Rebecca Molter, Appellant-Petitioner v. Timothy Molter, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Rebecca Molter (“Mother”) appeals the trial court's Decree of Dissolution dissolving her marriage to Timothy Molter (“Father”) and deciding financial and property issues between them. In challenging the Decree as clearly erroneous, Mother raises several issues, which we consolidate and restate as three:

1. Was the trial court's determination of Father's self-employment income supported by the evidence?

2. Was the trial court's order granting Father's motion to sell marital assets as part of the property division an abuse of discretion?

3. Was the trial court's denial of Mother's request for attorney fees an abuse of discretion?

[2] We affirm.

Facts and Procedural History

[3] The parties were married in 1992 and had three children. In August 2023, Mother petitioned to dissolve the marriage. Only one of the parties’ children was still a minor.

[4] At the time Mother initiated dissolution proceedings, Father and Mother were co-owners of TRMF Enterprises, LLC (“TRMF”), which owned commercial real estate. Father's company, Aristoline Cabinets, Inc., a cabinet manufacturer, operated out of a warehouse on the TRMF real estate. Additional warehouse space was rented to other businesses. Father worked for Aristoline and was paid a salary and Mother was a teacher with the local school corporation.

[5] At a provisional hearing in December 2023, the parties agreed that Mother's weekly gross income was $894.23. The trial court adopted that figure. As to Father, Mother suggested that Father's annual income was $322,000. See Tr. Vol. 2 at 140 (counsel questioning Mother during the final hearing about the evidence she presented at the provisional hearing on Father's income). But the trial court found Father earned $114,000 annually and used a weekly gross income of $2,192.31 for Father in calculating the provisional child support order. Ex. Vol. 7 at 58.

[6] At the final hearing in October 2024, the parties again agreed Mother's weekly gross income was $894.23. Mother argued Father's annual income was over $300,000 and offered a proposed child support worksheet based on a weekly gross income figure of $4,900 for Father. See Ex. Vol. 6 at 29.¹ To explain the annual income figure, Mother testified:

[Counsel]: ․ How did you come up with [Father's] income figure?

[Mother]: Well, it has to be all of his income.

[Counsel]: Ok. Do you have an expert opinion on, or significant knowledge with respect to his income?

[Mother]: No.

[Counsel]: OK. [D]id you have assistance through your counsel with trying to determine what his income is?

[Mother]: Yes.

Tr. Vol. 2 at 139. Counsel then led Mother through explaining they had added the amounts on Father's W-2 ² and K-1, business expense deductions from Aristoline's tax return, and gross rent receipts from TRMF to reach an income figure of over $300,000. See id. at 143; Ex. Vol. 6 at 65.

[7] Father offered a proposed Worksheet that showed his weekly gross income as $2,192.31, the same figure used for the provisional child support order. See Ex. Vol. 7 at 105. This amount was based on testimony from Father's accountant of about twenty years, Ron Bojrab. Bojrab testified Father's average annual net income for the past four years was $106,000. Tr. Vol. 3 at 14–15. Bojrab calculated Father's average annual net income by adding “his W2 income [from Aristoline] plus a hundred percent of the Aristoline Cabinets[’ net income] plus fifty percent of the [TRMF] real estate.” Id. at 15. Bojrab explained that what he called the “net income” from Aristoline is “the total income minus all the expenses for the company.” Id. at 13.³ In other words, business income “all goes into Aristoline's bank account and then expenses and payroll and insurance and all that is paid through that [account] to arrive at a net.” Id. at 16. Aristoline's net income is reported on Schedule K-1 ⁴ and that amount is added to Father's other income on his personal tax return.

[8] One of the line items for deductions from ordinary business income on the business tax return is “other deductions.” See, e.g., Ex. Vol. 4 at 132. On Aristoline's 2022 tax return, the “other deductions” totaled $148,761 and included amounts for auto expenses, insurance, telephone, utilities, “legal & professional,” and miscellaneous. Id. at 149.⁵ Bojrab testified he looks through expenses to “pull [travel and entertainment] out [and] make them not deductible on the tax return.” Tr. Vol. 3 at 42. As for items like auto expenses, he does “a calculation for personal use” and adds that to the parties’ personal returns. Id. at 43. Bojrab was not aware of Father having a yearly income of $250,000 or more in any of the years he had done Father's taxes. Father testified he had never made that much from Aristoline and $106,000 “sound[ed] closer to accuracy.” Id. at 143.

[9] Shortly before the final hearing, Father filed a motion to sell Aristoline and TRMF. Father explained at the final hearing he had been thinking about selling the businesses for some time: “I no longer have a family to support, to grind for. I work eighty hours a week and have for twenty-five years and it's time to do something different.” Id. at 132. Mother agreed a sale was “a talked-about thing” at some point during the marriage. Tr. Vol. 2 at 157. In late 2021 or early 2022, Father had engaged Ricky Kerns, a personal and business real estate broker, for a “pocket listing” of Aristoline. Tr. Vol. 3 at 80. The business was not publicly listed for sale, but if Kerns came across an interested buyer, Father would sell. The listing “didn't really go anywhere” and Kerns moved on after six or nine months. Id. at 80.

[10] Father filed his motion because he wanted the court to order the businesses sold and the net proceeds split rather than assigning the value of the businesses to him as part of the property division. Father reasoned that “[w]ithout these sales [Father] would be required to pay an equalization payment to [Mother] over an extended period of years or give [Mother] assets which would leave him without a residence or retirement account.” Appellant's App. Vol. 2 at 91. Father figured if the business value were assigned to him, he would probably have to make an equalization payment of nearly $500,000, and would have to sell the businesses regardless, bearing the significant expenses and tax consequences of the sale alone. In preparation for either result, Father had contacted Kerns, who agreed to list the businesses if the parties agreed to a sale or the court ordered them sold. Mother did not want the properties sold as part of the property division.

[11] At the conclusion of her testimony, Mother asked for an award of attorney fees, stating she did not know whether Father had been paying his own attorney fees out of the business accounts and noting she did not have the same access to the business accounts for her expenses. Father asked that each party pay his or her own fees, reasoning this is “a seven figure ․ balance sheet so yeah, there will be plenty of money” for Mother to pay her own attorney fees. Tr. Vol. 3 at 143.⁶

[12] The trial court issued a Decree of Dissolution of Marriage with findings of fact and conclusions thereon at the parties’ request. Relevant to the issues on appeal, the trial court found Father's weekly gross income was $2,038.46 ⁷ and calculated child support based on that amount. The court granted Father's request to sell the businesses and determined the net proceeds from the sale “shall be split equally between the parties at closing.” Appellant's App. Vol. 2 at 37. The court stated the business and real estate should be listed with Kerns and ordered the parties to cooperate with him “on all aspects of the sales process.” Id. The trial court's division of property resulted in a net marital estate of $1,130,988.50 to Mother and $1,221,652.50 to Father, with Father ordered to make an equalization payment of $45,332.⁸ The court ordered each party to pay their own attorney fees.

[13] Both parties filed motions to correct error. Among the many errors alleged by each party, the following are relevant to issues raised in this appeal. Mother challenged the trial court's determination of Father's income “with respect to handling Father's self-employment income with business deductions.” Appellant's App. Vol. 2 at 57. Mother asserted the “other deductions” on Aristoline's tax returns were not explained and “could have had personal benefit for the Court to consider under the Child Support Guidelines.” Id. at 58 (emphasis added). Mother also challenged the order to sell the businesses, claiming a sale versus setting their value aside to Father is “financially prejudicial and harmful to Mother.” Id. at 61. Mother asked the trial court to amend its Decree to assign the value of the business interests to Father and recalculate the equalization payment. Alternatively, Mother asked the trial court to appoint a receiver to sell the property because based on Kerns’ participation in the final hearing on behalf of Father and his prior representation of him regarding the business, “there is the potential that Ricky Kerns’ duty to sell the property ․ has a high risk of being partial to Father.” Id.

[14] The trial court amended the Decree in several respects, but as to the issues now on appeal, the court reaffirmed its calculation of Father's income and order for Kerns to sell the businesses. Responding to Mother's objection to Kerns serving as the broker for the sale, the court noted that “at the time of the hearing, [Mother] offered no other potential broker to sell the real estate and Mr. Kerns has previously worked with the businesses and listed Aristoline Cabinets for sale.” Id. at 80.

The trial court's Decree of Dissolution is not clearly erroneous.

[15] In reaching its decision, the trial court entered findings of fact and conclusions under Indiana Trial Rule 52(A) at both parties’ request. We apply a two-tiered standard of review: we determine first whether the evidence supports the findings and, if so, whether the findings support the judgment. Town of Linden v. Birge, 204 N.E.3d 229, 233 (Ind. 2023). We do not reweigh the evidence or reassess witness credibility, and we will not set aside the findings or judgment unless they are clearly erroneous. Ind. Trial Rule 52(A). Findings are clearly erroneous if the record contains no facts or inferences supporting them. State v. Int'l Bus. Machs. Corp., 51 N.E.3d 150, 158 (Ind. 2016). A judgment is clearly erroneous if it relies on an incorrect legal standard. Id.

1. The trial court's determination of Father's weekly gross income for child support is supported by the evidence.

[16] A trial court's calculation of child support is presumptively valid, and we will reverse only if it is clearly erroneous or contrary to law. Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). The trial court's findings as to child support here included:

24. [Father's] personal and business accountant stated Father's average annual gross income for the past four years averaged $106,000.00. The accountant considered his base pay through his company, Aristoline Cabinets, Inc., and by factoring in additional income from the company, then subtracting the necessary expenses.

25. [Father] received W-2 and K-1 income from Aristoline Cabinets, Inc. in 2022 that totaled $138,195.17 alone ($75,998.17 W-2 and $62,197 K-1). TRMF Enterprises LLC Gross Rents in 2022 totaled $52,332.00. Aristoline Cabinets, Inc. had $148,761.00 in business deductions that were not explained or itemized by [Father]. The Court cannot determine what deductions included personal benefits and may still be included within a gross income calculation for child support purposes. Those totals amount to $339,288.17.[9]

* * *

30. The Court finds Father's weekly gross income is $2,038.46.

31. The parties agree and the Court finds [Mother's] weekly gross income of $894.23.

Appellant's App. Vol. 2 at 17–18. Based on those income figures, the trial court calculated Father's child support obligation as $216 per week. See id. at 31 ¶ 108.

[17] Mother contends the trial court clearly erred in calculating Father's self-employment income for determining child support because the finding that Father's annual income is $106,000 is not supported by the evidence.

[18] The first step in establishing child support is to determine the weekly gross income of each parent. In re Paternity of C.B., 112 N.E.3d 746, 757 (Ind. Ct. App. 2018), trans. denied. The Indiana Child Support Guidelines state:

Weekly Gross Income from self-employment, operation of a business, rent, and royalties is defined as gross receipts minus ordinary and necessary expenses. In general, these types of income and expenses from self-employment and operation of a business should be carefully reviewed to restrict the deductions to reasonable out-of-pocket expenditures necessary to produce income․ Weekly Gross Income from self-employment may differ from a determination of business income for tax purposes.

Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, or reimbursed meals.

Ind. Child Support Guideline 3(A)(2). The commentary to Guideline 3 also explains:

Calculating Weekly Gross Income for the self-employed ․ presents unique problems, and calls for careful review of expenses. The principle involved is that actual expenses are deducted, and benefits that reduce living expenses ․ should be included in whole or in part.

Cmt. 2.a. to Guideline 3A. The calculation of a parent's weekly gross income for child support purposes is more inclusive than for income tax purposes. Bass v. Bass, 779 N.E.2d 582, 593–94 (Ind. Ct. App. 2002), trans. denied. “Trial courts have discretion in determining which business expenses are deductible for purposes of calculating the child support obligation of self-employed persons, but the court must engage in a careful review of the facts and circumstances in making its determination.” Young, 891 N.E.2d at 1049.

[19] Essentially, Mother argues the trial court erred in not adding the “other deductions” from Aristoline's business income to Father's personal income. She asserts these deductions represent personal expenses paid by the business that should be included in Father's gross income. Although Mother testified gas, vacations, groceries, and other personal expenses were paid by Aristoline during the marriage, she offered no evidence that any of those expenses were improperly deducted on the business tax return. Father's accountant testified he took care to exclude personal expenses from the business deductions or to add them back to Father's income on his personal return.

[20] We acknowledge Bojrab referred to $106,000 as Father's “net income” and that taxable income does not necessarily equal weekly gross income. See Tr. Vol. 3 at 14–15 (Bojrab testifying he “calculated [Father's] net income for the last four years” at $106,000) (emphasis added). But Mother's formulation did not account for any legitimate business deductions and was wildly disproportionate to the trial court's provisional income determination. Urging us to adopt her income figure of over $300,000 when she acknowledged she had no expert opinion on, or significant knowledge of, Father's income is a request for us to reweigh the evidence, which we cannot do. See Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (“Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.”). The trial court's gross weekly income calculation is supported by evidence, and the trial court did not clearly err in determining Father's weekly gross income.¹⁰

2. The trial court did not abuse its discretion in ordering the parties’ business property to be sold.

[21] The trial court made the following findings about Aristoline and TRMF:

45․ Father is asking that as part of the distribution of assets and debts that the Court order Aristoline ․ and TRMF ․ be sold. Father is concerned about significant tax consequences associated with the Court awarding him the businesses which would result in a significant property equalization payment to Mother. He believes he would be forced to sell the businesses to pay the property equalization payment and he alone would face the tax consequences from the sale. In addition, Father has discussed selling the businesses in the past because he does not want to continue working eighty (80) hours per week required to operate the business.

* * *

139. The Court Orders that the business, Aristoline ․ shall be sold by listing the property and business with Ricky Kerns. Further, the real estate and the building owned by TRMF ․ shall be sold by Ricky Kerns. The parties shall cooperate with Ricky Kerns on all aspects of the sales process.

Appellant's App. Vol. 2 at 20–21, 36–37.

[22] Mother argues the trial court should have assigned the businesses’ value to Father ¹¹ rather than ordering the businesses sold, or in the alternative, should have appointed a receiver to sell the properties. She claims the assets available to Father—including the value of the businesses—allowed him the financial ability to make the larger equalization payment to her.

[23] In a dissolution,

[t]he court shall divide the property in a just and reasonable manner by:

(1) division of the property in kind;

(2) setting the property or parts of the property over to one (1) of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper; [or]

(3) ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale[.]

Ind. Code § 31-15-7-4(b)(1)–(3) (1997). “Subject to the statutory presumption that an equal distribution of marital property is just and reasonable, the disposition of marital assets is committed to the sound discretion of the trial court.” Augspurger v. Hudson, 802 N.E.2d 503, 512 (Ind. Ct. App. 2004). We will reverse a property distribution only if there is no rational basis for the award. Id. Although the circumstances may have justified a different distribution, we may not substitute our judgment for that of the trial court. Id. “The trial court's disposition is to be considered as a whole, not item by item.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002).

[24] In addition to the trial court's mandate to generally consider what constitutes a just and reasonable property division, Indiana Code Section 31-15-7-7 directs the court to “consider the tax consequences of the property disposition with respect to the present and future economic circumstances of each party.” If the value of the businesses were set aside to Father, only he would incur tax consequences from a sale, ultimately reducing his overall property award. If the businesses were ordered sold, the tax consequences would be shared. The trial court did not clearly err in determining the just and reasonable distribution was to order the sale of the businesses and division of the proceeds rather than making a lopsided distribution that would require Father to sell the businesses anyway to make a larger equalization payment to Mother. Although the trial court could have assigned the value of the businesses to Father, there is a rational basis for the trial court's order to sell the businesses instead.

[25] As for the appointment of a receiver, Mother first asked for this relief in her motion to correct error. Issues or arguments raised for the first time in a motion to correct error are waived. Shepherd Props. Co. v. Int'l Union of Painters & Allied Trades, Dist. Council 91, 972 N.E.2d 845, 849 n.3 (Ind. 2012). Therefore, we need not address this issue.

[26] The trial court's findings support its decision to order the businesses to be sold, and the trial court's decision was not an abuse of discretion.

3. The trial court did not abuse its discretion in denying Mother's request for Father to pay her attorney fees.

[27] With respect to attorney fees, the trial court found:

153. In ruling on this request, the Court has considered the resources available to both parties, the economic circumstances of the parties, the abilities of the parties to engage in gainful employment and earn adequate income, whether a party was required to defend an unmeritorious claim, the results achieved by the parties, the complexity of the issues, and other such factors as the Court may. Both parties presented evidence, exhibits, and testimony regarding these resources and factors for the Court to consider in the proceedings.

154. The Court having considered all factors now concludes each party shall pay their own attorney fees and litigation expenses.

Appellant's App. Vol. 2 at 40–41.

[28] Mother contends the trial court's order for the parties to pay their own attorney fees is not supported by the evidence and is clearly erroneous.

[29] A trial court is authorized by statute to order a party to a dissolution proceeding to pay a reasonable amount of the other party's attorney fees, after considering factors bearing on the reasonableness of the award, including the parties’ resources, economic circumstances, and ability to work and earn adequate income. I.C. § 31-15-10-1(a) (1997); Masters v. Masters, 43 N.E.3d 570, 576 n.8 (Ind. 2015). In considering these factors, courts promote the legislative purpose for awarding attorney fees: to ensure a party in a dissolution proceeding who could not otherwise afford an attorney is able to retain one. Ahls v. Ahls, 52 N.E.3d 797, 803 (Ind. Ct. App. 2016). An award of attorney fees is within the broad discretion of the trial court, and the trial court need not give its reasons for its decision to grant or deny them. Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015), trans. denied. “Reversal is proper only where the trial court's award is clearly against the logic and effect of the facts and circumstances before the court.” Id. (citation omitted).

[30] In making her argument, Mother relies in part on her assessment of Father's income as greater than what the trial court found. We have already determined the trial court's calculation of Father's income was supported by the evidence and not clearly erroneous. Moreover, considering the trial court's property division and the parties’ financial situations as a whole, the trial court did not abuse its discretion by denying Mother's request for attorney fees.

Conclusion

[31] The trial court's weekly gross income calculation for purposes of child support was supported by the evidence and not clearly erroneous. The trial court did not abuse its discretion in ordering the parties’ businesses to be sold and the proceeds split evenly or in ordering each party to pay their own attorney fees.

[32] Affirmed.

FOOTNOTES

1.   Although Mother calculated Father's 2022 income as $339,288.17 and his 2021 income as $343,030.74, see Ex. Vol. 6 at 65, $4,900 per week totals an annual income of $254,800. The disparity is not explained in the record.

2.   Father received a salary from Aristoline.

3.   On the U.S. Income Tax Return for an S Corporation form, this amount is called “ordinary business income.” See, e.g., Ex. Vol. 4 at 132.

4.   A Schedule K-1 reports a partner or shareholder's share of income, deductions, and credits from a business. See, e.g., Ex. Vol. 7 at 95.

5.   On Aristoline's 2021 tax return, the “other deductions” totaled $115,280. Ex. Vol. 7 at 100.

6.   In addition, Father had already paid $15,000 “of preliminary attorney fees and litigation expenses” to Mother's counsel as instructed by the provisional order. Ex. Vol. 7 at 60.

7.   $2,038.46 x 52 weeks = $105,999.92 annually.

8.   Father had filed a contempt petition alleging Mother violated the provisional order by destroying or discarding marital property that Father did not immediately remove from the marital home. The trial court found Mother in contempt in the amount of $14,086—the replacement cost of those items. Father's equalization payment was offset by this amount. See Appellant's App. Vol. 2 at 40.

9.   Paragraph 26 addresses Father's 2021 income and reads essentially the same but for the amounts, which totaled $343,030.74. See id. at 18, ¶ 26.

10.   Mother argues the determination of Father's income “prejudicially impacted [her] on financial issues” including the division of the marital estate. Appellant's Br. at 21. But she makes no specific argument about the trial court's property division other than as discussed below and any other argument is waived. See Ind. Appellate Rule 46(A)(8)(a).

11.   The parties agreed and the trial court found the value of Aristoline was $651,000. See Appellant's App. Vol. 2 at 20. The parties disagreed about the value of TRMF. Mother's appraiser valued the property at $1,400,000 and Father's appraiser valued it at $775,000. The trial court found the value of TRMF to be $1,087,500, “an average of the two certified appraisals and within the range of values provided to the Court.” Appellant's App. Vol. 2 at 20. Therefore, the trial court found the total value of the businesses was $1,738,500.

Kenworthy, Judge.

Bailey, J., and Tavitas, J., concur.