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: JASON A. CHILDERS Hulse Lacey Hardacre Austin & Shine, P.C. Anderson, Indiana ATTORNEY FOR APPELLEE: MARK R. REGNIER Bingham Farrer & Wilson P.C. Elwood, Indiana

IN THE COURT OF APPEALS OF INDIANA
TOMMY L. CLARY, Appellant-Respondent, vs. PATRICIA E. CLARY, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 48A02-0512-CV-1146

APPEAL FROM THE MADISON SUPERIOR COURT NO. 2 The Honorable Jack L. Brinkman, Judge Cause No. 48D02-0311-DR-1083

December 29, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Judge

Appellant, Tommy Clary ("Husband"), challenges the trial court's dissolution decree dissolving his marriage to Appellee, Patricia Clary ("Wife"). Upon appeal,

Husband presents one issue for our review: whether the trial court abused its discretion in dividing the marital estate. We affirm. Husband and Wife were married in February of 1992, and there were no children born to the marriage. On October 2, 2003, Wife filed a petition for dissolution. The final hearing for the dissolution was conducted over the course of three separate days, May 24, 2004, and August 17 and 18, 2005. On November 7, 2005, the trial court issued findings of fact and conclusions of law which it incorporated into the decree of dissolution entered that same day. With respect to the marital estate, the trial court awarded Wife the following marital assets, subject to the indebtedness thereon: (a) the marital residence; (b) a Comprehensive Financial Group IRA; 1 (c) any and all retirement accounts including but not limited to 401(k), profit sharing, or pensions in her name; (d) 19.09% of Husband's pension from General Motors 2 by Qualified Domestic Relations Order; (e) her life insurance through Swain Agency State Farm with a cash value of $1,567; (f) a 1996 Dodge Intrepid; (g) a 1999 Nomad trailer; (h) a 1994 Premier pontoon; (i) a 1994 Seadoo jet ski and trailer; (j) a mobile home trailer located at a campground in Lagro, Indiana; (k)

The evidence showed and the trial court found that Wife's pension was earned entirely before the marriage. This percentage represents Wife's equal share of that portion of Husband's pension which accrued during the marriage.
2

1

2

all personal property currently in her possession; (l) all personal property located in the mobile home trailer; (m) all personal property acquired prior to the marriage; (n) Wife's antiques; (o) Wife's jewelry; and (p) an insurance check in the sum of $1,000 as replacement for Wife's stolen jewelry. The trial court awarded Husband the following marital assets, subject to the indebtedness thereon: (a) real estate located in Kentucky; (b) 80.91% of his pension from General Motors; (c) his life insurance with a cash value of $5,689.00; (d) a 1997 Dodge Ram truck; (e) a 1979 Dodge truck; (f) a 1991 speed boat; (g) a 2003 cargo trailer; (h) all personal property currently in his possession; (i) his tools; and (j) his jewelry. In dividing the marital assets, the trial court made findings as to what property was acquired before marriage and assigned values to the property based upon the evidence presented at the dissolution hearings. 3 With regard to marital debts, the trial court ordered that Wife would be responsible for an equity line of credit on the marital residence due and owing to Old National Bank, certain identified medical bills, an Elder-Beerman credit card in Wife's name, an H.H. Gregg account used for the purchase of a television and sound system, and any and all other obligations in her name only. Husband was assigned marital debt consisting of the mortgage due and owing on the Kentucky property, accounts with Menards, Lampco Visa, Mastercard, and Elder-Beerman, the joint obligation due and owing to H.H. Gregg for the washer, dryer, and entertainment center in his possession, and any and all other

3

Upon appeal, no challenge is made to the values the trial court attributed to the marital assets.

3

obligations in his name only. Although the trial court identified the above marital debts, it did not specify the values associated with each. 4 Upon appeal, Husband argues that the trial court erred in awarding Wife greater than fifty percent of the marital estate. Specifically, Husband argues that the court failed to make the necessary findings to rebut the presumption that an equal division of property was just and reasonable. According to Husband's calculations, the trial court awarded Wife marital assets with a total value of approximately $197,241.36, while awarding him marital assets with a total value of $117,959.00. According to Husband's calculations, this property division resulted in Wife receiving sixty-three percent of the marital estate. Wife, on the other hand, contends that the trial court's division of property was nearly even, asserting that the trial court awarded her approximately $120,000.00 in assets and awarded Husband approximately $110,000.00 in assets. The division of marital assets lies within the sound discretion of the trial court, and we will reverse only for an abuse of discretion. Woods v. Woods, 788 N.E.2d 897, 900 (Ind. Ct. App. 2003). When a party challenges the trial court's 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

From our review of the record, values attributable to the majority of the items of marital debt are found only in Petitioner's Exhibit 1, which was admitted into evidence during the May 24, 2004 hearing. Over the course of the three dissolution hearings, the Husband and Wife disputed withdrawals made from the home equity line of credit on the marital residence, but made no challenge to the values associated with the remaining identified marital debts. In her calculation of the distribution of the marital estate, Wife used the values attributable to the marital debts found in Petitioner's Exhibit 1.

4

4

applicable to our consideration on appeal. Id. Indiana Code

Download Tommy Clary v. Patricia Clary.pdf

Indiana Law