CARNEY v. CARNEY (2024)

MEMORANDUM DECISION

[1] Robert Carney (“Husband”) appeals the dissolution of his marriage from Shirley Carney (“Wife”). Husband presents three issues, which we restate as:

1. Whether the trial court abused its discretion when it valued the sixty-five-acre farm included in the marital pot;

2. Whether the trial court abused its discretion when it valued Wife's retirement account; and

3. Whether the trial court erred when it entered a written order that divided the marital assets unequally after indicating at the hearing that it intended to divide the assets equally.

We affirm.

Facts and Procedural History

[2] In February 2, 2010, Husband and Wife married. They were fifty and forty-five years old, respectively. One asset of the marriage was 178 acres of land, which Husband and Wife owned jointly. In March 2021, Husband unilaterally sold the land for $364,154.37 by placing Wife's signature on the required documents. Husband initially deposited the money in a joint bank account, but on April 22, 2021, Husband withdrew $355,00.00 from the account and placed it in his individual bank account. Husband then bought an RV, traveled in the RV to Montana, stayed there over two months, and spent $65,000.00 on two cattle. He also paid unpaid rent to his father for the use of his father's farmland.

[3] On June 25, 2021, Wife filed a petition to dissolve the marriage. In November 2021, after Wife filed for dissolution, Husband's individual account, where he had deposited the funds from the sale of the 178 acres, had a balance of $183,911.00. The trial court froze the account.

[4] Following several hearings on provisional matters, the trial court scheduled a final hearing on the dissolution for March 16, 2022. Wife requested, and was granted, five continuances. The trial court held the final dissolution hearings on August 16, 2023, and September 27, 2023. During the hearings, Wife and Husband presented witnesses regarding the value of many assets, including sixty-five acres of farmland and Wife's retirement account. At the end of the hearing, the trial court asked Wife's counsel to prepare an order and stated:

I was trying to crunch the numbers and see how close I got to 50/50. I thought, actually [Husband] had a little bit more but I'm not real sure now, but they're close and if there's a disparity, I think we're close enough that given the length of the marriage, relative earning capacities and other intangible considerations, we close enough to call it 50/50.

(Tr. Vol. II at 135.)

[5] On October 2, 2023, Wife filed a motion for a status conference because her counsel's notes were inadequate to prepare the dissolution order as requested by the trial court. The trial court held a status conference on October 6, 2023. During that conference, the trial court mainly discussed the valuation of the couple's farmland. On November 7, 2023, Husband filed proposed findings and conclusions. Wife did not file a proposed order.

[6] On November 8, 2023, the trial court issued its order dividing the marital assets. The trial court found, regarding the assets specifically at issue in this appeal:

A. Residential real property, with outbuildings, and farm ground. The three acres where the house sits was appraised by Larry Jordan at $179,500; he appraised the 65 acres at $376,952. [Husband] brought this asset into the marriage and is to be credited $286,911 in equity. The net value is $269,541.

* * * * *

J. Federal Employee Retirement System (FERS) pension. After considering the actuarial valuation by Dan Andrews [Mother's witness, an accountant], and considering the change in value of this asset during the marriage, and also considering changes in market conditions, at a value of $145,404.

(App. Vol. II at 143-4.) According to the trial court's calculation, it awarded Wife 55%, or $691,548.00, of the marital assets and Husband 45%, or $593.805.00, of the marital assets.

Discussion and Decision

[7] We review a trial court's division of marital assets for an abuse of discretion. Roetter v. Roetter, 182 N.E.3d 221, 225 (Ind. 2022). “A trial court abuses its discretion if its decision stands clearly against the logic and effect of the facts or reasonable inferences, if it misinterprets the law, or if it overlooks evidence of applicable statutory factors.” Id. “The party challenging the ‘trial court's division of marital property must overcome a strong presumption that the court considered and complied with the applicable statute.’ ” Id. (quoting Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008)). “[W]e focus on what the trial court did and not what it could have done.” Alifimoff v. Stuart, 192 N.E.3d 987, 998 (Ind. Ct. App. 2022), trans. denied. We do not reweigh the evidence or judge the credibility of the witnesses, and we consider the evidence in the light most favorable to the trial court's decision. Id.

[8] The division of marital property following dissolution of marriage is a two-step process. Goodman v. Goodman, 94 N.E.3d 733, 742 (Ind. Ct. App. 2018), reh'g denied, trans. denied. “First, the trial court must ascertain what property is to be included in the marital estate; second, the trial court must fashion a just and reasonable division of the marital estate.” Id. Indiana Code section 31-15-7-4(a) states:

In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether:

(1) owned by either spouse before the marriage;

(2) acquired by either spouse in his or her own right:

(A) after the marriage; and

(B) before final separation of the parties; or

(3) acquired by their joint efforts.

[9] After determining what assets are in the marital estate, the court must divide the property between the parties.

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:

(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[.]

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective ․

(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.

Ind. Code § 31-15-7-5. If the trial court chooses to deviate from the statutory presumption of an equal division of the marital property, then it must state why such a deviation is necessary. Galloway v. Galloway, 855 N.E.2d 302, 305 (Ind. Ct. App. 2006). However, the trial court is not required to make specific findings on the statutory factors listed in Indiana Code section 31-15-7-5 when the trial court chooses not to deviate from the presumption of an equal property division. Hyde v. Hyde, 751 N.E.2d 761, 766 (Ind. Ct. App. 2001).

[10] Here, Husband requested that the trial court issue an order with findings of fact and conclusions of law pursuant to Trial Rule 52(A). “When a trial court enters findings of fact and conclusions of law pursuant to Trial Rule 52, we apply the following two-tiered standard of review: (1) whether the evidence supports the findings; and (2) whether the findings support the judgment.” Id. We will only set aside the trial court's findings and conclusions, “if they are clearly erroneous, that is, if the record contains no facts or inferences supporting the judgment. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made.” Id. (internal citation omitted).

1. Valuation of Farmland

[11] Husband first argues the trial court abused its discretion when it valued the farmland based on Wife's evidence of its value. During the dissolution hearings, Wife's witness, Larry Jordan, a property appraiser, appraised the couple's sixty-five acres of farmland at $376,952.00. Husband's witness, Chad Metzger, a property appraiser, valued the property at $315,000.00. Both parties’ witnesses used the “market approach” (Tr. Vol. II at 216), wherein the appraisers “[l]ook at the geography, typography, analyze [the] area surrounding it so that we can choose acceptable comparables that match up on soil qualities, typography, and land composition.” (Id. at 117.) Metzger testified he based his appraisal on properties that were “geographically closer” to the farmland, specifically those “within about a two mile radius” because he “just felt like closer proximity was a better representation than the farms further out.” (Id. at 119.) In contrast, Jordan used properties “as far as nine and ten miles away.” (Id.)

[12] Husband contends the trial court should have valued the farmland based on Metzger's appraisal because he compared the value of nearby farmland. He asserts there “was no discretion for the court to use the undisputed inferior evaluation.” (Husband's Br. at 14) (emphasis in original). While Metzger “felt like a closer proximity was a better representation” (Tr. Vol. II at 119), Metzger's “feeling” does not indisputably prove his appraisal is superior. Instead, Husband's argument is an invitation for us to reweigh the evidence and judge the credibility of Metzger and Jordan, which we cannot do. See Alifimoff, 192 N.E.3d at 998 (appellate court does not reweigh the evidence or judge the credibility of the witnesses, and we consider the evidence in the light most favorable to the trial court's decision). The trial court assigned the value provided by one of the expert appraisals, and thus the trial court's valuation was not an abuse of discretion. See, e.g., Meyer v. East, 205 N.E.3d 1066, 1073 (Ind. Ct. App. 2023) (no abuse of discretion if trial court's valuation of a marital asset falls within the scope of the evidence).

2. Valuation of Wife's Retirement Account

[13] Husband argues the trial court abused its discretion when it valued Wife's Federal Employee Retirement System pension (“FERS”). He contends that, when the trial court identified the portion of Wife's FERS as a marital asset, it allocated all the market risk to him because the trial court used a dollar figure lower than the valuation of Wife's FERS at the time she filed for dissolution. In its order, the trial court stated, in relevant part:

J. Federal Employee Retirement System (FERS) pension. After considering the actuarial valuation by Dan Andrews, and considering the change in value of this asset during the marriage, and also considering changes in market conditions, at a value of $145,404.

(App. Vol. II at 144.)

[14] In valuing a pension, the trial court must determine “(1) what evidence must be presented to establish the value of the benefit, (2) what date must be used to assign a dollar amount to the benefit, and (3) how much of the benefit's value was the result of contributions made after the final separation date.” Smith v. Smith, 194 N.E.3d 63, 74 (Ind. Ct. App. 2022) (quoting Granzow v. Granzow, 855 N.E.2d 680, 685 (Ind. Ct. App. 2006)). The trial court received relevant testimony from Dan Andrews, an accountant, who performed an actuarial valuation of Wife's FERS on June 24, 2021, shortly after Wife filed for divorce, and on August 1, 2023, shortly before the final dissolution hearing. Andrews considered the entire pension dollar amount and calculated the percentage earned during the marriage. On June 24, 2021, the value of Wife's FERS that had been earned during the marriage was $253,044.76. On August 1, 2023, that amount had decreased based on market fluctuations to $145,404.40. Thus, the change in value between the filing of the dissolution and the final hearing was $107,640.36. The trial court had two options from which to value Wife's FERS – either at the time she filed for dissolution, when she was fifty-four years old, or near the time of the final hearing, when she was fifty-seven years old and closer to retirement. The trial court chose the option that was the closest to Wife's actual retirement plan and we find no abuse of its discretion in doing so. See Smith, 194 N.E.3d at 74 (no abuse of discretion when trial court valued pension based on husband's retirement plans).

[15] Husband also notes that Andrews testified Wife could have retired, based on years of service, in the intervening years between the time she filed for dissolution and the final hearings. However, at the time of the valuation, Wife was fifty-seven years old and testified she intended to retire “[s]omewhere between 62 and 65.” (Tr. Vol. II at 191.) Husband argues Wife “had exclusive control over her retirement” and her delay in doing so, despite being able to retire, caused the FERS to decline in value. (Husband's Br. at 16) (emphasis in original). However, our Indiana Supreme Court decided over thirty-five years ago that a trial court cannot compel a party into “involuntary retirement.” In re Marriage of Adams, 535 N.E.2d 124, 127 (Ind. 1989). The trial court did not abuse its discretion.

3. Uneven Split of Marital Assets

[16] At the end of the final dissolution hearing on September 27, 2023, the trial court stated:

I did, I was trying to crunch the numbers and see how close I got to 50/50. I thought, actually [Husband] had a little bit more but I'm not real sure now, but they're close and if there's a disparity, I think we're close enough that given the, the length of the marriage, relative earning capacities and other intangible considerations, we're close enough to call it 50/50.

(Tr. Vol. III at 135.) However, at the subsequent status review hearing on October 6, 2023, the trial court indicated it had “questions about some of the money” Husband received from the sale of the 178-acre property, which occurred before Wife filed for divorce. (Id. at 141.) The trial court wondered “[w]hat'd he do with the money” considering some of the items he bought with the proceeds of that sale exceeded the amount he claimed he sold the property for. (Id.) The trial court stated, “I didn't like what he did, you know, I didn't accept, his explanation wasn't something that satisfied me on why he did that[.]” (Id.) The trial court also stated:

I'm not trying to get to 50/50. I thought I would get there but, and I haven't even figured [it] out, since all this is, I haven't gone back and looked at it, but I did it from the bench. I thought I'd be close, but I know I'd probably be a little off. Maybe a moderate amount off. But in my mind, it was a short marriage. She made most of the money. It was late in life, and I wasn't going to go 50/50.

(Id. at 145.) In its written order, the trial court awarded Wife 55%, or $691,548.00, of the marital assets and Husband 45%, or $593.805.00, of the marital assets.

[17] Husband contends the trial court abused its discretion when it ordered an uneven split of the parties’ marital assets because doing so was inconsistent with the trial court's statement at the end of the final dissolution hearing, in which the trial court indicated it would split the marital assets equally. “ ‘A trial court may reconsider an order or ruling if the action remains in fieri, or pending resolution.’ ” Matter of Estate of Lewis, 123 N.E.3d 670, 673 (Ind. 2019) (quoting In re Estate of Hammar, 847 N.E.2d 960, 967 (Ind. 2006)) (emphasis in original). We review these decisions for an abuse of discretion. Id.

[18] Herein, the trial court did not order a distribution of marital assets prior to its final order – it merely verbally gave the parties insight into which way the ruling may go. In its order, the trial court indicated its reasons for an uneven split of marital assets, some of which follow the trial court's statement at the end of the status conference:

The Wife's contributions to the marital estate were greater than Husband's ․ [T]he Court notes Husband's conduct, related to unilateral control over the proceeds of the sale of the 178-acre parcel, before the Court froze the account where the remainder of the money was deposited, shows he was not being fair regarding the disposition of their marital property.

(App. Vol. II at 147.) Husband does not argue any of these findings are erroneous or do not support an uneven distribution of marital assets – just that the trial court abused its discretion when it “reversed itself[.]” (Husband's Br. at 17.) We therefore conclude the trial court did not abuse its discretion when it entered an order inconsistent with its verbal statement during the final dissolution hearing. See Matter of Estate of Lewis, 123 N.E.3d at 673 (holding trial court could change a ruling before it issued a final order).

Conclusion

[19] The trial court did not abuse its discretion when it valued a 65-acre plot of land owned by the parties or Wife's retirement account. Further, the trial court did not abuse its discretion when it entered an order that was inconsistent with its statement at the end of the final dissolution hearing. Accordingly, we affirm.

[20] Affirmed.

May, Judge.

Brown, J., and Pyle, J., concur.