Joan Dumoulin v. Daniel Dumoulin, Sr., and Daniel Dumoulin, II (mem. dec.)

FILED MEMORANDUM DECISION May 13 2016, 6:18 am

CLERK Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court Court of Appeals Memorandum Decision shall not be regarded as and Tax Court

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 ATTORNEYS FOR APPELLEE DANIEL DUMOULIN, SR. Rodney V. Shrock Kokomo, Indiana Cassandra A. Kruse Gregory L. Noland Emswiller, Williams, Noland & Clarke, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joan Dumoulin, May 13, 2016

Appellant, Court of Appeals Case No. 52A05-1507-DR-823 v. Appeal from the Miami Superior Court Daniel Dumoulin, Sr., and The Honorable A. Christopher Lee, Daniel Dumoulin, II1, Special Judge Appellees. Trial Court Cause No. 52D02-0901- DR-11

Bradford, Judge.

Case Summary

1 Appellee-Intervenor Daniel Dumoulin, II, does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 52A05-1507-DR-823 | May 13, 2016 Page 1 of 14 [1] Appellant-Respondent Joan Dumoulin (“Wife”) and Appellee-Petitioner

Daniel Dumoulin, Sr. (“Husband”) married in 1971 and had four children.

During the marriage, Wife worked as a Kokomo Police Officer until she

became disabled. Upon Wife’s disability, she collected a disability pension that

was later converted into a retirement pension. In 2009, after Husband

petitioned for dissolution of the marriage, the trial court ordered him to manage

the parties’ rental properties and keep an accounting. At some point during

dissolution proceedings, the parties stipulated to the inclusion of Wife’s pension

in the marital estate. Also at some point, the parties’ son Appellee-Intervenor

Daniel Dumoulin, II (“Son”), intervened in the case. [2] At the final evidentiary hearing, Wife testified that she wished to be awarded

half of the marital estate. Both parties presented evidence tending to prove that

Husband had mismanaged the parties’ rental properties, with evidence

indicating that the extent of the mismanagement ranged from approximately

$4000.00 to $21,000.00. In its final order, the trial court included Wife’s

pension in the marital estate, divided the marital estate evenly, and found that

Husband had mismanaged the parties’ rental properties. The trial court found

the evidence of mismanagement to be ambiguous but ordered an award of

additional personal property to Wife as compensation. [3] Wife contends that the trial court abused its discretion in (1) including her

police retirement pension in the marital estate, (2) ordering an equal division of

the marital estate, and (3) failing to adequately compensate her for Husband’s

alleged mismanagement of the parties’ rental properties. Because we conclude

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that any error the trial court may have committed related to Wife’s first two

claims was invited and that the trial court’s compensation order was within the

scope of the evidence, we affirm.

Facts and Procedural History [4] Husband and Wife married on July 1, 1971. For a time during the marriage,

Husband played major league baseball before working for Kokomo Gas Utility,

now NiSource. Wife stayed at home with the children but became a Kokomo

Police Officer when they reached school age. Wife worked as a police officer

for eighteen years until she became disabled. Wife’s disability pension from the

Indiana Police and Fireman’s Pension Board was awarded in December of

2000. During the marriage, Husband and Wife acquired rental property and

farmland, with Wife handling the collection of rent until divorce proceedings. [5] On January 30, 2009, Husband petitioned for dissolution of the parties’

marriage. On March 11, 2009, the trial court awarded Husband temporary

exclusive possession of real property at 202 Nancy Drive, awarded Wife

temporary exclusive possession of the parties’ Florida home, ordered Husband

to pay Wife maintenance, ordered Husband to manage the parties’ rental

properties and keep a strict accounting, and ordered that the parties were

permitted to sell real estate only if they mutually consented. At some point, the

court apparently ordered Husband to deposit rents into a separate account. On

May 14, 2014, the trial court granted Wife’s motion to join Son as an

indispensable party.

Court of Appeals of Indiana | Memorandum Decision 52A05-1507-DR-823 | May 13, 2016 Page 3 of 14 [6] On February 28, 2013, Husband moved to terminate maintenance and, on July

12, 2013, filed an emergency petition to find Wife in contempt for allegedly

entering 202 Nancy Drive without authorization. On August 28 and 30, 2013,

the trial court held a hearing on Husband’s motions as well as Wife’s requests

for an accounting and to modify the provisional orders. [7] On November 3, 2013, the trial court issued an order terminating Husband’s

maintenance, specifying the parameters of Husband’s accounting, and finding

Wife in contempt. On January 17, 2014, Husband filed his initial accounting,

to which Wife objected on March 14, 2014, on the basis that the accounting for

several properties was incomplete. On April 21, 2014, the parties participated

in mediation and were able to reach a partial mediated agreement on the

inclusion and valuation of most of the marital estate. Among the items the

parties agreed would be included in the marital estate was Wife’s pension from

the Kokomo Police Department. [8] On April 23, 2014, Husband filed a second verified petition for contempt

citation, alleging that Wife had once again entered rental property,

communicated with tenants, and collected rents, all in violation of court orders.

On May 8, 2014, Husband filed his third verified motion for contempt citation,

alleging that Wife had sold the parties’ Florida residence without his consent

and had retained the cash proceeds. On June 18, 2014, Husband submitted

another accounting. On June 24, 2014, Wife filed her objection to Husband’s

new accounting and response to Husband’s petition for a contempt citation

related to the sale of the Florida property. On June 26, 2014, Husband filed a

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motion in limine, seeking to have the trial court exclude evidence (1) from Son

regarding objections to Husband’s accounting, (2) from Wife regarding whether

the parties’ stipulations regarding valuation of the marital estate should be

vacated, and (3) regarding whether agreements executed by the parties and their

attorneys in mediation should be enforced. On June 30, 2014, Wife moved for

relief from stipulation. [9] On December 10 and 11, 2014, the trial court held a final hearing. R. Thomas

Parker, a legal benefit analyst for the Indiana Public Retirement System,

testified that Wife’s disability pension was converted to a retirement pension

when she turned fifty-two. The trial court also heard evidence touching on

Husband’s management of the parties’ rental properties. Husband conceded

that he had, at one point, taken $4425.00 in farm rent and “put it in [his]

pocket” instead of depositing it in the court-ordered rental account. Tr. p. 386.

Wife presented evidence that would support a conclusion that Husband has

mismanaged approximately $21,297.72 in rental income. On December 11,

2014, the trial court entered a decree of dissolution with several issues taken

under advisement. [10] On April 30, 2015, the trial court issued its order on the remaining issues,

which provided in part as follows:

The Court entered its Decree of Dissolution on December 11, 2014 and maintained all remaining issues under advisement and directed the parties to submit proposed orders. The Court has received and considered those proposed orders. The Court now ORDERS as follows:

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(1) All pending requests for contempt findings are denied.

(2) Joan’s request to set aside the stipulated values is denied.

(3) Joan is awarded the following assets (real and personal) property at the following values assigned: (a) 202 Nancy Drive, Kokomo 350,000.00 (b) Lots 15, 16, 17 @ Nancy Dr. 10,000.00 (c) 12107 Eagle Point/ Florida sold 165,000.00 (d) 18.73 acres by 5225 N 00 EW 190,000.00 (e) 1/2 of the remainder of oral land contract UP2B 581,004.54 (f) 2008 Chevy Avalanche 14, 125.00 (g) Household goods/furnishings (all other items of personal property to be addressed by way of separate paragraphs) (h) City of Kokomo 457(b) 46,884.75 (i) PERF—INSPRS Pension (Wife) (to be addressed below by separate paragraph) (i) Putnam American-003294408 7,935.06 (k) City of First[s] #701501 8,203.97

(4) Daniel is awarded the following assets (real and personal) property at the following values assigned: (a) 1807 Purdum 10,000.00 (b) 117 W. Spraker, Kokomo 8,000.00 (c) 11329 S. Locke 15,000.00 (d) 3208 E Country Club Rd., Rochester (1/5 interest) 31,060.00 (e) 1/2 of the remainder of oral land contract UP2B 581,004.54 (f) 1990 Chevy Truck 1,500.00 (g) 2007 GMC Truck 11,900.00 (h) Household goods/furnishings (all other items of personal property to be addressed by way of separate paragraphs) (i) Kokomo Union Pension 262,731.91

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(j) Kokomo RSP 401(k) 424,759.23 (k) Putnam Investments IRA 5,795.51 (1) Star Financial #65-5 5,263.22 (m) City of [F]irsts #9217—Rental 47,058.28

(5) Joan shall be solely obligated and shall hold husband harmless for the debt obligation associated with 202 Nancy Dr., Kokomo with a balance of $130,403.29. Joan shall be obligated to refinance the obligation so as to remove Daniel’s name from the debt obligation. Daniel shall be obligated to execute a quit claim deed to Joan within thirty (30) days. Joan shall be responsible for the costs associated with the transfer of the real estate and shall be responsible for preparation of the quit claim deed.

(6) The Court has awarded the various parcels of real estate as outlined above. Each party shall execute quit claim deeds in favor of the other party to transfer ownership of the real estate. The party that is awarded the real estate shall be responsible for the costs associated with the transfer and shall be responsible for preparation of the quit claim deeds to the various parcels of real estate. This should all be accomplished within thirty (30) days of this order.

(7) The Court agrees with Joan’s position as it concerns distribution of the PERF-INSPRS Pension. The Court directs that the pension shall be divided equally as the pension payments are received. Joan shall be responsible for the accounting as it concerns the pension and shall bear the burden of demonstrating that she has in fact paid over 1/2 of her pension to Daniel when the same is received. Daniel and Joan shall be equally obligated for any tax obligations associated with the pension payments so that they will equally divide the net pension payments.

(8) Daniel is awarded the baseball memorabilia as his sole and exclusive property. The Court directs both parties to conduct

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a good faith effort to find the memorabilia and to see that it is delivered to Daniel. The evidence presented was not sufficient to establish a value for the items. Upon discovery, any baseball memorabilia shall be inventoried and appraised. Daniel shall pay Joan one half the value of the items.

(9) Joan shall be the sole and exclusive owner of the following personal property: (a) 14’ box trailer (b) 2 axle car trailer (c) 2 riding mowers (d) tools (air compressors, welders, carpet tools—purportedly located in a garage at 2725 E 50 N)

(10) As to miscellaneous goods and furnishings, the Court awards Joan and Daniel the sole and exclusive ownership of the items of personal property currently in their possession or under their control. Unless otherwise awarded herein, each party is awarded any items of personal property located at the real estate awarded to them in this order.

(11) Joan has requested a portion of the proceeds from the rental properties managed by Daniel during the provisional period. The evidence supporting this request is ambiguous making such an award difficult to formulate. Daniel requests a money value to be assigned to the personal property awarded to each party. The evidence as to the value of these items of personal property is suspect with the exception of some of the items listed in paragraph (9) above. The Court believes that Daniel did mismanage the rental account and that Joan is receiving more than half of the personal property. The evidence as to both is lacking. The Court therefore awards Daniel any proceeds that were not properly accounted for and Joan the greater share of the personal property distribution. The Court will not consider either in the equalization of the distribution except for the City of Firsts Rental account. The Court finds that Daniel received funds in excess of the funds

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in the City of First[s] Rental account but cannot determine that exact amount based on the evidence presented.

(12) EQUALIZATION OF DISTRIBUTION: In order to equalize the distribution the Court orders Daniel to pay Joan the amount of $80,661.33 by the end of July, 2015. (Spreadsheet is attached, incorporated and marked “A”). Any unpaid balance left owing on August 1, 2015 shall be reduced to judgment and shall accrue interest at the legal rate. The Court determines that an equal division of assets and debts is appropriate. The Court believes that Daniel is in a better position to support himself at the conclusion of this long term marriage. The Court makes this determination based on Joan’s continuing health issues. This division is designed to be equal but the Court has taken Joan’s health circumstances into account in determining the method in which the distribution takes place. This is the reason the Court divided Joan’s pension as it is received.

Appellant’s App. pp. 26-29. [11] Wife contends that the trial court abused its discretion in (1) including her

police retirement pension in the marital estate, (2) ordering an equal division of

the marital estate, and (3) failing to adequately compensate her for Husband’s

alleged mismanagement of the parties’ rental properties.

Discussion and Decision I. Whether the Trial Court Abused its Discretion in Including Wife’s Pension in the Marital Estate [12] In a dissolution proceeding, the trial court’s division of the marital estate is a two-step process: first, the trial court determines what property is to be included in the marital pot;

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second, the trial court must divide the property. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), reh’g denied, trans. denied. The marital pot incorporates “all the property acquired by the joint effort of the parties” before the marriage and up to the date of final separation. Id. See I.C. § 31-15-7-4. Pitcavage v. Pitcavage, 11 N.E.3d 547, 565 (Ind. Ct. App. 2014).

[13] Wife contends that the trial court abused its discretion in including her pension

in the marital estate. Husband argues that Wife invited any error in this regard

by stipulating below that her pension be included in the marital estate and that

the trial court properly included it in any event. [14] We agree with Husband that Wife may not now argue that her pension should

not be included in the marital estate when she stipulated to such an inclusion

below. Although Wife sought release from that stipulation, her request was

denied and she does not appeal that denial. Pursuant to Indiana Alternative

Dispute Resolution Rule 2.7(E), agreements reached during mediation that are

signed and executed by the parties and their attorneys are enforceable. See also

Reno v. Haler, 734 N.E.2d 1095, 1099 (Ind. Ct. App. 2000) (“Thus, in order for a

mediated settlement to be enforced, it must be reduced to writing and signed by

both parties and their attorneys.”), trans. denied. Wife, her attorney, Husband,

his attorney, and the mediator all signed the written stipulation that Wife’s

pension would be included in the marital estate. Because any error the trial

court may have committed in this regard was invited, Wife will not now be

heard to complain. See, e.g., Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133

(Ind. 2005) (“Under [the invited error doctrine], ‘a party may not take

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advantage of an error that she commits, invites, or which is the natural

consequence of her own neglect or misconduct.’”) (citation omitted).

II. Whether the Trial Court Abused its Discretion in Ordering an Equal Division of the Marital Estate [15] “Subject to the statutory presumption that an equal distribution of marital

property is just and reasonable, the disposition of marital assets is committed to

the sound discretion of the trial court.” Augspurger v. Hudson, 802 N.E.2d 503,

512 (Ind. Ct. App. 2004).

An abuse of discretion occurs if the trial court’s decision is clearly against the logic and effect of the facts and circumstances, or the reasonable, probable, and actual deductions to be drawn therefrom. An abuse of discretion also occurs when the trial court misinterprets the law or disregards evidence of factors listed in the controlling statute. The presumption that a dissolution court correctly followed the law and made all the proper considerations in crafting its property distribution is one of the strongest presumptions applicable to our consideration on appeal. Thus, we will reverse a property distribution only if there is no rational basis for the award and, although the circumstances may have justified a different property distribution, we may not substitute our judgment for that of the dissolution court.

Id. (citations, quotation marks, and brackets omitted). [16] Wife contends that the trial court’s equal division of the marital estate

erroneously fails to take into account her disability, with evidence that she

suffers from fibromyalgia, chronic fatigue, and depression. As with Wife’s

previous argument, however, any error the trial court may have committed in

dividing the marital estate equally was invited. During Wife’s testimony at the

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final hearing, she testified unequivocally, “I just want half.” Tr. p. 454. Wife

clearly indicated below that an equal division of the marital estate was all she

was asking for, and so cannot now complain when that is precisely what she

received. See Witte, 820 N.E.2d at 133.

III. Whether the Trial Court Abused its Discretion in Failing to Compensate Wife for Any Amounts Related to Husband’s Mismanagement of Rental Property [17] Wife contends that the trial court abused its discretion in failing to compensate

her for Husband’s mismanagement of rental properties. As previously

mentioned, the trial court found that Husband had mismanaged the rental

properties but found the evidence regarding the extent of that mismanagement

to be ambiguous. In an attempt to address this situation, the trial court

awarded what it believed to be a greater portion of personal property to Wife as

compensation. Under the circumstances of this case, we cannot conclude that

Wife has established an abuse of discretion. [18] Wife points to evidence that would allegedly tend to show that Husband

mismanaged $21,297.72 of rental income, while Husband seemed to concede at

the final hearing that he had converted $4425.00 of farm rent for his own use.

The trial court, however, seemingly found that taken together, the evidence

regarding mismanagement was ambiguous, as was its right. See DeHaan v.

DeHaan, 572 N.E.2d 1315, 1320 (Ind. Ct. App. 1991) (“In determining whether

the findings and judgment are clearly erroneous, we will neither reweigh the

evidence nor judge witness credibility, but we will consider only the evidence Court of Appeals of Indiana | Memorandum Decision 52A05-1507-DR-823 | May 13, 2016 Page 12 of 14

and reasonable inferences therefrom which support the judgment.”), trans.

denied. [19] Moreover, while the trial court also found that evidence regarding the value of

some personal property in the marital estate to be suspect, it specifically

credited evidence regarding the values of some items awarded to Wife: a

fourteen-foot box trailer valued at $2300.00, a two-axle car trailer valued at

$1500.00, two riding mowers valued at $2500.00, and tools valued at

$10,000.00. Although Wife contends that Husband’s valuation of these items

was based on speculation, the trial court was nonetheless within its rights to

credit it. See id. [20] Assuming that the rest of the estate was divided equally, the trial court’s award

of personal property to Wife compensated her $16,300.00 for Husband’s

mismanagement of the rental properties. The trial court heard evidence that the

extent of Husband’s mismanagement ranged anywhere from $4425.00 to

$21,297.72. Although the trial court found the evidence of the extent of

Husband’s mismanagement to be ambiguous, the award of additional personal

property to Wife as compensation is well within the scope of that evidence. In

short, the trial court had a rational basis for its disposition, and we will not

substitute our judgment for its. See Augspurger, 802 N.E.2d at 512. Under the

circumstances, Wife has failed to establish an abuse of discretion.

Conclusion

Court of Appeals of Indiana | Memorandum Decision 52A05-1507-DR-823 | May 13, 2016 Page 13 of 14 [21] Because Wife stipulated to the inclusion of her pension in the marital estate, she

may not now complain about that inclusion. Also, because Wife specifically

asked for half of the marital estate, she may not now challenge an equal

division. Finally, Wife has failed to establish that the trial court abused its

discretion in offsetting Husband’s mismanagement of rental property with an

unequal award of personal property to Wife. [22] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

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