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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. ATTORNEYS FOR APPELLANT: OCTAVIA FLORENCE SNULLIGAN Indianapolis, Indiana D. MICHAEL BOWMAN Bowman & Ksenak Indianapolis, Indiana ATTORNEY FOR APPELLEE: JONATHAN E. PALMER Indianapolis, Indiana

FILED
Dec 27 2011, 9:25 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
CLAYTON C. FRANCHVILLE, Appellant-Respondent, vs. DYANNE R. FRANCHVILLE, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

CLERK

No. 49A04-1011-DR-777

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Heather Welch, Judge The Honorable Jeffrey L. Marchal, Master Commissioner Cause No. 49D12-0907-DR-32602

December 27, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Clayton C. Franchville ("Husband") appeals the dissolution court's division of assets between him and Dyanne R. Franchville ("Wife") in its dissolution decree. Husband presents three issues for our review, which we restate as follows: 1. Whether the dissolution court abused its discretion when it denied Husband's motion for sanctions after Husband was unable to depose a witness; Whether the dissolution court's conclusion that Wife did not dissipate marital assets is clearly erroneous; and Whether the dissolution court's order distributing the marital assets between the parties is clearly erroneous.

2. 3.

We affirm. FACTS AND PROCEDURAL HISTORY Husband and Wife were married on February 14, 1980, and had no children. Among other activities, Husband was involved in the business of trading in rare coins, and Wife assisted him in buying and selling scrap gold and silver during 1979 and 1980. Husband came to the marriage with coins and collected numerous others over the course of the marriage. An unknown number of the coins were stolen during a burglary in 1984, and many of the remaining coins were placed in safe deposit boxes. Some of the coins were of investment quality, and some had little value except as scrap. Husband and Wife were also involved in buying and selling foreclosed houses. Sometime in 1983, Husband and Wife purchased a house on East Southport Road in Indianapolis, which they made their home ("the Southport property"). In 1997, the

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property was foreclosed upon. In order to allow the couple to remain in the home, Husband arranged for a friend, Frederick Plews ("Plews"), who lived in Mexico, to obtain a mortgage to purchase the home. In 1999, Plews executed a power of attorney appointing Husband as his attorney-in-fact and requested that the parties obtain a life insurance policy on his life, with Husband and Wife as beneficiaries. Husband and Wife made all payments and expenditures for the house and continued to reside in it. Plews never lived in the house except as a guest and never made mortgage, tax, insurance, or other payments for the home. In 2004, Husband underwent emergency surgery. Thereafter, on April 26, 2005, Plews revoked his appointment of Husband as his attorney-in-fact and executed a new power of attorney designating Wife in that role. That same day, Plews executed a quitclaim deed conveying the Southport property to Wife's daughter, Melanie Annee ("Melanie"), but that deed was not recorded. In May, Husband was again hospitalized and was eventually released to recover at home. In the years between the 1997 foreclosure and 2006, land adjacent to the Southport property had become valuable as commercial real estate. In 2006, Husband, Wife, Wife's brothers, Larry and Herbert Pierle ("Larry" and "Herbert"), and an adjacent property owner met regarding the possibility of Larry and Herbert acquiring some portion of the Southport property if Larry and Herbert could also acquire the land adjacent to that property.

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On September 14, 2006, Wife, without consulting Husband, in her capacity as Plews's attorney-in-fact, executed a warranty deed that conveyed the Southport property to Larry and Herbert. Larry and Herbert obtained a $283,000 mortgage on the property, which paid the balance on mortgages previously taken out by Plews and Husband to refinance and improve the residence. Larry and Herbert used $9,000 from the mortgage to pay property taxes due on the land, gave Melanie $9,000 of the loan money to reimburse her for money she had given to Wife for her living expenses, gave $8,000 to Larry as reimbursement for money he had given to Wife, and gave some additional money to Wife to help her pay living expenses. On the day Larry and Herbert purchased the Southport property, Wife and Husband had a dispute, at the end of which Husband announced that he would divorce Wife and would no longer pay any bills. Husband and Wife both remained in the residence, with Husband living in a separate part of the house until December 2006, when he left. At some point, Wife's son, Steven Crihfield ("Steven") and his daughter moved into the home with Wife. Wife filed a petition for dissolution of the marriage in 2007, but dismissed the petition at a later point while she and Husband discussed reconciliation. In the interim, she had sold some of the coins that remained with her in order to cover living expenses after Husband failed to pay according to a pendente lite maintenance order entered in the dissolution action. Wife received approximately $30,000 from the sale of the coins over the course of several years. 4

On January 25, 2007, Larry and Herbert executed a warranty deed conveying the residential portion of the Southport property--roughly one-third of the entire lot--to Melanie. Melanie mortgaged the property for $100,000, using $69,000 of the loan to improve the residence and giving Wife $19,000 to purchase a car, as Wife's prior car had been repossessed after Husband ceased to make payments. On June 26, 2009, Melanie sold her interest in the Southport property to a third party for approximately $230,000. Of this money, she gave approximately $30,000 to Steven to use as a down payment on a new home for Wife, himself, and his daughter. Melanie also gave Wife money to purchase appliances for the new home. On September 20, 2008, one of Husband's acquaintances retrieved coins, watches and watch parts, and other items of Husband's personal property from Wife. Wife also sold a coin to Husband on this date for $2,000, with Husband's acquaintance acting as a go-between. On September 17, 2009, another of Husband's acquaintances retrieved a large amount of Husband's personal property from Wife, including two pinball machines, some furniture, and other belongings. On July 10, 2009, Husband filed his petition for dissolution of the marriage. On April 6, 2010, Husband's prior counsel in the dissolution proceedings withdrew her appearance. The next day, Wife filed a counter-petition for dissolution. On June 10, 2010, five days before a final hearing in the matter that had been scheduled in April 2010, new counsel entered an appearance for Husband and requested that the final hearing be continued in its entirety to a later date pending discovery. The trial court denied this 5

motion, permitted direct examination of Wife and her son, Steven, and continued the final hearing until October 4, 2010. As the discovery process unfolded, numerous disputes arose between Husband and Wife. On September 21, 2010, the trial court was conducting a hearing when Husband revealed that Plews was in Indianapolis and that he planned to depose Plews as soon as possible, preferably that day. Though objecting to the lack of notice, Wife nevertheless agreed to participate in a deposition of Plews on September 24, 2010. Plews, however, left Indianapolis before he could be deposed, apparently returning to his home in Mexico. On September 23, 2010, Husband filed a motion asking that the trial court vacate the final hearing date and sanction Wife. In particular, Husband averred that Wife had sent an e-mail to Plews on September 21, 2010, in which she offered to pay Plews to leave Indianapolis, thereby interfering with discovery. The trial court held a hearing on Husband's motion on October 1, 2010, at the conclusion of which the court declined to vacate the final hearing date, otherwise continue the proceeding, or impose sanctions. In reaching its conclusion, the court expressly stated that it could not conclude that Wife was the author of the September 21 e-mail. On October 4, 2010, the trial court held the final hearing. On November 1, 2010, the trial court issued its dissolution decree. 1 In the decree, the trial court held that Wife had not dissipated assets when she sold the coins. The court

We note that Husband has not attached a full copy of the order appealed from to his brief. See Ind. Appellate Rule 46(A)(10).

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also valued the coins sold by Wife after she had filed the initial petition for dissolution in 2007 at $30,000--the total amount of money wife obtained from their sale--rather than accepting Husband's assertions during the final hearing that those coins were worth in excess of $500,000. Further, the trial court found that neither Husband nor Wife held any vested legal interest in the Southport property, that the appointment of either Husband or Wife as Plews's attorney-in-fact had no bearing on the issues before the court, and that the Southport property and any proceeds from its subsequent sales were not marital assets subject to division and allocation in the dissolution of the marriage. The trial court then ordered Husband and Wife each take the personal property in their possession at the time of the decree and assume all debts personal to them respectively, with the exception that Wife was required to return two carvings that she had retained on Husband's behalf for safekeeping. This appeal ensued. DISCUSSION AND DECISION Issue One: Denial of the Motion for Sanctions Husband first contends that the trial court abused its discretion when it did not vacate the final hearing date in order to permit Husband to depose Plews. 2 In his motion
Husband's brief presents this issue as whether "[t]he trial court abused its discretion when it denied Husband's Contempt Petition and request for sanctions during an evidentiary hearing held before trial thereby depriving Husband of his right to a fair trial in violation of Article I Sec 9 of the Indiana Constitution and the 5th Amendment of the U.S. Constitution." Appellant's Br. at i. Husband advances no cogent argument or citation to the record or any other authority in support of his constitutional arguments or his claim for contempt. We remind counsel that our appellate rules require such argument and citation and, in their absence, a party waives our review of the purported argument. See App. R. 46(A)(8)(a); Watson v. Auto Advisors, Inc., 822 N.E.2d 1017, 1027-28 (Ind. Ct. App. 2005) (stating, "[w]hen parties fail to provide argument and citations, we find their argument s are waived for appellate review"), trans. denied. Accordingly, we do not consider Husband's alleged constitutional errors or his request to have Wife held in contempt.
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to the trial court, Husband claimed that Plews left Indianapolis after Wife had contacted Plews and offered to pay his expenses to leave the city, thereby making Plews unavailable for the deposition and interfering with discovery. As an initial matter, we note that Husband does not clearly articulate the nature of the motion he tendered to the trial court. Husband styled his motion as a "Motion for Sanctions." Appellee's App. at 28. However, among the relief sought by Husband was a continuance of the final hearing. And, on appeal, Husband's argument focuses

exclusively on law discussing when the deposition of a witness is appropriate. We agree with Wife that the substance of Husband's appeal on this issue is whether the trial court properly refused to delay the final hearing. Because Husband sought to postpone the final hearing date in order to obtain testimony from an unavailable witness who was not compelled to testify under subpoena, we construe Husband's request to vacate the final hearing as a motion to continue a trial under Trial Rule 53.5. Under that rule, a party seeking a continuance of the trial must show "good cause established by affidavit or other evidence." Ind. Trial Rule 53.5. Where a party seeks to continue a trial because of the absence of a witness, that party must submit an affidavit showing "the name and residence of the witness" and "the probability of procuring the testimony within a reasonable time." Id. The affidavit must also show that the moving party did not obtain the unavailability of the absent witness and that others did not do so upon that party's request or with that party's "connivance" or knowledge. Id. The affidavit must further show what facts the movant believes to be true and must further 8

establish that the missing witness is the only individual by whose testimony those facts may be proved. Id. Whether to grant a continuance of a trial is left to the discretion of the trial court. Id. Thus, we will not reverse a denial of a continuance unless there has been a clear abuse of the trial court's discretion. Scott v. Crussen, 741 N.E.2d 743, 746 (Ind. Ct. App. 2000), trans. denied. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the trial court. Flake v. State, 767 N.E.2d 1004, 1009 (Ind. Ct. App. 2002). Further, the party seeking a

continuance " `must be free from fault and show that his rights are likely to be prejudiced' " by denial of the motion. Id. (quoting Danner v. Danner, 573 N.E.2d 934, 937 (Ind. Ct. App. 1991), trans. denied). First, Husband's motion failed to set forth any basis upon which denial of the continuance would prejudice his case, and, therefore, it did not comply with Trial Rule 53.5. Husband suggested that Wife had dissipated assets in some fashion, stating: 25. Some of this information [Wife's and her counsel's attempt to hide evidence of dissipation] was disclosed in the deposition of [Wife's daughter] when she testified that proceeds from the sale of the property that was the marital residence was paid to [Wife] in the sum of [$20,000] and to [Wife's son] in the sum of [$30,000]. 26. [Wife's daughter] also testified that she received the property that was the marital residence for no money whatsoever and that she invested some [$60,000] to [$90,000] in that property and eventually sold the property within a period of two (2) or three (3) years for a sum in excess of [$230,000]. Appellee's App. 33-34. 9

During the October 1, 2010, hearing on Husband's motion, Husband argued that, after the Southport property went into foreclosure, Plews had "acted as a straw party and picked the property up and allowed the--uh--Franchville's [sic] to stay there." Transcript at 71. The exhibits Husband designated along with his motion show that in 1999, Plews gave Husband power of attorney over the property. In 2005, Plews revoked the power of attorney from Husband and gave power of attorney to Wife and personally executed a quitclaim deed to Melanie for the Southport property, although this deed went unrecorded. In 2006, Wife, acting in her capacity as attorney-in-fact for Plews, conveyed the property to Larry and Herbert, who in turn conveyed a portion of the property to Melanie in 2007. In 2009, Melanie conveyed the property to a third party. Thus, although Husband's motion and exhibits demonstrate that a series of transactions occurred from 1997 to 2009, they do not indicate or establish what knowledge Plews might have had concerning the alleged dissipation of marital assets by Wife. As such, Husband's motion to continue the trial for Plews's testimony failed to fulfill Trial Rule 53.5's requirement that he identify facts he believed to be true that only Plews's testimony could establish. Further, Husband's motion lacked any statements as to the efforts that would be necessary to obtain Plews's testimony and thus fails to establish the probability of procuring Plews's testimony, as required by the rule. Moreover, Husband could not have successfully argued that he was entitled to some portion of the marital residence itself, as that property was not part of the marital estate. The property was foreclosed upon in 1997--nearly twelve years before Husband 10

filed his petition for dissolution of the marriage--and was purchased by Plews. Plews permitted Husband and Wife to remain in the residence, for which they agreed to make mortgage, tax, and insurance payments, and there is no evidence of a lease or any other written agreement regarding their continued possession of the residence. Plews later executed two different deeds conveying the land--once by his own hand to Melanie, and once through Wife as his attorney-in-fact to Larry and Herbert.3 Larry and Herbert continued to permit Husband and Wife to remain in the home until Husband moved out in December 2006, at which point Wife remained on the property. Contrary to the premise underlying Husband's assertions, Husband and Wife were not owners but, rather, were tenants-at-will on the Southport property, first of Plews and then of Larry and Herbert. See Ind. Code

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