ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUSSELL T. CLARKE, JR. KARL L. MULVANEY
Emswiller, Williams, Noland & Clarke NANA QUAY-SMITH
Indianapolis, Indiana Bingham Summers Welsh & Spilman LLP
IN THE COURT OF APPEALS OF INDIANA
DANIEL BIZIK, ) ) Appellant-Respondent, ) ) vs. ) No. 64A03-0012-CV-451 ) BRENDA BIZIK, ) ) Appellee-Petitioner. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable James A. Johnson, Magistrate
August 17, 2001
OPINION - FOR PUBLICATION
all the assets of either party or both parties, including:
(1) a present right to withdraw pension or retirement benefits;
(2) the right to receive pension or retirement benefits that are not forfeited
upon termination of employment or that are vested (as defined in Section 411
of the Internal Revenue Code) but that are payable after the dissolution of
(3) the right to receive disposable retired or retainer pay (as defined in
10 U.S.C. 1408(a)) acquired during the marriage that is or may be payable
after the dissolution of marriage.
Therefore, because this section of our Dissolution of Marriage Act permits the inclusion of certain pension-type interests in the marital pot for division, we must determine whether Dans Executive Supplemental Retirement Plan is property that falls within any of the categories of Ind. Code § 31-9-2-98.
Dan argues that the trial court erred by including his Executive Supplemental Retirement Plan in the marital pot for division. Specifically, Dan contends that the trial court improperly awarded Brenda an interest in his future income that he had no present right to withdraw and was not vested.
On the other hand, Brenda acknowledges that although all marital property goes into the marital pot for division, only property with a vested interest at the time of dissolution may be divided as a marital asset. Dowden v. Allman, 696 N.E.2d 456, 458 (Ind. Ct. App. 1998). Nevertheless, Brenda claims that Dan failed to overcome his burden of proving that an asset is exempt from the marital pot. Specifically, Brenda argues that Dan failed to carry his burden of demonstrating that the Executive Supplemental Retirement Plan was not vested or that he had no present right to withdraw the benefits. However, this Court has continually held that absent any clear evidence that a pension was vested, a trial court should exclude the pension plan from the marital pot. See Dowden, 696 N.E.2d at 458 (holding that absent any clear evidence that the pension was vested, the trial court appropriately excluded it from the marital pot); see also Grammer v. Grammer, 566 N.E.2d 1080, 1083 (Ind. Ct. App. 1991) (holding that the trial court erroneously included the husbands pension plan in the marital assets where the record was not clear that the pension has vested). Therefore, Brendas argument that it was Dans burden to demonstrate that his Executive Supplemental Retirement was not vested simply is not supported by the case law.
Moreover, in order to include pension benefits as marital property, the benefits must not be forfeited at the termination of employment or the benefits must be vested and payable either before or after the dissolution. Hodowal, 627 N.E.2d at 869. Nevertheless, the evidence does not support the trial courts determination to award Brenda 70% of Dans Executive Supplemental Retirement Plan, when it specifically found that the Plan was not vested. Specifically, in his direct examination, Dan testified as follows:
Q [Dans counsel] Okay. And then there was there is some sort of executive plan as State Farm, is there not?
A [Dan] Yes.
Q You die today?
A Dont get it.
Q Okay. If you quit today?
A Dont get it.
Q Okay. You have to do what? Last until age 65?
A Well, you have to retire at an acceptable age in that that [sic]
job or a job level above to receive the executive supplemental.
Q Is there do you have any idea what that is? What
Q They dont tell you that?
Q They just tell you its out there?
However, on cross-examination, Brendas counsel did not question Dan with respect to the non-vested status of his Executive Supplemental Plan, and she specifically delineated Dans Executive Supplemental Plan as Not vested in her Proposed Findings of Fact and Conclusions of Law. (R. 75). Moreover, the trial court judge delineated Dans Executive Supplemental Plan as Not vested in his Findings of Fact, Conclusions of Law and Dissolution Decree. (R. 108).
Therefore, the evidence reveals that Dans Executive Supplemental Plan is not a pension or retirement plan that Dan has a present vested right from which to withdraw benefits. In fact, Dan testified that if he dies or retires before an acceptable retirement age, he is not entitled to the benefits from the Plan.
In sum, because Dan did not qualify for this benefit at any time during the marriage, and the Executive Supplemental Plan is an earning benefit contingent upon Dans continuation of employment until retirement at an acceptable age, we conclude that Dans Executive Supplemental Plan is not an asset as defined by Ind. Code § 31-9-2-98. We conclude that the trial court improperly included Dans Executive Supplemental Plan as an asset in the marital pot for division, therefore we reverse the trial courts determination on this issue, and remand for the trial court to divide the marital assets in accordance with our opinion.
The trial court may make an award of spousal maintenance upon the finding
that a spouse's self-supporting ability is materially impaired. Fuehrer v. Fuehrer, 651
N.E.2d 1171, 1174 (Ind. Ct. App. 1995), rehg denied, trans. denied. The
trial court's power to make an award of maintenance is wholly within its
discretion, and we will reverse only when the decision is clearly against the
logic and effect of the facts and circumstances of the case. Id.
However, even if a trial court finds that a spouse's incapacity materially
affects her self-supportive ability, a maintenance award is not mandatory. In re
Marriage of Richmond, 605 N.E.2d 226, 228 (Ind. Ct. App. 1992). Nevertheless,
in determining whether a trial court has abused its discretion in a spousal
maintenance determination, this court will presume that the trial court properly considered the
applicable statutory factors in reaching its decision. Moore v. Moore, 695 N.E.2d
1004, 1007 (Ind. Ct. App. 1998). The presumption that the trial court
correctly applied the law in making an award of spousal maintenance is one
of the strongest presumptions applicable to the consideration of a case on appeal.
Fuehrer, 651 N.E.2d at 1174.
To award spousal maintenance under Ind. Code § 31-15-7-2(1), the trial court must first make a threshold determination that (1) a spouse is physically or mentally incapacitated and (2) the incapacity materially affects the spouse's self-supportive ability. If the trial court finds that a spouse is incapacitated, it then has the discretion to award maintenance. Marriage of Richmond, 605 N.E.2d at 228. Therefore, our task is limited to determining whether there is sufficient evidence to support the trial court's judgment.
Here, pursuant to the Dissolution Decree, the trial court ordered that:
6. Husband shall pay Wife the sum of $400.00 per week as and for maintenance through the Office of the Clerk of the Porter Superior Court and only through the Clerks Office. Husband shall not receive any credit for any payments not made through the Clerks Office. Further, Husband shall be responsible for and shall maintain in full force and effect at his sole expense through his employer, via COBRA, health insurance coverage for Wife. Said policy shall be for the same coverages now in force and effect under Husbands present health insurance policy. Husband shall not reduce, diminish, or do anything to affect Wifes coverage that would decrease or in any way limit her health insurance coverage. Further, Husband shall pay all of Wifes reasonable and necessary non-insurance covered medical, hospital, dental, optical, psychological and prescription pharmaceutical expenses pending further court order.
In the present case, the evidence in the light most favorable to the trial courts judgment reveals that, in April 1999, Dr. Cheryl Short, M.D., a Board Certified Obstetrician, diagnosed Brenda as having both endometrial cancer and ovarian cancer. On April 27, 1999, Brenda underwent a hysterectomy that involved removal of her uterus, cervix, both ovaries, and fallopian tubes, and dissection of both pelvic lymph nodes. The surgery caused Brenda to undergo a surgical menopause, and as a result of the cancer, Brenda is unable to take normal estrogen replacement medication. Therefore, Brenda suffers hot flashes, night sweats, vaginal dryness, and cognitive dysfunction. Moreover, in Dr. Shorts deposition, she stated that Brendas cognitive dysfunction resulted in memory loss, forgetfulness, a decrease in concentration, as well as suffering from an inability to control her emotions. As Brendas treating physician, Dr. Short recommended that Brenda decrease her work hours to twenty hours per week indefinitely, due to the incapacity she suffers as a consequence of her cancer treatment. Furthermore, at Dans request, Brenda underwent an examination and testing by Dr. Gary Durak, which supported Brendas claim that she suffers from physical and/or mental incapacities that materially affect her ability to support herself. Specifically, Dr. Duraks medical report stated that Brenda is functioning at less than what her intellectual capacities would predict. Moreover, Dr. Durak confirmed that Brenda suffers from depression and also recommended that she limit her work hours to twenty hours per week as a result of the impairment of her cognitive processing by both memory/concentration impairment and emotional distress. (R. 104). Thus, the trial court found that:
as a result of [Brenda] undergoing surgery to treat her endometrial and ovarian cancers she has suffered a surgical menopause which cannot be treated with estrogen replacement medication for at least three years. . . . this condition has physically and mentally incapacitated [Brenda] to the extent that her ability to support herself is materially affected and that she is entitled to maintenance. [Brendas] present earning ability is $10,000.00 per year. [Brendas] monthly expenses (excluding medical) are approximately $1,500.00 per month.
The trial courts award of spousal maintenance is amply supported by evidence that Brendas illness has left her physically and mentally incapacitated to the extent that her ability to support herself is materially affected. Therefore, the trial courts award is authorized by the factors delineated in Ind. Code § 31-15-7-2(1), and is not clearly against the logic and effect of the facts and circumstances. We find no error.
2. The parties agree to account to each other for all monies spent from
joint accounts since the filing of this proceeding.
3. The parties further agree that no monies will be withdrawn in the future unless done by their mutual consent or upon order of this Court.
1. Without prejudice to either party, it is agreed that Husband will pay provisionally
the future educational expenses for Blair A. Bizik and Blaine Bizik. It
is understood that unless the parties agree, the court shall at final hearing
determine what portion of the educational expenses, if any, shall be allocated to
Husbands unilateral decision to invade the marital estate and purportedly use certain monies
for payment of the childrens educational expenses was in violation of this Courts
Agreed Provisional Order.
The assets in Petitioners Exhibits #16 and #32 are already included in the valuation of the marital estate.
39. Husband claims that he has spent $122,922.00 for expenses for Blaine
and Blair during the pendency of this action. Husband contends that some
of the expenses were for the childrens education and some were personal expenses
for the children. Some of the monies Husband used for the payment
of the expenses which he seeks reimbursement were based upon Husbands own testimony,
marital monies he removed from the marital estate in violation of the Courts
Restraining Orders and in violation of the Provisional Order requiring Husband to pay
for the childrens educational expenses. Husband has not supplied a breakdown of
the amount of money that came from the marital estate versus the amount
of money that Husband paid from his own post-separation earnings. Husband has
not supplied any canceled checks or receipts to substantiate the claimed expenditures in
Respondents Exhibit D-1. Wifes Exhibit supporting her higher educational contributions for the
childrens college expenses was in large part supported by canceled checks (Petitioners Exhibit
#21). Husbands claim for reimbursement for the expenses listed in Respondents Exhibit
D-1 is denied.
(R. 108-110, 115-116) (emphasis in original).
Essentially, Dan contends that his use of the marital monies to pay for the childrens educational expenses was an ordinary expenditure in the usual course of business or for the necessities of life. Specifically, Dan relies upon this Courts holding in In re Marriage of Coyle, 671 N.E.2d 938 (Ind. Ct. App. 1996), where we stated that, money spent for a child's education, transportation and housing does not usually constitute a waste or misuse of marital assets. These are the kinds of expenditures that parents typically make for their children. Id. at 944. Thus, Dan wishes for us to remand this matter for the trial court to reevaluate the amount of college expenses incurred by both parties and apportion the expenses accordingly. This we will not do. Dan misses the point of the trial courts ruling on this issue. The trial court did not find that Dan misused the marital monies in a manner not in the usual course of business or for the necessities of life. Instead, the trial court simply found that Dan, by removing $107,355.00 from the martial estate without Brendas written consent or permission of the trial court, thereby violated two separate restraining orders, and an Agreed Provisional Order. Moreover, by failing to provide an adequate accounting for the monies removed from the joint accounts, a fact to which Dan concedes, the trial court lacked evidence to substantiate Dans necessity of life claim.
Sec. 5. The court shall presume that an equal division of the marital
property between the parties is just and reasonable. 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.
In his brief, Dan analyzes each of the above factors in an effort to argue that the trial court improperly considered each factor. However, because we find that the trial court properly and adequately considered each of the factors to support a deviation from the presumption of equal property division, we will not address Dans arguments with respect to each factor. With respect to the division of the marital estate, the trial court found as follows:
40. The evidence has shown that during the parties 32 year marriage, Wife supported Husband in his efforts to advance within the State Farm Insurance industry. This required Wife to relocate with Husband as he advanced through State Farm Insurance. Wife also supported Husband at work by cleaning the office, making phone calls, and supporting Husband by attending and hosting various social functions for State Farm.
41. The Court further finds that there is a tremendous disparity in
the parties present earnings and earning ability in that Husband earns at least
15 times what Wife is capable of earning at present. (Petitioners Exhibit
#1). The disparity between Husbands earnings and earning ability and the earnings
and earning ability of Wife is exacerbated when considering Wifes work limitations and
restrictions due to the consequences of her cancer treatment.
42. During the course of this proceeding, Husband removed monies from the
marital estate in excess of $100,000.00. Husband has used the monies for
his own personal benefit or business interests. The monies Husband has removed
from the marital estate have diminished the value of the marital estate by
virtue of the interest that would have accrued to the aforesaid monies had
the monies been left in the marital estate.
43. The Court further finds that Husbands economic circumstances at the time
the disposition of the property is to become effective is much better than
Wifes. Husband continues in his long term business relationship with State Farm
Insurance earning substantial sums of money whereas Wife is having to start over
at age 53 in a new vocation with limitations on her mental and
physical ability and capacity. At the time of final hearing, Wife had
minimal money whereas Husband had taken marital monies and invested at least $60,555.00
of the monies in a real estate deal and had also done this
via a § 1031 tax free exchange so that the monies being invested
by Husband in the real estate deal have no present tax consequences.
Husband never consulted Wife about this nor did he seek prior Court approval.
44. The foregoing factors support a deviation from the presumption of an
(R. 116-117). Moreover, the trial court stated that:
49. The Court is aware that Husband will be paying both maintenance and property settlement payments to Wife. These payments will total over $45,000.00 in the first year. However, Husband will be receiving a tax deduction for the maintenance payments made to Wife. Further, the payments being made by Husband to Wife constitute only one-third of his income, after subtracting business expenses for which Husband is reimbursed. Further, the parties children have now completed their education. One child has graduated from law school and the other is now working as a mechanic after graduating from Nashville Auto Diesel College, thus reducing the significant expenses Husband has been paying for the children.
Therefore, we find that the trial court properly considered, found and concluded with respect to each factor of Ind. Code § 31-15-7-5 in order to deviate from the presumption of equal marital property division, thereby awarding Brenda 70% of the marital estate. Moreover, the trial court adequately considered the act that pursuant to its order, Dan is required to pay both maintenance and property settlements to Brenda.
SULLIVAN, Judge, concurring
While I agree that it is appropriate to order the trial court to remove Dans Executive Supplemental Plan from the distribution of marital assets (Slip op. at 20), I do not believe it is correct to state that the court included the Plan as a marital asset.
To be sure, the distribution portion of the decree indicates that the wife is to receive 70% and the husband 30% of the Plan. However, it is clear that in adding all the assets subject to distribution, the court did not include the Supplemental Plan. The total marital estate subject to distribution is $1,512,920 and includes no amount attributable to the unvested Plan. The court stated that wife is entitled to $1,059,044 which is 70% of the total marital estate. Again, this includes no distribution of the Plan either to the husband or the