# Miller v. Miller

> Indiana Court of Appeals · February 21, 2002 · 763 N.E.2d 1009

URL: https://www.frixlaw.com/law-library/cases/9729226

## Case

- **Full name:** Sue Ellen MILLER, Appellant, Respondent, v. Michael MILLER, Appellee-Petitioner
- **Court:** Indiana Court of Appeals
- **Decided:** February 21, 2002
- **Citations:** 763 N.E.2d 1009; 2002 Ind. App. LEXIS 229; 2002 WL 243556
- **Precedential status:** Published
- **Opinion:** Concurrence by Sullivan
- **Judges:** Kirsch, Robb, Sullivan
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

SULLIVAN, Judge,
concurring.
I concur in the remand with instructions to redetermine the distribution of the property to the parties and that in light of *1014 Warsco v. Hambright, the child support arrearage may not be included in the marital estate. I also concur in the majority's resolution of the issue concerning the treatment of the Husband's pre-marital equity in the deferred pay account vis-&-vis the Wife's pre-marital equity in the residence. I write separately merely to disagree with the majority's conclusion that, "The trial court's valuation of the marital residence was supported by this evidence...." Op. at 1012. To the contrary, it is evident that the trial court did not place any valuation upon the residence.
Resolution of this issue necessarily af-feets the percentage distribution of the properly includable marital assets between the parties. The court decree purported to divide the assets in an approximate ration of 45% to 55% in favor of Husband. The valuation of the residence may well alter the percentage awarded each party. For this reason, upon remand I would require the court to place a value upon the residence and to make its distribution award in accordance therewith.
Wife bought the home before the marriage for $40,000, including $10,000 borrowed from her mother. Shortly after the marriage the house was refinanced. At that time the house had an appraised value of $53,000 subject to a $29,000 mortgage. Appellant's Br. at 9. Wife's equity was therefore approximately $24,000. In 2000 when the divorcee was filed, the refinanced mortgage balance was $13,900. Husband's valuation of the property was $74,000. Wife's valuation was $67,500. Wife presumes the trial court used Husband's evaluation, but Husband says that the court clearly used Wife's value in setting the house over to her at a figure of $50,100.
On a straight distribution to Wife at the $50,100 figure plus a $13,900 mortgage, the valuation of the house would be $64,000, closer to Wife's figures than Husband's. If the court actually intended to use the $74,000 valuation less $13,900 mortgage, Wife would have received $60,100 rather than $50,100. That additional $10,000 would make the distribution virtually 50-50.
If on the other hand the court failed to give Wife her initial $24,000 equity free and clear, that would leave $50,000 in value distributable between the parties subject to the $13,900 mortgage. In essence then, under such computation, Wife received the equivalent of her $24,000 equity plus $26,000 in current value, totaling $50,000. When the remaining mortgage balance is added, she received a house worth $64,000. With regard to Wife's mother's $10,000 loan, if the trial court considered it as an additional offset to the equity, Wife received a house worth $74,000 subject to mother's loan and the mortgage. Under this analysis, and reasoning backwards, the residence would approximate Husband's valuation of $74,000.
Given our decision to remand for a re-caleulation and distribution of the marital assets, for purposes of clarity the trial court should place a valuation upon the residence, and make its distribution accordingly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729226. Public record. Not legal advice.