241 | September 12, 2019 Page 26 of 26
Dennis Challoner v. Wendy Challoner (mem. dec.)
Combined Opinion