The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be Sep 29 2016, 8:18 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Katherine J. Noel Nicholas K. Gahl
Noel Law Gahl Legal Group
Kokomo, Indiana Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sandra Winslow, September 29, 2016
Appellant, Court of Appeals Case No.
34A02-1602-DR-421
v. Appeal from the Howard Circuit
Court
Fred Winslow, The Honorable Lynn A. Murray,
Appellee. Judge
Trial Court Cause No.
34C01-1209-DR-1011
Brown, Judge.
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[1] Sandra Winslow (“Wife”) appeals from the trial court’s decree of dissolution.
Wife raises three issues which we consolidate and restate as:
I. Whether the court abused its discretion in valuing certain
marital property and dividing the marital property; and
II. Whether the court abused its discretion in denying her
request for spousal maintenance.
We affirm.
Facts and Procedural History
[2] Wife and Fred Winslow (“Husband”) were married in November 1982. On
September 24, 2012, Wife filed a petition for dissolution of marriage. On
September 16, 2015, the court held a final hearing at which the parties
presented evidence and testimony regarding their incomes and property,
including certain real property consisting of approximately sixty-eight acres of
farmland which Husband and two of his siblings had inherited, and funds in the
parties’ Edward Jones account. The parties submitted proposed findings of fact
and conclusions following the hearing.
[3] On December 7, 2015, the court entered a decree of dissolution including
findings which relate to the parties’ employment and earnings, social security
and pension benefits, health conditions and health care costs, the value of
certain real property including the farmland and the former marital residence,
the value of and debt associated with various vehicles, the funds in the parties’
accounts, and their personal property and household goods.
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[4] The court found that Husband had a one-third interest in the farmland and that
his interest had a value of $43,900. It found that the Edward Jones account had
a value of $86,558.50 and that it was funded during the marriage with money
Husband received from his father and with sums received by Wife from a
settlement in connection with a medical malpractice claim arising from the
death of her daughter, and it awarded $60,529.60 of the funds to Husband and
$26,028.90 to Wife. The court further found that, as part of the malpractice
settlement, Wife received a lump sum cash payment, which was used in part to
fund the Edward Jones account and in part was consumed by the parties to
their joint benefit during the marriage, and two monthly annuities. It found
that the former marital residence was acquired by the parties as a gift or
inheritance from Husband’s parents and had a value of $98,300 based upon the
assessment of the Howard County Assessor, and it awarded the residence to
Wife. The court also found that each party contributed to the martial estate, in
part by Husband through gift and inheritance and in part by Wife through
structured settlement proceeds, and that, after application of all relevant factors
and findings, an equal distribution was fair and equitable.
[5] The court also noted that Wife claimed she was entitled to spousal maintenance
and requested the court to order Husband to provide her with health insurance
coverage until she is eligible for Medicare. The court concluded: “Here, the
Wife is employed part-time and receives income in addition to her wages.
There has been no showing she meets the necessary criteria to which the
Husband should pay or provide her maintenance under Indiana law. As such,
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her request for spousal maintenance must be and is denied.” Appellant’s
Appendix at 25.
[6] Under the heading of “Decree of Dissolution,” the court identified and
distributed the parties’ assets and debts, awarded Wife fifty percent of the
coverture portion of Husband’s pension, and ordered Husband to transfer his
interest in the former marital residence to Wife. Id. at 25. The court also
attached an “Exhibit B” identifying the assets and debts distributed to the
parties and their values. Id. at 32. The exhibit shows a value of $43,900 for the
farmland distributed to Husband and a value of $86,558.50 for the Edward
Jones account with a distribution of $26,028.90 to Wife and $60,529.60 to
Husband. The exhibit also shows that the value of Wife’s total net distribution
is $153,317.26 and the value of Husband’s total net distribution is $153,317.27.
Wife filed a motion to correct errors arguing that the court erred in valuing the
farmland, and the court denied her motion.
Discussion
I.
[7] The first issue is whether the trial court abused its discretion in valuing the
farmland or in dividing the marital property. When a trial court has made
findings of fact, we apply the following two-step standard of review: whether
the evidence supports the findings of fact, and whether the findings of fact
support the conclusions thereon. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.
1997). Findings will be set aside if they are clearly erroneous. Id. Findings are
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clearly erroneous only when the record contains no facts to support them either
directly or by inference. Id. To determine that a finding or conclusion is clearly
erroneous, our review of the evidence must leave us with the firm conviction
that a mistake has been made. Id. We generally review rulings on motions to
correct error for an abuse of discretion. Miller v. Rosehill Hotels, LLC, 45 N.E.3d
15, 18 (Ind. Ct. App. 2015).
[8] Ind. Code § 31-15-7-4 governs the division of property in dissolution actions
and requires that the trial court “divide the property in a just and reasonable
manner.” Ind. Code § 31-15-7-4(b). The court shall presume that an equal
division of marital property between the parties is just and reasonable and may
deviate from an equal division only when that presumption is rebutted. Ind.
Code § 31-15-7-5. The division of marital property is within the sound
discretion of the trial court, and we will reverse only for an abuse of discretion.
Hartley v. Hartley, 862 N.E.2d 274, 285 (Ind. Ct. App. 2007) (citation omitted).
The trial court’s division of marital property is “highly fact sensitive and is
subject to an abuse of discretion standard.” Fobar v. Vonderahe, 771 N.E.2d 57,
59 (Ind. 2002). Also, a trial court’s discretion in dividing marital property is to
be reviewed by considering the division as a whole, not item by item. Id. We
will not weigh evidence, but will consider the evidence in a light most favorable
to the judgment. Id.
[9] It is well-established that 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
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acquired by their joint efforts. See Ind. Code § 31-15-7-4(a); Beard v. Beard, 758
N.E.2d 1019, 1025 (Ind. Ct. App. 2001), trans. denied. This “one-pot” theory
ensures that no asset is excluded from the trial court’s power to divide and
award. Thompson v. Thompson, 811 N.E.2d 888, 914 (Ind. Ct. App. 2004), reh’g
denied, trans. denied.
[10] The trial court’s valuation of marital assets will be disturbed only for an abuse
of discretion. Morey v. Morey, 49 N.E.3d 1065, 1069 (Ind. Ct. App. 2016) (citing
In re Marriage of Nickels, 834 N.E.2d 1091, 1095 (Ind. Ct. App. 2005)). As long
as the evidence is sufficient and reasonable inferences support the valuation, an
abuse of discretion does not occur. 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.” Id. (citing In re Marriage of Nickels, 834
N.E.2d at 1095 (citation omitted)).
[11] Wife argues the trial court erred in valuing the farmland and in awarding the
funds in the Edward Jones account.
A. The Farmland
[12] Wife asserts that the trial court erred in valuing the farmland which rendered
the property division unequal. At the final hearing, Wife presented a Purdue
Agricultural Economics Report dated August 2012 (the “Purdue Report”).
Wife indicated that she used a value of $8,505 per acre, taken from the Purdue
Report, that Husband has a one-third interest in 68.19 acres, and that she
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multiplied 68.19 acres by $8,505 and divided by three to calculate the value of
Husband’s interest in the farmland to be $193,318.65.
[13] The Purdue Report provides information based on survey responses related to
estimated farmland values and cash rents on State-wide and regional bases.
The Purdue Report includes a table of average estimated farmland values per
acre by geographical area and land class for selected time periods, and the table
includes an average estimated value for farmland in the “North” area of
Indiana in the “Poor” land class in June 2012 of $4,746 per acre, which is the
lowest value for farmland in the North area as of that date shown in the table.
Petitioner’s Exhibit 2 at 3. The table also provides a State-wide average
estimated value in June 2012 for “Transition” land, which is land moving out
of production agriculture, of $8,505 per acre, which is the highest value for land
in the State of Indiana as of that date shown in the table. Id. A footnote is
included following the table’s title which states: “The land values contained in
this summary represent averages over several different locations and soil types.
The value for a specific property can be determined by a professional
appraiser.” Id. at 3 n.1. Additionally, the Purdue Report later states:
In both the case of farmland value and cash rent, the survey
provides a general guide to value or rent but does not indicate a
farmland value or cash rent for a specific farm. Arriving at a
value or amount of cash rent for a specific farm requires
additional research or assistance from a professional.
Id. at 4.
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[14] On cross-examination, Wife indicated that she did not know the nutrient value
or soil classification of the farmland, although she remembered that the contract
between Husband and the farmer required the land to be kept up to grade.
When asked if she knew the harvest that is yielded from the farmland, she
replied that she used to know and that she was amazed how much came off of
it. When asked how much she thought the farmland was worth, Wife answered
at least twelve thousand dollars per acre.
[15] Husband presented the testimony of one of his sisters who testified that
Husband and his two sisters inherited the farmland from their father, who
passed away in December 1990. She also testified that, during the marriage of
Husband and Wife, Husband’s father gave Husband the former marital
residence without a mortgage. When asked if she would sell the farmland for
$135,000, Husband’s sister testified that she would have to have it appraised
and did not know “what property is going for.” Transcript at 78. She also
indicated that she had no plans to sell the farmland and that Husband would
need the permission of the other two owners to sell the land.
[16] Husband presented the Cass County assessment of the farmland, which
consisted of two parcels. The assessment indicated that Husband had a one-
third interest in both parcels, that the parcels were classified as tillable land, and
that as of March 1, 2012, the true tax value of one of the parcels was $103,600
and of the other parcel was $28,100, for a total of $131,700. Husband also
indicated that he was seeking to maintain his one-third interest in the farmland.
On cross-examination, Husband stated his belief that the value of his interest in
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the farmland was $43,900. The following exchange occurred between Wife’s
counsel and Husband:
Q. Would you be willing to sell it to [Wife] for $43,900 dollars?
A. No.
Q. OK. Would you be willing to let [Wife] take that interest for
$43,900 dollars on her side of the column and then she can pay
you out of the house?
A. No.
Q. That’s because the h--, the value’s substantially more than
that, is it not, sir?
A. Yes.
Q. So this [is] an absolutely inaccurate value for the farm
ground, correct, sir?
A. No.
Q. You just said it was.
A. No, because I looked at it here, I can’t go through it as quick
as you’re giving me questions to answer.
Q. Would you sell your portion of that farm ground today for
$43,900 to anybody that came along to buy it?
A. No. We’ve got--, there’s three people involved, my two
sisters and myself.
Q. OK. Let’s say that some--, everybody agreed to sell it.
Would you sell it for that amount?
A. No.
Id. at 112-113.
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[17] Wife’s proposed findings stated that the value of the one-third interest in the
farmland was $193,318.65, and Husband’s proposed findings stated that it was
$43,900.
[18] In the decree, the trial court entered the following findings:
29. The Husband owns a one-third interest in approximately 68
acres of farmland located in Cass County, which he inherited
from his father’s estate in approximately 1992.
30. The only competent and reliable evidence submitted to the
court specific to the value of this farmland is from the Cass
County Assessor, which assessed the entire parcel in 2012 as
having a value of $131,700.00, one-third of which is $43,900.00.
31. The court finds the Husband’s interest in the farmland
property to have a separation value of $43,900.00.
32. The court further finds the Husband’s interest in the
farmland is awarded to him as his sole property, subject to the
lien and obligations associated with it.
Appellant’s Appendix at 16-17. The court found that the former marital
residence was acquired by the parties as a gift or inheritance from Husband’s
parents and had a value based upon the assessment of the Howard County
Assessor of $98,300, and awarded the marital residence to Wife. In denying
Wife’s motion to correct errors, the court stated that the Cass County
assessment was the only documentary evidence as to the farmland’s value that
was specific to the property and that it acted within its discretion in valuing the
farmland based on the assessment and not the Purdue Report.
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[19] On appeal, Wife argues that the court severely undervalued the farmland by
disregarding the Purdue Report which contained expert analysis of farmland
values throughout Indiana, that the property’s assessed value is not equal to its
fair market value, and that neither party believed the Cass County Assessor’s
valuation was accurate. Husband responds that Wife is simply requesting this
court to reweigh the evidence and select her value, that the Cass County
Assessor’s valuation is based upon the actual property taking into account its
physical nature and actual location, that the Purdue Report does not provide a
value of the farmland on the date of filing and at best suggests an estimated
range of value for agricultural land throughout Indiana based on a myriad of
generalities, and that the Purdue Report specifically disclaims its application to
establish value for a specific piece of farmland. In reply, Wife argues that the
Purdue Report is a reliable source for valuing farmland and that, even giving
the farmland a “poor” class rating, the farmland would be worth significantly
more than the trial court’s valuation.
[20] Consistent with Ind. Code § 31-15-7-4(a),1 the court included Husband’s one-
third interest in the sixty-eight acres of farmland in the marital property to be
divided, and it was presented with differing values for the property at the date of
separation, namely, a value based on the assessment of the Cass County
Assessor and a value based on a calculation using the per acre values in a table
1
This section provides in part that the court “shall divide the property of the parties, whether . . . acquired by
either spouse in his . . . own right . . . .”
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in the Purdue Report. We note that neither party presented an appraisal of the
farmland. Further, the trial court was not required to rely upon the Purdue
Report as a guide in determining the farmland’s estimated value at the time of
the parties’ separation. The value claimed by Wife related to transition land,
which is land moving out of production agriculture, and the evidence presented
was that the farmland was tillable and did not suggest it was transition land.
The table in the Purdue Report related to estimated land values in multi-county
areas of Indiana, and the report emphasized that the estimated values
represented averages, that the survey provided a general guide and did not
indicate a value for specific farmland, and that the value for specific property
could be determined by a professional appraiser. We also observe that
Husband inherited his one-third interest in the farmland, that Husband and
Wife acquired the former marital residence from Husband’s parents without a
mortgage, that the court valued the marital residence based upon the
assessment of the Howard County Assessor, and that it awarded the farmland
to Husband and the former marital residence with improvements to Wife.
[21] We will not substitute our judgment for that of the trial court and consider the
evidence in the light most favorable to the judgment. See Morey, 49 N.E.3d at
1069. Based upon the evidence set forth above and in the record, and noting
that the farmland and former marital residence were received from Husband’s
family and Wife received the former marital residence, we cannot conclude that
the court abused its discretion in valuing Husband’s partial interest in the
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farmland for purposes of dividing the marital estate in a just and reasonable
manner.
B. The Edward Jones Account
[22] Wife also argues that the trial court erred in awarding the funds in the Edward
Jones account. She argues that the account was solely funded with the
proceeds she received from pursuing an action for her daughter and that the
evidence demonstrated that an unequal division in her favor was warranted.
Husband argues he initially funded the account and that, even if Wife
contributed to the account, it was commingled and both parties used the joint
account throughout their marriage.
[23] The court found that the Edward Jones account “was funded during the
marriage with money from the Husband’s inheritance from his father’s estate
and with sums received by the Wife from a settlement for her claim arising from
her daughter’s death,” that Wife “successfully pursued a claim for medical
malpractice entitling her to a structured settlement entered into in 2003,” and
that “[a]s part of the settlement, the Wife received a lump sum cash payment of
$400,000.00, which in part was used to fund the Edward Jones account and in
part was consumed by the parties to their joint benefit during the marriage.”
Appellant’s Appendix at 19.
[24] With respect to the division of the marital estate, the court did not find that
either party had rebutted the presumption of an equal division of the marital
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property under Ind. Code § 31-15-7-5. Specifically, the court found that
“during their 29 year 10 month marriage, each party has contributed to the
martial estate, in part by the Husband through gift and inheritance, and in part
by the Wife through her structured settlement proceeds,” that “after application
of all relevant factors and findings, an equitable and fair distribution of the
marital estate is to . . . award to the parties equally the net marital estate per
Exhibit B attached and incorporated herein,” and that “to effect an equal
distribution of the marital estate, the proceeds of the Edward Jones account
shall be distributed with the Husband to receive $60,529.60 and the Wife to
receive $26,028.90.” Id. at 21.
[25] The record reveals that Husband received the farmland and the former marital
residence as a gift or inheritance and that Wife received a settlement in
connection with a malpractice claim. When asked what funds in part were
used to fund and open the Edward Jones account, Husband testified “[m]y
father’s inheritance,” Transcript at 99, and Wife agreed that “[s]ome of the
Edward Jones account was initially funded with money from [Husband].” Id.
at 29. Wife also agreed that the funds in the Edward Jones account were
commingled. Wife further testified that she spent money from the settlement,
specifically “approximately [$]80,000,” in remodeling the former marital
residence, including building a new garage and adding custom cabinets,
countertops, flooring, a well, and some furniture, and the court awarded the
former marital residence to Wife. Id. at 18. When asked where the rest of the
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money from the settlement went, Wife indicated it was spent on taking a lot of
vacations, eating out, and purchasing gadgets that Husband wanted.
[26] The court’s division of marital property is highly fact sensitive, and we review
the court’s discretion in dividing marital property considering the division as a
whole and not item by item. See Fobar, 771 N.E.2d at 59. In dividing the
money in the Edward Jones account, the court achieved an equal division of
the marital estate, with a net distribution to Wife of $153,317.26 and to
Husband of $153,317.27.2 Based on the record, we cannot conclude that the
trial court abused its discretion in distributing the funds in the Edward Jones
account or in dividing the marital property.
II.
[27] The next issue is whether the court abused its discretion in denying Wife’s
request for spousal maintenance. Wife argues that the court should have
ordered spousal maintenance under Ind. Code § 31-15-7-2(1) because her ability
to support herself has been materially affected as a result of her post traumatic
stress disorder diagnosis and that she will face future medical expenses once she
is no longer on Husband’s insurance plan. Husband argues that there was no
expert testimony that Wife is incapacitated or suffers any loss of earning ability,
that Wife’s description of her unclear thoughts and forgetfulness does not
2
The court also ordered that Wife shall receive fifty percent of the coverture portion of Husband’s pension.
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establish an inability to support herself, and that the court was within its
discretion not to award spousal maintenance.
[28] A court may order spousal maintenance under Ind. Code § 31-15-7-2 in three
circumstances: incapacity maintenance, caregiver maintenance, and
rehabilitative maintenance.3 Pala v. Loubser, 943 N.E.2d 400, 404 (Ind. Ct. App.
2011) (citing Cannon v. Cannon, 758 N.E.2d 524, 525-526 (Ind. 2001)), trans.
denied. Incapacity maintenance is governed by Ind. Code § 31-15-7-2(1), which
provides:
If the court finds a spouse to be physically or mentally
incapacitated to the extent that the ability of the incapacitated
spouse to support himself or herself is materially affected, the
court may find that maintenance for the spouse is necessary
during the period of incapacity, subject to further order of the
court.
[29] The trial court may make an award of spousal maintenance upon the finding
that a spouse’s self-supporting ability is materially impaired. Bizik v. Bizik, 753
N.E.2d 762, 768 (Ind. Ct. App. 2001), trans. denied. The trial court’s power to
make an award of maintenance is wholly within its discretion, and we will
reverse only when the decision is clearly against the logic and effect of the facts
and circumstances of the case. Id. at 768-769. However, even if a trial court
finds that a spouse’s incapacity materially affects her self-supportive ability, a
3
In its conclusions, the court recited the sections of Ind. Code § 31-15-7-2 related to each of the three
circumstances. Wife cites only subsection (1) of the statute on appeal and thus our discussion is limited to
that subsection.
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maintenance award is not mandatory. Id. at 769. Nevertheless, in determining
whether a trial court has abused its discretion in a spousal maintenance
determination, this court will presume that the trial court properly considered
the applicable statutory factors in reaching its decision. Id. The presumption
that the trial court correctly applied the law in making an award of spousal
maintenance is one of the strongest presumptions applicable to the
consideration of a case on appeal. Id.
[30] To award spousal maintenance under Ind. Code § 31-15-7-2(1), the trial court
must first make a threshold determination that (1) a spouse is physically or
mentally incapacitated and (2) the incapacity materially affects the spouse’s self-
supportive ability. Id. If the trial court finds that a spouse is incapacitated, it
then has the discretion to award maintenance. Id.
[31] The record reveals that Wife testified that she has post-traumatic stress disorder
due to thirty years of beatings and mental abuse and is on medication for it, and
that she sees a psychiatrist and a psychologist. When asked how much her
medications would cost without insurance, Wife testified “If I, I can go generic
on three of them and I think that’s around a hundred, and then two of them I
cannot go generic on and one alone is 400, and the other one I think is around
2.” Transcript at 21. When asked “[d]oes it incapacitate you in any way,”
Wife responded:
Yeah. Yeah, when I’m--, my thoughts are not totally clear at
work. I cannot, when I’m writing I’m [sic] often forget what it is
I’m writing or what I want to say and I can be out in public and I
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can see somebody who is in an abusive relationship and I have
to, I have to leave, I have to get away because it’s, I want to flip
out or I want to just break (inaudible). I just have to get away.
Id. at 24. Wife also indicated she would be eligible for Medicare in March of
2016.
[32] With respect to Wife’s income, the court found that she is employed part-time
with average earnings of $1,250 per month and receives social security benefits
of $628 per month. The court found that, as part of the malpractice claim
settlement, Wife receives two monthly annuities which began in August 2003
and will continue until August of 2018 in the respective amounts of $1,784 and
$278 per month. The court further found that Husband has a vested pension
through his former employer for which he receives $1,255.66 per month and
that Wife has a surviving spouse benefit, and the court awarded fifty percent of
the coverture portion of Husband’s pension to Wife. The court also found that
Husband’s “net monthly income consists of a pension benefit . . . and social
security benefits totaling approximately $2,400 per month” and that he also
receives rent from the farmland which in 2011 was in the net amount of $4,489.
Appellant’s Appendix at 15. The court further found in its decree of dissolution
on December 7, 2015, that Wife suffers from post-traumatic stress disorder and
participates in treatment which includes therapy and medication, that upon the
dissolution being final, Wife will no longer be a covered dependent on
Husband’s health insurance, and that Wife will be responsible for her own
health care costs estimated to be between $400 and $800 per month until she
qualifies for Medicare in March 2016.
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[33] The trial court concluded that “Wife is employed part-time and receives income
in addition to her wages,” that “[t]here has been no showing she meets the
necessary criteria to which the Husband should pay or provide her maintenance
under Indiana law,” and that “[a]s such, her request for spousal maintenance
must be and is denied.” Id. at 25. The court also distributed the marital
property to the parties equally. A maintenance award is not mandatory, and
we presume the court properly considered the applicable statutory factors in
reaching its decision. Bizik, 753 N.E.2d at 769. Based upon the record, we
cannot conclude the trial court abused its discretion in denying Wife’s request
that Husband be ordered to pay spousal maintenance under Ind. Code § 31-15-
7-2(1).
Conclusion
[34] For the foregoing reasons, we affirm the trial court’s division of the marital
estate and denial of Wife’s request for spousal maintenance.
[35] Affirmed.
Mathias, J., concurs.
Robb, J., concurs in result without opinion.
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