ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DAVID W. STONE, IV R. SCOTT HAYES
Stone Law Office & Legal Research Hayes Copenhaver & Crider
Anderson, Indiana New Castle, Indiana
COURT OF APPEALS OF INDIANA
DONALD J. AKERS, )
vs. ) No. 33A01-9910-CV-354
CHARLOTTE AKERS, )
APPEAL FROM THE HENRY SUPERIOR COURT
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-9809-DR-73
June 13, 2000
OPINION - FOR PUBLICATION
Appellant-respondent Donald J. Akers (Husband) challenges the trial courts division of marital property
upon the dissolution of his marriage to appellee-petitioner Charlotte Akers (Wife). We
affirm in part, reverse in part, and remand.
Husband raises two issues for our review:
I. whether the trial court erred in treating his unused sick days as a
marital asset subject to division; and
II. whether the trial court erred in failing to award him a greater portion
of the marital pot in consideration of the assets he had previously acquired
and brought into the marriage.
Facts and Procedural History
The twenty-five-year marriage of Husband and Wife was dissolved on May 5, 1999.
At the time of the divorce, Husband, a teacher with the New
Castle Community School Corporation (the school corporation), had accumulated 201 unused sick days.
The agreement governing his employment with the school corporation contained the following
language with respect to unused sick days and retirement benefits:
To be eligible for retirement benefits, a teachers final ten (10) years of
teaching service will have been with [the school corporation] and the teacher must
be eligible and have applied for retirement benefits under the Indiana State Teachers
Retirement Fund. The teacher must present written notification of intent to retire
to the Superintendent by February 1st of the year the teacher plans to
retire. When extenuating circumstances exist, the teacher may receive special consideration after
the February 1st date.
A retirement benefit of six thousand two hundred fifty dollars ($6,250.00) shall be
paid with the last pay in June
and to the final paycheck in
June shall be added an amount computed by the following formula: Unused
Sick Leave Days, up to a maximum of one hundred eighty-seven (187), divided
by one hundred (100) times six thousand two hundred fifty dollars ($6,250.00).
(Emphasis added). In accordance with the formula identified by the employment agreement,
the trial court assessed the maximum value of Husbands unused sick days at
Discussion and Decision
In its dissolution decree, the trial court concluded that an equitable division [of
the marital property] would be 50% to [Husband] and 50% to [Wife].
In effecting what it believed to be an equal division of the marital
pot, the court valued the property awarded to Husband at $202,343.99
property awarded to Wife at $91,997.00. Then, [i]n order to balance the
distribution of marital assets to the parties, the trial court ordered Husband to
pay $49,386.68 to Wife. Husband now appeals.
Standard of Review
The disposition of marital assets is within the sound discretion of the trial
court, and we will reverse only where that decision is clearly against the
logic and effect of the facts and circumstances before the court. Chase
v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App. 1998). 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). In reviewing a trial courts disposition of the marital assets, we
focus on what the court did, not what it could have done.
Chase, 690 N.E.2d at 756 (quoting Fiste v. Fiste, 627 N.E.2d 1368, 1372
(Ind. Ct. App. 1994), disapproved of on other grounds by Moyars v. Moyars,
717 N.E.2d 976 (Ind. Ct. App. 1999), trans. denied). 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.
I. Sick Days as a Marital Asset
Indiana Code Section 31-15-7-4(a) provides that in an action for dissolution of marriage,
the trial court shall divide the property of the parties, regardless of whether
(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.
It is well settled in Indiana that all marital property goes into the
marital pot for division.
Dowden v. Allman, 696 N.E.2d 456, 458 (Ind.
Ct. App. 1998); see also Ind. Code § 31-9-2-98 (defining property for purposes
of dissolution as all the assets of either party or both parties).
However, the question of whether a spouses accumulation of unused sick days is
a marital asset for purposes of property division is one of first impression
in this state. We conclude that in this case, it is not.
The record reflects that Husband had accrued more than 200 unused sick days
at the time of the divorce. His teaching contract for the current
school year contained a retirement benefits clause providing for payment for a maximum
of 187 of those days upon retirement. However, we discern no evidence,
nor does Wife point us to any, that Husband had a
to be paid for his sick days other than by becoming ill.
See In re Marriage of Battles, 564 N.E.2d 565, 567 (Ind. Ct. App.
1991) (holding that husbands accrued vacation time, for which he might receive pay
for up to sixty days upon retirement, was not a marital asset; Wife
points to no evidence that he had any present right to such payments
other than by going on leave.). To the contrary, Husband testified that
the terms of his teaching contract, including those governing retirement benefits, were subject
to renegotiation and that he could not foresee what contract provisions would be
in effect at the time of his retirement. Indeed, it was mere speculation
for the trial court to assume that Husband would not suffer any illness
and would retain at least 187 unused sick days at their current value
until retirement. While he certainly accumulated these sick days during his marriage
to Wife, the accumulation of sick days had only a future value that
was indeterminate and speculative at best.
See Ind. Code § 31-9-2-98 (defining
property for purposes of dissolution to include a present right to withdraw pension
or retirement benefits).
This court has consistently held that only property in which a party has
a vested interest at the time of dissolution may be divided as a
Mullins v. Matlock, 638 N.E.2d 854, 856 (Ind. Ct. App.
1994), trans. denied; see also Savage v. Savage, 176 Ind. App. 89, 92,
374 N.E.2d 536, 538-39 (1978) (concluding that monthly pension payments did not qualify
as marital asset because husband had only contingent future interest rather than vested
present interest in such payments); Wilcox v. Wilcox, 173 Ind. App. 661, 665,
365 N.E.2d 792, 795 (1977) (concluding that future earnings were not marital asset
in absence of present vested interest). Moreover, as we observed in Shorter
v. City of Sullivan, 701 N.E.2d 890, 892 (Ind. Ct. App. 1998), trans.
While employees may accumulate sick leave days . . ., they may only
use those days for a limited purpose. An employee must be sick
or other conditions must be present before an employee has a right to
use sick leave. As such, sick leave is not a benefit which
automatically vests when earned.
(affirming trial courts decision that employees take nothing by way of their complaint
for compensation from former employer for accrued sick days). Likewise, Husbands accumulation
of unused sick days had no present value, was contingent and speculative in
nature, and thus, not capable of division as a marital asset.
Mullins, 638 N.E.2d at 856. We therefore reverse the trial courts treatment of
Husbands unused sick days as a marital asset subject to distribution between the
parties and remand with instructions to recalculate the marital pot accordingly.
II. Marital Property Division
Indiana Code Section 31-15-7-5
creates a rebuttable presumption that an equal division of
the marital property between the parties is just and reasonable. Dall, 681
N.E.2d at 720 (interpreting predecessor statute). A trial court may deviate from
an equal division provided that it sets forth a rational basis for its
decision. Id. Here, while the trial court articulated an intent to
divide the marital property equally, it awarded Husband more than 50% of the
Nevertheless, Husband argues that he should have received an even
greater portion of the marital pot because of the following items he claims
to have previously acquired and brought into the marriage: a Henry County
Savings & Loan savings account containing an estimated $8,000.00; a Farm Bureau life
insurance policy worth $10,000.00; and a 1972 Ford Pinto, a 1973 Duster, a
bedroom suite, a couch, two end tables, a chair, some lamps, and some
camping gear valued at $3,500.00. See Ind. Code § 31-15-7-5(2)(A). In
addition, he seeks compensation for $2,000.00 he claims to have deposited in Wifes
We cannot say that Husband has overcome the tremendous burden necessary to warrant
reversal. [T]his Court considers only the trial courts disposition of [the marital]
property as a whole, not item by item.
Raval v. Raval, 556
N.E.2d 960, 961 (Ind. Ct. App. 1990). Keeping in mind the great
deference we pay to the trier of fact, it is apparent that the
trial court gave due consideration to Indiana Code Section 31-15-7-5 and the multiple
factors contained therein. The record reflects, for instance, that while Husband brought
various furnishings and personal items into the marriage, Wife also contributed furniture and
curtains to the marriage. There was no evidence documenting the value of
the savings account at the time of the marriage aside from Husbands unsubstantiated
recollection, let alone whether it was even in existence at the time of
Indeed, the majority of the items Husband had acquired prior
to the marriage and for which he now seeks compensation had long since
vanished and presumably, in the twenty-five years since then, been replaced by items
acquired jointly by the parties. Moreover, Wife testified that Husband never funded
her IRA and that she alone had deposited all of the moneys contained
It was within the trial courts prerogative to determine that the value of
the property Husband brought into the marriage was not of such great value
as to substantially outweigh the other statutory factors and mandate an even greater
disparity in the division of marital assets.
See In re Marriage of
Coyle, 671 N.E.2d 938, 945 (Ind. Ct. App. 1996) (observing that the trial
court has broad discretion in ascertaining the value of property in a dissolution
action); see also Cowden v. Cowden, 661 N.E.2d 894, 896 (Ind. Ct. App.
1996) (noting that the balancing of the statutory factors and the evidence related
to them is the essence of the trial courts work in crafting a
just and reasonable property division.). We decline Husbands invitation to reweigh the
evidence or substitute our discretion for that of the trial court.
Reversed in part as to the trial courts treatment of Husbands accumulation of
unused sick days as a marital asset. Remanded for a recalculation of
the marital pot in accordance with the principles set forth in this opinion.
In all other respects, the trial courts disposition of the marital property
Affirmed in part, reversed in part, and remanded.
DARDEN, J., and MATTINGLY, J. concur.
The trial court noted in its dissolution decree that the appropriate
date for the valuation of the assets and l[i]abilities of the parties is
September 8, 1998, the date Wife filed her petition for dissolution of the
marriage. The record reflects that as of this date, Husband had accumulated
201 unused sick days.
Footnote: (187 / 100) x $6,250.00 = $11,687.50.
Footnote: Based upon the breakdown of values for each item of marital
property identified in the dissolution decree, we arrive at a figure of $202,383.99.
The trial courts $202,343.99 figure includes Husbands accumulation of unused sick days,
but does not include $11,573.64 he received individually through gift and inheritance.
Because neither party contests the trial courts exclusion of Husbands gift and inheritance
proceeds from the marital pot, we need not review the propriety of this
exclusion on appeal.
Footnote: Wife counters that the trial courts inclusion of Husbands unused sick
days into the marital pot is no different than its inclusion into the
marital pot of her unused paid days off, which she received in lieu
of sick leave, personal leave, and vacation time. Because the issue of
whether Wifes accumulation of unused paid days off is a marital asset is
not an issue properly before us, we need not address her contention.
Footnote: We note that we may have reached a different result had
Husband possessed a vested interest in his unused sick days at the time
of the dissolution, such as a present right to convert them to cash.
See Schober v. Schober, 692 P.2d 267, 267 (Alaska 1984) (holding that spouses
unused personal leave was a marital asset subject to division; under collective bargaining
agreement with spouses employer, up to sixty hours of unused personal leave could
be used as paid vacation or converted to cash each year, and the
remainder could be converted to cash when his employment terminated). This was
certainly not the case here.
Indiana Code Section 31-15-7-5 provides that a party may present relevant
evidence, including evidence concerning the following factors, that an equal division of the
marital property 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.
Footnote: As previously mentioned, the trial court excluded from the marital pot
and awarded to Husband $11,573.64 he received individually in gift and inheritance proceeds,
which Wife does not challenge as unfair or unreasonable on appeal.
Footnote: Wife repeatedly contends in her brief that the savings account became
the parties joint savings account shortly after the marriage, and that the proceeds
were divided equally prior to trial. The record reflects that the account
to which she refers is the parties Ameriana savings account, not the Henry
County Savings & Loan account.
Footnote: Because Wife does not challenge the exclusion of Husbands $11,573.64 in
gift and inheritance proceeds from the marital pot, the trial court may not
include these proceeds in its recalculation of the marital pot on remand.