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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: JOHN QUIRK Muncie, Indiana

ATTORNEY FOR APPELLEE RALPH E. DOWLING Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA
DENNIS WALBURN, Appellant-Respondent, vs. SYNDA K. WALBURN, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 18A02-0706-CV-465

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Richard A. Dailey, Judge Cause No. 18C02-0506-DR-12

December 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary Dennis Walburn ("Husband") appeals the trial court's disposition of property in his dissolution proceedings with Synda K. Walburn ("Wife"). Specifically, Husband argues that the trial court abused its discretion by including two sums of money-- $13,678.00 and $21,533.00--in the marital pot. Finding that the trial court acted within its discretion by including these assets in the marital pot, we affirm. Facts and Procedural History Husband and Wife were married in June 1965 and had two children. After separating in July 2001, the parties maintained separate households. Wife filed a Petition for Dissolution of Marriage on June 14, 2005. While married, Husband and Wife owned a pool business. After separating, Wife continued working at the pool business until 2004, and Husband worked at the business until it closed in 2005. A final hearing on the dissolution petition was held on March 5, 2007,1 following which the trial court issued an order, which provides, in pertinent part:

The docket reflects numerous filings, hearings, and orders between the date the dissolution petition was filed and the date of the final hearing; however, these events are not relevant to the issues before us on appeal. Therefore, the Facts and Procedural History section of this opinion is abbreviated. For ease of comprehension, we do note that four months after the dissolution petition was filed, the trial court entered an order providing, in pertinent part: 1. That any income received by the Respondent, through his business, or through the sale of inventory shall be first used to pay the house payment on the home the Respondent is currently residing in and the rest is to be split between the parties for living expenses. 2. The Court further orders that both homes, all real estate, and all personal property be sold at auction with an auctioneer to be agree[d] upon by the parties. Appellant's App. p. 53.

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Petitioner is confirmed in her possession of a 1992 Chevy Suburban, two (2) parcels of real estate at the value of $2,500.00 each across from the dwelling she purchased at the auction of the Parties' realty, and the cash value of her life insurance ($7,000.00), and Respondent is confirmed in possession of a 1994 Chevy Suburban, $21,533.00 in funds withdrawn from First Merchants Bank, $13,678.00 proceeds of business sales, a Grandfather Clock valued at $500.00, a rototiller valued at $50.00, a utility sink valued at $15.00, two (2) cemetery plots valued at $4,000.00, and 2004 tax refund of $1,300.00. Division of the remainder of the marital property is taken under advisement. The Court, having reviewed the record and evidence herein and being advised, now finds the final distribution of the Parties' remaining personalty should be as follows, to wit: 1. The Parties shall equally bear the costs of Cannon Appraisers ($550.00) and their pool business tax ($66.00), all of which shall be deducted from the trust account; 2. The Parties' attorney fees incurred subsequent to auction of marital realty and personalty shall be borne by each Party individually. 3. Respondent shall reimburse Petitioner one-half 2004 tax refund ($650.00), one-half value of Grandfather Clock ($250.00), one-half value of rototiller ($25.00), and one-half value of utility sink ($7.50), one-half value of two cemetery plots ($2,000.00), one-half of the receipts of the Parties' pool business ($6,839.00), the full cost of tax liens ($2,535.22), First Merchants' attorney fees ($532.50), Petitioner's payment to avoid foreclosure on 701 N. Biltmore Avenue property ($3,170.52), Petitioner's payment of Spring and Fall taxes 2005 due 2006 on parcels 111142700400, 1111426015000, and 111142700500 (total: $1,731.16), Petitioner's automobile collision cost ($887.62), and Petitioner's one-half share of proceeds Respondent withdrew from First Merchants Bank ($10,766,27); this shall be paid from the trust account. 4. Petitioner shall reimburse Respondent one-half the value of the two (2) vacant parcels ($2,500.00) and one-half the value of Petitioner's life insurance ($3,500.00); this shall be paid from the trust account. 5. The remaining balance in the trust account shall be divided equally between the Parties. Wherefore it is hereby ordered, adjudged and decreed by the Court that the marital assets be divided in accord with the findings herein. Appellant's App. p. 114-15 (emphases added). On April 9, 2007, Husband filed a Motion to Correct Errors alleging that the trial court erred by including the $13,678.00 in business proceeds and the $21,533.00 withdrawn from First Merchants Bank in the 3

marital pot. Following a hearing, the trial court denied the motion on May 2, 2007. Husband now appeals. Discussion and Decision On appeal, Husband contends that the trial court erred by including the $13,678.00 in business proceeds and the $21,533.00 withdrawn from First Merchants Bank in the marital pot. When disposing of the marital property in this case, the trial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A).2 When a trial court issues such findings, we apply a two-tiered standard of review. Granzow v. Granzow, 855 N.E.2d 680, 683 (Ind. Ct. App. 2006). We first determine whether the record supports the findings and, second, whether the findings support the judgment. Id. The judgment will only be reversed when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and the conclusions entered upon the findings. Id. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id. First, Husband contends that the trial court erred by including the $13,678.00 in business proceeds in the marital pot because it was "earned after the separation of the parties in 2001 but prior to the filing of the dissolution in 2005." Appellant's Br. p. 7. As such, he argues that when identifying the marital property to be divided, "[t]he trial
Neither party sets forth the standard of review for when a trial court issues findings, and neither party indicates whether the trial court here issued findings sua sponte or by request. Regardless of which standard applies, the result would be the same in this case.
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court should have used the date of separation of June of 2001, or the date the wife no longer worked in the pool business in 2004." Id. at 9. It is well-established that 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. Ind. Code

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