IN RE: The Marriage of: Lloyd Herr (2026)

MEMORANDUM DECISION

Case Summary

[1] Lloyd and Mary Herr (“Husband” and “Wife,” respectively) were married in 1983, having executed a prenuptial agreement (“the Agreement”), in which Wife disclaimed any right to property “hereafter acquired” by Husband. In 2006, a marital home in Crawfordsville (“the Crawfordsville House”) was purchased, which was titled to Husband alone. In 2024, Wife petitioned for dissolution of her marriage to Husband, and the only contested issue was whether the Crawfordsville House would be included in the marital estate. After an evidentiary hearing, the dissolution court determined that the Crawfordsville House had not been acquired by Husband using solely his own money and consequently included it in the marriage estate. Husband contends that the dissolution court erred in including the Crawfordsville House in the marital estate and in improperly shifting the burden of proof to him. Because we conclude that neither of Husband's arguments have merit, we affirm.

Facts and Procedural History

[2] Husband and Wife were married on February 18, 1983, having previously executed the Agreement, which provided, in part, that “[i]n consideration of the provisions hereinafter contained, including [Husband]’s mutual waiver, [Wife] hereby waives, discharges and releases any and all right, title or interest whatsoever which she may acquire by reason of the marriage of [Husband] in the property now owned or hereafter acquired by him at any time.” Ex. Vol. p. 8 (emphasis added). Husband and Wife resided in a house in Highland after marriage. Husband and Wife purchased a house in Bristol (“the Bristol House”) in 1998. Wife and Husband purchased the Bristol House with joint funds, and Wife had “cashed in five years worth of payroll deduction savings bonds to get us more capital to work on the Bristol [H]ouse.” Tr. Vol. II p. 21. In 2001, Wife and Husband acquired a house in Elkhart (“the Elkhart House”) after selling the Bristol House. The proceeds from the sale of the Bristol House had gone toward the purchase of the Elkhart House. In 2006, the Crawfordsville House was purchased in Husband's name, and Husband and Wife lived there from 2006 until 2024. During that time, all expenses related to the Crawfordsville House, including property taxes, utilities, and maintenance, were paid from Husband and Wife's joint checking account, which was funded from Wife's Social Security payments and Husband's Social Security and pension payments.

[3] On July 31, 2024, Wife petitioned for dissolution of her marriage to Husband, requesting that the dissolution court act in accordance with the Agreement. The dissolution court held a final hearing on August 4, 2025, at which the disposition of the Crawfordsville House was the only contested item. Wife testified that, during her forty years of marriage to Husband, she had primarily paid bills and created budgets and that they had paid all bills for the Bristol, Elkhart, and Crawfordsville Houses from their joint checking account. Husband agreed that Wife had used their joint funds to pay for maintenance of all three properties during their forty years of marriage. Wife agreed that “the policy was the same whether it was Bristol or Elkhart or Crawfordsville[.] Money is pooled. [Wife] writes the checks.” Tr. Vol. II pp. 27–28.

[4] Regarding why the Crawfordsville House ended up being in Husband's name only, Wife testified as follows:

Q. Now, ultimately, when you two acquired the Crawfordsville house, do you know how it ended up just being in your husband's name?

A. Yes.

Q. How did that happen?

A. We had a next door neighbor who was very unbalanced and he did a lot of terrible things to my husband, wanted to pick at him. He wanted him to get into a fight with him and every time they would the two of them were outside, I would have to go out with my phone in case I had to dial 9-1-1 and I was just in a state. I wanted out.

Q. So, this is the house in Elkhart that had the mean neighbor?

A. Yes.

Q. Okay. So, did you suggest that you two acquire a different home?

A. He, he said, well, we'll move to Crawfordsville and we'll sell this and move to Crawfordsville.

Q. Okay. And then did you sell that joint house and move to Crawfordsville?

A. Yes

Q. Now, how is it that the house got placed just in [Husband]’s name?

A. He told me that, that he would, that the house would be in his name and I agreed because I would have agreed to anything to get away from that awful man.

Tr. Vol. II p. 22.

[5] On October 31, 2025, the dissolution court issued its decree, which provided, in part, as follows:

33. While [the Crawfordsville House] is solely titled in Husband's name, Husband failed to prove that said property was acquired solely by his separate and distinct funds.

34. On the contrary, the parties’ conduct throughout their marriage shows that the parties comingled their money to purchase several houses in which they also resided. Furthermore, the parties used their joint checking account to pay for their monthly housing expenses; including, but not limited to taxes and maintenance on said houses.

35. The parties used their joint checking account for almost two decades to pay their household expenses; including, but not limited to the taxes, insurance and maintenance for [the Crawfordsville House], where the parties resided together from 2006 until their separation in 2025.

36. The Court finds that [the Crawfordsville House] is marital property.

Appellant's App. Vol. II p. 18.

Discussion and Decision

I. Whether the Trial Court Abused its Discretion in Dividing the Marital Estate

[6] Husband contends that the dissolution court abused its discretion in dividing the marital estate, specifically by including the Crawfordsville House in the marital estate. In dividing a marital estate, the dissolution court must first identify all property that is to be included in the marital estate, and second, must distribute the property justly and reasonably, as provided in Indiana Code section 31-15-7-5. O'Connell v. O'Connell, 889 N.E.2d 1, 10–11 (Ind. Ct. App. 2008). Marital property consists of both assets and liabilities and encompasses any property acquired by a spouse before the marriage, during the marriage, or by the parties jointly. Roetter v. Roetter, 182 N.E.3d 221, 227 (Ind. 2022).

[7] There is a presumption that an equal division of a marital estate is just and reasonable. Ind. Code § 31-15-7-5. Nevertheless, an unequal division of a marital estate may be just and reasonable when rebutted by a party who presents relevant evidence regarding the factors mentioned in Indiana Code section 31-15-7-5. If a dissolution court determines that an unequal division of a marital estate is just and reasonable, then it must state the reasons why an equal division of the marital estate would not be just and reasonable. In re Marriage of Davidson, 540 N.E.2d 641 (Ind. Ct. App. 1989). We are not permitted to substitute our judgment for that of the dissolution court. Roetter, 182 N.E.3d at 228. “A reviewing court will not weigh evidence, but will consider the evidence in a light most favorable to the judgment.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002).

[8] It is well-settled that “standard principles regarding contract formation and interpretation apply to premarital agreements[,]” Haggarty v. Haggarty, 176 N.E.3d 234, 238 (Ind. Ct. App. 2021) (citation and brackets omitted), and “[t]he goal of contract interpretation is to ascertain and give effect to the parties’ intent as by the language of the agreement.” Boyer Constr. Group Corp. v. Walker Constr. Co., 44 N.E.3d 119, 126 (Ind. Ct. App. 2015). Husband contends that the dissolution court abused its discretion in including the Crawfordsville House in the marital estate because he alone had acquired it, relying on the fact that title to the Crawfordsville House is in his name. Wife contends that ambiguity in the Agreement supports falling back to the presumptive equal division of the Crawfordsville House and that, in any event, Husband failed to establish that it had been solely acquired by him.

[9] Husband's argument, however, fails to take into account the dissolution court's finding that “Husband failed to prove that said property was acquired solely by his separate and distinct funds.” Appellant's App. Vol. II p. 18. We conclude that this finding is dispositive.¹ While the word “acquired” is not defined in the Agreement, we give the language of a contract its plain and ordinary meaning. Trustcorp Mortg. Co. v. Metro Mortg. Co., 867 N.E.2d 203, 213 (Ind. Ct. App. 2007) (citing Erie Ins. Co. v. Am. Painting Co., 678 N.E.2d 844 (Ind. Ct. App. 1997), trans. denied). Webster's Third New International Dictionary defines “acquired” as “gained by or as a result of effort” or “attained by the individual by or as if by his own efforts[.]” Webster’s 3d New Int’l Dictionary 18 (Phillip Babcock Gove et al. eds., G.&C. Merriam Company 1993). The word “acquired” comprehends more than simply having legal title, and that is essentially the only evidence upon which Husband relies.

[10] As for the evidence that Husband had actually gained or attained the Crawfordsville House solely through his own efforts, the evidence most favorable to the dissolution court's judgment indicates that he had not. The evidence establishes a history of Husband and Wife acquiring a series of houses through joint effort, with the Crawfordsville House being no exception. Husband testified that he and Wife had “acquired a home in Bristol” in 1998 and that it had been in both of their names. Tr. Vol. II p. 12. After that, the couple had purchased the Elkhart House, which Husband agreed they had owned “together as husband and wife[.]” Tr. Vol. II p. 13. Wife testified that the Bristol House had been bought with joint funds and that she believed that the Elkhart House had been purchased with funds from sale of the Bristol House.

[11] Regarding the Crawfordsville House, Wife testified that all of the taxes, utilities, and maintenance for the Crawfordsville House had come out of the joint account into which she and Husband had both deposited their incomes. Wife agreed that, for all three houses, the policy was “Money is pooled. [Wife] writes the checks.” Tr. Vol. II p. 28. Wife testified that she had only agreed to have the Crawfordsville House be put in Husband's name because she “would have agreed to anything to get away” from a troublesome neighbor at the Elkhart House. Tr. Vol. II p. 22.

[12] Husband points to his testimony that he was the sole owner of the Crawfordsville House, he had paid cash for it, and it would have been impossible for joint funds to have paid for it because the Elkhart House had not yet been sold. The dissolution court was under no obligation to credit this self-serving testimony regarding whether the Crawfordsville House had been gained by Husband solely through his own efforts and did not, noting that “Husband's testimony that the funds used to purchase the [Crawfordsville House] were solely from his separate resources was not credible; furthermore, Husband failed to provide any documentation and/or proof as to where the funds came from for the purchase of [the Crawfordsville House].” Appellant's App. Vol. II p. 16; see, e.g., Kumaresan v. George, 228 N.E.3d 1083 (Ind. Ct. App. 2024) (“The trial court was under no obligation to credit Mother's assertions regarding her lack of access to and control of the SBI Account and did not.”). While we are inclined to agree with Husband that the Agreement provides that he would have been entitled to have property gained through his own efforts kept out of the martial estate, there is sufficient evidence to support the dissolution court's conclusion that the Crawfordsville House does not qualify.

II. Whether the Trial Court Improperly Assigned the Burden of Proof to Husband

[13] Husband also contends that the dissolution court improperly assigned the burden of proof to him, observing that “a party that seeks to avoid a contract bears the burden of proof on matters of avoidance.” In re Paternity of M.F., 938 N.E.2d 1256, 1260 (Ind. Ct. App. 2010), trans. denied. Contract avoidance, however, is not what Wife is attempting to do:

[I]f a party agrees to enter a contract after justifiably relying upon a fraudulent or material misrepresentation by the other party, the aggrieved party may void the contract. This means that the aggrieved party may elect to avoid the legal relations created by the contract. This remedy—frequently referred to as avoidance or rescission—unwinds the transaction, attempting to put the parties in the status quo ante, i.e., the situation they were in before the fraudulent transaction.

Reitenour v. M/I Homes of Ind., L.P., 176 N.E.3d 505, 511 (Ind. Ct. App. 2021) (citations and quotation marks omitted). Wife is not claiming that the Agreement should be rescinded due to fraud, only that it does not apply to the Crawfordsville House. Husband's reliance on authority that applies to cases in which a party is trying to have a contract voided is misplaced, and he has failed to establish that the dissolution court improperly shifted the burden of proof to him.

[14] The judgment of the dissolution court is affirmed.

FOOTNOTES

1.   Consequently, we need not address Wife's argument that the Agreement is ambiguous and should be construed against Husband.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.