Rose A. Martiradonna f/k/a Rose A. Rynberk v. Gilbert W. Rynberk (mem. dec.)

MEMORANDUM DECISION

Jul 10 2015, 8:36 am

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

D. Eric Neff J. Douglas Angel

Crown Point, Indiana Law Offices of J. Douglas Angel &

Associates

Munster, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Rose A. Martiradonna July 10, 2015

f/k/a Rose A. Rynberk, Court of Appeals Case No. 45A03-

1411-DR-411

Appellant-Petitioner,

Appeal from the Lake Circuit Court

v. The Honorable George C. Paras,

Judge

Gilbert W. Rynberk, Case No. 45C01-1203-DR-273

Appellee-Respondent

Crone, Judge.

Case Summary

[1] Rose A. Martiradonna f/k/a Rose A. Rynberk (“Wife”) appeals the trial court’s

order dissolving her marriage to Gilbert W. Rynberk (“Husband”). She argues

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that the trial court abused its discretion in denying her motions to reopen

discovery and clearly erred in finding that three bonuses Husband received

during the pendency of the dissolution action were not marital assets subject to

division. Finding no error, we affirm.

Facts and Procedural History

[2] Wife and Husband were married in July 1998. They had two children. Wife

and Husband agreed that Wife would stay at home to care for their children. In

1998, Wife quit her job as a senior clinical research assistant earning $51,000

per year. Husband was employed as the president of the First National Bank of

Illinois (“the Bank”). On March 31, 2007, he signed an employment agreement

with the Bank for an initial term of five years that would automatically extend

for an additional year on March 31, 2012. The agreement provided that the

Bank would pay Husband a yearly salary of $178,500, with annual reviews for

merit increases and bonuses. Relevant to this appeal, the agreement provided

that in the event of an acquisition or merger of the Bank with another financial

institution, Husband could terminate his employment and continue to receive

his salary for the remainder of the contract term. Appellant’s App. at 447.

[3] Wife and Husband separated in November 2011. On March 30, 2012, Wife

filed a petition for legal separation. On May 18, 2012, Husband filed a petition

for marriage dissolution. Both Wife and Husband hired replacement counsel.

The trial court scheduled an initial pretrial conference for October 17, 2012.

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[4] In August 2012, Wintrust Financial Corporation (“Wintrust”) signed a letter of

intent to purchase the Bank. In October 2012, the Bank and Husband agreed to

a modification of the 2007 employment agreement. The modification consisted

of deleting the provision allowing Husband to terminate his employment in the

event of a merger or acquisition and continue to receive his salary for the

remainder of the term. That provision was replaced with a new provision

requiring the Bank to pay Husband a “Deal Bonus” of 2.99 multiplied by his

base salary if he was still employed with the Bank on the date of an acquisition

or merger with another financial institution. Id. at 449. The Deal Bonus was

offered “[i]n consideration of [Husband’s] long and dedicated service to the

[Bank].” Id.

[5] On October 17, 2012, the date of the scheduled pretrial conference, Wife’s

attorney filed a motion to substitute counsel. The pretrial conference was

continued to permit Wife’s third attorney time to familiarize himself with the

case.

[6] On November 30, 2012, the Bank paid Husband a bonus of $100,000 in

recognition of a July 2012 regulatory finding that resulted in savings to the

Bank.

[7] In January 2013, Wintrust made a public announcement of its intent to acquire

the Bank, and the Bank and Wintrust executed a formal agreement for the

acquisition. Husband signed an employment agreement with Wintrust that

would become effective if Wintrust’s acquisition of the Bank was completed.

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[8] On January 4, 2013, Wife amended her petition for legal separation to marriage

dissolution. Also in January, the initial pretrial conference was held, and the

trial court issued an order directing the parties to proceed with discovery.

[9] On April 3, 2013, another pretrial conference was held, and the trial court

issued an order stating, “All Discovery … shall be closed and completed on

[August 7, 2013].” Id. at 42. The order also stated that the failure to comply

with the order and other orders in the case could result in the exclusion of

evidence, sanction, dismissal, default, or delay. Id. at 40. In addition, the trial

court ordered the parties to engage in mediation to be completed by August 30,

2013. Later in April, Wife hired her fourth attorney.

[10] On May 1, 2013, Wintrust closed on its acquisition of the Bank. On May 15,

2013, the Bank paid Husband a Deal Bonus of $759,238.19 as required under

the October 2012 modification of the Bank and Husband’s employment

agreement.

[11] On August 2, 2013, less than a week before the discovery deadline, Wife served

notice to take Husband’s deposition. On August 14, 2013, Wife took

Husband’s deposition, which lasted six hours. Also in August 2013, the parties

participated in court-ordered mediation, which was unsuccessful.

[12] On September 11, 2013, a pretrial conference was held. Wife’s attorney told

the trial court that Wife wished to initiate third-party discovery in Illinois

regarding Wintrust’s acquisition of the Bank. The trial court stated that

discovery was closed and that Wife had not filed a motion to extend it. On

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October 7, 2013, Wife filed a motion to conduct further discovery to seek

information from Wintrust regarding its acquisition of the Bank so that she

could obtain evidence revealing whether Husband’s bonuses were marital

assets. The trial court set the motion to be heard during the final pretrial

conference. That conference was held on November 1, 2013, and the trial court

denied Wife’s motion to conduct further discovery. The trial court set the final

hearing for February 5 and 6, 2014.

[13] In January 2014, Wintrust paid bonuses to its senior managers for 2013.

Husband’s bonus of $51,000 was based on the time period of 2013 that he was

employed by Wintrust.

[14] On January 28, 2014, Wife filed a request for ruling in advance of hearing,

asking the trial court to order the parties to exchange up-to-date documentation

on the valuation of marital assets. Following a hearing, the trial court denied

Wife’s request.

[15] On February 3, 2014, two days before the scheduled final hearing, Wife’s

attorney filed an emergency motion for leave of court to withdraw appearance,

stating that Wife refused to communicate or cooperate in preparing for trial.

The following morning, the trial court held a hearing. The trial court permitted

Wife’s counsel to withdraw, granted Wife’s oral motion to continue the final

hearing, granted her thirty days to obtain new counsel, and set a status hearing

for March 7, 2014. The trial court affirmed its previous orders that discovery

was closed and ordered that “there shall be no further discovery.” Id. at 140.

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[16] On March 7, 2014, Wife’s fifth attorney entered his appearance and was present

at the status conference. He asked the trial court for time to review the case and

if necessary conduct specific discovery on pre- and post-petition values of

marital property. The trial court informed Wife’s new counsel that at a

previous hearing, it had determined that documentation regarding pre- and

post-petition valuation had been provided. Husband objected to reopening

discovery. The trial court informed Wife’s attorney that discovery was closed

“unless you find something very extraordinary in there.” March 7, 2014 Tr. at

8. The trial court gave Wife until April 18, 2014, to file a request for additional

discovery. Another final pretrial conference was set for May 30, 2014, and the

final hearing was reset for June 16 and 17, 2014.

[17] On May 20, 2014, Wife filed a motion to reopen discovery and continue trial.

In relevant part, she requested additional discovery to obtain information

regarding Wintrust’s acquisition of the Bank. At the May 30, 2014 final pretrial

conference, the trial court heard argument on Wife’s motion and denied it. On

June 16 and 17, 2014, the final hearing was held.

[18] In July 2014, the trial court issued the dissolution decree, which in relevant part

found that Husband’s November 2012, May 2013, and January 2014 bonuses

were not part of the marital estate subject to division but were income for

purposes of determining child support. The trial court ordered a 60/40 division

of the marital estate in Wife’s favor. Wife filed a motion to correct error,

alleging in relevant part that the trial court erred in denying her motions to

reopen discovery and in determining that Husband’s bonuses were not part of

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the marital estate. Husband also filed a motion to correct error, alleging that

the trial court erred in finding that his bonuses were income rather than assets

for purposes of child support. Following a hearing, the trial court issued an

order denying their motions. Wife appeals.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in

denying Wife’s motion to reopen discovery.

[19] Wife contends that the trial court abused its discretion in denying her motions

to reopen discovery. 1

The discovery rules are designed to allow a liberal discovery process,

the purposes of which are to provide parties with information essential

to litigation of the issues, to eliminate surprise, and to promote

settlement. Due to the fact-sensitive nature of discovery matters, the

ruling of the trial court is cloaked in a strong presumption of

correctness on appeal. Our standard of review in discovery matters is

limited to determining whether the trial court abused its discretion.

This court will reverse only where the trial court has reached an

erroneous conclusion which is clearly against the logic and effect of the

facts of the case. There will be no reversal of a trial court discovery

order without a showing of prejudice.

1

In the argument section of her brief, Wife mentions three orders in which the trial court denied her requests

to extend discovery. These orders are dated November 11, 2013, January 31, 2014, and May 30, 2014.

Appellant’s Br. at 16. However, she does not present any argument specific to the January 31, 2014 order,

and therefore any claim regarding that ruling is waived. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct.

App. 2003) (“It is well settled that we will not consider an appellant’s assertion on appeal when he has not

presented cogent argument supported by authority and references to the record as required by the rules.”).

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Hite v. Haase, 729 N.E.2d 170, 181 (Ind. Ct. App. 2000) (quoting Nat’l Eng’g &

Contracting Co. v. C & P Eng’g & Mfg. Co., 676 N.E.2d 372, 375 (Ind. Ct. App.

1997)). “Discovery, like all matters of procedure, has ultimate and necessary

boundaries. It is within the discretion of the trial court to place bounds on the

duration of discovery.” Smith v. Taulman, 20 N.E.3d 555, 563 (Ind. Ct. App.

2014) (quoting Mut. Sec. Life Ins. Co. v. Fid. & Deposit Co., 659 N.E.2d 1096, 1103

(Ind. Ct. App. 1995), trans. denied (1996)).

[20] Before turning to the merits of Wife’s argument, we must address two

preliminary matters. First, Husband contends that Wife waived her claims of

error regarding discovery because “she made no claim of any inability to cross

examine [Husband], she made no offer to prove, and she made no request for

any continuance to allow her to obtain additional evidence.” Appellee’s Br. at

24. We disagree that any of these actions were necessary to preserve the

particular claims of error here; specifically, that the trial court erred in denying

her motions to reopen discovery. The actions mentioned by Father are

applicable to the preservation of claims of error related to the admission of

evidence or to discovery violations that culminated in the admission of evidence

at trial. In fact, all the cases relied on by Husband for his waiver argument

involve the admission of evidence. See Farley Neighborhood Ass’n v. Town of

Speedway, 765 N.E.2d 1226, 1231 (Ind. 2002) (in action challenging increase in

sewer utility rates, association’s complaint that it did not receive town’s cost-of-

service analysis until the night before trial was waived because association

failed to object to admission of analysis or request continuance); Everage v. N.

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Ind. Pub. Serv. Co., 825 N.E.2d 941, 948 (Ind. Ct. App. 2005) (Everage’s

argument that trial court erred in its choice of discovery sanction by failing to

strike testimony of several witnesses rather than striking testimony of only one

witness was waived because he did not object to witnesses’ testimony at trial

and only asked for sanctions after trial); Van Cleave v. State, 517 N.E.2d 356, 372

(Ind. 1987) (in reviewing defendant’s claim that he received ineffective

assistance of counsel because counsel failed to discover evidence that State

discovered but failed to disclose to defendant–a discovery violation–and used to

impeach defendant at trial, court observed that “failure to object and request a

continuance or exclusion of the evidence is grounds for waiver of a discovery

error”). We are unpersuaded by Husband’s argument that Wife waived her

claim that the trial court erred in denying her motions to reopen discovery. Cf.

Allen v. Scherer, 452 N.E.2d 1031, 1036 (Ind. Ct. App. 1983) (concluding that

Allen waived issue that court erred in denying her motion to compel answers to

interrogatories because trial court agreed to reconsider the matter but she failed

to raise issue again).

[21] Second, the parties dispute the appropriate factors we must consider in

determining whether the trial court abused its discretion in declining to reopen

discovery. Wife claims that a trial court commits reversible error in denying a

motion to reopen discovery if the movant (1) demonstrates good cause for her

request and (2) would suffer prejudice if the motion was denied. Appellant’s

Br. at 15; Reply Br. at 6. Wife appears to argue that good cause is a good

reason for the request. Husband states that there are additional factors to

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consider, such as whether the discovery was foreseeable, whether Wife engaged

in dilatory tactics, the length of time the case had already been pending, and the

prejudice he would suffer if the case was delayed by the reopening of discovery.

Appellee’s Br. at 25. Wife argues that the factors advanced by Husband are not

applicable because the case relied on by Husband is distinguishable.

[22] Wife’s conception of “good cause” is too narrow. Depending on the nature and

facts of the particular case, good cause may encompass some or all of the

considerations that Husband advances as well as others that he does not

mention. One of Wife’s cases illustrates this notion. In In J.P. v. G.M., 14

N.E.3d 786, 790 (Ind. Ct. App. 2014 ), a grandparent visitation case, another

panel of this Court concluded that the trial court abused its discretion in

denying father’s motion for continuance so that he could obtain counsel based

on the following reasons: he had a fundamental liberty interest in child’s care,

the case required an understating of grandparent visitation law and the rules of

evidence, grandparents had counsel, father could obtain counsel in one week,

and it was father’s first motion to continue. See also Hess v. Hess, 679 N.E.2d

153, 154-55 (Ind. Ct. App. 1997) (in marriage dissolution proceeding, trial court

abused its discretion in denying husband’s motion for continuance where his

attorney withdrew four days prior to trial, husband appeared pro se at trial and

explained that he had unsuccessfully tried to find new counsel, record did not

show husband engaged in dilatory tactics, and husband was deprived of counsel

at the most crucial state in the proceedings).

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[23] Moreover, we decline to adopt an overly formulaic approach to determining

whether a trial court abused its discretion in denying a motion to reopen

discovery. “‘A trial judge has the responsibility to direct the trial in a manner

that facilitates the ascertainment of truth, ensures fairness, and obtains

economy of time and effort commensurate with the rights of [the parties].’”

Wright v. Miller, 989 N.E.2d 324, 327 (Ind. 2013) (quoting VanWay v. State, 541

N.E.2d 523, 526 (Ind. 1989)). In analyzing whether the trial court abused its

discretion in imposing certain discovery sanctions, our supreme court

recognized that the broad discretionary power afforded to trial courts is

necessary in light of the unique circumstances each case presents. Id. at 330.

The Wright court emphasized, “‘It may well be that other factors will be

relevant in a given case or that some of the foregoing will be inapplicable to a

certain set of facts.’” Id. at 329-30 (quoting Wiseheart v. State, 491 N.E.2d 985,

991 (Ind. 1986)).

[24] We now turn to the merits of Wife’s argument. Wife asserts that the discovery

she sought, namely, information regarding the timing of Wintrust’s acquisition

of the Bank, was essential in determining whether Husband’s November 2012,

May 2013, and January 2014 bonuses were marital property. She contends that

Husband would not reveal the necessary information at his deposition.

Appellant’s Br. at 21. However, Wife does not discuss any specific questions

that Husband refused to answer at his deposition which bore on the issue of the

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timing of the acquisition. 2 Our review of Husband’s deposition shows that he

answered many questions regarding Wintrust’s acquisition of the Bank. He

testified that the Bank’s 2011 board minutes would not reflect any discussions

about the acquisition, that Wintrust made its first overture in December 2011

when Husband met informally with Wintrust’s CEO, and that the first

discussions regarding Wintrust’s possible acquisition of the Bank began in early

2012. Appellant’s App. at 82-84. He also testified that the acquisition

agreement was signed in January of 2013, that Wintrust thereafter made the

required federal filings, and that the closing of the transaction occurred on May

1, 2013, when he became an employee of Wintrust. Id. at 81-82. Furthermore,

Wife obtained copies of Husband’s 2007 employment agreement with the Bank,

the 2012 modification, and his Wintrust employment agreement. We are

unpersuaded by Wife’s argument that she needed to pursue third-party

discovery because Husband would not provide sufficient information regarding

Wintrust’s acquisition of the Bank. 3

[25] Wife also contends that the trial court improperly based its decision entirely on

expediency. We disagree. Although the trial court did discuss the difficulties of

seeking discovery from a foreign corporation, the court also opined that her

2

In claiming that Husband refused to answer questions about the acquisition during his deposition, Wife

merely cites to the November 2014 hearing at which her counsel asserted that Husband refused to answer

questions at his deposition. Appellant’s Br. at 21 (citing Appellant’s App. at 116). Wife baldly claims that

Husband failed to cooperate in providing documents without citation to the record. Id. at 22.

3

We note that Wife offers no reason for her failure to pursue the discovery she sought during the time period

permitted by the trial court and no reason why she waited two months after taking Husband’s deposition to

request that the trial court reopen discovery.

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motion “goes more to the quantity of evidence, and not so much the quality of

it.” Appellant’s App. at 127-33. The court also observed that the parties had

already spent “an incredible amount of time arguing the case already based on

the evidence that you have …I think you have sufficient evidence in front of

you that has been obtained through discovery to move forward with the claims

that are being made.” Id. at 133. The trial court concluded that Wife had

sufficient evidence from which to argue her case and that additional discovery

was unwarranted. We cannot say that its conclusion is clearly against the facts

and circumstances of the case. Accordingly, we conclude that the trial court did

not abuse its discretion in denying Wife’s motions to reopen discovery.

Section 2 – The trial court did not err in finding that

Husband’s bonuses were not marital assets.

[26] Wife also appeals the trial court’s division of marital assets.

The division of marital assets is within the trial court’s discretion, and

we will reverse only for an abuse of discretion. A party challenging the

trial court’s division of marital property must overcome a strong

presumption that the trial court considered and complied with the

applicable statute, and that presumption is one of the strongest

presumptions applicable to our consideration on appeal. We may not

reweigh the evidence or assess the credibility of the witnesses, and we

will consider only the evidence most favorable to the trial court’s

disposition of the marital property.

O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008) (citations and

quotation marks omitted).

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[27] In this case, the trial court sua sponte issued findings of facts and conclusions

thereon. 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.” Ind. Trial Rule 52(A). “Findings of fact

are only clearly erroneous if there is no factual support for them in the record

whatsoever, either directly or by inference.” Johnson v. Wysocki, 990 N.E.2d

456, 460 (Ind. 2013). “A judgment is only clearly erroneous ‘if it applies the

wrong legal standard to properly found facts.’” Id. (quoting Woodruff v. Ind.

Family & Social Servs. Admin., 964 N.E.2d 784, 790 (Ind. 2012)).

[28] Wife contends that the trial court improperly excluded Husband’s bonuses from

the marital estate.

It is well settled that in a dissolution action, all marital property goes

into the marital pot for division, whether it was owned by either

spouse before the marriage, acquired by either spouse after the

marriage and before final separation of the parties, or acquired by their

joint efforts. Ind. Code § 31-15-7-4(a). …. 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. Indiana’s “one pot” theory prohibits the exclusion of any

asset in which a party has a vested interest from the scope of the trial

court’s power to divide and award.

Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014) (citations and

quotation marks omitted). “[I]n a dissolution proceeding, the trial court is

mandated, by statute and case law, to divide the assets and liabilities of the

parties to the proceeding in which they have a vested present interest. Of

course, the trial court may not divide assets which do not exist just as it may not

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divide liabilities which do not exist.” In re Marriage of Lay, 512 N.E.2d 1120,

1123-24 (Ind. Ct. App. 1987).

[29] Husband’s and Wife’s date of final separation was March 30, 2012, when Wife

filed her petition for legal separation. See Crider v. Crider, 26 N.E.3d 1045, 1049

(Ind. Ct. App. 2015) (concluding that where legal separation proceedings are

already pending when petition for dissolution is filed, date of final separation is

date that petition for legal separation is filed). Husband received a bonus from

the Bank in November 2012 for $100,000, and another bonus from that Bank in

May 2013 for $759,238.19, and a bonus from Wintrust in January 2014 for

$51,000. Thus, all the bonuses paid to Husband occurred after the parties’ final

separation.

[30] “[I]t is well established in Indiana that ‘future earnings are not considered part

of the marital estate for purposes of property division.’” Severs v. Severs, 837

N.E.2d 498, 499 (Ind. 2005) (quoting Beckly v. Beckly, 822 N.E.2d 158, 160 (Ind.

2005)). “[A] trial court may not include in the marital estate an interest in a

spouse’s future income, whether the source of that income constitutes salary,

pension or retirement benefits.” Neffle v. Neffle, 483 N.E.2d 767, 769 (Ind. Ct.

App. 1985). Whether a bonus was a marital asset was considered in In re

Marriage of Davis, 182 Ind. App. 342, 395 N.E.2d 1254 (1979). There, wife and

husband separated on April 17, 1977. On July 31, 1977, wife received a bonus

of over $10,000 which was based upon the corporate president’s personal

appraisal of her efforts for the fiscal year ending May 31, 1977. The Davis court

concluded that the bonus should not have been treated as a marital asset subject

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to division because wife “was not possessed of a present interest in the bonus at

the time of the parties’ final separation.” Id. at 1258.

[31] Wife acknowledges that Husband received the bonuses after the date of final

separation, but she asserts that Husband’s bonuses constitute future

compensation for past services. Future compensation for past services can

qualify as a marital asset, but the services must have been rendered during the

marriage. Sedwick v. Sedwick, 446 N.E.2d 8, 10 (Ind. Ct. App. 1983). In

Sedwick, husband rendered services as an attorney in a personal injury case

during his marriage to wife for which he received a structured settlement

annuity of nine payments of $40,000 each. He had received one annuity

payment before the date of final separation. The trial court found that the

remaining eight annuity payments constituted future income and were not

marital assets subject to division. This court found that the trial court erred in

excluding the annuity payments from the marital estate because there was “no

question … but that the annuity was funded by [husband’s] earnings for services

which he had performed during the marriage.” Id. at 10.

[32] Considering each of Husband’s bonuses one by one, we observe that the

November 2012 bonus was paid in recognition of the savings accrued to the

Bank as a result of a July 2012 regulatory finding. The regulatory finding

occurred after the date of final separation, and therefore Husband did not earn

the bonus during the marriage. Accordingly, we find no error in the trial

court’s determination that this bonus was not a marital asset. We can also

quickly dispense with the 2014 Wintrust bonus. Wintrust paid bonuses in 2014

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to its senior managers for their employment during 2013. Husband was not

even employed by Wintrust until after the date of final separation. Therefore,

Husband did not earn the bonus during the course of the marriage. Again, we

find no error in the trial court’s determination that this bonus was not a marital

asset.

[33] As for the May 2013 “Deal Bonus,” the analysis is marginally more

complicated. The Deal Bonus was paid pursuant to the October 2012

employment agreement modification. The October 2012 modification was

executed after the date of final separation, which would lead us to conclude that

any bonus earned based on that agreement was not earned during the marriage.

However, Wife argues that Husband earned the Deal Bonus during the

marriage because it was offered “[i]n consideration of [Husband’s] long and

dedicated service to the [Bank].” Appellant’s App. at 449. We read this

language merely as an expression of gratitude.

[34] Moreover, the Deal Bonus was contingent upon two conditions, that the Bank

would be acquired by or merge with another financial institution and that

Husband be employed by the Bank if and when that event occurred. As

previously noted, “Indiana’s ‘one pot’ theory prohibits the exclusion of any

asset in which a party has a vested interest from the scope of the trial court’s

power to divide and award.” Falatovics, 15 N.E.3d at 110 (emphasis added).

“The word ‘vest’ generally means either vesting in possession or vesting in

interest.” In re Marriage of Preston, 704 N.E.2d 1093, 1097 (Ind. Ct. App. 1999).

“Vesting in possession connotes an immediate existing right of present

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enjoyment, while vesting in interest implies a presently fixed right to future

enjoyment.” Id. At the date of final separation, Husband did not have a vested

interest in the Deal Bonus, and in fact the Deal Bonus was not even part of

Husband’s employment agreement with the Bank. Accordingly, we find no

error in the trial court’s finding that the Deal Bonus was not a marital asset.

Therefore, we affirm.

[35] Affirmed.

Brown, J., and Pyle, J., concur.

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