Bruce A. Craig v. Cynthia E. Craig

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: ATTORNEY FOR APPELLEE:

LINDSEY A. GROSSNICKLE WILLIAM A. RAMSEY

Bloom Gates & Whiteleather, LLP Murphy Ice & Koeneman LLP

Columbia City, Indiana Fort Wayne, Indiana

FILED

Jul 30 2012, 9:15 am

IN THE CLERK

of the supreme court,

court of appeals and

tax court

COURT OF APPEALS OF INDIANA

BRUCE A. CRAIG, )

)

Appellant-Respondent, )

)

vs. ) No. 92A03-1112-DR-584

)

CYNTHIA E. CRAIG, )

)

Appellee-Petitioner. )

APPEAL FROM THE WHITLEY CIRCUIT COURT

The Honorable James R. Heuer, Judge

Cause No. 92C01-1010-DR-707

July 30, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary

The trial court dissolved the marriage of Bruce A. Craig (“Husband”) and Cynthia E.

Craig (“Wife”). On appeal, Husband challenges the trial court‟s division of property.

Husband raises four issues, which we restate as follows: (1) whether the trial court abused its

discretion by not calculating and awarding to Husband the equity that he had in the marital

residence before the marriage; (2) whether the trial court committed reversible error by

awarding Wife fifty percent of the coverture portion of Husband‟s Dana pension; (3) whether

the trial court committed reversible error by removing certain assets from the marital pot; and

(4) whether the trial court abused its discretion by ordering Husband to pay a portion of

Wife‟s attorney‟s fees.

We conclude that Husband has waived the first issue because he did not present

evidence concerning the amount of equity that he had in the marital residence before the

marriage. As to the second issue, we conclude that any error was harmless, because

application of the coverture fraction formula results in an award of $0 to Wife. As to the

third issue, we conclude that Husband invited the trial court‟s error by submitting a proposed

property division that employed essentially the same methodology as that used by the trial

court. Finally, we disagree with Husband‟s implication that Wife is voluntarily unemployed

and find no abuse of discretion in the trial court‟s award of attorney‟s fees. Therefore, we

affirm.

Facts and Procedural History

Prior to their marriage, Husband and Wife each owned a home. Around January 2002,

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Husband and Wife began living together in Husband‟s home. After they became engaged,

Wife sold her house. After their marriage on September 25, 2004, Husband and Wife

continued to live in the home that had originally belonged to Husband. They had no children

together, although each had children from previous marriages.

On October 15, 2010, Wife filed a petition for dissolution. After a failed attempt at

mediation, the trial court held an evidentiary hearing on August 9, 2011. At that time, Wife

had been working at Coupled Products (previously Dana Corporation) for nearly thirty-five

years. However, in 2011, Wife‟s wage was cut from $13.83 per hour to $9.23 per hour. In

addition, the cost of medical insurance was greatly increased. In June 2011, Coupled

Products‟ employees went on strike. Since then, Wife had been receiving $200 a week from

her union, and she received benefits at no extra cost. Wife has received notice that the

company is planning to move operations to Mexico. Husband had also previously worked for

Dana Corporation; however, in 2003, he started working for Nishikawa Standard. Although

he had been laid off during 2008, throughout the marriage, he had typically earned more than

Wife. For the 2010 tax year, Husband had earned about 69% of the household income.

Wife testified that the net gain from the sale of her residence was $9968.94. From this

money, Wife paid about $1000 toward sewer hook-up for the marital residence and about

$1895 toward central air conditioning for the marital residence. The remainder of the money

was used to pay off her credit cards and for miscellaneous living expenses. The marital

residence remained in Husband‟s name alone until the couple refinanced in 2008. Husband

and Wife maintained separate checking accounts, but after the refinance, Wife started

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depositing $200 per month in Husband‟s account to help pay the mortgage. Wife testified

that money obtained through the refinance was used to pay off her credit cards and a loan on

a lawnmower that Husband had purchased. Also in 2008, Husband and Wife built a garage

and turned the back porch area into a living room. These improvements, which cost about

$9000 to $10,000, were paid for from their tax refund and money from their individual bank

accounts. In 2010, they installed a hot tub, which cost about $4000. They put about $2000

from their tax refund toward the hot tub. At the time of the hearing, the marital residence

was valued at about $110,000, and the parties still owed $54,352 on the mortgage.

Husband testified that he made the payments for the mortgage; property taxes; home,

auto, and medical insurance; utilities; and his car loan. Wife testified that she helped pay for

the sewer bill, the cell phone bill, groceries, gifts for their children and grandchildren,

vacations, her car loan, and her life insurance. Wife stated that she helped pay for additional

expenses during the time when Husband was laid off. Wife testified that she used to get

medical insurance through her employer, but a few years before the separation, the cost of

that insurance increased greatly, so it was more affordable for her to be covered by the plan

offered by Husband‟s employer. Wife also estimated that she did about seventy percent of

the household chores.

On November 23, 2011, the trial court issued a dissolution decree, which included the

following provisions concerning property division:

17. Each party shall receive his or her premarital personal property,

investment assets, and pension assets as valued as of the date of this marriage.

18. The real estate is a jointly held asset. Each party has contributed to

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the equity in the real estate. The net value of the real estate is a marital asset to

be divided equally.

19. Subject to finding #17, there shall be an equal division of the net

marital estate.

20. The marital estate is valued and divided as follows.

ASSETS TO TO WIFE

HUSBAND

A. Real Estate … $110,000.00

B. Personal Property $36,048.00 $9,571.00

Accumulated during

marriage

C. Fort Financial IRA $401.00

(Marital Portion)

D. Nishiwak[a]/Enveritus $3,868.00

E. Modern Woodman $3,797.00

F. Star Joint Checking $35.00

G. Star Joint Checking $45.00

H. Edward Jones $21,488.00 $21,488.00

[401(k)]

I. Husband‟s Fort $6,167.00

Financial Accounts

J. Wife‟s Edward Jones $4,865.00

Account

K. AXA Equitable LIP $1,274.00

(Marital Portion)

L. Wife‟s Fort Financial $429.00

Accounts

M. Husband‟s DANA QDRO QDRO

Corp. Pension

(Marital Share)

TOTAL ASSETS $181,849.00 $37,627.00

DEBT

N. Fort Financial FCU $54,352.00

Mortgage

O. Fort Financial FCU $18,770.00

Fusion

P. Partner 1st FCU $3,586.00

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Taurus

Q. Cap One Card $1,971.00

R. Sears Card $5,121.00

S. Kohls Card $332.00

TOTAL DEBTS $75,093.00 $9,039.00

T. Net Assets $106,756.00 $28,588.00

U. Equalization Payment -39,084.00 +39,084.00

V. Distribution to each $67,672.00 $67,672.00

party

….

23. [Wife] shall receive 50% of the coverture portion (September

25, 2004 through September 22, 2007) of [Husband‟s] Dana Corporation

Pension Plan pursuant to a Qualified Domestic Relations Order as provided

in finding #20 M.

….

25. [Husband] shall pay $3,500.00 of [Wife‟s] attorney fees to

[Wife‟s] attorney within 60 days.

Appellant‟s App. at 9-11. Husband now appeals.

Discussion and Decision

Husband is challenging the trial court‟s distribution of property. The division of

marital assets is within the trial court‟s discretion, and we will reverse only for an abuse of

that discretion. Alexander v. Alexander, 927 N.E.2d 926, 933 (Ind. Ct. App. 2010), trans.

denied. Where, as here, the trial court has entered findings of fact and conclusions thereon

pursuant to Indiana Trial Rule 52(A), we first determine whether the evidence supports the

findings and then whether the findings support the judgment. Id. at 934. The trial court‟s

findings and conclusions will be set aside only if they are clearly erroneous. Id. We do not

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reweigh the evidence or assess the credibility of the witnesses, but consider only the evidence

most favorable to the judgment. Id.

I. Marital Residence

“In a dissolution action, the trial court must divide marital property in a just and

reasonable manner, including property owned by either spouse prior to the marriage, acquired

by either spouse after the marriage and prior to final separation, or acquired by their joint

efforts.” Keown v. Keown, 883 N.E.2d 865, 868 (Ind. Ct. App. 2008) (citing Ind. Code § 31-

15-7-4). There is a rebuttable presumption that an equal division of the marital property is

just and reasonable. Ind. Code §31-15-7-5. The trial court may consider various factors

when determining whether the presumption has been rebutted, including the contribution of

each spouse to the acquisition of property, the extent to which the property was acquired by

each spouse before marriage or through inheritance or gift, the economic circumstances of

each spouse at the time of the division, conduct of the parties as related to dissipation of

property, and earnings or earning ability of the parties. Id.

In this case, Husband and Wife each came to the marriage with assets of their own,

and during the marriage, they endeavored to some extent to keep their assets separate. The

trial court determined that each party should keep the assets owned prior to the marriage, and

it appears that both parties desired this outcome. Husband argues that, in light of the fact that

the trial court awarded the parties all other assets that they owned prior to the marriage, the

court abused its discretion by not awarding him the equity that he had in the marital residence

prior to the marriage. However, Husband concedes that “there are certain factors missing

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from the record for the trial court to be able to determine whether the martial residence had

any accumulated equity prior to the marriage.” Appellant‟s Br. at 11. Husband may not

claim reversible error based on his own failure to introduce evidence. See Perkins v.

Harding, 836 N.E.2d 295, 301 (Ind. Ct. App. 2005) (“[A]ny party who fails to introduce

evidence as to the specific value of the marital property at the dissolution hearing is estopped

from appealing the distribution on the ground of trial court abuse of discretion based on that

absence of evidence.”) (quoting In re Marriage of Church, 424 N.E.2d 1078, 1081-82 (Ind.

Ct. App. 1981)). The burden of producing evidence as to the value of marital property is on

the parties, not the court. Id. By asking us to remand for further evidentiary proceedings,

Husband is essentially asking us for a second bite at the apple. He cites no authority

indicating that he is entitled to an additional opportunity to present evidence.

The evidence that was presented supports the trial court‟s conclusion that the

residence should be treated differently than other premarital assets. Wife also owned a home

before the marriage. She sold the home and invested a portion of the proceeds to make

improvements to Husband‟s residence. Wife also testified that she and Husband both

contributed to paying for the addition of a garage, living room, and hot tub. Wife testified

that when they refinanced in 2008, the new loan paid off the original mortgage, her credit

cards, and the loan on a lawnmower that Husband purchased. After the refinance, she

contributed $200 per month to the mortgage payment. Wife also estimated that she

performed more than half of the work to maintain the property, such as mowing and cleaning.

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Although Husband contradicted some of her testimony, we consider only the evidence

favorable to the judgment, and based on that evidence, we find no abuse of discretion.

II. Division of Pension

The trial court determined that Wife “shall receive 50% of the coverture portion

(September 25, 2004 through September 22, 2007) of [Husband‟s] Dana Corporation Pension

Plan.” Appellant‟s App. at 11. The trial court did not calculate the value of this asset in the

table included in its order, but simply entered the text, “QDRO.” Id. at 10. Husband argues

that the undisputed evidence indicates that his Dana pension ceased to accrue before the

marriage. Wife concedes that this is true. Husband ceased employment with Dana

Corporation in 2002, before Husband and Wife were married. See Hardin v. Hardin, 964

N.E.2d 247, 251 (Ind. Ct. App. 2012) (“Pension funds accrue during an employee‟s service

to his or her employer and cease to accrue when an employee‟s employment ends, either by

retirement or other means.”).

Nevertheless, Wife argues that the error was harmless because it results in an award of

$0. We have described the coverture fraction formula as follows:

The “coverture fraction” formula is one method a trial court may use to

distribute pension or retirement plan benefits to the earning and non-earning

spouses. Under this methodology, the value of the retirement plan is

multiplied by a fraction, the numerator of which is the period of time during

which the marriage existed (while pension rights were accruing) and the

denominator is the total period of time during which pension rights accrued.

In re Marriage of Preston, 704 N.E.2d 1093, 1098 n.6 (Ind. Ct. App. 1999). Using this

formula, the numerator of the coverture fraction is zero, resulting in a sum of $0. Because

Wife concedes that this provision of the court‟s order does not entitle her to any money, we

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agree that the error was harmless. See Keown, 883 N.E.2d at 870-71 (affirming division of

property that may have erroneously included an asset in which the parties had no interest

because neither party was prejudiced, and therefore any error was harmless).

III. Exclusion of Assets from Marital Pot

Husband argues that the trial court erred by first setting aside the assets that each party

accumulated prior to the marriage and then dividing the remaining assets in half. In support,

he cites Montgomery v. Faust, 910 N.E.2d 234 (Ind. Ct. App. 2009). In a previous appeal in

that case, we instructed the trial court to put all of the marital property, including property

owned by the parties prior to the marriage, into the marital pot before determining the

appropriate division. On remand, the court purported to place all assets in the marital pot, but

then, “citing the short duration of the marriage, stated that it was returning to each party all

property that each owned prior to the marriage „and thereafter equitably dividing the

remaining Assets and Debts on a substantially equal basis.‟” Id. at 237 (citation to record

omitted). The wife appealed a second time, arguing that the trial court had not complied with

our instructions on remand. We agreed, stating:

The “one-pot” requirement is no mere technicality. When dividing marital

property, the trial court must, at a minimum, be “sufficiently apprised of the

approximate[ ] gross value of the marital estate.” The requirement that all

marital assets be placed in the marital pot is meant to insure that the trial court

first determines that value before endeavoring to divide property. In doing so,

the trial court is compelled to confront the actual extent of the disparate

treatment, if any, that results from its division of the property, rather than

merely labeling the distribution “unequal,” as the trial court did in this case. It

is not enough for a trial court to simply say that its distribution is “unequal”;

just as important is exactly how unequal the distribution is.… In short,

knowing the numerical split of the entire estate might alter the trial court‟s

view of the appropriateness of its property division.

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Id. at 238 (citations omitted).

Husband appears to be technically correct that the trial court did not properly apply the

“one-pot” method of dividing assets. However, we conclude that there is no reversible error

in this case. First, Husband has not identified which assets the trial court excluded from the

pot. From our review of the record, it appears that the trial court set aside each party‟s

personal property that was owned prior to the marriage. In addition, Husband received his

Dana pension and the portion of his Fort Financial IRA that accrued prior to the marriage,

and Wife received the portion of her Equitable Life Insurance Policy that accrued prior to the

marriage. Husband does not make any claim to any of these assets set aside to Wife; in fact,

he states that he “does not disagree the parties should be awarded premarital property.”

Appellant‟s Br. at 13-14. In fact, the trial court employed essentially the same methodology

as the proposed property division that Husband submitted to the trial court. See

Respondent‟s Ex. C (calculating the value of assets accumulated during marriage and

dividing them equally). In this case, any error by the trial court was invited by Husband. See

Berman v. Cannon, 878 N.E.2d 836, 839 (Ind. Ct. App. 2007) (“A party may not take

advantage of an error that he commits, invites, or which is the natural consequence of his

own neglect or misconduct. Invited error is not subject to review by this court.”) (citation

omitted), trans. denied. We decline to remand to the trial court for the sole purpose of

calculating the true percentage of the marital pot distributed to each party.

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IV. Attorney’s Fees1

Indiana Code Section 31-15-10-1(a) provides:

The court periodically may order a party to pay a reasonable amount for the

cost to the other party of maintaining or defending any proceeding under this

article and for attorney's fees and mediation services, including amounts for

legal services provided and costs incurred before the commencement of the

proceedings or after entry of judgment.

An award of attorney fees is reviewed for abuse of discretion. Hartley v. Hartley, 862

N.E.2d 274, 286 (Ind. Ct. App. 2007) (citations omitted).

We review a trial court‟s award of attorney fees in connection with a

dissolution decree for an abuse of discretion. The trial court abuses its

discretion if its decision is clearly against the logic and effect of the facts and

circumstances before it. When making such an award, the trial court must

consider the resources of the parties, their economic condition, the ability of

the parties to engage in gainful employment and to earn adequate income, and

other factors that bear on the reasonableness of the award.

Id.

Husband argues that the trial court abused its discretion by ordering him to pay a

portion of Wife‟s attorney‟s fees because the disparity in their income “is due, in large part,

1

In the last paragraph of her argument, Wife states that we “could … properly award additional

attorney fees” for defending an appeal. Appellee‟s Br. at 14. Wife does not appear to be arguing that

Husband‟s appeal was frivolous or in bad faith. See Ind. Appellate Rule 66(E) (authorizing an appellate court

to award attorney fees when an appeal is frivolous or in bad faith). Instead, she relies on Burkhart v. Burkhart,

169 Ind. App. 588, 599-600, 349 N.E.2d 707, 714-15 (Ind. Ct. App. 1976), in which we stated that “trial

courts have [broad] discretion in awarding or denying attorneys‟ fees in divorce actions,” and that appellate

fees “are also a proper element of an award for attorneys‟ fees.” Burkhart is not on point because Wife never

requested appellate attorney fees from the trial court. While a trial court has broad discretion for awarding

attorney fees, we are typically more cautious in ordering attorney fees, as we do not wish to chill the right to

appeal. See Novatny v. Novatny, 872 N.E.2d 673, 682 (Ind. Ct. App. 2007) (declining to award appellate

attorney fees where one party failed to comply with Appellate Rules, but we concluded that the noncompliance

did not rise to the level of “flagrant” disregard for the rules). Although Wife‟s attorney represents that he is

representing her pro bono, we cannot determine from the record before us that Wife would have been unable to

defend the appeal using her own financial resources. In fact, Wife‟s request for addition attorney fees is little

more than an aside. We conclude that Wife has not presented us with a sufficiently compelling reason for

awarding appellate attorney fees.

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to Wife not actively seeking gainful employment.” Appellant‟s App. at 14. Wife‟s testimony

indicates that, when factoring in the cost of benefits, she would earn less working her job at

Coupled Products than by participating in the strike and receiving pay and benefits from her

union. Wife did not testify one way or the other concerning her efforts to find work

elsewhere, and Husband did not elicit any testimony on this point. Husband acknowledged

that he had typically earned more than Wife. Wife requested attorney‟s fees in the amount of

$13,141.16, but the trial court awarded only $3,500. Husband has not persuaded us that this

was an abuse of the trial court‟s discretion. The judgment of the trial court is affirmed.

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.

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