Arnold E. Bulmer v. Pamela K. Bulmer (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Aug 07 2018, 7:25 am

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

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Leanna Weissman Robert G. Gulde Lawrenceburg, Indiana Clarkson & Gulde, P.C. Rushville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Arnold E. Bulmer, August 7, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-DR-55 v. Appeal from the Fayette Circuit Court Pamela K. Bulmer, The Honorable Hubert Branstetter, Appellee-Petitioner. Judge Trial Court Cause No. 21C01-1508-DR-538

Mathias, Judge. [1] Arnold Bulmer’s (“Husband”) and Pamela Bulmer’s (“Wife”) marriage was

dissolved in the Fayette Circuit Court. Husband appeals the trial court’s final

order on division of marital property and debts and raises two issues, which we

restate as: Court of Appeals of Indiana | Memorandum Decision 18A-DR-55 | August 7, 2018 Page 1 of 14

I. Whether the trial court erred when it denied Husband’s motion for continuance; and

II. Whether the trial court abused its discretion when it divided Husband’s family’s farm equally between the parties.

We affirm.

Facts and Procedural History [2] Husband and Wife were married on December 22, 1979. They lived in a house

located on 143 acres of farmland in Franklin County, Indiana (the “Farm”) for

the entirety of their marriage. Husband’s father, Harold Bulmer (“Harold”),

owned the Farm until April 18, 2005, when he conveyed the 143-acre parcel by

warranty deed to Husband. Since the beginning of their marriage, Husband and

Wife lived on the Farm rent free, and Harold paid all of the expenses. [3] On August 26, 2015, Wife filed a petition for dissolution of marriage. After

several continuances, a final dissolution hearing was held on June 5, 2017,

where Wife appeared with counsel and Husband appeared pro se. During the

hearing Husband was called as a witness, at which point he asked the court if

he could “have a lawyer present.” Supp. Tr. p. 15. The court informed Husband

that he “had a lawyer before and [his] lawyer withdrew from the case.” Id.

Husband testified that he was unaware that counsel withdrew, and he thought

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she would be at the hearing. Id.1 Wife’s counsel objected stating that

“[Husband’s counsel] has been unable to contact client by mail or phone for at

least four months despite numerous attempts to do so including two letters[.]”

Id. at 16. Husband responded, “I haven’t had a phone[,] but I have not received

anything through the mail whatsoever. I mean, nothing.” Id. The court asked

how Husband knew to appear at the hearing, and Husband stated he received

an order for pre-trial conference from Wife’s counsel. Id. at 17. Wife’s counsel

pointed out the inconsistencies of Husbands testimony, specifically, that the

address Husband received the order for the pre-trial conference is the same

address to which Husband’s counsel mailed the letters. Id. at 16–17. [4] The trial court asked Husband if he was “asking for a continuance to hire

counsel.” Id. at 15. He answered in the affirmative, and Wife’s counsel objected

and requested that the court settle the dissolution of the marriage and bifurcate

the issue of property.2 In response, the following conversation took place:

[Trial Court]: Looks like you had an attorney for a good while. She asked to get out because she wasn’t hearing back from you. Half way through the hearing [ . . . ], with this amount of assets at stake I’m going to go ahead and

1 Husband’s counsel filed an appearance on June 29, 2016. She then mailed letters to Husband on January 9, 2017 and February 6, 2017, attempting to contact Husband. The letters stated that she needed to speak with Husband in order to properly assist him with his case. See Appellee’s App. p. 7–8. Counsel’s letters also notified Husband of her intent to withdraw if he failed to respond by February 21, 2017. See id. at 8. Husband did not respond, and counsel filed a motion to withdraw on March 31, 2017. The court granted the motion on April 3, 2017. Id. at 9. 2 The primary property at issue in this case is the Farm, as it appears to be the only significant marital asset.

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grant your continuance, give you an opportunity to get counsel but I’m going to advise you, that needs to happen promptly and you need to stay in contact with them because when this gets reset, you come back in and you don’t have counsel we’re going to go forward with this. Do you understand that?

[Husband]: Okay.

[Trial Court]: So, you need to get an attorney if that’s what you’re wanting to do and you need to stay in contact with them and you need to get them hired quickly because this is going to get reset. This has been going on for two years now, okay. And it looks like you’ve failed to cooperate, a couple matters that probably have contributed to this going on, this amount of time and the Court won’t appreciate it if you come back in here without an attorney ready to go next time.

[Husband]: I’ll have one sir.

[Trial Court]: Okay. We’ll see that as a stall tactic on your behalf. Do you understand that? You understand that you need to get an attorney right away?

[Husband]: I promise I’ll have one sir. Supp. Tr. pp. 17–18. Court of Appeals of Indiana | Memorandum Decision 18A-DR-55 | August 7, 2018 Page 4 of 14 [5] Prior to Husband’s motion for continuance, the court planned to address both

the dissolution of marriage and the marital property issues during the June 5

hearing, but after bifurcating the issues, the court proceeded with the hearing

only on the dissolution of marriage. Wife testified that she believed her

marriage was irretrievably broken, and she also testified regarding property and

debt-related issues. See Supp. Tr. pp. 5, 6–14. The trial court then set the hearing

on the division of property for July 5, 2017. [6] On June 12, 2017, the trial court issued its order dissolving the marriage of

Husband and Wife, and in its order, the trial court noted:

6. Husband must have counsel hired for this [July 5] hearing date.

Appellee’s App. p. 10. After several delays, the final hearing relating to the

division of property was held on November 29, 2017.3 [7] At the November 29 hearing, Husband informed the court that he was unable

to obtain counsel because he had “been incarcerated for the last thirteen days

and [he] didn’t have quite enough time to [] get my money together for my

3 The court rescheduled the July 5 hearing to August 28, 2017, which it then continued to October 10, 2017. At that time, since Husband was incarcerated and unable to be transported from Franklin County Jail, the court continued the hearing to November 6, 2017. Wife then filed a motion for continuance on October 16, 2017, which the court granted the same day. The final hearing was then rescheduled to November 29, 2017. See Appellant’s App. pp. 4–7.

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lawyer.” Supp. Tr. p. 22.4 Husband testified that he still intended to hire

counsel, but Wife’s counsel objected to “any further postponement of th[e]

hearing.” Id. The court noted that “this [case] has been pending since [] well

over two years now. [Husband] had an attorney. The attorney withdrew citing

his lack of cooperation. He’s been given [] multiple continuances to hire an

attorney that still hasn’t happened so [] Court’s ready to proceed [] in this

matter.” Id. at 23. Husband proceeded pro se. [8] During the hearing, Husband testified that Wife has “got pretty much

everything she asked for.” Id. at 25. Husband informed the court that “this farm

has been in [his] family for eighty-five years, since 1932,” and “[he’s] the fourth

generation on this farm and [] [he] want[s] to continue to be in the Bulmer

name because [he] want[s] to pass this onto [his] two sons[.]” Id. Husband

explained that the Farm was a gathering place for multiple family holidays and

vacations. Id. at 25–26. He also testified that he has lived on the Farm his entire

life and that Harold has paid for everything, including the taxes on the property

and the residence he and his Wife have lived in. Husband further asserted that

for the last ten years his Wife “laid drunk in the back room every day and [],

[he] had a septic business and [], she was supposed to come be a secretary and

answer the phone and that never even got done because she laying there

drunk[.]” Id. at 28. He then begged the court to not “split this family tradition

4 Although the record indicates Husband was incarcerated for some period of time, he was not incarcerated for the entire duration of time between the June 5 hearing and the November 29 hearing.

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and this history of this farm up,” and also testified that the Farm was a gift from

his father, and his Wife had no right to any interest in the property. Id. [9] Wife’s counsel further asked the court to recall Wife’s testimony from the June

5 hearing that she “put her blood, sweat and tears into [the] [F]arm just as

[Husband] did,” and “[s]he worked on the [F]arm, she was out there with

[Husband] every day.” Supp. Tr. p. 30. During closing arguments, Wife’s

counsel stated that Husband and Wife for “their entire marriage [] lived on the

property so she has just as much invested interest in this farm has he does [],

because it came to them during the marriage so we believe the Court must,

based on Indiana law, include it in the marital pot[.]” Id. at 30. [10] The trial court took the matter under advisement and on December 15, 2017, it

issued its final order on division of marital property and debts finding in

relevant part that:

7. During the pendency of this case, an appraisal was conducted of said property and said property was appraised for the total amount of $610,700.00.

8. Wife had to pay the total cost of the appraisal in the amount of $750.00 even though this Court had previously ordered the parties to equally share that expense.

***

10. The Court finds that the marital property that is subject to division by this court shall include the residence and farm ground located 12088 Buena Vista Road, Rushville, Indiana, 46173, and

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that Wife shall be awarded one-half (1/2) of the value of said house and farm.

11. The Court hereby grants a judgment to Wife in the amount of $305,350.00 and said judgment shall attach as a lien to the property located at 12088 Buena Vista Road, Rushville Indiana, 46173[ . . . ] Said judgment shall not be interest-bearing so long as Harold Bulmer is living.

12. The Court further finds that although Harold Bulmer has retained a life estate in the property, that said property is a marital asset subject to division which is consistent with the authority found in Moyars v. Moyars, 717 N.E.2d [9]76 (Ind. Ct. App. 1999) and Falatovics v. Falatovics, 15 N.E.3d 108 (Ind. Ct. App. 2014).

13. In addition, the aforementioned judgment shall include one- half (1/2) of Husband’s portion of the appraisal fees in the amount of $375.00 and lawyer fees in the amount of $1,100.00 payable to Clarkson & Gulde, P.C. for a total judgment in favor of Wife of $306,825.00. All of said judgment shall attach to said property as described herein.

Appellant’s App. pp. 9–10. Husband now appeals.

I. Denial of Continuance

[11] Husband first argues that the trial court erred when it denied his motion for

continuance at the November 29 hearing. The decision to grant or deny a

motion for continuance rests within the sound discretion of the trial court.

Troyer v. Troyer, 867 N.E.2d 216, 219 (Ind. Ct. App. 2007) (citing Thompson v.

Thompson, 811 N.E.2d 888, 907 (Ind. Ct. App. 2004), trans. denied). An abuse of

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discretion may be found when the moving party has shown good cause for

granting the motion. Id. However, when the moving party is unable to

demonstrate that he or she has been prejudiced by the denial, we will not find

an abuse of discretion. Id. The withdrawal of an attorney does not

automatically entitle a party to a continuance. Id. [12] Here, Husband specifically argues that the trial court erred by denying his

motion to continue because he was “forced to litigate his divorce case without

the benefit of counsel.” Appellant’s Br. at 10. We initially note that Husband

had counsel at the onset of the dissolution proceedings. However, counsel

withdrew in March 2017 because Husband repeatedly failed to respond to

letters which stated, in part, that “[t]here are important matters related to your

case that need your immediate attention[,]” “I cannot continue to represent you

if I have no means of communicating with you[,]” and “[i]f the court allows me

to withdraw, you would need to proceed in finalizing your divorce case without

an attorney or would need to hire a different attorney to represent you.”

Appellee’s App. pp. 7–8. [13] Moreover, the trial court granted Husband’s motion for continuance at the June

5 hearing, and informed Husband that he needed to obtain counsel promptly.

The trial court also informed Husband that if he “[came] back in and [he didn’t]

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have counsel” the court would move forward with the proceedings. Supp. Tr. p.

17. And this is exactly what the trial court did on November 29.5

[14] Husband was fully aware that he needed counsel, he has not demonstrated

good cause for continuance, he was not prejudiced by the denial of his motion

for continuance, and he repeatedly caused unnecessary delays. Therefore, the

trial court did not abuse its discretion when it denied Husband’s motion for

continuance.

II. Division of Marital Property

[15] Husband also contends that the trial court abused its discretion when it

determined that equal division of the Farm was justified. “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.” Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind.

Ct. App. 2014), trans. denied; see also Ind. Code § 31-15-7-4(a). For purposes of

dissolution, property means “all the assets of either party or both parties.” Ind.

Code § 31-9-2-98(b) (emphasis added). While the trial court may decide to

award a particular asset solely to one spouse as a part of its just and reasonable

property division, it must first include the asset in its consideration of the

5 Husband cites to four cases in support of his argument, but the circumstances in those cases are easily distinguishable from those present in this case.

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marital estate to be divided. Hill v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App.

2007). The systematic exclusion of any marital asset from the marital pot is

erroneous. Wilson v. Wilson, 409 N.E.2d 1169, 1173 (Ind. Ct. App. 1980). [16] Husband asserts that the circumstances present here rebut the presumption of

equal division of marital property established in Indiana Code section 31-15-7-

5, which states in relevant part:

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors:

(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. [17] In Husband’s view, Wife should not receive a one-half interest in the farm

because: (1) his interest in the property is a remainder interest that was a gift

Court of Appeals of Indiana | Memorandum Decision 18A-DR-55 | August 7, 2018 Page 11 of 14 from his father;6 (2) Wife has not contributed to the maintenance of the Farm; and (3) Wife does not have an emotional connection to the Farm. See Appellant’s Br. at 15–16.7 However, as noted above, the Farm was conveyed while Husband and Wife were married, neither party has paid for the land, and they have lived on the property for the entirety of their marriage, including the ten-year period after its conveyance to Husband until the parties divorced. Husband also argues that Wife should not be entitled to any interest in the Farm because the deed from Harold conveyed the parcel of land solely to Husband.8 However, the property was conveyed to Husband while Husband and Wife were married. Moreover, they both lived on the Farm rent free for the entirety of their marriage. Therefore, the trial court properly divided the Farm equally between both parties.

6 The fact that Harold retains a life estate interest in the Farm does exclude the Farm from being included in the marital pot and subject to equal division. Moyars v. Moyars, 717 N.E.2d 976, 979 (Ind. Ct. App. 1999). Husband’s remainder interest in the Farm represents a pecuniary interest. Poulson v. Poulson, 691 N.E.2d 504, 506 (Ind. Ct. App. 1998). Thus, although husband asserts that “he may now have to sell the [Farm] which has been in his family for generations,” Appellant’s Br. at 14, he has the ability to obtain a mortgage on the property to satisfy his obligation to Wife and keep the Farm in the family. 7 Husband asserts that this case is similar to Newby v. Newby, 734 N.E.2d 663 (Ind. Ct. App. 2000). We disagree. In that case, the trial court found that an equal division would be unjust because the property was acquired before the marriage. Id. at 666. The property had appreciated throughout the marriage, and the trial court found that “Wife and Husband should equally share in that appreciation.” Id. However, the trial court “reduced Wife’s one-half share by the amount it determined to constitute dissipation of marital assets.” Id. On appeal, we affirmed the trial court’s decision to reduce Wife’s one-half share. Id. at 671. Here, Wife has not dissipated any assets or damaged any property. 8 Husband cites to Cooper v. Cooper, 730 N.E.2d 212 (Ind. Ct. App. 2000), to support his assertion that because the Farm was a gift, it should not be included in the marital pot. However, in Cooper, husband paid $300,000 to his mother for the land, and the value of the land in excess of $300,000 was considered the gift. Id. at 214. Here, Husband has not paid anything to Harold for the Farm, and he is not entitled to an unequal interest in the Farm. Thus, Husbands citation to Cooper is unavailing.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-55 | August 7, 2018 Page 12 of 14 [18] Husband cites to In re Marriage of Coomer, 622 N.E.2d 1315, 1320 (Ind. Ct. App.

1993), to support his assertion that the presumption of equal division is

rebutted. In that case, the wife demonstrated that husband’s conduct during the

marriage put her in a situation where her standard of living after the marriage

would have been lessened. Id. She “offered evidence showing the cost of her

medical care at the time of the dissolution and anticipated future expenditures

necessitated by the husband’s conduct during the marriage.” Id. at 1319. The

trial court held that “an unequal division should be effected in favor of the wife

in part because the wife’s health had been impaired as a consequence of years of

physical abuse from the husband.” Id. On appeal, a panel of this court

concluded that “[t]here is no evidence in this cause nor any finding by the trial

court in its judgment that the wife was physically or mentally incapacitated to

the extent that her ability to support herself was materially affected.” Id. at

1321. We then reversed and remanded with “instructions that the trial court

reconsider the property distribution upon the evidence presented[.]” Id. [19] Here, the only evidence that was presented regarding the statutory factors are

the testimonies of Husband and Wife. Husband testified that the Farm has been

in his family for four generations, and he has alleged that Wife did not

contribute to the maintenance of the land. Wife testified that she “put her

blood, sweat and tears into [the] [F]arm just as [Husband] did” and “she

worked on the [F]arm, she was out there with [Husband] every day.” Supp. Tr.

p. 30.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-55 | August 7, 2018 Page 13 of 14 [20] It is clear from the trial court’s decision that it found Wife’s testimony to be

more credible than the testimony of Husband, and the evidence Husband

presented is insufficient to rebut the presumption of the equal division of

marital assets. See Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App.

2008) (concluding unequal division inappropriate where “[Husband] did not

offer documentary exhibits or other evidence” but “merely requested that the

trial court set aside to him the entire current value of the marital residence[.]”).

And although the trial court here did not address every statutory factor under

Section 31-15-7-5 in its findings, it had no requirement to do so. On appeal, we

presume that the trial court did take each factor into account when making its

decision. See Priore v. Priore, 65 N.E.3d 1065, 1078 (Ind. Ct. App. 2016), trans.

denied. [21] Bulmer’s arguments are simply an invitation for us to reweigh the evidence and

come to a conclusion contrary to the trial court’s decision. This we will not do.

Therefore, the trial court did not abuse its discretion when it awarded Wife one-

half of the value of the Farm.

Conclusion [22] Based on the facts and circumstances before us, the trial court did not abuse its

discretion when it denied Husband’s motion for continuance, and it did not

abuse its discretion when it awarded Wife one-half of the value of the Farm.

Accordingly, we affirm.

Riley, J., and May, J., concur. Court of Appeals of Indiana | Memorandum Decision 18A-DR-55 | August 7, 2018 Page 14 of 14