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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: JASON J. PATTISON Jenner & Auxier Madison, Indiana ATTORNEY FOR APPELLEE: ALLISON T. FRAZIER Alcorn Goering & Sage, LLP Madison, Indiana

IN THE COURT OF APPEALS OF INDIANA
ESSIE (OWENS) BAKER, Appellant-Petitioner, vs. PAUL OWENS, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 39A04-0601-CV-49

APPEAL FROM THE JEFFERSON SUPERIOR COURT The Honorable Fred H. Hoying, Judge Cause No. 39D01-0304-DR-119

(Handdown date) MEMORANDUM DECISION - NOT FOR PUBLICATION

BAKER, Judge

Appellant-petitioner Essie (Owens) Baker appeals from the trial court's final decree of dissolution of her marriage to appellee-respondent Paul Owens. Specifically, Essie argues that the trial court erred in calculating the value of the marital residence, dividing the marital estate with respect to the parties' camper, refusing to award her spousal maintenance, and refusing to award her attorney fees. Paul cross-appeals, contending that the trial court erred in calculating the value of his pension. Finding, among other things, that the trial court erred in including the value of a thirdparty-owned residence in the marital estate, we affirm in part, reverse in part, and remand with instructions to: (1) remove all references to the $30,000 valuation of the Sharon Hill residence from the dissolution decree, calculate the value of Paul's continued residence in the home, divide that amount equally between Paul and Essie, and amend the dissolution decree accordingly; (2) amend the dissolution decree to reflect that the parties' camper is awarded in kind to Paul, that $1250 should not have been deducted from Essie's cash award, and that $1250, representing half of the camper's value, should be awarded to Essie, resulting in a total award of $2,500 to Essie; (3) calculate the amount of spousal maintenance that Paul is required to pay to Essie and amend the dissolution decree accordingly; and (4) amend the dissolution decree to reflect that the marital portion of Paul's pension, which will be divided equally between Paul and Essie, is worth $55,161.25.

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FACTS Paul and Essie were married in Jefferson County on July 3, 1994, 1 and separated on April 4, 2003. No children were born of the marriage. Essie has been unemployed since 1997, following a back injury she sustained while working. She has undergone two back surgeries and has had two pump implants surgically inserted to administer the painkiller dilaudid. During her second back surgery, a problem developed that resulted in paralysis of her left leg. Essie has also suffered two strokes, causing speech and memory difficulties. Beginning in 1998, Essie began receiving Social Security disability benefits in the monthly sum of $512. When she was approved for Social Security benefits, she received back pay in the amount of $11,479. She also receives public assistance in the form of subsidized housing, Medicaid, food stamps, and utility bill assistance. At all relevant times, Paul has been employed as a union electrician with a regular hourly wage of approximately $20. Paul testified that in each of 2003 and 2004, he earned approximately $30,000, but offered no tax returns documenting that assertion. His tax return for 2002 revealed income in excess of $60,000. Paul had two pension accounts. The first, #481, was worth approximately $28,963.04 in June 2004. Paul testified that he only contributed to #481 prior to the marriage, making no further contributions after the parties were married. The second, #369, had a balance of $67,157.60 on April 30, 2003, the day

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In the final decree of dissolution, the trial court found that the parties were married on July 3, 2003, presumably based upon a statement to that effect in Essie's dissolution petition. Both parties testified at the hearing, however, that they were married on July 3, 2004. Moreover, the dissolution of Paul's prior marriage was not final until October 3, 2003. Petr. Ex. 6. It is apparent, therefore, that the petition erred in stating and the trial court erred in finding that the parties were married on July 3, 2003.

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Essie filed the dissolution petition. At the time the parties were married, the balance of #369 was between $9,688.08 and $13,177.48. When Essie and Paul met, Essie owned a residence to which Paul contends he made substantial improvements with his own time and money. In 2001, Essie sold the residence, receiving net proceeds of $39,712.87 from the sale. During the parties' marriage, they lived in a Jefferson County residence on Sharon Hill Road. The title owners of the Sharon Hill residence were Paul's parents, and the original purchase price was $13,000. Essie testified that the parties invested approximately 90% of her Social Security back pay and the net proceeds from the sale of her prior residence in improvements to the Sharon Hill residence. Essie testified that she believed the Sharon Hill residence to be worth $175,000. Paul testified that he believed the Sharon Hill residence to be worth $50,000. The parties also purchased a Prowler Lynx camper, valued at $2,500, during the marriage. During the pendency of the dissolution proceedings, Paul traded in the Prowler for another camper. On April 30, 2003, Essie filed a petition for dissolution of marriage. The provisional order entered by the trial court contained a provision requiring that the parties would allow the dissolution to pend through July 31, 2004, so that the parties' ten-year marriage would entitle Essie to Social Security retirement benefits based on Paul's earnings when she reaches retirement age in approximately ten years.

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Following a final hearing, on October 17, 2005, the trial court issued a decree dissolving the marriage of Paul and Essie. The trial court, on its own motion, entered findings of fact and conclusions of law, providing, in relevant part, as follows: The parties were married on July 3, 1993 [sic]. . . . . *** [Essie] is presently receiving both social security and medicaid. The Court presumes that she qualifies as a person without assets so as to qualify for medicaid. [Essie] is totally disabled and unable to pursue employment. The state of ownership of personal property of the marriage is totally confusing. Evidence presented at trial of the personal property contains massive deception. The Court finds that the personal property, except what is explicitly found in this order, shall be [divided] in accordance with the provisional order. Therefore, each person shall be awarded the possession and ownership of the personal property in their possession. That property the Court considers equally divided. *** The Court awards the Prowler Lynx camper to [Essie]. The value of the camper is $2,500.00. There was $1,000.00 of marital assets in bank accounts on the date of dissolution. The Court awards the bank accounts to [Essie]. [Paul] accumulated $60,000.00 during the marriage in the [#369 account]. [Essie] is entitled to one-half of that amount. Thirty-thousand dollars of the retirement is set over to [Essie]. The facts concerning the real estate are as troubling as almost every other aspect of this dissolution. When reviewing as [sic] the evidence, i.e., the post-dissolution decree, the provisional order, all circumstances, it is apparent that this real estate is an asset of the marriage. The property has been shielded by keeping the title in the names of the parents of [Paul]. The evidence clearly places equitable ownership of the property in the marriage. The value of the real estate and how much value that real estate had when brought into the marriage has never been established by evidence. 5

The residence has little value. The marital value of the property is $30,000.00 to be split evenly. [Paul] shall purchase the property and pay half its value minus the cash and Lynx trailer value. That amount is $13,250.00 and must be paid to [Essie] within thirty days. Since [Essie] has assets, she shall pay her own attorney's fees. Since she has significant assets, no maintenance will be required. [Essie] receives social security benefits based upon [Paul's] earnings. Appellant's App. p. 144-45. Essie now appeals the valuation of the Sharon Hill residence, the distribution of the Prowler camper, the denial of spousal maintenance, and the refusal to award her attorney fees. Paul cross-appeals the valuation of his pension. DISCUSSION AND DECISION I. Standard of Review Where, as here, the trial court enters specific findings of fact and conclusions sua sponte, we apply the following two-tiered standard of review: whether the evidence supports the findings, and whether the findings support the judgment. The trial court's findings and conclusions will be set aside only if they are clearly erroneous, i.e., when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. We neither reweigh the evidence nor assess the credibility of witnesses, and consider only the evidence most favorable to the judgment. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). In a marital dissolution action, the trial court must divide the marital property in a "just and reasonable manner." Ind.Code

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