Wanner v. Hutchcroft

• Decision Date: 06 December 2010
• Docket Number: No. 79A02-1004-DR-467,79A02-1004-DR-467
• Parties: BARRY WANNER, Appellant/Petitioner, v. JILL HUTCHCROFT, Appellee/Respondent.
• Court: Indiana Appellate Court

BARRY WANNER, Appellant/Petitioner,

v.JILL HUTCHCROFT, Appellee/Respondent.

No. 79A02-1004-DR-467

COURT OF APPEALS OF INDIANA

FILED: December 6, 2010

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

DANIEL J. MOORE

Laszynski & Moore

Lafayette, Indiana

ATTORNEY FOR APPELLEE:

JENNIFER M. FEHRENBACH

Holder and Fehrenbach

Lafayette, Indiana

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Thomas H. Busch, Judge

Cause No. 79D02-0609-DR-307

MEMORANDUM DECISION-NOT FOR PUBLICATION

BRADFORD, Judge Appellant/Petitioner Barry Wanner ("Husband") appeals from the trial court's order that he pay Appellee/Respondent and former wife Jill Hutchcroft ("Wife") $37,074.00 to compensate her for a tax liability assumed when she liquidated part of Husband's TIAA-CREF retirement account. The trial court's October 11, 2007, dissolution decree provided, inter alia, that Wife could liquidate $137,500.00 of Husband's TIAA-CREF account in order the satisfy the amount set over to Wife and that Husband would assume any tax liability incurred by her as a result. The dissolution decree, however, provided that Husband would only be responsible for Wife's tax liability if the liquidation occurred within six months, which it did not. In this second appeal from the dissolution, Husband claims that the trial court abused its discretion in ordering that he satisfy Wife's tax liability incurred from the July 14, 2009, liquidation of $135,000.00 of Husband's TIAA-CREF account. Concluding that the trial court did not abuse its discretion in this regard, we affirm.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case were set forth in the opinion we issued following Husband's appeal of the trial court's original division of the marital estate:

The parties were married on September 29, 1990. On September 19, 2006, Barry petitioned to dissolve the marriage. A final hearing was conducted on August 30, 2007, at which exhibits were presented and argument of counsel was heard. At that time, Barry was employed as a college professor earning over $100,000 annually and Jill was unemployed due to clinical depression. She had previously been employed as an assistant professor.

The parties were in substantial agreement as to the appropriate date of valuation and the current value of the marital assets. However, they disagreed as to the proportional distribution. Jill requested that the trial court divide the marital estate equally, while Barry requested that hereceive a larger share. His request was premised upon his acquisition of certain assets before the marriage and the fact that he is thirteen years older than Jill and likely to retire earlier.

On October 11, 2007, the trial court dissolved the parties' marriage and determined that the marital estate (valued as of May 31, 2006) should be divided equally. Barry was to retain the marital residence, investment accounts and pension funds and was ordered to pay Jill $532,100 as an equalization payment. However, the trial court found that Barry had dissipated assets existing at the time of separation such that the liquid funds were largely depleted. Accordingly, the trial court ordered that Jill could elect (within six months from the decree) to withdraw $137,500 in pension funds and Barry would be responsible for the tax consequences of the liquidation. Alternatively, Barry could pay Jill $137,500 in cash, reducing her portion of the pension funds to $394,600.

....

The trial court found that Barry dissipated marital assets as follows:

Sometime in February of 2006, the Husband began transferring joint funds from an account at Purdue Employees Federal Credit Union to an account set up in his sole name. After May of 2006, the Husband began to dissipate assets of the parties, transferring certificates of deposit into accounts in his name only, and closed out Harvard bank accounts in his name. From the funds contained in those accounts, the Husband began traveling for pleasure, taking several trips to Asia, Japan, and other foreign countries, in most cases accompanied by a female companion whose travels were financed for the most part by the Husband. The Husband admitted spending over $30,000, at one point, to pay for an apartment in Taipei, China including the costs of residing there, along with his companion, for over a month. In addition, the Husband spent over $50,000 in other travels over a four month period and transferred over $80,000 to his son during that time. In June of 2006, the Husband withdrew from joint accounts approximately $200,000 to set up a trust fund for his son, his daughter, and his granddaughter. After that, the Husband mortgaged the marital home at 910 Vine Street, which, at the time, had no existing mortgage, receiving approximately $121,000 from the loan which was spent by the Husband on travels, gifts to his children, and other expenditures unaccounted for. Finally, during this period of time, the Husband also transferred $283,000 out of his TIAA-CREF account at Purdue into a high risk retirement account at UBS in Chicago.

Wanner v. Hutchcroft, 888 N.E.2d 260, 261-62, 264 (Ind. Ct. App. 2008) (footnotes omitted). On November 7, 2007, Husband filed his notice of appeal. Husband appealed the trial court's equal division of the marital estate and the trial court's directive that he bear responsibility for any tax liability that Wife may incur, should she choose to liquidate a portion of his TIAA-CREF account. Id. at 261.

Meanwhile, Wife's former counsel prepared a qualified domestic relations order ("QDRO") that the trial court approved on November 28, 2007. In a letter dated January 2, 2008, TIAA-CREF notified Wife that it could not process the QDRO while Husband's appeal was pending. In a published opinion issued on June 10, 2008, we affirmed the judgment of the trial court. Id. at 265. Shortly afterwards, Husband voiced objections to the provisions of the QDRO, TIAA-CREF changed its requirements for a QDRO, and a second QDRO was prepared.

On October 28, 2008, the trial court approved the second QDRO, which provided for a percentage allocation among certain contracts within the TIAA-CREF account to reach the $532,100.00 amount provided for in the original dissolution decree. The administrator for TIAA-CREF, however contacted Wife and informed her that the second QDRO was unacceptable because insufficient funds existed in the specified contracts to meet the threshold amount. The administrator suggested that the QDRO be amended by means of a letter of direction providing that the threshold amount be satisfied among all of the contracts within the account in a manner to be determined by the administrator. On January 19, 2009, a letter of direction reflecting the change was submitted to Husband, which letter Husband refused to sign.

At some point, a third amended QDRO was nonetheless prepared, and, in a letter dated May 28, 2009, TIAA-CREF notified the parties that the third amended QDRO was acceptable. On June 8, 2009, the trial court approved the third amended QDRO. On July 14, 2009, TIAA-CREF disbursed $135,000.00 to Wife, and she incurred a state and federal tax liability of $37,074.00 as a result. On December 15, 2009, Wife filed a petition for payment of tax liability and attorney's fees. On March 31, 2010, the trial court ordered that Husband pay Wife $37,074.00 and that each party pays its own attorney's fees.

DISCUSSION AND DECISION

Whether the Trial Court Abused its Discretion Ordering

Husband to Assume Wife's Tax Liability

Where, as here, the trial court sua sponte enters specific findings of fact and conclusions, we review its findings and conclusions to determine whether the evidence supports the findings, and whether the findings support the judgment. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). We will set aside the trial court's...