Charlie Mack Smith, Appellant-Petitioner v. Marilyn Cora-Jean Smith, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Charlie Mack Smith (“Husband”) appeals following the dissolution of his marriage to Marilyn Cora-Jean Smith (“Wife”). Husband presents two issues for our review, which we restate as follows:

I. Whether the trial court abused its discretion in awarding spousal maintenance to Wife; and

II. Whether the trial court erred in excluding an asset from the marital pot.

[2] Identifying error in the entry of the maintenance award and in the exclusion of an asset from the marital pot, we reverse and remand with instructions to revisit these issues, adhere to procedures outlined herein, and issue a new judgment.

Facts and Procedural History

[3] The parties married in July 2010. On September 3, 2021, Husband petitioned to dissolve the marriage. There were no children of the marriage, but Husband and Wife each have an adult child from prior relationships. The matter progressed to an evidentiary hearing, which was held on July 30, 2024. Both Husband and Wife are retired. Husband retired shortly after the parties’ marriage in 2010. Husband was receiving disability payments from the military of approximately $1,000.00 per month based upon his disability. Wife was also disabled, and based upon her disability, Husband received an additional $400.00 benefit per month. The $400.00 per month attributable to Wife's disability was being allocated directly to Wife, however, that benefit would terminate upon dissolution of the marriage. Husband otherwise received $1,743.30 per month from Social Security and $600.00 per month from his teacher's pension. As for Wife, she became disabled and stopped working in January 2011, suffering from PTSD, depression, and a neurological disorder called Dystonia due to a medication side effect that is “never cured” and “can go into remission, but [Wife] will have that for the rest of [her] life.” Tr. Vol. II p. 62. Around the time Wife stopped working, she applied for Social Security Disability Insurance (“SSDI”) benefits, which she began receiving in 2015. There was no evidence of the amount of the SSDI benefits. However, there was evidence that Wife depleted her retirement funds, and independent of Husband's military benefit—which would terminate upon dissolution of the parties’ marriage—Wife's income consisted solely of the SSDI payments. Wife was seeking “some level of assistance ongoing from [Husband] to maintain [her] lifestyle[.]” Id.

[4] When Husband petitioned to dissolve the marriage, the parties had various interests in real estate, which included: (1) the marital residence in Indianapolis that Husband acquired prior to the marriage; (2) a duplex in Indianapolis (“the Duplex”) that Wife acquired prior to the marriage; (3) a vacation property in Birmingham, Alabama, that Husband acquired prior to the marriage; and (4) a one-half interest in a time share in Orlando, Florida, which was acquired during the marriage, where Husband's friends held the other one-half interest. Wife acquired the Duplex for her daughter, who lived in one side of the Duplex. Wife's daughter rented out the other side of the Duplex and had been maintaining the property, “paying for all of the upgrades,” and “making the payments” on Wife's mortgage. Id. at 72. At the evidentiary hearing, Husband testified as follows regarding the Duplex:

[Husband's Counsel:] Okay. Just to be clear for the Court, you are not asking for any money from [the Duplex], correct?

[Husband:] No, I'm not asking for anything from [the Duplex] because that was basically her property, so ․ I wouldn't try to ․ do that when I have two properties already.

[Husband's Counsel:] So, even though there may be an argument ․ that [you] should be entitled to equity from that property that was achieved during the marriage, you are simply asking the Court to assign that asset to [W]ife as her sole and exclusive property, correct?

[Husband:] Yes, that's correct.

[Husband's Counsel:] But any argument that she has for monies from you, you would want to offset with whatever argument you have from [the Duplex], correct?

[Husband:] That's correct.

[Husband's Counsel:] Okay. But you don't foresee an exchange of money happening because you believe it's going to be essentially a wash?

[Husband:] Yeah, I'll ․ accept that.

Id. at 18.

[5] The parties’ various interests in real estate were valued as follows: (1) the marital residence was worth about $230,000.00 with a mortgage balance of about $129,000.00, resulting in equity of about $101,000.00; (2) the Duplex was worth about $206,000.00 with a mortgage balance of about $40,000.00, resulting in equity of about $166,000.00; (3) the Birmingham property was paid off with a tax-assessed value of at least $38,000.00; and (4) Husband and Wife's timeshare interest was worth about $75,000.00. Outside of real estate, when the parties separated, Wife was in possession of a 2010 Nissan Altima while Husband was in possession of a 2013 Toyota Highlander. The two vehicles were paid off. Husband was also in possession of the marital residence and its furnishings, along with an RV, a motorcycle, and a motorcycle trailer. Husband claimed that he had a coin collection that went missing from a safe at the marital residence around the time Wife was “making her final move[.]” Id. at 27. Husband also testified that he discovered $30,000.00 in cash missing from the safe.

[6] At the conclusion of the evidentiary hearing, the trial court took the matter under advisement and requested that the parties submit proposed orders. Thereafter, each party submitted their proposed order. On September 16, 2024, the trial court entered an order dissolving the marriage and dividing the marital estate, with the court adopting verbatim Wife's proposed order, which contained findings and conclusions supporting the judgment.¹ The court entered several findings regarding the Duplex, among them: “There was only testimony that the [Duplex] had an initial payment from Wife and no further financial contribution, therefore it is proper for it to be excluded from the marital estate.” Appellant's App. Vol. II p. 9. Excluding the Duplex, the trial court ordered that Husband would retain the marital residence, the Alabama property, and the timeshare interest. Husband was to pay Wife $135,000.00, which the court determined was “half the value” of those real estate interests. Id. at 10. As to other marital property, the trial court ordered Husband to deliver to Wife half the value of the RV, motorcycle, and motorcycle trailer, with the parties otherwise retaining the vehicles and property in their possession. The court further ordered that “Husband shall pay to Wife ․ the sum of $500.00 a month in spousal maintenance due to Wife's disability.” Id.

[7] On October 7, 2024, Husband filed a motion to correct error in which he claimed “confusion regarding the Court's intentions,” alleging the trial court “initially signed both proposed orders, which were in conflict with each other.” Id. at 31. The trial court ultimately denied the motion.² Husband now appeals.

Discussion and Decision

[8] Husband appeals following the denial of his motion to correct error. We review a ruling on a motion to correct error for an abuse of discretion, which occurs when the decision is clearly against the logic and effect of the facts and circumstances. Garrett v. Spear, 24 N.E.3d 472, 473–74 (Ind. Ct. App. 2014). Here, the underlying judgment involved the trial court's entry of special findings regarding its distribution of the marital estate and decision to award spousal maintenance to Wife. In distributing the marital estate, a trial court is generally obligated to enter special findings only when (1) a party requests them pursuant to Trial Rule 52 or (2) the court deviates from a substantially equal distribution of the estate. See J.M. v. N.M., 844 N.E.2d 590, 603 (Ind. Ct. App. 2006) (“ ‘[E]xpress trial court findings will not be compelled for insubstantial deviations from precise mathematical equality’ in the division of the marital estate.” (quoting Kirkman v. Kirkman, 555 N.E.2d 1293, 1294 (Ind. 1990)), trans. denied. In contrast, a trial court is statutorily required to enter special findings when ordering spousal maintenance. See Ind. Code § 31-15-7-1.

[9] To the extent Indiana law requires the entry of special findings, see Ind. Trial Rule 52(A), we apply a two-tiered standard of review, looking to whether the evidence supports the findings and the findings support the judgment, Johnson v. Johnson, 181 N.E.3d 364, 371 (Ind. Ct. App. 2021). Sua sponte findings control as to the issues they cover, with a general judgment standard applicable to all other issues. See T.R. 52(D). Under a general judgment standard, we affirm the judgment if it is sustainable upon any theory consistent with the evidence. Shields v. Town of Perryville, 136 N.E.3d 309, 311 (Ind. Ct. App. 2019).

[10] In conducting our review, we accept unchallenged findings as true. Johnson, 181 N.E.3d at 371; Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind. Ct. App. 2019). Further, we do not reweigh evidence, instead viewing the evidence in a light most favorable to the judgment, Johnson, 181 N.E.3d at 371, while giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, T.R. 52(A). Although we defer to the trial court's factual findings, we owe no deference to its legal conclusions and review all questions of law de novo. Taylor v. St. Vincent Salem Hosp., Inc., 180 N.E.3d 278, 287 (Ind. Ct. App. 2021). Moreover, in this case, the trial court adopted verbatim Wife's proposed findings and conclusions. The Indiana Supreme Court has cautioned that “the wholesale adoption of one party's findings results in an ‘inevitable erosion of the confidence of an appellate court that the findings reflect the considered judgment of the trial court.’ ” Stevens v. State, 770 N.E.2d 739, 762 (Ind. 2002) (quoting Prowell v. State, 741 N.E.2d 704, 709 (Ind. 2001)). Even “near verbatim” reproductions “may ․ justify cautious appellate scrutiny[.]” Id.

I. Award of Spousal Maintenance

[11] Husband challenges the trial court's award of spousal maintenance to Wife. Indiana Code section 31-15-7-1 authorizes the trial court to order spousal maintenance “after making the findings required” in Indiana Code section 31-15-7-2. That section provides, in pertinent part, as follows:

If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.

I.C. § 31-15-7-2 (emphasis added). “A trial court's power to award spousal maintenance is wholly within its discretion.” Barton v. Barton, 47 N.E.3d 368, 375 (Ind. Ct. App. 2015), trans. denied. On appeal, we presume the court correctly applied the law in awarding maintenance—“one of the strongest presumptions applicable to our consideration of a case on appeal.” Id. “We will reverse a trial court's decision to award spousal maintenance only when the decision is clearly against the logic and effect of the facts and circumstances of the case.” Id.

[12] Regarding spousal maintenance, here, the trial court noted that “Wife testified she is currently on disability and unable to sustain her lifestyle and is requesting some form of [spousal] [m]aintenance.” Appellant's App. Vol. II p. 9. The trial court ultimately determined that “Husband shall pay to Wife ․ the sum of $500.00 a month in spousal maintenance due to Wife's disability.” Id. at 10. When it comes to this type of maintenance, our Supreme Court has stated:

Where a trial court finds that a spouse is physically or mentally incapacitated to the extent that the ability of that spouse to support himself or herself is materially affected, the trial court should normally award incapacity maintenance in the absence of extenuating circumstances that directly relate to the criteria for awarding incapacity maintenance.

Cannon v. Cannon, 758 N.E.2d 524, 527 (Ind. 2001). Thus, we have explained that “a trial court's discretion is ‘limited’ regarding whether to award incapacity maintenance once the court makes the requisite finding regarding incapacity.” Barton, 47 N.E.3d at 375 (quoting Coleman v. Atchison, 9 N.E.3d 224, 229 (Ind. Ct. App. 2014)). Therefore, “[o]nce the requisite finding of incapacity has been made, the trial court should award incapacity maintenance or identify specific extenuating circumstances directly related to the statutory criteria for awarding such maintenance that would justify denying the award.” Id. at 375–76.

[13] On appeal, Husband claims the trial court failed to enter the required statutory findings in awarding spousal incapacity maintenance to Wife or, in the alternative, the award of maintenance was “against the weight and logic of the facts and circumstances of this case.” Appellant's Br. p. 15. We agree that the judgment reveals error in the entry of spousal maintenance.

[14] Indiana Code section 31-15-7-2 explicitly requires a finding that a spouse is “physically or mentally incapacitated to the extent that the ability of that spouse to support himself or herself is materially affected[.]” Here, the judgment states Court of Appeals of Indiana | Memorandum Decision 24A-DN-3064 | October 27, 2025 Page 10 of 16 as follows with regard to Wife's ability to support herself: “Wife testified she is currently on disability and unable to sustain her lifestyle and is requesting some form of [spousal] [m]aintenance.” Appellant's App. Vol. II p. 9 (emphasis added). We note that “[a] court ․ does not find something to be a fact by merely reciting that a witness testified to X, Y, or Z.” In re Adoption of T.J.F., 798 N.E.2d 867, 874 (Ind. Ct. App. 2003). Rather, before this kind of “ ‘finding’ may be considered a finding of fact,” the court “must adopt the testimony of the witness[.]” Id. In this instance, the trial court recited Wife's testimony without formally adopting the testimony as fact. Thus, it does not appear that the judgment contained the required finding to support a maintenance order.

[15] Furthermore, even if we could say the judgment contained the required finding that Wife's incapacity materially affected her ability to support herself, we question whether the record provided adequate evidentiary support; indeed, there was no evidence of Wife's SSDI income nor was there evidence of Wife's necessary expenses. Therefore, the record discloses no indication of whether Wife was able to support herself without maintenance from Husband. It is also worth pointing out that the trial court ordered perpetual maintenance in the amount of $500.00, which was $100.00 more than Wife had been receiving from Husband's military benefit that terminated upon dissolution of the marriage. Cf. I.C. § 31-15-7-2 (allowing a court to order incapacity maintenance only when “necessary during the period of incapacity” (emphasis added)).

[16] Based on the foregoing, we ultimately lack confidence that the findings and conclusions reflect the considered judgment of the trial court on the issue of spousal maintenance. Having identified error in the maintenance order, we reverse the entry of spousal maintenance and remand with instructions to revisit Wife's request for spousal maintenance under Indiana Code section 31-15-7-2.³

II. Exclusion of Marital Asset

[17] Next, Husband challenges the distribution of the marital estate, claiming the trial court erred by excluding the Duplex from the marital pot. A trial court “has broad discretion in valuing and dividing marital property.” Gatton v. Gatton, 249 N.E.3d 626, 634 (Ind. Ct. App. 2024). Moreover, in a dissolution action, all marital property goes into the marital “pot” for division, whether the property was owned by either spouse before the marriage, acquired by either spouse after the marriage and before final separation of the parties, or acquired by their joint efforts. See Ind. Code § 31-15-7-4(a); see also Gatton, 249 N.E.3d at 635. The requirement that all marital assets be placed in a single “pot” ensures that the court first determines the value of the estate “before endeavoring to divide property.” Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014) (quoting Montgomery v. Faust, 910 N.E.2d 234, 238 (Ind. Ct. App. 2009)).

[18] After placing all marital assets in a single pot, the court must divide the marital estate under the presumption that an equal division is just and reasonable. I.C. § 31-15-7-5; Leever v. Leever, 919 N.E.2d 118, 124 (Ind. Ct. App. 2009). Although the court “may decide to award a particular asset solely to one spouse as part of its just and reasonable property division,” it “must first include the asset in its consideration of the marital estate to be divided.” Falatovics, 15 N.E.3d at 110. “The systematic exclusion of any marital asset from the marital pot is erroneous.” Id. Furthermore, although the court “shall presume that an equal division of the marital property ․ is just and reasonable,” Indiana Code section 31-15-7-5 further provides that “this presumption may be rebutted by a party who presents relevant evidence”—including evidence concerning certain statutory factors—“that an equal division would not be just and reasonable[.]” Those statutory factors are as follows:

(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, 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.

I.C. § 31-15-7-5.

[19] Husband claims the trial court erroneously excluded the Duplex from the marital pot, directing us to the following statement in the judgment: “There was only testimony that the [Duplex] had an initial payment from Wife and no further financial contribution, therefore it is proper for it to be excluded from the marital estate.” Appellant's App. Vol. II p. 9 (emphasis added). We agree with Husband that this statement reflects error in the exclusion of the Duplex.

[20] On appeal, Wife argues that Husband's equivocal testimony about receiving value from the Duplex was tantamount to waiver of any right to value therefrom. However, we disagree that Husband waived this issue. See Tr. Vol. II p. 18 (involving Husband's testimony that “any argument that [Wife] has for monies from [Husband], [Husband] would want to offset with whatever argument [he] ha[s] from [the Duplex]”). Wife also argues that Husband's testimony supported the trial court's unequal division of the estate in her favor.

[21] It is worth pointing out that, consistent with principles of harmless error, the erroneous exclusion of an asset from the marital pot is not reversible error if, under the circumstances, “we cannot conclude that the court abused its discretion in dividing the marital estate as it did[.]” Gatton, 249 N.E.3d at 637. For example, in Gatton, we affirmed the distribution of the marital estate where the court excluded a portion of a pension value from the marital estate but considered the excluded value in dividing the marital estate. Here, however, we are ultimately not confident the trial court accounted for the value of the Duplex in deciding to deviate from the presumptive 50/50 split in favor of Wife. Moreover, this issue has a collateral impact on the court's consideration, on remand, of Wife's resources in resolving the related spousal maintenance issue. Under the circumstances, we reverse and remand with instructions to include the Duplex in the marital estate and follow the proper procedures outlined above in identifying, valuing, and dividing the marital estate.

Conclusion

[22] Having identified error in the entry of the spousal maintenance order and in the exclusion of an asset from the marital estate, we reverse and remand for the trial court to revisit, through proper procedures outlined herein, Wife's request for spousal maintenance and the just and reasonable division of the marital estate.

[23] Reversed and remanded with instructions.

FOOTNOTES

1.   The parties’ proposed orders were not provided on appeal but were available in the Odyssey case management system. See Ind. Appellate Rule 27 (stating that the appellate record “consist[s] of the Clerk's Record and all proceedings before the trial court[,] ․ whether or not transcribed or transmitted” on appeal); Ind. Evid. Rule 201(a)(2)(C) (permitting a court to take judicial notice of “the existence of ․ records of a court of this state”).

2.   The first page of Husband's proposed order in Odyssey contains a notation with the judge's initials stating that the document was erroneously signed. On the signature page, there is a line through the judge's signature and the date, and there is a diagonal line through the content on the first page of the document.

3.   Reversing for the reasons stated, we do not address additional arguments for reversal of the spousal maintenance order.

Foley, Judge.

Kenworthy, J. and Scheele, J., concur.