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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: JULIE A. CAMDEN Davis & Sarbinoff, LLP Indianapolis, Indiana

FILED
Dec 29 2009, 9:25 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
RODGER DALE HAMMACK, Appellant/Respondent, vs. SUSAN LORENE HAMMACK, Appellee/Petitioner, ) ) ) ) ) ) ) ) )

No. 29A05-0908-CV-488

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable David K. Najjar, Magistrate The Honorable Steven R. Nation, Judge Cause No. 29D01-0604-DR-330

December 29, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION BRADFORD, Judge

Appellant/Respondent Rodger Hammack appeals from the trial courts disposition of his motion to correct error following the dissolution of his marriage to Susan Hammack. Rodger contends that the trial courts order violates a stay issued in his pending personal bankruptcy case and that the trial court abused its discretion in disposing of several items of personal property. We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY The underlying facts of this action as found by the trial court are as follows: 1. [Susan] and [Rodger] were married on July 5, 1974. 2. [Susan] filed for divorce on April 12, 2006. 3. At the time [Susan] filed for divorce, there were no minor children, and [Susan] is not pregnant. 4. [Susan] and [Rodger] both resided in Hamilton County, Indiana for more than six (6) months prior to the date of filing for dissolution of marriage. 5. The marriage of parties is irretrievably broken. Appellants App. p. 3. On October 23, 2007, Rodger voluntarily filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Indiana under Chapter 7. On January 3, 2008, the trial court issued a decree of dissolution which provided, in part, as follows: 8. During the marriage the parties acquired real estate in Sheridan, Indiana at 609 West 2nd Street which was held in joint title. The parties agreed that the property had been appraised at $185,000 by Bonita Renner. [Rodger] contended the property had reduced in value since the appraisal was done and was more comparable in value to a neighboring house that sold for $171,000.00. [Rodger] previously had valued the house in his deposition testimony and for purposes of a small business loan at $200,000.00. [Rodger] has had possession of the real estate and the advantage of continuing to reside therein whereas [Susan] was required to vacate the marital residence and live with her mother due to her inability to 2

finance a new home. [Rodger] testified he was three (3) months in arrears on the payments and anticipated filing bankruptcy. Since that time, [Rodger] has filed bankruptcy under Cause No. 07-10402, reaffirming both mortgages. 9. The Court finds the house should be sold and the proceeds equally divided between the parties. [Rodger] may elect to purchase the real estate at $185,000.00 by written election made within 10 days and filed with the court and by then refinancing the same within the next sixty (60) days to remove [Susans] name and to pay her, her proportionate share. .... 12. When [Susan] vacated the home, both [Susan] and [Rodger] testified that [Susan] took all the belongings she wanted from the home, without consulting with [Rodger], and that [Rodger] had no choice about the items which were taken from the marital residence. 13. [Rodger] testified that [Susan] took sixty percent (60%) of the marital property. [Susan] testified that she took fifty percent (50%) of the marital property. 14. The Court finds that both parties failed to enumerate certain miscellaneous items of personal property with apparently nominal value. These items should be set off to the person who now has possession of said property subject to each party being entitled to their family heirlooms and items uniquely personal to them. .... 16. The Court further finds that both parties estimated values of certain items of property which values may or may not be accurate, and which values have been disputed by the opposing party. The Court finds that [Susan] has disposed of some property, or given away the property or the value of the property to another family member. The Court finds [Rodger] is claiming certain property which is actually an asset or fixture of his business, and has reported conflicting values of other property in filings in the Bankruptcy case. 17. As a result, the Court finds that the personal property, furniture, fixtures, and other items of property within the marital estate have been divided more or less equally between the parties. The Court finds the values and the owner should be as set forth per the attached chart and each side to have their own family heirlooms and items uniquely personal to them. The Court further finds that both parties may have failed to enumerate items of personal property. Any items not referred to, shall remain in the custody of the person who has possession of those items. 18. The Court is aware that each party may have items in their possession which are claimed by the other party. Within fifteen (15) days of this order, any party wishing to make a claim against any property then in the custody of the other party shall send written notification to the other 3

party specifying the item(s) of property claimed. The other party shall have fifteen (15) days within which to return the property, or notify the claiming party that the return of such item(s) is contested. After these thirty (30) days have passed, [Susan] shall choose one item from the total list of contested items. [Rodger] shall then choose one item from the remaining list. [Susan] and [Rodger] shall continue alternating choices until all contested items have been claimed. The process of choosing items can take place in any manner mutually agreeable to the parties, but in any event should not take longer than seven (7) days to complete. Once all contested items have been selected, each party shall deliver to the other party all contested items then in their possession but selected by the other party within seven (7) days. .... 23. [Rodger] is the owner of a certain business, Hammack Construction. .... 25. The Court finds that [Rodger] should own Hammack Construction Company with all indebtedness and liability related thereto. .... 37. The Court finds that the statutory presumption of an equal division has not been rebutted. Each shall be entitled to 50% of the marital estate. Due to the differences in opinions as to valuation, the miscellaneous personal property of nominal value that was not scheduled by either party, [Rodgers] refusal to participate according to the preliminary Court Order to divide the personal property and his failure to timely provide documentation, the Court finds that the personal property has been equitably divided and each person should retain that personal property as noted in the chart attached without offsetting payment from either party to the other, except as otherwise noted herein. Appellants App. pp. 4-8. A chart attached to the trial courts dissolution decree detailed how various assets were to be distributed. Among the assets assigned to Susan were a Marlin rifle; one half each of a clock collection, a glass owl collection, and a coin collection; and a "2002 Pace American Cargo Trailer[.]" Appellants App. p. 13. On January 25, 2008, Rodger filed a motion to correct error and to clarify the trial courts dissolution decree. On February 25,

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2008, Rodger was discharged in his bankruptcy proceeding. On March 26, 2009, the trial court held a hearing on Rodgers motion. At the hearing, Rodger testified that the Marlin rifle was uniquely personal to him, that he had personally purchased it, and that "a hunting rifle is a man thing[.]" Tr. p. 25. Rodger also testified about an Ansonia clock, saying that he had purchased it in 1973, or the year before he and Susan were married. As for the owls, Rodger testified that at one time the collection consisted of 150 owls, that he and Susan had acquired only six of them together, and "the rest of them [he] bought as time went a long [sic]." Tr. p. 27. Rodger had divided the owl collection on shelves, with the "ones [he] paid the most money for ... on the bottom shelf." Tr. p. 26. When Susan came to the marital home to collect personal property, "[s]he chose to come in and take the ones off the bottom shelf[,]" which owls numbered forty-three altogether. Tr. p. 26. Rodger did not testify that the coin collection, which consists of some silver dollars and a state quarter collection, was uniquely personal to him, saying that "those are just something that I bought. [Susan] never collected coins, I did." Tr. p. 27. The following exchange regarding a trailer also occurred: Q Do you believe the trailer is your personal property based on the fact that it is used for your business and you were awarded the business in the dissolution? Yes. And so you are requesting that your [sic] keep the trailer? Yes.

A Q A Tr. p. 42.

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Also at the hearing, Rodger testified regarding a life insurance policy in Susans name, the premiums for which he had paid. At some point, Susan "cashed [the life insurance policy] in and got $2500 off of it." Tr. p. 37. Susan testified that the rifle was not related to her or her family in any way, she was not willing to trade the Ansonia clock for another, she would be willing to "switch owls" with Rodger, the coin collection was not uniquely personal to Rodger, she had failed to disclose the life insurance policy, and she had redeemed the policy for its cash surrender value of $2500 and "bought tires for [her] Explorer." Tr. p. 64. Following the hearing, the trial court, inter alia, reaffirmed its ruling that the marital residence "should be sold as soon as may be permitted by the bankruptcy Court" and also denied Rodgers motion to correct error with respect to all other claims. Tr. p. 96. DISCUSSION AND DECISION Standard of Review At the outset, we note that Susan has not filed an Appellees brief. In such cases, we do not need to develop an argument for Susan, and we apply a less stringent standard of review. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). We may reverse the trial court if the appellant is able to establish prima facie error, which is error at first sight, on first appearance, or on the face of it. Id. Our standard of review of property divisions in marriage dissolutions is well-settled: In a dissolution action, the trial court must divide marital property in a just and reasonable manner, including property owned by either spouse prior to the marriage, acquired by either spouse after the marriage and prior to final separation, or acquired by their joint efforts. Ind. Code

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