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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: ATTORNEY FOR APPELLEE:

MATTHEW JON MCGOVERN MARY E. FONDRISI
Evansville, Indiana Smith, Carpenter, Thompson, Fondrisi &  Cummins LLC
Jeffersonville, Indiana




IN THE
COURT OF APPEALS OF INDIANA




RICHARD M. DAVIS, )
   )
Appellant-Respondent, )
)
vs. ) No.  31A01-0802-CV-80
)
JUDITH K. DAVIS, now known as )
JUDITH K. GUNTHER, )
   )
Appellee-Petitioner. )




APPEAL FROM THE HARRISON CIRCUIT COURT
The Honorable R. Michael Cloud, Special Judge
Cause No. 31C01-0306-DR-101
                                                                                                                                            


  

April 27, 2009



MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Judge
Case Summary and Issues
Richard Davis appeals the trial court.s second amended dissolution decree issued following a prior remand with instructions from this court.  For our review, Richard raises two issues, which we restate as:  1) whether the trial court abused its discretion when it calculated the added value of an oil and gas lease to  a 110-acre farm owned by the parties during the marriage; and 2) whether the trial court abused its discretion when it calculated Richard.s 2003 farming expenses.  Finding no error, we affirm.  
Facts and Procedural History
Richard appealed the trial court.s first dissolution decree, and this court affirmed in part, reversed in part, and remanded with instructions.  The instructions on remand relevant to this appeal were: (2) hold a hearing on the amount of 2003 farming expenses, reach a total based upon the evidence presented therein, and amend the dissolution decree accordingly;  . . .  (5) amend the dissolution decree by removing the award to Judith of one-half of the future royalty payments under the oil and gas lease on the 110-Acre Farm, order Judith to reimburse Richard for any royalty payments he has made to her that accrued following the final date of separation, and require her to relinquish her interest in that lease;  (6) clarify whether the valuation of the 110-Acre Farm included the value of the oil and gas lease, and if the lease was not taken into consideration, hold a hearing regarding the value of the lease and amend the valuation of the 110-Acre Farm if necessary;  . . .  
(8) recalculate the amount of the marital estate to which each party is entitled pursuant to the above instructions.  
Davis v. Davis, No. 31A01-0602-CV-59, 2006 WL 3703262, at *10 (Ind. Ct. App. Dec. 18, 2006).    Following remand, the trial court held hearings on June 1, and July 20, 2007, and issued an amended dissolution decree on October 23, 2007.  Richard filed a motion to correct error on November 21, 2007, which the trial court denied in part.  After a hearing on the remainder of the motion on January 14, 2008, the trial court issued its second amended decree of dissolution finding, in pertinent part: 3. The Court finds that it was instructed by the Indiana Court of Appeals to receive evidence and hear argument to determine the amount of the 2003 farming expenses.  Pursuant to [Richard.s] Exhibit #3 and undisputed by [Judith], the Court finds that the 2003 farm gross receipts totaled Seventy-Two Thousand Nine Hundred Forty Dollars ($72,940.00)[.]  The Court finds that pursuant to [Richard.s] 2003 tax return, schedule [F], Profit or Loss from Farming, marked as [Richard.s] Exhibit #1 lists expenses of Thirteen Thousand One Hundred Sixty-Six Dollars ($13,166.00) for depreciation, Three Thousand One Hundred Four Dollars and Sixty-Five Cents ($3,104.65) and Three Thousand One Hundred One Dollars and Twelve Cents ($3,101.12) for interest, and the Court finds that these three (3) amounts should be eliminated as farming expenses, as the value on these items has been previously determined by the Court.  Therefore, the Court finds that the 2003 farming proceeds totaled Seventeen Thousand Four Hundred Eighty Dollars and Ninety-Seven Cents ($17,480.97) in income greater than the 2003 farming expenses.  As [Judith] was awarded Thirty Thousand Seventy-Six Dollars and Eighty-Nine Cents ($30,067.89) for the total amount of 2003 crop proceeds, [Richard] is entitled to a credit of Twelve Thousand Five Hundred Ninety-Five Dollars and Forty-Two Cents ($12,595.42).  
4. Pursuant to the instructions of the Indiana Court of Appeals, the Court clarifies that the valuation of the 110 acre farm used by the Court in the original decree of dissolution did not include the value of the oil and gas lease.  The trial court was further instructed to amend the decree to remove the award to [Judith] of one half (1/2) of the future royalty payments under the oil and gas and relinquish her interest in said lease.  The trial court was instructed to receive evidence and hear argument regarding the value of the oil and gas lease
for the purpose of amending the valuation of the 110 acre farm and to determine any credit amount to [Richard] for royalty payments made to [Judith] since the date of separation.  The Court finds that pursuant to [Richard.s] Exhibit #7, page three (3), [Judith] received a total of Ten Thousand Five Hundred Ninety-Seven Dollars and Seventy Cents ($10,597.70) in royalties from Quicksilver Resources Inc. from October of 2003 to October of 2006, which sum includes amounts awarded to her in the original decree and which sum shall be credited to [Richard].  The Court finds that [Richard.s] submitted appraisal of the 110 acre farm performed by Larry Harmon on July 14, 2003 with a value of $220,000.00 used by the Court for valuation of this asset did not include any value regarding the oil and gas lease.  The Court finds that according to the testimony of Marvin Schmidt, as there was no income stream or royalties paid by Lessee, Quicksilver[,] until October of 2003, and as there was no actual physical intrusion onto the farmland, itself, that the lease had no negative impact in regard to its value at that time.  The Court finds that pursuant to [Judith.s] Exhibit #1 and the testimony of W. Issac Orwick, C.P.A., the present value of the future cash flows of royalties from the oil and gas lease totaled Sixty Thousand Four Hundred Dollars ($60,400.00).  Therefore, the Court finds that the value of the 110 acre farm should be increased by this amount, and that [Judith] should receive credit of one-half (1/2) of this amount or Thirty Thousand Two Hundred Dollars ($30,200.00), as this asset was not included in the original distribution amounts.   Appellant.s Appendix at 64-66.  Richard now appeals.
Discussion and Decision

I.  Standard of Review
The distribution of marital property is committed to the sound discretion of the trial court.  Breeden v. Breeden, 678 N.E.2d 423, 427 (Ind. Ct. App. 1997).  Therefore, we review such decisions only for an abuse of discretion and will reverse only if the judgment is clearly against the logic and effect of the facts and the reliable inferences to be drawn from those facts.  Leonard v. Leonard, 877 N.E.2d 896, 900 (Ind. Ct. App. 2007).  When, as here, the trial court enters special findings, we review the judgment by determining, first, whether the
evidence supports the findings and, second, whether the findings support the judgment.  Webb v. Webb, 868 N.E.2d 589, 592 (Ind. Ct. App. 2007).  We may not reweigh the evidence or assess the credibility of witnesses, and we consider only the evidence most favorable to the trial court.s disposition of the marital property.  Leonard, 877 N.E.2d at 900.  In order 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.  Schmidt v. Schmidt, 812 N.E.2d 1074, 1080 (Ind. Ct. App. 2004).  
II.  Oil and Gas Lease
Richard first argues the trial court incorrectly determined the added value of the oil and gas lease to the 110-acre farm based on the projection of future income evidence presented by Judith.  Specifically, Richard argues the original appraisal included the value of the oil and gas lease, the expert witness.s appraisal is based on speculation, and the trial court improperly doubled the expert witness.s appraisal in its valuation of the 110-acre farm including the oil and gas lease.    Our research has not uncovered any instructive authority on the proper method to determine the value of an oil and gas lease in the context of a dissolution decree.s distribution of property.  However, in the context of condemnation, this court has previously held,

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