MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jun 23 2017, 8:47 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Dylan A. Vigh Paul J. Watts
Law Offices of Dylan A. Vigh, LLC Watts Law Office, P.C.
Indianapolis, Indiana Spencer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adrianne R. Helton, June 23, 2017
Appellant-Respondent, Court of Appeals Case No.
60A05-1609-DR-2202
v. Appeal from the Owen Circuit Court
The Honorable Kelsey B. Hanlon,
Timothy Joseph Helton, Special Judge
Trial Court Cause No.
Appellee-Petitioner.
60C02-1401-DR-5
Bradford, Judge.
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Case Summary
[1] In 2002, Appellant-Respondent Adrianne Helton (“Wife”) and Appellee-
Petitioner Timothy Helton (“Husband”) married and, in 2007 and 2008, built
the marital residence (“the House”) on land that they believed was owned by
Husband’s father. In 2010, the parties learned that the land on which the
House was built actually belonged to a neighbor. In 2014, Husband petitioned
for dissolution of the marriage, and the parties’ marriage was dissolved in 2016.
In dividing the marital estate, the trial court, inter alia, found that the parties had
no present ownership interest in the House and therefore did not include it in
the marital estate. Wife contends that the trial court abused its discretion in
failing to account for Husband’s continued use and occupation of the House.
Because Wife did not make this argument in the trial court, she has waived it
for our consideration, and we affirm.
Facts and Procedural History
[2] Husband and Wife were married on June 22, 2002. In late 2007, the couple
decided to build the House on land they believed to be owned by Husband’s
father. The couple executed a land contract with Husband’s father for
approximately $35,000.00, and Husband built the House as funds became
available over the course of three to six months. In 2010, Husband discovered
that the land upon which the House had been built was not, in fact, owned by
his father, but by a neighbor. At that point, Husband and Wife ceased making
payments on the land contract. Husband and Wife separated in November of
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2013, and, on January 21, 2014, Husband petitioned for dissolution of the
parties’ marriage. On May 23, 2016, the trial court held a hearing at which the
division of the marital estate was the main issue. Husband testified, inter alia,
that he continued to live in the House, pay property tax, pay for improvements,
and pay for insurance.
[3] On August 30, 2016, the trial court issued its order on the division of marital
property. The order provides, in part, as follows:
FINDINGS OF FACT
….
6. The [House] is located at 1549 Quincy Road, Quincy,
Indiana 47456. In 2007, the parties entered into an agreement
with [Husband’s] father to build that residence and purchase the
property on contract. Sometime in 2010 it came to the parties’
attention that the land upon which the residence is located is not
owned by [Husband’s] father but by a neighbor. Upon learning
of the mistake, the parties quit making payments on the land
purchase contract and that contract is no longer in effect. The
parties have no present ownership interest in the property and the
statutory time period to establish adverse possession has not yet
elapsed.
….
CONCLUSIONS OF LAW
….
6. An established foundation of Indiana family law and
martial property distribution is that only property with a vested
interest at the time of dissolution may be divided as a marital
asset. Vadas v. Vadas, 762 N.E.2d 1234, 1235 (Ind. 2002), citing
Mullins v. Matlock, 638 N.E.2d 854, 856 (Ind. Ct. App. 1994). A
vested interest is defined as an interest for which the right to its
enjoyment, either present or future, is not subject to the
happening of a condition precedent. Interest, Black’s Law
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Dictionary (10th ed. 2014). This line of reasoning helps promote
predictability, consistency and efficiency by excluding remote
and speculative interests from the marital estate. Vadas, 762
N.E.2d at 1235. The parties have no vested interest in the
Quincy residence or real estate.
Appellant’s App. Vol. II pp. 13-16. Wife contends that the trial court abused its
discretion in declining to consider the value of Husband’s continued use and
occupation of the House in dividing the marital estate.
Discussion and Decision
[4] The trial court entered findings of fact and conclusions of law pursuant to
Indiana Trial Rule 52.
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 County, 635
N.E.2d 153, 158 (Ind. 1994) (citation omitted). Findings will
only be set aside if they are clearly erroneous. Id. “Findings are
clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Id. (citation
omitted). 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 in part, 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.
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Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). “On appellate review,
however, a trial court judgment may be affirmed if sustainable on any basis in
the record, even though not on a theory used by the trial court.” Benham v.
State, 637 N.E.2d 133, 138 (Ind. 1994).
Division of the Marital Estate
[5] Mother contends that the trial court abused its discretion in failing to consider
Husband’s continued use and occupation of the House in dividing the marital
estate. Our standard of review for a division of a marital estate is deferential:
We apply a strict standard of review to a dissolution court’s
distribution of property. Wallace v. Wallace, 714 N.E.2d 774, 781
(Ind. Ct. App. 1999), trans. denied. The party challenging the
property division must overcome a strong presumption that the
court complied with the statute and considered the evidence on
each of the statutory factors. Id. The presumption that a
dissolution court correctly followed the law and made all the
proper considerations in crafting its property distribution is one
of the strongest presumptions applicable to our consideration on
appeal. Id.
We will reverse a property distribution only if there is no rational
basis for the award; that is, if the result reached is clearly against
the logic and effect of the facts and circumstances before the
court, including the reasonable inferences to be drawn therefrom.
Id. at 781-82. In so determining, we cannot reweigh the
evidence, and consider only the evidence favorable to the
dissolution court’s decision. Cowden v. Cowden, 661 N.E.2d 894,
895 (Ind. Ct. App. 1996). We will also reverse where the trial
court has misinterpreted the law or has disregarded evidence of
statutory factors. Wallace, 714 N.E.2d at 782. However, that the
same circumstances may have justified a different property
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distribution will not permit us to substitute our judgment for that
of the divorce court. Id.
Wilson v. Wilson, 732 N.E.2d 841, 844 (Ind. Ct. App. 2000), trans. denied.
[6] The trial court excluded the House from the marital estate because it concluded
that neither party had any vested interest in it. There is sufficient evidence to
support this conclusion, which, indeed, Wife does not contest on appeal.
[7] Quite apart from the question of ownership of the House, Wife’s specific
contention on appeal is that the trial court abused its discretion in failing to
consider Husband’s continued use and occupancy of the House in dividing the
marital estate. Wife, however, did not make this argument in the trial court,
nor was there any evidence presented by either party touching on the value of
Husband’s use and occupancy of the House. Wife may not now raise this issue
for the first time on appeal.
It has long been the general rule in Indiana that an argument or
issue presented for the first time on appeal is waived for purposes
of appellate review. See, e.g., Plank v. Cmty. Hospitals of Ind., Inc.,
981 N.E.2d 49, 53 (Ind. 2013) (“[A]ppellate review presupposes
that a litigant’s arguments have been raised and considered in the
trial court.”); Ind. Dep’t of Envtl. Mgmt. v. Raybestos Prods. Co., 897
N.E.2d 469, 474 (Ind. 2008) (“Generally, an appellate court will
not review an issue that was not presented to the trial court.”),
corrected on reh’g, 903 N.E.2d 471 (Ind. 2009); Troxel v. Troxel, 737
N.E.2d 745, 752 (Ind. 2000) (“A party may not raise an issue for
the first time in a motion to correct error or on appeal.”); Franklin
Bank & Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind. 1990)
(“A party cannot change its theory and on appeal argue an issue
which was not properly presented to the trial court.”);
Indianapolis Newspapers, Inc. v. Fields, 254 Ind. 219, 260, 259
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N.E.2d 651, 670 (1970) (“We do not review issues presented for
the first time on appeal except to avoid grave injustice.”).
Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015).
[8] Wife has waived her only claim on appeal for our review. Therefore, the
judgment of the trial court is affirmed.
[9] Najam, J., and Riley, J., concur.
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