MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Dec 30 2016, 9:00 am

court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
R. Patrick Magrath                                      Rebecca L. Lockard
Alcorn Sage Schwartz & Magrath, LLP                     Jeffersonville, Indiana
Madison, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of:                                  December 30, 2016
                                                        Court of Appeals Case No.
Mark Alan Grube, Jr.,                                   10A05-1607-DR-1693
Appellant-Petitioner,                                   Appeal from the Clark Circuit
                                                        Court
        v.                                              The Honorable Andrew Adams,
                                                        Judge
Brittany P. Grube,                                      The Honorable Joni L. Grayson,
                                                        Magistrate
Appellee-Respondent.
                                                        Trial Court Cause No.
                                                        10C01-1512-DR-619



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A05-1607-DR-1693 | December 30, 2016   Page 1 of 8
                                          Case Summary
[1]   Appellant-Petitioner Mark A. Grube, Jr., married Appellee-Respondent

      Brittany P. Grube on September 19, 2015. On December 4, 2015, Mark filed a

      petition seeking a dissolution of the parties’ marriage. Mark appeals the trial

      court’s division of the parties’ marital estate, arguing that the trial court abused

      its discretion by failing to include a certain debt in the marital estate and in

      ordering an unequal division of the marital estate. We affirm.



                            Facts and Procedural History
[2]   At some point, Mark and Brittany became involved in a romantic relationship.

      In approximately of January of 2014, they began to cohabitate. Mark and

      Brittany were married on September 19, 2015. They soon thereafter separated

      and, on December 4, 2015, Mark filed the instant dissolution action.


[3]   The trial court conducted a hearing on the dissolution action on May 2, 2016,

      after which it issued a decree of dissolution and an order dividing the parties’

      marital estate. The trial court noted in the dissolution order that the parties’

      debt was greater than their assets. Taking this fact into consideration, in

      dividing the parties’ marital estate, the trial court concluded as follows:


              The court has considered all the factors that would warrant an
              unequal division of assets, and finds that the economic
              circumstances of the parties at the time of disposition and the
              earnings or earning ability of the parties are particularly
              significant. In particular, the fact that Brittany is assuming the
              car debt, which far exceeds the value of the car (and will likely

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              continue to exceed the value of the car), while Mark has the use
              of a “company” car, is significant. She has no other vehicle. The
              parties’ incomes are disparate. Additionally, Mark incurred
              significant student loan debt prior to the marriage, and although
              he is paying that debt, the entire debt has been considered in the
              final division of assets and debts, which places Brittany in the
              position of “contributing” to the payment of that large debt even
              though it was incurred almost, if not entirely, prior to their
              marriage. Therefore, the court finds and concludes that an
              unequal division of the marital assets and debts is warranted, and
              Brittany shall receive the sum of $8429.00 from Mark (See
              Respondent’s Exhibit 2) to effectuate a “60/40” division. This
              amount will only reduce the overall amount of debt Brittany is
              paying; it will not in any way place her in “positive” territory
              with regard to division of assets and debts. The court does not
              find a “dissipation” of marital assets occurred. The parties
              simply lived beyond their means, and will have significant debt to
              pay as a result.


      Order. This appeal follows.



                                Discussion and Decision
[4]   Mark contends that the trial court abused its discretion in dividing the parties’

      marital estate.


              When reviewing a claim that the trial court improperly divided
              marital property, we must decide whether the trial court’s
              decision constitutes an abuse of discretion. Keller v. Keller, 639
N.E.2d 372, 373 (Ind. Ct. App. 1994), trans. denied. We
              consider only the evidence most favorable to the trial court’s
              disposition of the property. Id. We will reverse only if the result
              is clearly against the logic and effect of the facts and the
              reasonable inferences to be drawn therefrom. Id.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1607-DR-1693 | December 30, 2016   Page 3 of 8
      Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999).


           I. Exclusion of a Claimed Debt from Marital Estate
[5]   Mark claims that the trial court abused its discretion in failing to include a 2015

      tax liability in the martial estate.


[6]   With respect to the inclusion of an asset or debt in the marital estate, we have

      previously concluded as follows:


              Since the marital property must be disposed of at one time, the
              trial court must have before it a fixed, presently ascertainable
              value of the assets. [Waggoner v. Waggoner, 531 N.E.2d 1188,
              1189 (Ind. Ct. App. 1988)]. The parties have the burden to
              produce evidence as to the value of the assets. Neffle v. Neffle, 483
N.E.2d 767, 770 (Ind. Ct. App. 1985), reh’g denied, trans. denied.
              Therefore, impliedly, the parties also have the burden to produce
              evidence as to the existence of the assets.


      Conner v. Conner, 666 N.E.2d 921, 926 (Ind. Ct. App. 1996).


[7]   In the instant matter, the trial court found that there was no evidence proving

      the existence of the claimed 2015 tax liability. Mark testified that he had

      received notification from the Internal Revenue Service (“IRS”) that Mark was

      subject to a 2014 tax liability of $2579.00 because he had claimed an education

      tax credit to which he was not entitled. Mark also testified that his accountant

      had informed him that because he had claimed the same credit on his 2015

      taxes, the same amount would likely be owed in 2015 as well. Mark, however,

      did not testify that, as of the date of the dissolution hearing, the IRS had

      actually informed him that any such tax liability had been imposed in
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      connection with his 2015 taxes. In addition, our review of the record does not

      reveal any other evidence indicating that the IRS had actually notified Mark

      that any such liability existed for 2015 or the exact amount which would be

      owed. Mark’s argument is this regard simply appears to be based on his

      accountant’s speculation.


            II. Unequal Division of the Parties’ Marital Estate
[8]   Mark also claims that the trial court abused its discretion in ordering an

      unequal division of the parties’ marital estate.


[9]   “In an action for dissolution of marriage, the trial court is required to divide the

      property of the divorcing spouses ‘in a just and reasonable manner.’” Crider v.

      Crider, 26 N.E.3d 1045, 1048 (Ind. Ct. App. 2015) (quoting Ind. Code § 31-15-7-

      4(b)).


               Indiana courts utilize a “one-pot” method for calculating and
               distributing marital property, whereby all property is included in
               the marital pot and subject to division, regardless of whether it
               was
                      (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.
               [Ind. Code] § 31-15-7-4(a); Estudillo v. Estudillo, 956 N.E.2d 1084,
               1090 (Ind. Ct. App. 2011), reh’g denied.




      Court of Appeals of Indiana | Memorandum Decision 10A05-1607-DR-1693 | December 30, 2016   Page 5 of 8
       Id. at 1048. “There is a rebuttable presumption that ‘an equal division of the

       marital property between the parties is just and reasonable.’” Id. (quoting Ind.

       Code § 31-15-7-5).

               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, 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.


       Ind. Code § 31-15-7-5.


[10]   In ordering a 60/40 division of the marital estate, the trial court noted that the

       parties had agreed to a debt division, with each taking the debt incurred in their

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       name. As part of this agreement, Mark agreed to take responsibility for

       payment of his student loans and Brittany agreed to take responsibility for

       payment of the medical bills which had stemmed from her treatment for

       ovarian cancer. The trial court noted that each of these debts was significant.

       In addition to the significant debt from her medical bills, Brittany agreed to take

       on the significant debt associated with the parties’ Ford Fusion.


[11]   The trial court also found that the parties’ incomes were disparate. The record

       reveals that at the time of the final separation, Brittany earned approximately

       $22,000 per year and Mark earned approximately $40,000 per year. Thus,

       during the course of the parties’ co-habitation and marriage, Mark’s income

       was nearly double Brittany’s. At the time of the dissolution hearing, Mark’s

       income had increased to approximately $44,000 and Brittany had secured new

       employment and was earning approximately $32,000. Even after Brittany

       secured new employment, Mark earned approximately $10,000 more than

       Brittany per year.


[12]   Again, after considering the relevant statutory factors together with the

       evidence presented by the parties, the trial court concluded as follows:

               Therefore, the court finds and concludes that an unequal division
               of the marital assets and debts is warranted, and Brittany shall
               receive the sum of $8429.00 from Mark (See Respondent’s
               Exhibit 2) to effectuate a “60/40” division. This amount will
               only reduce the overall amount of debt Brittany is paying; it will
               not in any way place her in “positive” territory with regard to
               division of assets and debts. The court does not find a
               “dissipation” of marital assets occurred. The parties simply lived

       Court of Appeals of Indiana | Memorandum Decision 10A05-1607-DR-1693 | December 30, 2016   Page 7 of 8
               beyond their means, and will have significant debt to pay as a
               result.


       Order.


[13]   Mark asserts on appeal that the trial court failed to consider all relevant factors

       when ordering an unequal division of the parties’ marital estate. “The party

       challenging the trial court’s division of marital property bears the burden of

       overcoming a strong presumption that the trial court considered and complied

       with the applicable statute, and that presumption is one of the strongest

       presumptions applicable to our consideration on appeal.” Crider, 26 N.E.3d at

       1047-48 (internal quotation omitted). Our review of the instant matter leads us

       to the conclusion that Mark has failed to meet this burden and, as a result, has

       failed to overcome the presumption that the trial court considered and complied

       with Indiana Code sections 31-15-7-4 and 31-15-7-5 when ordering an unequal

       division of the parties’ marital estate. As such, we conclude that Mark has

       failed to prove that the trial court abused its discretion in this regard.


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


       Vaidik, C.J., and Brown, J., concur.




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