In re Marriage of Nickels, 25A03-0501-CV-34.

• Decision Date: 30 September 2005
• Docket Number: No. 25A03-0501-CV-34.,25A03-0501-CV-34.
• Citation: 834 N.E.2d 1091
• Parties: In re: the MARRIAGE OF Marcia NICKELS, Appellant-Respondent, and George Nickels, Appellee-Petitioner.
• Court: Indiana Supreme Court

834 N.E.2d 1091 In re: the MARRIAGE OF Marcia NICKELS, Appellant-Respondent, and
George Nickels, Appellee-Petitioner. No. 25A03-0501-CV-34. Court of Appeals of Indiana. September 30, 2005.

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Jay T. Hirschauer, Hirschauer & Hirschauer, Logansport, for Appellant.

Jim Brugh, Logansport, for Appellee.

OPINION

MATHIAS, Judge.

Marcia Nickels ("Wife") appeals from the Fulton Superior Court's division of property in a dissolution action filed by George Nickels ("Husband"). She raises three issues:

I. Whether the trial court erred when it adopted part of Husband's Proposed Findings of Fact and Conclusions of Law verbatim into its order;

II. Whether the trial court erred when it included the entire amount of Wife's pension in the marital estate; and,

III. Whether the trial court's valuation of several of Husband's assets constituted an abuse of discretion.

Concluding that the trial court's verbatim adoption of a portion of Husband's Proposed Findings and Conclusions is not clearly erroneous, that the trial court did not err by including Wife's pension in the martial estate, but that the trial court did abuse its discretion in valuing the assets of Husband's business, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Facts and Procedural History

Wife and Husband were married on February 14, 1997. Their daughter was born on February 24, 1997. Since 1971, Wife has worked on an assembly line for Federal Mogul in Logansport. Husband is self-employed as the owner of a small engine repair business. Wife inherited a sum of $100,127 from her parents' estate prior to the couple's marriage; however the amount was not distributed until April 1999.

On April 12, 2002, Husband filed a petition for dissolution of marriage. The matter was set for a bench trial on all issues on February 28, 2003. The parties agreed to reset the final hearing for March 28, 2003. The proceeding was continued to allow time for completion of court-ordered psychological evaluations of the parties. At the final hearing, conducted on July 25, 2003, Wife requested that the trial court issue findings of fact and conclusions of law. Both parties filed Proposed Findings of Fact and Conclusions of Law.

On November 6, 2003, Husband's counsel wrote the trial court, reminding the court that the matter remained under advisement. On December 17, 2003, Husband filed a request for an immediate order regarding parenting time for the parties' daughter's Christmas vacation, pointing out that no child custody order had yet been entered. Husband filed another request for a parenting time order on January 2, 2004.

The trial court scheduled a hearing for parenting time for March 8, 2004. The hearing was then reset for May 17, 2004. On June 29, 2004, more than two years after the dissolution petition was filed, and nearly a year after the final hearing was conducted, the trial court entered an agreed order regarding custody and parenting

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time. The order granted temporary custody to Wife and parenting time to Husband, but made no provision for child support.

On August 11, 2004, Wife filed a Praecipe for Withdrawal of Submission requesting that the trial court judge be disqualified pursuant to Trial Rule 53.2. On October 7, 2004, the Indiana Supreme Court remanded jurisdiction to the trial court, and ordered that the court render a decision within thirty days. The trial court then entered its findings of fact and conclusions of law on October 21, 2004. Wife now appeals.

Standard of Review

Wife requested findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A),

which prohibits a reviewing court on appeal from setting aside the trial court's judgment "unless clearly erroneous." The court on appeal is to give due regard to "the opportunity of the trial court to judge the credibility of the witnesses." When a trial court has made special findings of fact, as it did in this case, its judgment is "clearly erroneous only if (i) its findings of fact do not support its conclusions of law or (ii) its conclusions of law do not support its judgment."

Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind.2002) (internal citations omitted).

When the trial court engages in valuing assets in the course of acting on a dissolution action, it "has broad discretion" and

its valuation will only be disturbed for an abuse of that discretion. So long as there is sufficient evidence and reasonable inferences to support the valuation, an abuse of discretion does not occur. We will not weigh the evidence and will consider the evidence in the light most favorable to the judgment.

Wyzard v. Wyzard, 771 N.E.2d 754, 757 (Ind.Ct.App.2002) (citations omitted). "Although the facts and reasonable inferences might allow for a different conclusion, we will not substitute our judgment for that of the trial court." Elkins v. Elkins, 763 N.E.2d 482, 485 (Ind.Ct.App.2002) (quoting Bizik v. Bizik, 753 N.E.2d 762, 766 (Ind.Ct.App.2001), trans. denied).

Discussion and Decision I. Adoption of Husband's Proposed Findings and Conclusions

Wife contends that the trial court erred when it adopted verbatim a significant portion of Husband's Proposed Findings of Fact and Conclusions of Law, and that several of the adopted findings are unsupported by the evidence in the record.

A. Verbatim Adoption of Proposed Findings and Conclusions

In its order, the trial court adopted verbatim Husband's proposed findings numbered 26 through 50 as its findings numbered 16 through 40. Appellant's App. pp. 228-33, 17-21. Trial Rule 52(C) encourages trial courts to request that parties submit proposed findings of fact and conclusions of law and it is not uncommon or per se improper for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party. Clark v. Crowe, 778 N.E.2d 835, 841 n. 3 (Ind.Ct.App.2002) (citing A.F. v. Marion County Office of Family and Children, 762 N.E.2d 1244, 1249 (Ind.Ct.App.2002), trans. denied). When a party prepares proposed findings, they "should take great care to insure that the findings are sufficient to form a proper factual basis for the ultimate conclusions of the trial court." Marathon Oil Co. v. Collins, 744 N.E.2d 474, 477 n. 2 (Ind.Ct.App.2001) (citing Maloblocki v. Maloblocki, 646 N.E.2d 358, 361 (Ind.Ct.App.1995)). Moreover,

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"the trial court should remember that when it signs one party's findings, it is ultimately responsible for their correctness." Id. As noted by this court in Clark, we urge trial courts to scrutinize parties' submissions for mischaracterized testimony and legal argument rather than the findings of fact and conclusions of law as contemplated by the rule. 778 N.E.2d at 841 n. 3.

We encourage such scrutiny for good reason. As our supreme court has observed, the practice of accepting verbatim a party's proposed findings of fact "weakens our confidence as an appellate court that the findings are the result of considered judgment by the trial court." Cook v. Whitsell-Sherman, 796 N.E.2d 271, 273 n. 1 (Ind.2003) (citing Prowell v. State, 741 N.E.2d 704, 708-09 (Ind.2001)). However, as the court also noted, verbatim reproductions of a party's submissions are not uncommon, as "[t]he trial courts of this state are faced with an enormous volume of cases and few have the law clerks and other resources that would be available in a more perfect world to help craft more elegant trial court findings and legal reasoning." Prowell, 741 N.E.2d at 708. The need to keep the docket moving is properly a high priority for our trial bench. Id. at 709. For this reason, the practice of adopting a party's proposed findings is not prohibited. Id. Thus, although we by no means encourage the wholesale adoption of a party's proposed findings and conclusions, the critical inquiry is whether such findings, as adopted by the court, are clearly erroneous. See Saylor v. State, 765 N.E.2d 535, 565 (Ind.2002) (citing Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998)).

The trial court here did not adopt the entirety of Husband's proposed findings and conclusions. Nor did the trial court adopt the findings by way of a one-line order, but adopted them by means of an entry that recited each finding the court adopted. See Cook, 796 N.E.2d at 273 n. 1. We note that the trial court also adopted fifteen of Wife's proposed findings on the issue of custody. Appellant's App. pp. 15-17, 242-44. The trial court also adopted Wife's findings numbered 16, 17, 18, and 20 as its conclusions numbered 1, 2, 3, and 5. Id. pp. 244-45, 21-22. We must also note the extensive delay between the time the proposed findings and conclusions were submitted and the time the court entered its...