SENI v. SENI (2025)

MEMORANDUM DECISION

[1] Elio Seni (“Husband”) appeals the Marion Superior Court's final decree dissolving his marriage to Sharon Seni (“Wife”). Husband presents three issues for our review, which we consolidate and restate as two issues:

1. Whether the trial court abused its discretion when it divided the marital estate.

2. Whether the trial court abused its discretion when it ordered him to pay some of Wife's attorney's fees.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] Husband and Wife were married for more than thirty years and have four adult children together. In July 2022, Wife moved out of the marital residence, and Husband “suspected” that Wife “had been in contact with [an attorney] about a divorce․” Tr. p. 84. In August, Husband made two withdrawals from two separate retirement accounts totaling $225,763.07. Husband's withdrawal of $182,762.07 from a Fidelity account ending in 3903 (“Fidelity 3903”) left him with a zero balance, while his withdrawal of $43,001 from a Fidelity account ending in 4887 (“Fidelity 4887”) left him with a balance of $502.74. On October 11, Wife filed a petition for dissolution of the marriage.

[4] Following an evidentiary hearing on Wife's petition, the trial court found in relevant part that Husband had dissipated $225,763.07 ¹ of the marital assets when he made the August 2022 withdrawals from his retirement accounts in anticipation of Wife's petition for dissolution. The trial court also found that Wife had “incurred significant expenses relating to the sale of the [marital residence]” totaling $15,408.22, and the court credited that amount to her. Appellant's App. Vol. 2, p. 18. The trial court did not credit Husband for expenses he claimed to have incurred in preparation for selling the marital residence, where he continued to live after Wife moved out.

[5] The trial court divided the net marital estate, valued at $1,445,071.67, equally, with Husband paying an equalization payment to Wife in the amount of $179,705.71. And the trial court ordered Husband to pay $2,500 of Wife's attorney's fees. Husband filed a motion to correct error, which the court denied. This appeal ensued.

Discussion and Decision

Issue One: Marital Estate

[6] Husband challenges the trial court's division of the marital estate on several grounds. The disposition of marital assets is within the dissolution court's sound discretion, and we will reverse only for an abuse of that discretion. Eye v. Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006). We consider only the evidence most favorable to the dissolution court's decision, without reweighing the evidence or assessing the credibility of witnesses. Id. Although the facts and reasonable inferences might allow for a conclusion different from that reached by the trial court, we will not substitute our judgment for that of the trial court. In re Marriage of Marek, 47 N.E.3d 1283, 1288 (Ind. Ct. App. 2016). 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 applicable to our consideration on appeal. Hendricks v. Hendricks, 784 N.E.2d 1024, 1026 (Ind. Ct. App. 2003).

Valuation Date

[7] Husband first argues that the trial court abused its discretion when it used a January 2022 valuation date for the Fidelity 3903 account. Husband maintains that the court should have used a date between the date the dissolution petition was filed (October 11, 2022) and the date of the final hearing (October 17, 2023).

[8] Husband is correct that a trial court has discretion when valuing the marital assets to set any date between the date of filing the dissolution petition and the date of the hearing. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). Here, in support of its valuation of Fidelity 3903, the trial court cited Husband's Exhibit L. That exhibit is Husband's October 2022 account statement showing a value of zero and a “Year-to-Date” value of $203,898.53. We agree with Husband that the trial court abused its discretion when it assessed the value of Fidelity 3903. On remand, the trial court shall enter the value of “zero” on line 30 of the final worksheet.

Dissipation of Assets

[9] Husband next argues that the trial court abused its discretion when it found that he had dissipated marital assets.

“Dissipation generally involves the use or diminution of the marital estate for a purpose unrelated to the marriage and does not include the use of marital property to meet routine financial obligations.” Balicki v. Balicki, 837 N.E.2d 532, 540 (Ind. Ct. App. 2005), trans. denied. “The test for dissipation is whether the assets were actually wasted or misused.” Id. “Dissipation of marital assets includes the frivolous and unjustified spending of marital assets.” Grathwohl v. Garrity, 871 N.E.2d 297, 303 (Ind. Ct. App. 2007).

To determine whether dissipation has occurred, we consider the following factors:

1. Whether the expenditure benefited the marriage or was made for a purpose entirely unrelated to the marriage;

2. The timing of the transaction;

3. Whether the expenditure was excessive or de minimis; and

4. Whether the dissipating party intended to hide, deplete, or divert the marital asset.

Kondamuri v. Kondamuri, 852 N.E.2d 939, 952 (Ind. Ct. App. 2006) (footnote omitted). “Dissolution courts may consider evidence of either pre- or post-separation dissipation.” Hardebeck[ v. Hardebeck], 917 N.E.2d [694,] 700[ (Ind. Ct. App. 2009)]. “[T]ransactions which occur during the breakdown of the marriage, just prior to filing a petition or during the pendency of an action, may require heightened scrutiny.” [In re Marriage of] Coyle, 671 N.E.2d [938,] 943[ (Ind. Ct. App. 1996)].

Johnson v. Johnson, 181 N.E.3d 364, 376-77 (Ind. Ct. App. 2021).

[10] Husband maintains that there is no evidence that he dissipated marital assets. He argues that he withdrew money from his retirement accounts in August 2022 to pay for “repairs to the Marital Residence, [to] relocate his mother to a different nursing home, and [to] make a down payment on a house in Florida.” Appellant's Br. at 14.

[11] Husband's argument on appeal amounts to a request that we reweigh the evidence, which we will not do. The evidence shows that, in July 2022, when Wife moved out of the marital residence and Husband “suspected” that Wife “had been in contact with [an attorney] about a divorce,” Husband withdrew $225,763.07 from two of his retirement accounts. Tr. p. 84. The timing of those withdrawals obviously warrants “heightened scrutiny” by the trial court. See Coyle, 671 N.E.2d at 943. And the trial court was entitled to discredit Husband's testimony regarding how he had spent that money. The evidence supports the trial court's finding that “Husband withdrew these funds in anticipati[on] of the divorce being filed, as an attempt to protect his assets from being subject to the division of the Court.” Appellant's App. Vol. 2, p. 17.

Credits to Wife

[12] Husband argues that the trial court abused its discretion when it credited Wife for various expenses related to preparing the marital residence for sale but declined to credit Husband for similar expenses, including $5,537 in property taxes he paid on the marital residence. During the evidentiary hearing, Wife testified that, in 2019, she and Husband had “started to get our house ready to be sold,” and she opened up a credit card in order to buy new appliances for the marital residence. Tr. p. 35. Wife testified that Husband agreed to reimburse her for those expenses when the house sold. Wife testified that she also had paid $228.80 for a Community Association Fee due at the time of closing the sale of the marital residence. Husband does not contest other moving-related expenses credited to Wife.

[13] Husband testified that he paid a property tax arrearage totaling $5,537, but, other than his testimony, the only evidence he submitted was a copy of a check dated March 10, 2023. And Husband sought reimbursement for various expenses he had incurred in maintaining the marital residence while he was still living there but Wife had moved out, including HOA dues and home repairs totaling $5,472. Husband argued that the home repairs were necessary to get the home ready for sale.

[14] The trial court found in relevant part as follows:

22. Wife incurred significant expenses relating to the sale of the Indiana Residence. Wife paid a Community Association Payment in the amount of $288.80, moving expenses for herself in the amount of $3,467.06, and moving costs on behalf of Husband in the amount of $7,000.00, and assigns these amounts to Wife as credits.

23. Husband's behavior during the time the Indiana Residence was being sold was poor. Husband made multiple threats of suicide, and Wife was concerned for his safety. Wife paid $734.20 in travel expenses so that the parties’ child [Br.] could travel to Indiana and ensure that Husband was safe during this time period. The Court assigns these amounts to Wife as credits.

24. Additionally, Wife testified that she purchased kitchen appliances in the amount of $4,652.36 specifically in preparation of the sale of the Indiana Residence.

25. Husband requested credit for payments made towards the Indiana Residence's property taxes, HOA fees, and repairs. However, the parties were living separately during the entire pendency of this matter, and the Court issued no Preliminary Orders relating to payment of bills. The Court finds that both parties paid their residence-related bills separately beginning in July 2022, and the Court declines to include these payments as credit for Husband.

Appellant's App. Vol. 2, p. 18.

[15] Again, Husband's argument is a request that we reweigh the evidence. While the trial court credited Wife for certain expenses, including the cost of appliances that Husband had agreed to purchase for the sale of the house, the court declined to credit Husband for what the evidence shows were reasonable living expenses incurred by Husband after Wife had moved out and each party was responsible for his/her own living expenses. The trial court did not abuse its discretion when it credited Wife for certain expenses but denied Husband's request for house-related credits.

Errors on Final Worksheet

[16] Finally, Husband argues that the trial court double-counted the amount of dissipated assets from the Fidelity 3903 account in calculating the total marital estate, and we agree.² The trial court entered a value of $203,898.53 for the Fidelity 3903 account on Line 30 of the worksheet, and on Line 49, the court entered the amount of dissipated assets from the same account as $182,762.07. As we have explained, we remand to the trial court to enter a value of zero on Line 30. With that correction, the dissipated assets in the amount of $182,762.07 from the Fidelity 3903 account will only be counted once in the final calculation.

[17] On remand, the trial court shall calculate the total net marital estate as $1,241,173.14.³ The trial court divided the marital estate fifty-fifty, so each party shall net $620,586.57. The trial court awarded Wife net assets worth $542,830.13, so Husband shall pay to Wife an equalization payment of $77,756.44. We affirm the trial court's division of the marital estate in all other respects.

Issue Two: Attorney's Fees

[18] Finally, Husband argues that the trial court abused its discretion when it ordered him to pay $2,500 of Wife's attorney's fees. The trial court's decision concerning an award of attorney's fees is reviewed for an abuse of discretion. Minser v. DeKalb Cnty. Plan Comm'n, 170 N.E.3d 1093, 1102 (Ind. Ct. App. 2021). “An abuse of discretion occurs when the court's decision either clearly contravenes the logic and effect of the facts and circumstances or misinterprets the law.” Id.

[19] Typically, under the American Rule, both parties pay their own fees. Id. “In the absence of statutory authority or an agreement between the parties to the contrary—or an equitable exception—a prevailing party has no right to recover attorney fees from the opposition.” Id. (citation omitted).

[20] Indiana Code section 31-15-10-1(a) provides, in relevant part, that “[t]he court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding” stemming from a dissolution of marriage, including “attorney's fees.”

“In determining whether to award attorney's fees in a dissolution proceeding, trial courts should consider the parties’ resources, their economic condition, their ability to engage in gainful employment and earn income, and other factors bearing on the reasonableness of the award. A party's misconduct that directly results in additional litigation expenses may also be considered. Consideration of these factors promotes the legislative purpose behind the award of attorney's fees, which is to ensure that a party who would not otherwise be able to afford an attorney is able to retain representation. When one party is in a superior position to pay fees over the other party, an award is proper.”

Haggarty v. Haggarty, 176 N.E.3d 234, 251 (Ind. Ct. App. 2021) (quoting Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018)).

[21] Here, the trial court awarded Wife $2,500 in attorney's fees “as a result of Husband's dissipation of marital assets.” Appellant's App. Vol. 2, p. 22. Husband argues that there is no evidence that Wife incurred any additional attorney's fees in litigating this issue. Husband maintains that he and Wife engaged in “standard, boilerplate discovery” without any resort to motions to compel. Appellant's Br. at 22.

[22] In support of the award, Wife argues that she knew nothing about the dissipation until after she received Husband's discovery responses. That evidence supports a reasonable inference that Wife's attorney had to spend additional time evaluating Husband's discovery responses in crafting an argument on dissipation. We cannot say that the trial court abused its discretion in ordering Husband to pay $2,500 of Wife's attorney's fees.

[23] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   We note that the amount of dissipated assets listed in paragraph 19 of the decree is slightly inconsistent with the amount listed on the trial court's final worksheet. Wife's Exhibit 6 shows that Husband withdrew $182,762.07 in August 2022 from the Fidelity account ending in 3903. Husband's Exhibit M shows that he withdrew $43,001 in August 2022 from the Fidelity account ending in 4887. Those two withdrawals total $225,763.07.

2.   While the trial court did not attach its final worksheet to the decree, a review of the worksheet attached to Wife's proposed findings and conclusions, filed November 17, 2023, which we obtained via Odyssey, indicates that the court used that worksheet in finalizing the decree.

3.   This accounts for the listed total net marital estate on Line 58 minus the $203,898.53 from Line 30.

Mathias, Judge.

Vaidik, J., and Pyle, J., concur.