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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as 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: ERIC C. BOHNET Indianapolis, Indiana ATTORNEY FOR APPELLEE: ELIZABETH BASHAW BYBEE Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRUCE D. SEAL, Appellant-Respondent, vs. LORI L. SEAL, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

FILED
Nov 29 2010, 9:38 am
of the supreme court, court of appeals and tax court

CLERK

No. 48A04-0912-DR-750

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Dennis D. Carroll, Special Judge Cause No. 48D03-0312-DR-1105

November 29, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Bruce D. Seal appeals the trial court's order awarding a pension plan and attorney's fees to Lori L. Seal, his then-wife, upon their dissolution of marriage. He raises two issues for our review, which we restate as whether the trial court abused its discretion by awarding the pension plan solely to Lori, and whether the trial court abused its discretion by awarding attorney's fees to Lori. Concluding the trial court erred by not stating its reasons for awarding the pension plan solely to Lori, but did not abuse its discretion by awarding attorney's fees to Lori, we reverse and remand in part and affirm in part. Facts and Procedural History Bruce and Lori were married in 1985 and separated in January 2008. Lori filed for dissolution of marriage later in 2008, and litigation over property division ensued. Prior to a final trial court hearing in October 2009, the parties reached a partial settlement to allocate all of their debts and most of their property. At issue in the trial court and on appeal is allocation of Lori's pension earned through the Southern California United Food & Commercial Workers Union and Food Employers Joint Pension Trust Fund ("Pension") and Bruce's partial payment of Lori's attorney's fees. The relevant facts follow. During Bruce and Lori's marriage and while residing in California, Lori was a participant in the Pension from 1994 to August 2003. According to the Pension's custodian of records, Lori "has established a vested pension," the amount of which will be determined at the time of her retirement and is dependent upon her age at retirement. Appendix of

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Appellant at 21. If she retires at age fifty, her monthly benefit amount would be $212.47; if she retires at age sixty, her monthly benefit amount would be $408.60. Bruce is trained as an engineer and worked for several years with aircraft in California. Since then he has worked as a cabinetmaker and various other jobs. From February 1998 to February 2005 Bruce was unemployed. Bruce testified he homeschooled their children1 during that time although Lori testified she wanted him to work. At the time of the October 2009 trial court hearing, Bruce had been unemployed for four months; Lori held two jobs to earn a total of approximately $41,000 per year. In the course of the dissolution of marriage proceedings, Bruce undertook several litigation maneuvers that the trial court deemed unnecessary and an "expensive procedural strategy." Id. at 13. These tactics included request for removal in August 2008, Petition for Writ of Mandamus (denied by the Indiana Supreme Court in March 2009), motion for a judge to recuse himself in April 2009 (which was granted), motion for change of venue seeking a different judge in May 2009 (which was denied), Petition for Writ of Mandamus (denied by the Supreme Court in July 2009), and repeated continuances. The trial court awarded the Pension solely to Lori, and ordered Bruce to pay Lori $2,000.00 in attorney's fees. Neither party requested nor did the trial court enter specif ic findings of fact. Bruce now appeals.

Bruce and Lori together have four children who are all above the age of majority and irrelevant to this appeal.

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Discussion and Decision I. Pension Plan A. Standard of Review We apply a clearly erroneous or abuse of discretion standard of review to property division upon dissolution of marriage. Chase v. Chase, 690 N.E.2d 753, 755 (Ind. Ct. App. 1998). A party challenging the property division must overcome the presumption that the trial court made all proper considerations and complied with the law, which is "one of the strongest presumptions applicable to our consideration on appeal." Wilson v. Wilson, 732 N.E.2d 841, 844 (Ind. Ct. App. 2000), trans. denied. "We will reverse a property distribution only if there is no rational basis for the award; that is, if the result reached is clearly against the logic and effect of the facts and circumstances before the court, including the reasonable inferences to be drawn therefrom." Id. We will not reweigh the evidence or assess the credibility of witnesses, and we consider only the evidence most favorable to the trial court's decision. Chase, 690 N.E.2d at 755. Even if "the same circumstances may have justified a different property distribution[,] [we cannot] substitute our judgment for that of the divorce court." Wilson, 732 N.E.2d at 844. B. Allocating the Pension Plan Bruce argues the Pension should be divided equally because the Pension was earned in California where state law requires equal division, it was earned and vested during the marriage, and the trial court did not state its reasons for unequal division. We address each of these arguments in turn.

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Bruce's argument the Pension must be divided equally according to California law fails because regardless of where the parties acquired property during their marriage, the division of their property upon dissolution of their marriage in Indiana is governed by Indiana law. Our supreme court decided in 1831 that Indiana law governs divorce proceedings in Indiana. Tolen v. Tolen, 2 Blackf. 407, 411 (Ind. 1831). In support of his argument that the Pension should be divided equally because it was earned and vested during the marriage, Bruce refers us to Maxwell v. Maxwell, 850 N.E.2d 969 (Ind. Ct. App. 2006), trans. denied. In particular, he points to our statement that "[o]nly property acquired by a spouse after the final separation date is excluded from the marital estate." Id. at 973. We agree that the Pension should be included in the marital estate, for all assets acquired during the marriage are part of the marital estate and subject to division. Gnerlich v. Gnerlich, 538 N.E.2d 285, 288 (Ind. Ct. App. 1989), trans. denied. Contrary to Bruce's assertion, however, we conclude based on the record the trial court did include the Pension in the marital estate. The remainder of our discussion in Maxwell is also instructive and applicable to this case. In Maxwell, a woman appealed the trial court's division of property, claiming the trial court erred in excluding numerous shares of stock and an IRA inheritance from the marital estate and awarding them to her then-husband. In addition to the above, we stated: Taken as a whole . . . the findings and conclusions clearly demonstrate that the trial court considered the . . . shares of stock and IRA as marital property, but that the facts and circumstances justified a deviation from a 50-50 split of the marital estate to effectively award the entire value of those assets to [Husband].

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850 N.E.2d at 973. Similarly, in the present case, the record taken as a whole clearly demonstrates the trial court considered the Pension to be marital property, but determined the facts and circumstances justified deviation from an even split, effectively awarding the entire value of the Pension to Lori. The trial court noted that "the Parties have already divided most of their personal property," and then addressed the division of property issues before the court

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