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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.

FILED
Oct 01 2009, 9:03 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MICHAEL CHEERVA Avery & Cheerva, LLP Indianapolis, Indiana

ATTORNEY FOR APPELLEE: KRISTINA KEENER YEAGER Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
) ) ) ) ) ) ) ) ) ) )

KATHLEEN GROTHE, Appellant-Petitioner, vs. YOUNG PARK, Appellee-Respondent.

No. 49A04-0906-CV-313

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robyn L. Moberly, Judge Cause No. 49D05-0608-DR-34369

October 1, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Kathleen Grothe appeals the trial court's property distribution in the dissolution of marriage to her former husband, Young Park. We affirm.1 Issues Grothe raises several issues, which we consolidate and restate as whether the trial court abused its discretion in dividing the marital assets. Additionally, Park argues that he is entitled to appellate attorney fees under Indiana Appellate Rule 66(E). Facts Park and Grothe were married in November 2001, and Grothe filed a petition for dissolution of marriage in August 2006. The parties have no children together. Grothe is fifty-eight years old and is an accountant. Prior to their marriage, Grothe had approximately $275,000.00 in pre-marital assets. At the start of their marriage, Grothe earned a salary of $90,000.00, but at the time of the dissolution, Grothe was earning $75,000.00 per year with health insurance and eligibility for a retirement plan in two years. Park is sixty-eight years old and is the semi-retired owner of a martial arts school. Prior to their marriage, Park also owned commercial property where his martial arts school was located. Park paid for the commercial property prior to his marriage to Grothe, and the commercial property was valued at $280,000.00. At the time of their marriage, Park had almost $93,000.00 in equity in his residence. During their marriage, Grothe cashed in

1

Grothe failed to request that the court reporter prepare the transcript or that the transcript be transferred from her original appeal. Although she placed portions of the transcript and exhibits in her supplemental appendix, her failure to provide the entire transcript and exhibits has hampered our review of this matter.

2

$78,604.17 from a 401(k) and, after paying taxes and penalties, used $62,516.24 to make improvements to Park's residence. Park receives Social Security retirement benefits of $150.00 per week and has health insurance through Medicare. Park earns approximately $200.00 per week at his business after deducting business expenses. He has had medical and dental issues over the past few years resulting in approximately $3,000.00 per year in expenses, which he anticipates will continue. After a hearing, the trial court issued findings of fact and conclusions thereon, which Grothe appealed to this court. This court remanded, concluding that "inconsistencies between the trial court's findings and its conclusions render[ed] the trial court's decision clearly erroneous." Grothe v. Park, No. 49A02-0710-CV-914, slip op. at 5 (Ind. Ct. App. July 2, 2008). We directed the trial court to enter new findings and conclusions and to "give due consideration to the contributions of [Grothe] of her pre-marital assets and post-marital earnings." Id. On remand, the trial court entered sua sponte findings of fact and conclusions thereon as follows:2 ***** CONCLUSIONS OF LAW *****

2

Originally, this case was heard by the Honorable Gary L. Miller. On remand, this case was heard by the Honorable Robyn L. Moberly.

3

6. The Court finds that there are reasons to rebut the fifty-fifty division of marital assets and allocation of indebtedness as being fair and equitable in the factual circumstances surrounding these parties' marriage. Such reasons are as follows: a. The parties are involved in a relatively short-term marriage in later stages of their lives. The parties were married less than five (5) years prior to filing of pending Petition and dated only for about two (2) years before marriage and did not reside together. The parties did not produce any children of this marriage. Park brought into the marriage a substantial asset of commercial property which was purchased in 1970 and was paid off prior to the marriage. The residence at 8660 Fall Cree[k] Road was purchased in 1990 and possessed substantial equity prior to the marriage. The fair market value of the residence on November 17, 2001 was $150,000.00 and the mortgage loan balance was $57,057.07. Park possessed equity in the house at the time of the marriage. Grothe brought her own substantial assets into the marriage including personal property, bank accounts, and investment accounts. At the time of dissolution, Grothe possessed substantially greater earnings income potential than Park. Park is selfemployed and has no employer related benefits for retirement, health insurance, vacation, sick, or similar types of benefits.

b. c.

d.

e.

f.

7.

Park has no substantial abilities to acquire future retirement benefits. Park is sixty-nine (69) years old. Park advised Grothe prior to marriage that he viewed Commercial Building as his retirement investment and Grothe acknowledged Park's sentiments and views. Remodeling of the former marital residence was initiated by both parties due to their desire to enlarge and update the house. The marital residence's value from November 17, 2001 to present increased from $150,000.00 to $239,000.00 ($89,000.00). Grothe has no substantial participation in Park's business or the maintenance or development of such business. Park began his business in 1967 and Grothe was employed through other businesses.

8.

9.

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10.

The Court finds that Park has successfully rebutted the presumption of a fifty-fifty division of marital assets and allocation of the indebtedness in the factual circumstances of the parties' marriage so as to justify the noted division and allocation set forth in this Entry as being fair and equitable. JUDGMENT *****

2.

The property of the parties shall be divided a[s] follows: ASSETS TO GROTHE Nissan automobile National City acct. 9285 National City acct. 3078 National City acct. 6537 TIAFF CREFF acct. Merrill Lynch IRA 8403 Charles Schwab acct. 1603 Crown Hill 401(k) Merrill Lynch 7105 Miscellaneous jewelry Longaberger baskets Fenton Glass Collection Cash payment from Park TOTAL ASSETS: DEBTS TO GROTHE: ***** TOTAL DEBTS: ASSETS TO PARK: Marital Residence Ford Truck Mercedes Benz Real Estate

Download Kathleen Grothe v. Young Park.pdf

Indiana Law