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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: PRESTON T. BREUNIG MARTHA L. WESTBROOK Buck Berry Landau & Breunig, P.A. Indianapolis, Indiana

ATTORNEY FOR APPELLEE: DAVID W. STONE IV STONE Law Office & Legal Research Anderson, Indiana

FILED
Jan 29 2008, 10:24 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: SANDRA J. BYRD, Appellant-Petitioner, and CHARLES D. PIERCE, Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 48A02-0703-CV-257

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-0305-DR-452

January 29, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary The marriage of Appellant-Petitioner Sandra Byrd ("Sandra") and AppelleeRespondent Charles Pierce ("Charles") was dissolved on October 20, 2006. Sandra appeals, and Charles cross-appeals, challenging the division of marital property. We affirm. Issues Sandra and Charles each present three issues for our review, which we consolidate and restate as the following four issues: I. II. Whether the trial court erred in the admission of evidence; Whether the division of the marital estate is clearly erroneous because the trial court failed to comply with applicable statutes; Whether the trial court abused its discretion in selecting a pension valuation date and assigning a value unsupported by the evidence; and Whether the trial court abused its discretion by ignoring tax consequences. Facts and Procedural History Charles and Sandra were married on September 12, 1998. It was the fourth marriage for each. On May 22, 2003, Sandra petitioned to dissolve the marriage. The trial court conducted a final hearing on September 7, 2006. On October 20, 2006, the trial court issued its findings of fact, conclusions of law, and order dissolving the marriage and dividing the marital estate, valued at $1,334,869.00. provisional payments, Charles was ordered to pay Sandra $123,222.00. Each party filed a motion to correct error. On December 18, 2006, the trial court conducted a hearing upon the motions. With the signed consent of both parties, the trial 2 After credit for

III.

IV.

court delayed the decision upon the respective motions to correct error until February 7, 2007. On that date, the trial court entered extensive findings of fact and conclusions of law, and apportioned to Sandra $191,081.00 in marital assets. Taking into account prejudgment credits, the trial court ordered Charles to pay Sandra $149,463.00. Sandra now appeals, and Charles cross-appeals. Discussion and Decision I. Admissibility of Evidence Sandra complains that the trial court erroneously relied upon Charles' Exhibits A and D, because neither was formally admitted into evidence. She also contends that the trial court erroneously refused to consider an affidavit proffered at the motion to correct error hearing, in which Sandra's disability attorney averred that she had been awarded Social Security disability benefits. Indiana Trial Rule 61 provides: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order in anything done or omitted by the court or by any of the parties is ground for granting relief under a motion to correct errors or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. It appears that Respondent's Exhibits A and D were not formally admitted into evidence despite the fact that these exhibits were the main focus of expert testimony during the final hearing and the hearing on motion to correct error. Certified Public Accountant John Sandlin ("Sandlin") compiled these exhibits at Charles' request, and made certain modifications at

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Sandra's request. Ultimately, the trial court was presented with four alternative valuations of the marital estate. Sandlin described the document entries in great detail during his direct and cross-examination testimony. Sandra did not claim that the exhibits failed to include assets of the parties or misstated the values of real or personal property; nor did she proffer contradictory exhibits. Rather, the controversy between the parties centered upon a choice of valuation dates, the selection of pension valuation methodology, and what percentage of the marital assets Sandra should receive. Accordingly, the reliance upon Respondent's Exhibits A and D to determine the existence of marital assets, despite the lack of formal admission, was not error "inconsistent with substantial justice" as contemplated by Trial Rule 61. Sandra further contends that evidence of the award of disability benefits would have effectively undermined Charles' testimony that she had twice been denied Social Security benefits and the implication that she was not truly disabled. Although the eventual award of disability benefits did not show Charles' earlier testimony to be false, it is clearly relevant evidence of Sandra's earning capabilities. Nevertheless, we are not persuaded that the trial court committed reversible error when it refused the affidavit of Sandra's disability attorney as there was other evidence that Sandra anticipated no future employment. Sandra had initially requested an award of permanent maintenance due to depression and post-traumatic stress disorder. The parties agreed that a psychiatrist of Sandra's choosing would examine and test her, and the maintenance claim would be dependent upon the expert opinion. Once Dr. Hale offered the opinion that Sandra was employable, she withdrew her maintenance claim as agreed. Her employability remained directly relevant only as to the respective economic circumstances of the parties as considered by the trial 4

court in a division of the marital estate. See Ind. Code

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