IN RE MARRIAGE OF BARTLEY

• Decision Date: 10 June 1999
• Docket Number: No. 87A04-9810-CV-492.,87A04-9810-CV-492.
• Citation: 712 N.E.2d 537
• Parties: In re the MARRIAGE OF: Ronald J. BARTLEY, Appellant-Respondent, and Carol Christine Bartley, Appellee-Petitioner.
• Court: Indiana Appellate Court

712 N.E.2d 537

In re the MARRIAGE OF: Ronald J. BARTLEY, Appellant-Respondent, and

Carol Christine Bartley, Appellee-Petitioner.

No. 87A04-9810-CV-492.

Court of Appeals of Indiana.

June 10, 1999.

S. Anthony Long, Boonville, Indiana, Attorney for Appellant.

Frank R. Hahn, Newburgh, Indiana, Attorney for Appellant.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

On June 17, 1996, Carol Christine Bartley ("Chris") filed a petition for dissolution of her marriage to Ronald J. Bartley ("Ron"). The parties entered into a provisional agreement, and the case was scheduled for a final hearing. However, the hearing was vacated while the parties attempted to reconcile. The parties lived together until April of 1998. On April 2, 1998, the court conducted the final hearing. On July 24, 1998, the court issued its Decree of Dissolution of Marriage. Ron filed a motion to correct error, which the court denied. He now appeals.

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

ISSUES

Ron presents four issues for review, and we address one issue sua sponte:

1. Whether the trial court abused its discretion when it deviated from an equal division of the parties' property.

2. Whether the trial court erred when it awarded Chris the value of the social security widow's benefits she forfeited when she married Ron.

3. Whether the trial court erred when it based Ron's child support obligation on past rather than present income.

4. Whether the trial court abused its discretion when it ordered Ron to pay Chris's attorney's fees.

5. Whether the trial court lacked jurisdiction to enter its "Court's Clarification of April 2,1998 Order."

FACTS

Ron and Chris were married on June 23, 1990. They had one child during the marriage, Chayna, born in December of 1992. Chris also had one child from a previous marriage, Kristopher, who was twelve years old at the time of the final hearing. Prior to her marriage to Ron, Chris received social security benefits as a result of the death of her first husband, Kristopher's father, both as a widow and on Kristopher's behalf. Chris's widow's benefits of $653.00 each month terminated when she married Ron. After the divorce, Chris will again become eligible for these benefits.

Before Chris married Ron, she had worked at Kimball Electronics and at Drake Corporation in Jasper. Chris left Jasper to move with Ron to his new job with Alcoa in Newburgh. Chris, who has a high school education, then began taking classes at the University of Southern Indiana. Chris is presently employed as a day care worker where she earns $6.50 per hour. She works between twenty-eight and thirty-two hours each week. She intends to continue her college education to earn a degree in either education or business.

In 1997, Ron earned $53,969.09 at Alcoa. In January of 1998, however, Ron was forced to change jobs because several senior employees were transferred to his department. Ron is currently training for a new position at Alcoa, and his hours have decreased. Through March of 1998, his year-to-date gross earnings were $11,506.

The parties purchased a marital residence in 1991. Ron contributed $25,000 from his 401K at Kimball Electronics, his previous employer, toward purchase of the home. The home's appraised value was $130,000 with a mortgage of $59,816. During the marriage, Ron paid the mortgage and most of the utility bills. Ron also paid for their daughter's dance lessons, but he did not pay for Chris's or Kristopher's clothing. He provided Chris with $60 each week for groceries. Chris used credit cards throughout the marriage to pay for ordinary living expenses for herself and her two children.

Ron participated in NASCAR and NCAA pools at work and lost money investing in the silver market. Around the time the parties separated, Ron borrowed $7,500 from his 401K plan because he was "running low on cash." Ron used $2,900 of the money he borrowed to purchase a four wheeler, which he wrecked and sold for $700.

In its dissolution decree, the trial court awarded Chris 64% of the parties' marital assets and attorney's fees. Ron now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Issue One: Unequal Property Distribution

Ron asserts that the trial court abused its discretion when it awarded Chris a greater percentage of the parties' marital property. He argues that the evidence presented at the final hearing does not support a deviation from the presumptive equal division.

Under Indiana Code Section 31-1-11.5-11(b),¹ the trial court shall divide the property of the parties in a just and reasonable manner, and that includes property owned by either spouse prior to the marriage, acquired by either spouse after the marriage and prior to final separation of the parties, or acquired by their joint efforts. In re Marriage of Coyle, 671 N.E.2d 938, 941 (Ind.Ct.App.1996). An equal division of the marital property is presumed to be just and reasonable. IND.CODE § 31-1-11.5-11(c); Cowden v. Cowden, 661 N.E.2d 894, 895 (Ind. Ct.App.1996). However, that presumption may be rebutted by a party who presents relevant evidence of any of the following factors:

(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 prior to the marriage or 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 may deem 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 final division of property and final determination of the property rights of the parties.

IND.CODE § 31-1-11.5-11(c). If the trial court determines that a party opposing an equal division has met his or her burden under the statute, the court must, in its findings and judgment, based on the evidence, state its reasons for deviating from the presumption that an equal division is just and reasonable. IND.CODE § 31-1-11.5-11(c); see also In re Marriage of Davidson, 540 N.E.2d 641, 646 (Ind.Ct.App.1989)

.

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. Coyle, 671 N.E.2d at 942. While the applicable statute presumes that an equal distribution is just and reasonable, the division of marital assets is a matter committed to the sound discretion of the trial court. Chase v. Chase, 690 N.E.2d 753, 755 (Ind.Ct.App.1998). On appeal we must decide whether the trial court's decision is clearly erroneous or constitutes an abuse of discretion. 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. Bloodgood v. Bloodgood, 679 N.E.2d 953, 957 (Ind. Ct.App.1997). We will reverse a division of marital property for an abuse of discretion only when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, when the trial court has misinterpreted the law or has disregarded evidence of factors listed in the controlling statute. Hodowal v. Hodowal, 627 N.E.2d 869, 871 (Ind.Ct.App.1994), trans. denied.

In this case, the dissolution decree provides three reasons for the unequal division. The decree states:

S. That [Chris] is entitled to more than one-half of the marital equity for the reasons that she resigned full-time employment at the request of [Ron] to assume full-time housewife responsibilities and to care for her child and eventually the child of the parties; further, that despite significant income [Ron] has dissipated marital assets and failed to pay and provide for household and family living expenses on account of his gambling which has resulted in the present amount of unsecured debt of the parties, and that [Chris] earns at this time far less than [Ron].

On appeal, Ron challenges two of the court's three reasons for awarding Chris a greater share of the marital estate: that Chris resigned full-time employment at Ron's request and that Ron dissipated marital assets.

First, Ron admits that "the evidence is inconsistent on the issue of whether or not [Chris] resigned full-time employment at Ron's request to assume the duties of a housewife and mother." By conceding that conflicting evidence exists on this issue, Ron asks that we reweigh the evidence. The evidence most favorable to the court's judgment shows that Chris and Ron were married when Ron decided to take a new job with Alcoa. Chris quit her job at Drake Corporation to move with Ron. After the parties relocated, Chris worked in day care and a few other part-time jobs. This evidence supports the unequal division. See IND.CODE § 31-1-11.5-11(c)(3) and (c)(5).

Ron also challenges the court's determination that Ron dissipated marital assets. Dissipation has been described as the frivolous, unjustified spending of marital assets which includes the concealment and misuse of marital property. Coyle, 671 N.E.2d at 943 (citing Volesky v. Volesky, 412 N.W.2d 750, 752-53 (Minn.Ct.App.1987)). In Coyle, this court held that the proper test to determine whether a spouse dissipated marital assets is "whether the asset was actually wasted or misused." Id. at 944. Factors that a trial court may consider in determining whether assets have been dissipated include: (1) evidence of an intent to hide, divert or deplete the asset; (2) whether the expenditure was made for a purpose entirely...