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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: MARK S. LENYO South Bend, Indiana

ATTORNEY FOR APPELLEE: ARIC J. RUTKOWSKI Zappia, Zappia & Stipp South Bend, Indiana

FILED
Jan 31 2011, 10:07 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: SCOTT A. HESSER, Appellant-Respondent, vs. WENDY S. HESSER, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 71A05-1004-DR-300

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT The Honorable Michael G. Gotsch, Sr., Judge Cause No. 71C01-0709-DR-00547

January 31, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary The marriage of Appellant-Respondent Scott A. Hesser ("Scott") and AppelleePetitioner Wendy S. Hesser ("Wendy") was dissolved on March 23, 2010. Scott now appeals the division of marital property. We affirm. Issues Scott presents five issues for our review, which we reorder, consolidate, and restate as: I. Whether the trial court properly determined the composition of the marital estate; II. Whether the trial court properly valued the parties' vehicles; and III. Whether the trial court abused its discretion in dividing the marital estate. Facts and Procedural History Scott and Wendy were married on July 28, 1990. Wendy petitioned to dissolve the marriage on September 26, 2007. After Wendy filed her petition for dissolution, the parties tried to reconcile the marriage in the spring of 2008, but they were ultimately unsuccessful. Scott and Wendy permanently separated in December 2008. The trial court conducted a final hearing on January 8, 2010. At the hearing, both parties presented evidence concerning the existence and value of various assets and liabilities to be included in the marital estate, and agreed to use December 2008, the date of final separation, as the date to value marital property. The bulk of the parties' arguments, however, concerned Wendy's allegation that Scott dissipated a significant amount of marital assets on extramarital activities, including pornography, renting an apartment to entertain other women, and buying the services of a woman at the "Glo Worm Lounge." Tr. 36-55; 2

Ex.1.1 As a result of Scott's alleged dissipation, Wendy argued that she should receive seventy percent (70%) of the marital estate. On March 23, 2010, the trial court entered findings of fact and conclusions thereon, and dissolved Scott and Wendy's marriage. The court determined that the marital estate should be divided unequally, and announced it was awarding 70% of the estate to Wendy. It also excluded from the marital estate certain debts in Scott's name, and held Scott personally responsible for his student loan debt. The trial court also valued the parties' respective vehicles each at zero dollars, and valued Scott's retirement fund at $20,255.56. Scott now appeals the trial court's decision concerning all of these issues. Discussion and Decision Standard of Review The division 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). However, the trial court's discretion is subject to the statutory presumption in favor of equal distribution. Newby v. Newby, 734 N.E.2d 663, 668 (Ind. Ct. App. 2000). Still, Indiana Code section 31-15-7-5 states the presumption for equal division of property may be rebutted with evidence of: (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing. (2) The extent to which the property was acquired by each spouse: (A) before the marriage; or (B) through inheritance or gift.

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Scott admits to spending $1,104.40 on extramarital activities, but maintained that he spent the rest of the allegedly dissipated money on marital expenses.

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(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children. (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property. (5) The earnings or earning ability of the parties as related to: (A) a final division of property; and (B) a final determination of the property rights of the parties. If the trial court deviates from this presumption, it must state its reasons. Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied. A party who challenges the trial court's division of marital property must overcome a strong presumption that the court considered and complied with the applicable statute, and the presumption is one of the strongest presumptions applicable to our consideration on appeal. Woods v. Woods, 788 N.E. 2d 897, 900 (Ind. Ct. App. 2003). We review a challenge to the trial court's division of marital property for an abuse of discretion, and, in so doing, we consider the evidence most favorable to the trial court's disposition of the property without reweighing the evidence or assessing the credibility of witnesses. Granzow v. Granzow, 855 N.E.2d 680, 682-83 (Ind. Ct. App. 2006). We will reverse only if the judgment is clearly against the logic and effect of facts and the reasonable inferences drawn therefrom. Id. at 683. Additionally, when the trial court issues findings and conclusions pursuant to Indiana Trial Rule 52, as it did here, the court on appeal shall not set aside the findings or judgment unless clearly erroneous. State Farm Mut. Auto Ins. Co. v. Leybman, 777 N.E.2d 763, 765

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(Ind. Ct. App. 2002), trans. denied. We review the judgment by determining, first, whether the evidence supports the findings and, second, whether the findings support the judgment. Evans v. Med. and Prof'l Collection Servs., Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001). We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we neither reweigh the evidence nor assess witness credibility. Id. However, appellate courts owe no deference to trial court determinations deemed questions of law. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). Additionally, when the trial court issues findings and conclusions sua sponte, as it did in this case, the standard of review has one notable exception: the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not made specific findings, in which case we may affirm on any theory supported by the evidence adduced at trial. Brinkmann v. Brinkmann, 772 N.E. 2d 441, 444 (Ind. Ct. App. 2002). I. Composition of the Marital Estate In Indiana, the division of marital property is a two-step process. Thompson, 811 N.E.2d at 912. First, the trial court must determine what property is to be included in the marital estate, or marital pot. Id. Second, the trial court must divide the marital property under the presumption that an equal split is just and reasonable. Id. (citing Ind. Code

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