ATTORNEY FOR APPELLANT
: ATTORNEY FOR APPELLEE:
LOUIS W. DENNEY CHRISTOPHER A. CAGE
Muncie, Indiana Hulse Lacey Hardacre Austin & Shine
COURT OF APPEALS OF INDIANA
JOHN HENDRICKS, )
vs. ) No. 48A02-0208-CV-665
MICHELLE HENDRICKS, )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Joseph R. Kilmer, Special Judge
Cause No. 48D02-0010-DR-634
March 17, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
John Hendricks (Husband) challenges the trial courts dissolution decree which ended his marriage
to Michelle Hendricks (Wife). He raises the following issues for our review:
1. Whether the trial court abused its discretion when it divided the parties marital
2. Whether the trial court abused its discretion when it ordered Husband to pay
Wifes attorneys fees.
We affirm in part, reverse in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
Husband and Wife were married in 1990 and separated in September 2000.
Husband and Wife had lived together for approximately three years prior to their
marriage. Husband was employed at General Motors Corporation (GM) for approximately thirty-one
years before he retired in January 1997. In its findings and conclusions,
the trial court valued Husbands GM pension at $253,977. Neither party disputes
The trial court used the coverture fraction formula to divide the pension between
the parties. Under this methodology, the value of the retirement plan is
multiplied by a fraction, the numerator of which is the period of time
during which the marriage existed (while pension rights were accruing) and the denominator
is the total period of time during which pension rights accrued. In
re Marriage of Preston, 704 N.E.2d 1093, 1098 n.6 (Ind. Ct. App. 1999).
The court found that Husband and Wife were married for 6.4 years
during Husbands employment and that they had lived together as an unmarried couple
for 3.33 years prior to that, for a total of 9.73 years.
And Husband was employed with GM for 31.07 years. Thus, the court
found that the coverture ratio equals 31%.
In other words, the marital
portion of Husbands pension is 31% of $253,977, or $78,732.87.
The trial court found that, based on the coverture ratio, Wife was entitled
to 15.5% of Husbands total pension, or one-half of the marital portion of
the pension. The court directed the parties to submit a qualified domestic
relations order dividing the pension accordingly. In addition, the court found that
Wife was entitled to survivor benefits under Husbands pension, which total $22,811.
After itemizing the parties assets and liabilities, the trial court awarded approximately 56%
of the marital pot to Husband and 44% to Wife. Husband filed
a motion to correct error, alleging in relevant part that the trial court
had inaccurately calculated Wifes share of Husbands pension. The trial court denied
that motion. Husband now appeals.
DISCUSSION AND DECISION
Issue One: Marital Assets
A. Premarital Cohabitation
Husband first contends that the trial court abused its discretion when it included
the 3.33 years that he lived with Wife prior to their marriage in
calculating the coverture ratio. Specifically, Husband maintains that he only lived with
Wife on and off during that time period. Brief of Appellant at
15. Wife responds that they lived together for the vast majority of
those 3.3 years, and points out that Husband admitted that they lived together
more on than off.
Brief of Appellee at 7.
The division of marital assets lies within the sound discretion of the trial
court, and we will reverse only for an abuse of discretion. Sanjari
v. Sanjari, 755 N.E.2d 1186, 1191 (Ind. Ct. App. 2001). When a
party challenges the trial courts 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. In re Marriage of Bartley, 712 N.E.2d 537, 542 (Ind. Ct.
App. 1999). We may not reweigh the evidence or assess the credibility
of witnesses, and we will consider only the evidence most favorable to the
trial courts disposition of the marital property. In re Marriage of Dall,
681 N.E.2d 718, 720 (Ind. Ct. App. 1997). Although the facts and
reasonable inferences might allow for a different conclusion, we will not substitute our
judgment for that of the trial court. Bartley, 712 N.E.2d at 542.
In Chestnut v. Chestnut, 499 N.E.2d 783 (Ind. Ct. App. 1986), this court
addressed the same issue presented here, namely, whether the trial court abused its
discretion when it considered evidence of the wifes contributions during the parties premarital
cohabitation in dividing the marital pot. We noted that this court had
previously held that cohabitation can be a basis for distribution of assets under
contractual and equitable principles. Id. at 786 (citing Glasgo v. Glasgo, 410
N.E.2d 1325 (Ind. Ct. App. 1980), trans. denied). And we stated that
[i]t would be against public policy to ignore [wifes] contribution during the period
prior to marriage since she and [husband] eventually married. Id. Thus,
we held that the trial court properly considered the wifes contributions during the
parties cohabitation when it divided the marital pot.
But Husband contends that the holding in Chestnut is inapplicable here. He
maintains that, unlike in Chestnut, he and Wife only lived together on and
off during the period of cohabitation. But Husband does not state how
much of that 3.3 years was on and how much was off.
Nor does he direct us to any part of the record that would
provide that information. Wife testified that she and Husband began living together
in July 1987, and the parties married in October 1990. Thus, Husband
has not demonstrated that the trial court abused its discretion when it included
the 3.3 years of premarital cohabitation in calculating the coverture ratio.
Husband also attempts to distinguish Wifes contributions from those made by the wife
in Chestnut. Specifically, he states that in Chestnut, there was considerable evidence
as to the parties employment, income and contribution to the relationship during the
period of cohabitation, but that here, there was very little evidence . .
. as to how the parties shared income and expenses or how [Wife]
contributed to the relationship. Reply Brief of Appellant at 3. But
Wife points to evidence in the record that, during the parties period of
premarital cohabitation, she worked part-time, she paid the rent on their home, and
she and Husband started a business together. Husband merely asks us to
reweigh the evidence, a task not within our prerogative on appeal. We
hold that the trial court did not abuse its discretion when it considered
Wifes contributions during the parties period of cohabitation in dividing the marital pot.
B. Coverture Ratio
Husband also contends that the trial court erred when it listed the parties
assets and liabilities. Specifically, Husband points out that the courts division of
the marital portion of his GM pension in Conclusion No. 9 is inconsistent
with the courts conclusion that Wife should receive 15.5% of the pension.
We must agree.
In Conclusions No. 5, 6, and 8, the trial court states that Wife
is to receive 15.5% of Husbands GM pension, which the court values at
$253,977. Thus, Wife should receive 15.5% of $253,977, which is $39,366.44.
But in Conclusion No. 9, which is a list of the parties assets
and liabilities, the court awards Wife only $12,203.59 of Husbands pension. We
conclude that the trial court made an error in its mathematical calculation of
Wifes share of Husbands pension. Instead of awarding Wife 15.5% of the
total pension, the court awarded Wife 15.5% of the marital portion of the
pension ($78,732.87), an award which cannot be reconciled with the courts other findings
and conclusions. We remand and instruct the trial court to award $39,366.44
of Husbands pension to Wife.
Also, in Conclusion No. 9, the trial court awarded $91,802.07, or 56%, of
the marital pot to Husband and $70,779.46, or 44% to Wife. But
when those numbers are adjusted to correct the $27,162.85 error in the division
of the pension (the difference between $39,366.44 and $12,203.59), Husband would receive only
$64,639.22 and Wife would receive $97,942.31 of the marital pot. Thus, the
final property division reflects a far different result than the 56/44 split the
court described in its decree. See In re Marriage of Pulley, 652
N.E.2d 528, 531 (Ind. Ct. App. 1995) (noting erroneous exclusion of tax liability
from marital pot led to different apportionment than attempted 60/40 split), trans. denied.
Accordingly, on remand, we instruct the trial court to recalculate the division
Issue Two: Attorneys Fees
Husband contends that the trial court abused its discretion when it ordered him
to pay Wifes attorneys fees. Indiana Code Section 31-15-10-1 provides that a
trial court may order a party to pay a reasonable amount for the
cost to the other party of defending or maintaining any action in dissolution
proceedings. When making such an award, the court must consider the resources
of the parties, their economic condition, the ability of the parties to engage
in gainful employment and to earn adequate income and other factors that bear
on the reasonableness of the award. Hanson v. Spolnik, 685 N.E.2d 71,
80 (Ind. Ct. App. 1997), trans. denied. Also, misconduct that directly results
in additional litigation expenses may be properly taken into account in the trial
courts decision to award attorneys fees. Id. The trial court need
not, however, give reasons for its determination. Pulley, 652 N.E.2d at 532.
When reviewing an award of attorneys fees in connection with a dissolution
decree, we only reverse the trial court for an abuse of discretion.
Husband does not dispute that his annual income ($27,483) is higher than Wifes
($21,000), but he contends that the difference is minimal and does not warrant
his having to pay $3,650 to Wifes attorney. In addition, as noted
above, Wife actually received more of the marital pot than Husband did.
But Husband ignores the trial courts finding that Husband entered a plea of
guilty to battery upon the respondent wife prior to the final hearing herein
which incident occurred at the respondents place of employment during the dissolution proceedings
causing additional fees to be incurred by the respondent in the dissolution proceedings.
Appellants App. at 15. Because a partys misconduct that results in
additional litigation expenses may be considered in awarding attorneys fees, and because Husbands
income is more than Wifes, we hold that the trial court did not
abuse its discretion when it ordered Husband to pay Wifes attorneys fees.
See Hanson, 685 N.E.2d at 80.
Affirmed in part, reversed in part, and remanded with instructions.
DARDEN, J., and VAIDIK, J., concur.
9.73 divided by 31.07 equals .3132.
Footnote: Wife quotes a portion of Husbands testimony on cross-examination at page
222 of the transcript, but that page does not contain the relevant testimony.
Nor were we able to locate the testimony on any other page
of the transcript. As such, we cannot consider this evidence on appeal.
Footnote: Husbands presentation of this issue on appeal is difficult to follow.
We did the best we could to understand the point Husband is
trying to make. We remind Husband that Indiana Appellate Rule 46(A)(8)(a) requires
cogent reasoning in support of each contention on appeal.