Preview:

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: CRAIG A. DECHERT Kokomo, Indiana

ATTORNEY FOR APPELLEE: MICHAEL P. KREBES Kokomo, Indiana

FILED
Jan 31 2012, 9:30 am

IN THE COURT OF APPEALS OF INDIANA
SUSAN KOHL, Appellant-Respondent, vs. DUANE KOHL, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

of the supreme court, court of appeals and tax court

CLERK

No. 34A05-1105-DR-289

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable Thomas R. Lett, Special Judge Cause No. 34D02-1009-DR-1237

January 31, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Susan Kohl ("Wife") appeals from the trial courts distribution of marital property following the dissolution of her marriage to Duane Kohl ("Husband"). Wife argues that the trial court abused its discretion in finding that certain items existed as marital assets, in including the present value of Husbands vested pension as a marital asset, and in equally dividing the marital estate. We conclude that the evidence does not support the inclusion of the items as marital assets, but find no abuse of discretion in the trial courts treatment of Husbands pension. We further conclude that Wife presented sufficient evidence to rebut the statutory presumption that an equal division of marital property is just and reasonable. Wife inherited money from her father five months prior to the parties final separation and kept that money separate; Husbands income is five times that of Wifes; and Husband has a pension and a 401(k) that will continue to grow. We conclude that a just and reasonable distribution of the marital estate awards Wife 60% and Husband 40%. We therefore affirm in part, reverse in part, and remand with instructions to divide the marital estate in a manner consistent with this opinion. Facts and Procedural History Husband and Wife were married on September 12, 1981. During their marriage, they had two children: J.K., born March 18, 1986, and K.K., born May 1, 1990. Husband works for Midas International. During the parties marriage, his job often required him to travel two weeks a month, during which time Wife was the sole caretaker of the children. In 2010, Husband earned approximately $106,000 in wages and bonuses, with a base salary of

2

$91,000. Tr. at 37, 49. Wife works for the Girl Scouts of America. In 2010, she earned approximately $21,690. Neither Husband nor Wife has a college degree, although both attended college prior to marriage. On August 21, 2009, Husband received a $3000 loan from his State Farm universal life insurance policy. In April 2010, Wife received an inheritance from her fathers estate of approximately $50,000. Wife held her inheritance in a bank account in her name only. On April 27, 2010, Husband and Wife acquired an installment loan ("the Regions Installment Loan") of $50,000 to pay off marital credit card debt. Wifes inheritance was used as collateral for this loan. On September 27, 2010, Husband filed a petition for dissolution of marriage. On March 8, 2011, the trial court held the final hearing on the petition. Husband offered Exhibit 1, a list of the assets and liabilities in the marital estate. Exhibit 1 also identified the type of proof that Husband would offer to establish the existence and value of each of the assets and liabilities listed. Exhibit 1 calculated the net worth of the marital estate at $212,056.12 (total assets of $481,798.99 less total liabilities of $269,742.87). Husband proposed an equal division of the marital estate, with each party receiving a net distribution of $106,028.06. Significant assets included in Exhibit 1 were Wifes inheritance of $50,000, Husbands 401(k) worth $184,072.43, and Husbands vested pension with a present value of $40,073.90. Wife disagreed with two of the assets listed on Exhibit 1. Exhibit 1 listed the $3000 loan from Husbands State Farm universal life insurance policy as a marital asset, placing it in Wifes column and indicating that a copy of the check from State Farm would serve as

3

proof. Husband offered the copy of the State Farm check for $3000 into evidence as Exhibit 14, but otherwise provided no evidence regarding the money. Wife testified that the $3000 loan was used to pay "a joint bill of the parties while [they] were married." Tr. at 57-58. Exhibit 1 also listed a joint bank account of $5,325.07 at Regions as a marital asset, again placing the asset in Wifes column and indicating that a bank statement would serve as proof. During Husbands direct examination, Husbands attorney noted that the bank statement for the joint bank account was missing from Husbands exhibits, but Husband testified that he thought that the balance of $5,325.07 was correct. Id. at 16. On cross, Wifes attorney questioned Husband regarding his failure to provide proof of the joint bank account. Id. at 45. Husband replied, "If youd like to take a recess, Im sure I have a copy in my car." Id. Wifes attorney then stated that "for the record at one point, some point before we conclude this we need proof of it." Id. Wife testified that she and Husband did not have a joint bank account at Regions. Id. at 57. Husband never submitted a bank statement for the account. The parties also differed as to the manner in which Husbands vested pension should be treated. Husband introduced Exhibit 12, which showed that during the time the parties were married, Husband accrued a retirement benefit at Midas that would pay him $1,267.14 per month when he turned sixty-five and had a present value of $40,073.90. At the time of the final hearing, Husband and Wife were both fifty-two years old. Husband requested that the present value of his vested pension be included in the marital estate and be divided at the

4

time of dissolution. However, Wife requested that she receive a portion of the monthly pension payments when Husband retires. Wife also disagreed that the marital estate should be equally divided. She requested a 70/30 division of the marital estate in her favor because $50,000 of the marital estate consisted of her inheritance received just five months before Husband filed for divorce, Husband earned five times what she earned, and K.K. was continuing to live with her while attending college. On cross, Wife testified that in 2007, she voluntarily left a job, at which she earned $40,000, due to depression and anxiety. Id. at 92-93. Wife testified that she had the experience to get a job paying more than $21,000, but one was not available, and that her salary would cap out at $40,000. Id. at 93. Wife testified she hoped to obtain a bachelor of science degree in business to increase her earning capacity. On April 8, 2011, the trial court entered the dissolution decree, which provides in relevant part: 2. The court finds that there were two children born to this marriage, [J.K.] who is emancipated; and [K.K.] who will turn 21 on May 1, 2011, and is attending [college]. Due to the fact that [K.K.] is attending college and turning 21, no custody, parenting time and support order is required. The courts [sic] adopted asset and liability list (petitioners Exhibit 1) finds that the parties have total assets valued at $481,798.99 and total liabilities valued at $269,742.87. The court finds that the assets and liabilities of the parties should be divided equally. The court attaches hereto the asset and liability list. Each party is awarded the item listed in their column, and is obligated to pay the
5

3.

4.

5.

6.

liability listed in their column. Petitioner shall pay an equalizing payment of $149.78 to Respondent within thirty days of the Decree. .... 8. Although no Educational Support Worksheet was submitted, the court finds that the parties should each pay one-third of [K.K.s] college expenses, including books and tuition. [K.K.] shall be responsible for the remaining one-third.

Appellants App. at 7-8. On May 4, 2011, Wife filed a motion to correct error, arguing that the trial court erred (1) in awarding Wife the $3000 life insurance loan because the money had been used to pay marital debt, (2) in awarding Wife the joint bank account because Husband failed to submit proof of the account, (3) in including her inheritance in the marital estate,1 and (4) in dividing the marital estate equally because Husband has a significantly greater earning capacity. Id. at 11-12. On May 9, 2011 the trial court denied Wifes motion. This appeal ensued. Discussion and Decision Standard of Review The division of marital assets lies within the sound discretion of the trial court, and we will reverse only for an abuse of discretion. When a party challenges the trial courts 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. We may not reweigh the evidence or assess the credibility of the witnesses, and we will consider only the evidence most favorable to the trial courts disposition of the marital property. Although the
It is well established that all property owned by the parties before separation, including inherited property, must be included in the marital estate. Grathwohl v. Garrity, 871 N.E.2d 297, 301 (Ind. Ct. App. 2007). Thus, Wifes inheritance must be included in the marital estate as a matter of law. See id. However, inherited property may be, but is not required to be, set off to the spouse who inherited the property as long as any resulting deviation from an equal division of marital property is just and reasonable. Ind. Code

Download Susan Kohl v. Duane Kohl.pdf

Indiana Law