Bizik v. Bizik

• Decision Date: 17 August 2001
• Docket Number: No. 64A03-0012-CV-451.,64A03-0012-CV-451.
• Citation: 753 N.E.2d 762
• Parties: Daniel BIZIK, Appellant-Respondent, v. Brenda BIZIK, Appellee-Petitioner.
• Court: Indiana Appellate Court

753 N.E.2d 762

Daniel BIZIK, Appellant-Respondent, v. Brenda BIZIK, Appellee-Petitioner.

No. 64A03-0012-CV-451.

Court of Appeals of Indiana.

August 17, 2001.

Russell T. Clarke, Jr., Emswiller, Williams, Noland & Clarke, Indianapolis, IN, Attorney for Appellant.

Karl L. Mulvaney, Nana Quay-Smith, Bingham Summers Welsh & Spilman LLP, Indianapolis, IN, Steven Langer, Valparaiso, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, Daniel Bizik ("Dan"), challenges the trial court's division of marital assets and award of spousal maintenance, upon the dissolution of his marriage to Appellee-Petitioner, Brenda Bizik ("Brenda").

We affirm in part, and reverse and remand in part.

ISSUES

On appeal, Dan raises five issues for our review, which we restate as follows:

1. Despite finding that Dan's Executive Retirement Plan was not vested, whether the trial court erred by including Dan's Executive Supplemental Retirement Plan in the marital estate, and thereby awarding Brenda seventy percent (70 %) of the value of said plan.

2. Whether the trial court abused its discretion by ordering Dan to pay Brenda spousal maintenance in the amount of $400.00 per week, above and beyond her awarded share of the marital estate in the amount of $1,059,044.00.

3. Whether the trial court erred by finding that Dan's "unilateral decision to invade the martial estate and purportedly use certain monies for payment of the children's educational expenses was in violation of this Court's Agreed Provisional Order." (R. 110).

4. Whether the trial court erred by denying Dan's claim to set off the marital estate in the sum of $23,000.00, for monies he claims was received from his mother.

5. Whether the trial court abused its discretion by finding factors to support a deviation from the presumption of an equal marital property division, thereby awarding Brenda 70% of the marital estate.

FACTS AND PROCEDURAL HISTORY

Dan and Brenda were married on June 1, 1968, and two children were born of the marriage, Blair and Blaine. Brenda filed a Petition for Separation on September 30, 1997.

On October 1, 1997, a joint preliminary injunction was issued, precluding both parties from incurring any debt or obligation that would create a debt or obligation for the other party. Moreover, the injunction precluded either party from disposing of joint property without the consent of the other party or by permission of the trial court.

On July 24, 1998, Brenda filed a Petition for Dissolution of Marriage and Provisional Order. Subsequently, a Joint Mutual Restraining Order was entered, restraining either party from transferring, encumbering, concealing, or otherwise disposing of joint property, except for the necessities of life, without the written consent of the other party, or without permission of the trial court. The parties thereafter entered into an agreed provisional order on January 16, 1999, which was filed with the trial court on March 3, 1999. On August 23, 1999, Dan filed a cross motion Petition for Dissolution of Marriage.

On December 14, 1999, the hearing commenced on the parties' petitions for dissolution of marriage. The hearing was reconvened on April 27, 2000, and concluded on May 3, 2000. On July 19, 2000, the trial court's Findings of Fact, Conclusions of Law and Dissolution Decree were entered.

Pursuant to the Dissolution Decree, the trial court ordered that Dan shall pay Brenda $400.00 per week as maintenance. Moreover, the trial court found that the total marital estate is valued at $1,512,920.00, to which Brenda is entitled to $1,059,044.00. The trial court further found that evidence supported a deviation from the statutory presumption of equal division of marital assets, and therefore, the trial court awarded Brenda 70% of the marital estate. Pursuant to the property distribution, Brenda received only $945,337.52, and therefore, in order to effectuate a 70% division to Brenda, the trial court awarded Brenda a judgment in her favor and against Dan in the amount of $113,706.48. Dan now appeals.

DISCUSSION AND DECISION

Standard of Review

In this case, the trial court entered findings and conclusions pursuant to Ind.Trial Rule 52(A). On appeal, we will not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Id. Findings are clearly erroneous when the record contains no facts to support them either directly or by inference. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). The judgment is clearly erroneous if the findings do not support the conclusions of law or the conclusions of law do not support the judgment. Id.

The disposition of marital assets is within the sound discretion of the trial court. Chase v. Chase, 690 N.E.2d 753, 756 (Ind.Ct.App.1998). "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 applicable statute, and that presumption is one of the strongest presumptions applicable to our consideration on appeal." In re Marriage of Bartley, 712 N.E.2d 537, 542 (Ind.Ct.App.1999). In reviewing a trial court's disposition of the marital assets, we focus on "`what the court did, not what it could have done.'" Chase, 690 N.E.2d at 756 (quoting Fiste v. Fiste, 627 N.E.2d 1368, 1372 (Ind.Ct.App. 1994), disapproved of on other grounds by Moyars v. Moyars, 717 N.E.2d 976 (Ind. Ct.App.1999), trans. denied).

Therefore, when we review a claim that the trial court improperly divided marital property, we must decide whether the trial court's decision constitutes an abuse of discretion, considering only the evidence most favorable to the trial court's disposition of the property, without reweighing the evidence or assessing the credibility of witnesses. Hodowal v. Hodowal, 627 N.E.2d 869, 871 (Ind.Ct. App.1994), trans. denied. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Myers v. Myers, 560 N.E.2d 39, 42 (Ind.1990). An abuse of discretion also occurs when the trial court has misinterpreted the law or disregards evidence of factors listed in the controlling statute. 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. Bartley, 712 N.E.2d at 542.

Ind.Code § 31-15-7-4(a) provides that in an action for dissolution of marriage, the trial court shall divide the property of the parties, regardless of whether it was:

(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.

I. Executive Supplemental Retirement Plan

The question in our case is whether Dan's Executive Supplemental Retirement Plan is marital property under the relevant statute, Ind.Code § 31-9-2-98(b), which provides:

"Property," for purposes of [marriage dissolution] means:

all the assets of either party or both parties, including:

(1) a present right to withdraw pension or retirement benefits;

(2) the right to receive pension or retirement benefits that are not forfeited upon termination of employment or that are vested (as defined in Section 411 of the Internal Revenue Code) but that are payable after the dissolution of marriage; and

(3) the right to receive disposable retired or retainer pay (as defined in 10 U.S.C. 1408(a)) acquired during the marriage that is or may be payable after the dissolution of marriage.

Therefore, because this section of our Dissolution of Marriage Act permits the inclusion of certain pension-type interests in the marital pot for division, we must determine whether Dan's Executive Supplemental Retirement Plan is "property" that falls within any of the categories of Ind.Code § 31-9-2-98.

Dan argues that the trial court erred by including his Executive Supplemental Retirement Plan in the marital pot for division. Specifically, Dan contends that the trial court improperly awarded Brenda an interest in his future income that he had no present right to withdraw and was not vested.

On the other hand, Brenda acknowledges that although all marital property goes into the marital pot for division, only property with a vested interest at the time of dissolution may be divided as a marital asset. Dowden v. Allman, 696 N.E.2d 456, 458 (Ind.Ct.App.1998). Nevertheless, Brenda claims that Dan failed to overcome his burden of proving that an asset is exempt from the marital pot. Specifically, Brenda argues that Dan failed to carry his burden of demonstrating that the Executive Supplemental Retirement Plan was not vested or that he had no present right to withdraw the benefits. However, this Court has continually held that absent any clear evidence that a pension was vested, a trial court should exclude the pension plan from the marital pot. See Dowden, 696 N.E.2d at 458 (holding that absent any clear evidence that the pension was vested, the trial court appropriately excluded it from the marital pot); see also Grammer v. Grammer, 566 N.E.2d 1080, 1083 (Ind. Ct.App.1991) (holding that the trial court erroneously included the husband's pension plan in the marital assets where the record was not clear that the pension has vested). Therefore, Brenda's argument that it was Dan's burden to demonstrate that his Executive Supplemental Retirement was not vested simply is not supported by the case law.

Moreover, in order to include pension benefits as marital property, the benefits must not be forfeited at the termination of employment or the benefits must be vested and payable either before or after the dissolution. Hodowal, 627 N.E.2d at 869. Nevertheless,...