In Re the Marriage of: Mark Alan Grube, Jr. v. Brittany P. Grube (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 30 2016, 9:00 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE R. Patrick Magrath Rebecca L. Lockard Alcorn Sage Schwartz & Magrath, LLP Jeffersonville, Indiana Madison, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Marriage of: December 30, 2016 Court of Appeals Case No. Mark Alan Grube, Jr., 10A05-1607-DR-1693 Appellant-Petitioner, Appeal from the Clark Circuit Court v. The Honorable Andrew Adams, Judge Brittany P. Grube, The Honorable Joni L. Grayson, Magistrate Appellee-Respondent. Trial Court Cause No. 10C01-1512-DR-619

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Case Summary [1] Appellant-Petitioner Mark A. Grube, Jr., married Appellee-Respondent

Brittany P. Grube on September 19, 2015. On December 4, 2015, Mark filed a

petition seeking a dissolution of the parties’ marriage. Mark appeals the trial

court’s division of the parties’ marital estate, arguing that the trial court abused

its discretion by failing to include a certain debt in the marital estate and in

ordering an unequal division of the marital estate. We affirm.

Facts and Procedural History [2] At some point, Mark and Brittany became involved in a romantic relationship.

In approximately of January of 2014, they began to cohabitate. Mark and

Brittany were married on September 19, 2015. They soon thereafter separated

and, on December 4, 2015, Mark filed the instant dissolution action. [3] The trial court conducted a hearing on the dissolution action on May 2, 2016,

after which it issued a decree of dissolution and an order dividing the parties’

marital estate. The trial court noted in the dissolution order that the parties’

debt was greater than their assets. Taking this fact into consideration, in

dividing the parties’ marital estate, the trial court concluded as follows:

The court has considered all the factors that would warrant an unequal division of assets, and finds that the economic circumstances of the parties at the time of disposition and the earnings or earning ability of the parties are particularly significant. In particular, the fact that Brittany is assuming the car debt, which far exceeds the value of the car (and will likely

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continue to exceed the value of the car), while Mark has the use of a “company” car, is significant. She has no other vehicle. The parties’ incomes are disparate. Additionally, Mark incurred significant student loan debt prior to the marriage, and although he is paying that debt, the entire debt has been considered in the final division of assets and debts, which places Brittany in the position of “contributing” to the payment of that large debt even though it was incurred almost, if not entirely, prior to their marriage. Therefore, the court finds and concludes that an unequal division of the marital assets and debts is warranted, and Brittany shall receive the sum of $8429.00 from Mark (See Respondent’s Exhibit 2) to effectuate a “60/40” division. This amount will only reduce the overall amount of debt Brittany is paying; it will not in any way place her in “positive” territory with regard to division of assets and debts. The court does not find a “dissipation” of marital assets occurred. The parties simply lived beyond their means, and will have significant debt to pay as a result.

Order. This appeal follows.

Discussion and Decision [4] Mark contends that the trial court abused its discretion in dividing the parties’

marital estate.

When reviewing a claim that the trial court improperly divided marital property, we must decide whether the trial court’s decision constitutes an abuse of discretion. Keller v. Keller, 639 N.E.2d 372, 373 (Ind. Ct. App. 1994), trans. denied. We consider only the evidence most favorable to the trial court’s disposition of the property. Id. We will reverse only if the result is clearly against the logic and effect of the facts and the reasonable inferences to be drawn therefrom. Id.

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Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999).

I. Exclusion of a Claimed Debt from Marital Estate [5] Mark claims that the trial court abused its discretion in failing to include a 2015

tax liability in the martial estate. [6] With respect to the inclusion of an asset or debt in the marital estate, we have

previously concluded as follows:

Since the marital property must be disposed of at one time, the trial court must have before it a fixed, presently ascertainable value of the assets. [Waggoner v. Waggoner, 531 N.E.2d 1188, 1189 (Ind. Ct. App. 1988)]. The parties have the burden to produce evidence as to the value of the assets. Neffle v. Neffle, 483 N.E.2d 767, 770 (Ind. Ct. App. 1985), reh’g denied, trans. denied. Therefore, impliedly, the parties also have the burden to produce evidence as to the existence of the assets.

Conner v. Conner, 666 N.E.2d 921, 926 (Ind. Ct. App. 1996). [7] In the instant matter, the trial court found that there was no evidence proving

the existence of the claimed 2015 tax liability. Mark testified that he had

received notification from the Internal Revenue Service (“IRS”) that Mark was

subject to a 2014 tax liability of $2579.00 because he had claimed an education

tax credit to which he was not entitled. Mark also testified that his accountant

had informed him that because he had claimed the same credit on his 2015

taxes, the same amount would likely be owed in 2015 as well. Mark, however,

did not testify that, as of the date of the dissolution hearing, the IRS had

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connection with his 2015 taxes. In addition, our review of the record does not

reveal any other evidence indicating that the IRS had actually notified Mark

that any such liability existed for 2015 or the exact amount which would be

owed. Mark’s argument is this regard simply appears to be based on his

accountant’s speculation.

II. Unequal Division of the Parties’ Marital Estate [8] Mark also claims that the trial court abused its discretion in ordering an

unequal division of the parties’ marital estate. [9] “In an action for dissolution of marriage, the trial court is required to divide the

property of the divorcing spouses ‘in a just and reasonable manner.’” Crider v.

Crider, 26 N.E.3d 1045, 1048 (Ind. Ct. App. 2015) (quoting Ind. Code § 31-15-7-

4(b)).

Indiana courts utilize a “one-pot” method for calculating and distributing marital property, whereby all property is included in the marital pot and subject to division, regardless of whether it was (1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right: (A) after the marriage; and (B) before final separation of the parties; or (3) acquired by their joint efforts. [Ind. Code] § 31-15-7-4(a); Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App. 2011), reh’g denied.

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Id. at 1048. “There is a rebuttable presumption that ‘an equal division of the

marital property between the parties is just and reasonable.’” Id. (quoting Ind.

Code § 31-15-7-5).

However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable: (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing. (2) The extent to which the property was acquired by each spouse: (A) before the marriage; or (B) through inheritance or gift. (3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children. (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property. (5) The earnings or earning ability of the parties as related to: (A) a final division of property; and (B) a final determination of the property rights of the parties.

Ind. Code § 31-15-7-5. [10] In ordering a 60/40 division of the marital estate, the trial court noted that the

parties had agreed to a debt division, with each taking the debt incurred in their

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name. As part of this agreement, Mark agreed to take responsibility for

payment of his student loans and Brittany agreed to take responsibility for

payment of the medical bills which had stemmed from her treatment for

ovarian cancer. The trial court noted that each of these debts was significant.

In addition to the significant debt from her medical bills, Brittany agreed to take

on the significant debt associated with the parties’ Ford Fusion. [11] The trial court also found that the parties’ incomes were disparate. The record

reveals that at the time of the final separation, Brittany earned approximately

$22,000 per year and Mark earned approximately $40,000 per year. Thus,

during the course of the parties’ co-habitation and marriage, Mark’s income

was nearly double Brittany’s. At the time of the dissolution hearing, Mark’s

income had increased to approximately $44,000 and Brittany had secured new

employment and was earning approximately $32,000. Even after Brittany

secured new employment, Mark earned approximately $10,000 more than

Brittany per year. [12] Again, after considering the relevant statutory factors together with the

evidence presented by the parties, the trial court concluded as follows:

Therefore, the court finds and concludes that an unequal division of the marital assets and debts is warranted, and Brittany shall receive the sum of $8429.00 from Mark (See Respondent’s Exhibit 2) to effectuate a “60/40” division. This amount will only reduce the overall amount of debt Brittany is paying; it will not in any way place her in “positive” territory with regard to division of assets and debts. The court does not find a “dissipation” of marital assets occurred. The parties simply lived

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beyond their means, and will have significant debt to pay as a result.

Order. [13] Mark asserts on appeal that the trial court failed to consider all relevant factors

when ordering an unequal division of the parties’ marital estate. “The party

challenging the trial court’s division of marital property bears the burden of

overcoming 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.” Crider, 26 N.E.3d at

1047-48 (internal quotation omitted). Our review of the instant matter leads us

to the conclusion that Mark has failed to meet this burden and, as a result, has

failed to overcome the presumption that the trial court considered and complied

with Indiana Code sections 31-15-7-4 and 31-15-7-5 when ordering an unequal

division of the parties’ marital estate. As such, we conclude that Mark has

failed to prove that the trial court abused its discretion in this regard. [14] The judgment of the trial court is affirmed.

Vaidik, C.J., and Brown, J., concur.

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