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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: JOHN BRANDT RAGNA M. URBERG Beckman Lawson Fort Wayne, Indiana

FILED
Jun 25 2008, 8:40 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: FRED R. HAINS PETER M. YARBRO South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF MARK GALLAGHER, Appellant-Petitioner, vs. KATHLEEN GALLAGHER, Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) )

No. 71A05-0711-CV-654

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT The Honorable Michael G. Gotsch, Judge Cause No. 71C01-0407-DR-347

June 25, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Mark Gallagher ("Husband") appeals the trial court's order as to the division of assets and debts in the dissolution of his marriage to Kathleen Gallagher ("Wife"). Husband raises two issues, which we consolidate and restate as whether the trial court abused its discretion in dividing the marital assets and debts. 1 We affirm in part, reverse in part, and remand. The relevant facts follow. Husband and Wife were married on September 2, 1977. In 1993, Husband and Wife formed Gallagher Engineered Systems, Inc. ("GES"). Husband was originally the sole shareholder of GES. Husband later transferred fifty-one of the one hundred shares to Wife because Husband and Wife thought that it would benefit GES to become a "Women's Business Enterprise." Transcript at 27. Husband was an engineer and worked as a sales representative. Wife performed the "book work," taxes, accounts payable, accounts receivable, and debt collection. Id. at 268. In 1996, Husband and Wife purchased a building on U.S. 31 South and operated GES from this building until April 2007. GES paid Husband and Wife monthly rent payments in the amount of $2,000, and they in turn paid the mortgage, which was approximately $871. Specifically, Husband and Wife each received $1,000 in rent, and they each paid half of the mortgage. On July 14, 2004, Husband and Wife separated, and Husband filed a petition for dissolution of marriage. For a year and a half, GES was under Husband's control. For a period of time, GES did not pay Wife rent payments. On April 20, 2007, Husband
Husband did not include the trial court's judgment with his brief, and we direct his attention to Ind. App. Rule 46(A)(10) which requires an appellant's brief to "include any written opinion, memorandum of decision or findings of fact and conclusions thereon relating to the issues raised on appeal."
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resigned from GES. Husband told Wife that she could have GES, and he formed a new corporation, which performed the same business as GES, within "500 yards or 1,000 yards" of the GES building. Id. at 55. Husband's new company used information from GES including customer names, contacts, accounts receivable, and accounts payable. Wife took "control" of GES, but shut GES down because "[t]here was no other choice." Id. at 293, 295. In August 2007, the trial court held a hearing on Husband's petition. At the hearing, Daniel Young, Wife's expert witness, testified that, while Husband was in control of GES, there were numerous unusual personal expenses, and Husband and his son "had a heck of a good time at [GES]'s expense and ran it into the ground." Id. at 236. Young testified that GES had a value of $57,160 as of December 31, 2006. Young also testified that GES lost its value when Husband "walked out the door." Id. at 255. After the hearing, the trial court entered an order, which, in pertinent part, ordered that Wife receive eighteen months of rent that GES failed to pay her. The trial court also found that the value of GES was $57,160 as of December 31, 2006, and awarded Wife half of this value. The sole issue is whether the trial court abused its discretion in dividing the marital assets and debts. Husband argues that the trial court abused its discretion in dividing the assets by: (A) finding that GES failed to pay Wife her portion of GES's rent payment and that GES paid the entire rent payment to Husband for a period of eighteen months; and (B) using December 31, 2006 as the valuation date for GES. We will discuss each issue separately.
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The trial court apparently entered sua sponte findings of fact and conclusions thereon. In general, sua sponte findings control only as to the issues they cover, and a general judgment will control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made findings of fact, we apply the following two-tier standard of review: whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions thereon. Id. Findings will be set aside if they are clearly erroneous. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. To determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id. "A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence." Id. The division of marital assets lies within the sound discretion of the trial court, and we will reverse only for an abuse of discretion. Woods v. Woods, 788 N.E.2d 897, 900 (Ind. Ct. App. 2003). "When a party challenges the trial court's division of marital property, he must overcome a strong presumption that the court considered and complied with the applicable statute, and that presumption is one of the strongest presumptions applicable to our consideration on appeal." Id. We may not reweigh the evidence or assess the credibility of witnesses, and we will consider only the evidence most favorable to the trial court's disposition of the marital property. Id. Although the facts and reasonable inferences might allow for a different conclusion, we will not substitute our
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judgment for that of the trial court. Id. Ind. Code

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