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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: MATTHEW JON McGOVERN Evansville, Indiana ATTORNEY FOR APPELLEE: LEAH S. FINK Corydon, Indiana

IN THE COURT OF APPEALS OF INDIANA
RICHARD M. DAVIS, Appellant-Respondent, vs. JUDITH K. DAVIS, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 31A01-0602-CV-59

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

December 18, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAKER, Judge

Appellant-respondent Richard M. Davis appeals from the trial court's decree of dissolution of the marriage between Richard and appellee-petitioner Judith K. Davis. Richard argues that the trial court erred in dividing the marital estate, raising the following specific claims of error: (1) the trial court erred in calculating and dividing the 2003 and 2004 crop proceeds from the parties' farm; (2) the trial court erred in failing to credit Richard with two alleged pretrial distributions of marital assets; (3) the trial court erred in accepting Judith's valuation of certain marital assets; (4) the trial court erred in failing to credit Richard with debt payments that he made on certain marital property following the final date of separation; (5) the trial court erred in dividing future royalties from an oil and gas lease on the parties' farm; and (6) the trial court erred in awarding Judith half of the value of a barn when the barn was allegedly included in the valuation of the farm, of which Judith received half the value. We affirm in part, reverse in part, and remand with instructions included herein. FACTS Richard and Judith were married on March 19, 1977, and two children, both now adults, were born of the marriage. Prior to the marriage, Richard and his brother had purchased and paid for a fifty-acre tract of land. At the time of the marriage, Richard and his brother split two acres from this parcel, and Richard and Judith built their marital residence on those two acres. Richard and his brother farmed the remaining forty-eightacre tract of land (the 48-Acre Farm) together until approximately ten years before the final hearing herein, at which time Richard began farming the land without his brother's

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assistance and paying his brother 1/8 of the crop receipts. Richard and Judith erected a $10,000 barn on the 48-Acre Farm during their marriage. Richard and Judith also purchased a 110-acre tract of land (the 110-Acre Farm), which contained 86 acres of crop land. He also leased three other parcels of crop land and farmed that land as well as the crop land on the 48-Acre and 110-Acre Farms. Judith assisted Richard with the farming operations and testified that they farmed nearly five hundred acres of land altogether. Tr. p. 142-43. Richard and Judith agreed that the yearly net profit from all of the farms combined averaged approximately $13,000. Judith also testified that she had not helped with any farming operations since 2003. Judith filed a petition for dissolution of marriage on June 9, 2003, though she did not move out of the marital home until January 1, 2004. During the pendency of the dissolution proceedings, Richard made all mortgage payments on the 110-Acre Farm and paid the parties' property taxes and insurance. Richard also testified that he had made all payments on the parties' son's student loan and on a combine and lawn mower following the parties' separation. Furthermore, Richard testified that he began making all mortgage payments in October 2003 and that he had paid all marital bills since January 2004. On September 8, 2004, Judith requested a payment of $50,000 from the marital estate for her support until the time of the final hearing. The trial court agreed and ordered the parties to liquidate and split an Edward Jones account, resulting in $32,531.52 for each party. According to Richard, he then took out a $17,468.48 loan to pay Judith the remaining balance. When the note on this loan matured, Richard contends

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that he liquidated a marital account in the amount of $11,700 and placed the remaining balance on a credit card so that he could pay the amount due on the note. Judith accused Richard of being dishonest and obstructive throughout the dissolution proceedings, pointing to four problematic actions taken by Richard. First, he withdrew $41,262.95 from the parties' bank account in the form of a cashier's check around the time Judith filed her petition for dissolution and failed to disclose this check in his verified financial disclosure form, interrogatories, or deposition. Second, after Judith filed the petition, Richard destroyed a number of the parties' bank records. Third, although Richard stated during his deposition that he had not made any grain sales in the summer of 2003, Judith later offered grain receipts for July 2003. Fourth, Judith stated that she and Richard had an agreement to file a joint tax return for 2004, but Richard filed his return as married but separate, claiming all deductions. To remedy Richard's failure to disclose the cashier's check, the trial court ordered Richard to pay $8,500 of Judith's attorney fees, and to remedy Richard's decision to file the 2004 tax return as married but separate, the trial court ordered Richard to pay Judith $3,590 in damages. Following a hearing, the trial court dissolved the parties' marriage on August 29, 2005, and entered findings of fact and conclusions of law at Judith's request. The trial court endeavored to divide the parties' real estate and personal property equally. As to the real estate, the trial court granted ownership of the properties to Richard and ordered him to pay Judith one-half of the value of the equity in the properties, determining that Richard owed Judith $192,225.85 for her share of the equity. As to the personal

property, the trial court granted ownership of various assets to Judith and Richard, 4

respectively, ordering Richard to pay Judith the difference between the greater value of the assets assigned to him and the lesser value of the assets assigned to Judith, minus her fifty-percent obligation on their son's student loan. The result was that Richard was required to pay Judith $26,260.44 for the personal property. Richard now appeals. DISCUSSION AND DECISION I. Standard of Review At Judith's request, the trial court issued findings of fact and conclusions of law pursuant to Indiana Trial Rule 52. Our standard of review thereon is well settled: First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Challengers must establish that the trial court's findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions. Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind. Ct. App. 2001) (citations omitted). The division and disposition of marital assets is entrusted to the sound discretion of the trial court and we will reverse only upon an abuse of that discretion. Eye v. Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006). We will neither reweigh the evidence nor judge the credibility of witnesses and will consider only the evidence most favorable to the trial court's disposition of the property. Id. Although a different conclusion might be 5

reached in light of the facts and circumstances, we will not substitute our judgment for that of the trial court. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or if the trial court has misinterpreted the law or disregards evidence of factors listed in the controlling statute. Id. II. Division of the 2003 and 2004 Crop Proceeds Richard argues that the trial court erred in dividing the crop proceeds from 2003 and 2004. In particular, he contends that the trial court did not have statutory authority to include the 2004 proceeds in the marital estate because the parties' final date of separation was in June 2003 and Judith testified that she has not assisted with farming operations since 2003. Furthermore, Richard avers that the evidence does not support the trial court's valuation of the crop proceeds or the farming expenses. In dividing the marital estate, the trial court included the 2003 and 2004 crop proceeds from the parties' farms. It used Judith's approximation of the value of the proceeds--approximately $60,000 per year--subtracted approximately half of the proceeds to give credit to Richard for the farming expenses, and awarded the remaining net value to Richard--approximately $30,000 per year. A. 2004 Proceeds The trial court's authority to divide marital property is governed by Indiana Code section 31-15-7-4(a), which states that the court has authority to divide property that was (1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right after the marriage and before final separation of the parties; or (3) acquired 6

by their joint efforts. It is well established that property acquired after the date of final separation may not be included in the pot of divisible marital assets unless the property is acquired by the parties' joint efforts. Ross v. Ross, 638 N.E.2d 1301, 1303 (Ind. Ct. App. 1991). For the purpose of Indiana Code section 31-15-7-4, the date of final separation is "the date of filing of the petition for dissolution of marriage . . . ." Ind. Code

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