ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
MARK SMALL SCOTT P. SULLIVAN
Indianapolis, Indiana Noel & Noel
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF )
ROSE FOBAR (VONDERAHE ), )
vs. ) No. 34A05-0101-CV-2
ANTHONY M. VONDERAHE, )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Stephen M. Jessup, Judge
Cause No. 34D01-9904-DR-154
September 26, 2001
OPINION - FOR PUBLICATION
Rose Fobar appeals the trial courts decree dissolving her marriage to Anthony Vonderahe,
which also divided the parties property and awarded attorney fees to Vonderahe.
We affirm in part and remand in part.
We restate the issues presented as:
I. whether the divorce decree is void due to a jurisdictional defect caused by
the trial courts failure to strictly comply with Howard County Local Rule 16(B),
which requires the filing of financial disclosure forms by the parties to a
II. whether the findings and conclusions support the trial courts award of attorney fees
to Vonderahe; and
III. whether the trial court erred in its distribution of the parties property. Facts
The parties were married on December 30, 1983, and Vonderahe filed his dissolution
petition on April 23, 1999. The parties had no biological children of
their own, but Fobar had a daughter by her previous husband, who was
killed in an automobile accident approximately one month before the daughters birth.
Fobar and her daughter received a monetary settlement related to her husbands death.
The daughter also received social security benefits because of her fathers death;
the amount of these payments during Fobars marriage to Vonderahe were approximately $100,000,
and the daughter also had a guardianship fund set up after her fathers
death that had a value of approximately $25,000. Fobar testified that much
of this $125,000 was spent on general living expenses. The trial court
began conducting a final hearing on September 25, 2000, without either partys filing
a financial disclosure form as was required at the time by a Howard
County trial rule. Apparently, no mention of this rule was made during
the course of the hearing. On December 13, 2000, the trial court
entered written findings and conclusions, in accordance with Fobars request. It found
marital assets totaling $555,831 and marital liabilities totaling $66,072. Vonderahe received $248,355
in total assets minus liabilities, including the marital residence subject to a mortgage.
Fobar received $241,404 in total assets minus liabilities, including two residences producing
a total of $810 per month in rent, a parcel of land she
inherited from her late husband, and four horses and two automobiles she claimed
her daughter owned. The trial court also ordered Fobar to pay $5,000
of Vonderahes attorney fees. Fobar now appeals.
I. Howard County Local Trial Rule 16(B)(4)
Fobars first claim is that the decree of dissolution is void because the
trial court proceeded to hear and enter judgment in this case without the
parties filing financial disclosure forms or filing a waiver of that requirement, in
alleged contravention of Howard County Local Trial Rule 16(B)(4) and our opinion in
Buckalew v. Buckalew, 744 N.E.2d 504 (Ind. Ct. App. 2001). However, our
supreme court granted transfer to consider Buckalew, and it recently issued an opinion
reaching a result contrary to ours.
Howard County Local Rule 16(B) stated in part:
1. In order
to insure complete, uniform and reciprocal disclosure of income, property,
and assets, each party to an action for divorce or separation shall cause
to be filed with the Court in which the action is pending, an
Income and Property Disclosure Form which shall be from time to time designated
and approved by the Howard County Courts. . . .
* * * * *
4. No final hearing may be scheduled and no decree of dissolution of marriage
or legal separation shall be entered unless and until the prescribed disclosure form
is filed with the Court, except in cases where the parties are each
represented by separate counsel and file with the court a waiver of such
Once a court promulgates a rule, it and all litigants are generally bound
by the rule. Meredith v. State, 679 N.E.2d 1309, 1311 (Ind. 1997).
However, a court may set aside its own rule if it assures
itself that it is in the interests of justice to do so, that
the substantive rights of the parties are not prejudiced, and that the rule
is not a mandatory rule. Id. Rules that are jurisdictional, defined
as those that set time limitations or other requirements that must be met
before the court may hear the case, are generally mandatory and not directive.
Id. at n.2. Our supreme court has now held that Howard
County Local Rule 16(B)(4) is not mandatory in the jurisdictional sense. Buckalew
v. Buckalew, no. 34S05-0107-CV-332, slip op. at 4 (Ind. Sup. Ct. September 7,
2001). Thus, although the trial court was required to comply with the
rule, any failure to do so did not render its subsequent action void.
Id. Rather, any error related to not strictly complying with the
rule could be presented on appeal only if a specific and timely objection
was made. Id. Here, no such objection was made.
See footnote Fobar
was represented at the final hearing by counsel who did not insist on
the filing of financial disclosure forms, and therefore any failure to strictly comply
with Howard County Local Rule 16(B)(4) does not require the dissolution decree to
Id. II. Attorney Fees
When reviewing an award of attorney fees in connection with a dissolution decree,
we reverse the trial court only for an abuse of discretion. In
re Marriage of Pulley, 652 N.E.2d 528, 532 (Ind. Ct. App. 1995), trans.
denied. In making such an award, courts should consider the parties relative
resources, ability to engage in gainful employment, and ability to earn an adequate
income. Id. Consideration of these factors furthers the legislative purpose behind
the award of costs and attorney fees under Indiana Code Section 31-15-10-1, which
is to provide access to an attorney to a party in a dissolution
proceeding who would not otherwise be able to afford one. See Beeson
v. Christian, 594 N.E.2d 441, 443 (Ind. 1992). Apart from the purpose
of equalizing the parties respective positions, however, misconduct that directly results in additional
litigation expenses may also properly be taken into account in the trial courts
decision to award attorney fees in dissolution proceedings. Glover v. Torrence, 723
N.E.2d 924, 938 (Ind. Ct. App. 2000). The trial courts findings indicate
that it awarded fees based upon Fobars alleged litigation misconduct, not out of
concern for equalizing the parties by ensuring that both would have access to
an attorneys services, and so we will examine whether the trial courts finding
that the conduct of Wife during the course of this litigation, particularly during
discovery and trial supports the attorney fees award on that basis. Record
Vonderahes brief contains no argument to support the trial courts implicit finding that
Fobar engaged in misconduct during the discovery phase of the litigation, and so
he has essentially conceded that she did not engage in misconduct at that
time. See Former Ind.Appellate Rule 8.3(A)(7). We are persuaded by Fobars
argument that she did not engage in discovery misconduct to the extent she
simply insisted that no discovery take place until Vonderahe filed a financial disclosure
form, which filing was apparently a prerequisite to discovery taking place in Howard
County dissolution actions pursuant to Local Rule 16(B)(2).
We believe the remainder of the finding regarding attorney fees presently to be
insufficient. Although it is generally true that a court need not list
specific reasons for awarding attorney fees in a dissolution action, see Pulley, 652
N.E.2d at 532, that general rule should not be applicable when one party
has specifically requested findings and conclusions under Trial Rule 52. Neither Pulley
nor Crowe v. Crowe, 555 N.E.2d 180, 183 (Ind. Ct. App. 1990), where
the general rule is also stated, were cases in which findings and conclusions
were requested. The Indiana Rules of Trial Procedure apply in dissolution proceedings.
Ind. Code § 31-15-3-1. When properly requested, a trial court is
required to make complete special findings sufficient to disclose a valid basis under
the issues for the legal result reached in the judgment. Justus v.
Justus, 581 N.E.2d 1265, 1269 (Ind. Ct. App. 1991), trans. denied. The
purpose of findings of fact and conclusions of law is to provide the
parties and reviewing courts with the theory upon which the case was decided.
F.E.H., Jr. v. State, 715 N.E.2d 1272, 1275 (Ind. Ct. App. 1999).
We do not believe the sole reference to Fobars conduct during the
course of litigation is sufficiently complete to support the attorney fees award.
We thus remand to the trial court for reconsideration of this issue and,
if appropriate after such reconsideration, the entry of more complete findings that specifically
identify instances of misconduct that directly resulted in increased litigation expense to Vonderahe.
III. Property Division/Inclusion of Assets in Marital Estate
Fobars argument regarding the trial courts division of property is essentially three-fold:
first, that it erred in awarding the marital residence to Vonderahe; second, that
it improperly included property allegedly owned by Fobars daughter, Robyn, as marital property
that was subject to division and distribution; and third, that she rebutted the
presumption in favor of an equal division of property and should have received
approximately sixty percent of the marital estate.
The trial court in this case entered findings of fact and conclusions of
law upon Fobars request, and so we apply a two-tiered standard to review
the courts entry. First, we determine whether the evidence supports the findings
and second, whether the findings support the judgment. Oil Supply Co., Inc.
v. Hires Parts Service, Inc., 726 N.E.2d 246, 248 (Ind. 2000). In
deference to the trial courts proximity to the issues, we disturb the judgment
only where there is no evidence supporting the findings or the findings fail
to support the judgment. Id. We do not reweigh the evidence,
but consider only the evidence favorable to the trial courts judgment. Id.
Challengers must establish that the trial courts findings are clearly erroneous.
Id. Findings are clearly erroneous when a review of the record
leaves us firmly convinced a mistake has been made. Carnahan v. Moriah
Property Owners Assn, Inc., 716 N.E.2d 437, 443 (Ind. 1999).
We also apply a strict standard of review to a courts distribution of
property upon dissolution. Wilson v. Wilson, 732 N.E.2d 841, 844 (Ind. Ct.
App. 2000), trans. denied. Subject to the statutory presumption that an equal
distribution of assets is just and reasonable, the division of marital property is
committed to the sound discretion of the trial court. Pitman v. Pitman,
721 N.E.2d 260, 264 (Ind. Ct. App. 1999), trans. denied. The party
challenging the trial courts property division bears the burden of proof. Wilson,
732 N.E.2d at 844. That party must overcome a strong presumption that
the court complied with the statute and considered the evidence on each of
the statutory factors. Id. We will reverse a property distribution only
if there is no rational basis for the award. Id. Although
the circumstances may have justified a different property distribution, we may not substitute
our judgment for that of the dissolution court. Id.
A. Marital Residence
Fobar claims she is entitled to possession of the marital residence because (1)
she testified that she paid for one-fourth of the real property on which
it is located with money from a settlement reached in an action related
to the wrongful death of her previous husband; (2) she and her daughter
enjoyed engaging in recreational activities on the property, including the raising of horses;
and (3) she and her daughter made improvements to the landscaping of the
property. Arguably, these circumstances might support awarding the marital residence to Fobar,
but these facts are not enough to warrant reversal of the trial courts
granting of the residence to Vonderahe. We will not substitute our judgment
for that of the trial court, and there are competing circumstances that support
the award of the residence to Vonderahe.
For instance, even assuming that Fobar paid for one-fourth of the cost of
the real property with money she brought into the marriage, (although the documentation
presented to support this claim was less than clear), there is no evidence
of how the other three-fourths of the cost was tendered, nor how the
residence itself (which was purchased and constructed later) was paid for. Also,
we note that [t]he income-producing efforts and intangible contributions of both spouses unite
to facilitate the acquisition of marital property. Maloblocki v. Maloblocki, 646 N.E.2d
358, 363 (Ind. Ct. App. 1995). One partys contribution of a greater
share of funds to the marriage does not necessarily mean that he or
she made a larger contribution to the acquisition of the marital property.
Id. Vonderahe and his sister presented testimony indicating that as between him
and Fobar, he performed more of the maintenance on the property. Fobar
might dispute the weight of this testimony, but it was for the trial
court to weigh evidence and judge the credibility of witnesses. Finally, the
marital residence had a certain intangible value to Vonderahe that counterbalances Fobars intangible
interest in the propertys recreational aspects, in that the property was bordered on
two sides by property owned by Vonderahes sister and her husband. He
understandably wished to remain close to them. The trial court did not
abuse its discretion in weighing these competing interests and circumstances and concluding that
Vonderahe should have possession of the marital residence.
B. Property Allegedly Belonging to Daughter
Pursuant to Indiana Code Section 31-15-7-4, a trial court must divide the property
of the parties when dissolving a marriage. Fobar claims that the trial
court improperly included certain items of property as part of the divisible marital
estate, namely four horses, two automobiles, and a parcel of real estate.
She claims the first two categories of items were owned solely by her
daughter and were paid for exclusively with her daughters social security money, and
that the real estate was one-half her daughters and the other half was
inherited property of Fobars that was never commingled with other marital property.
The trial court was presented with conflicting evidence on the ownership of the
horses. Fobar testified that they were paid for with her daughters social
security money, but there is scant documentary evidence to support that claim.
Fobar and her daughter also testified that they always considered the horses to
be the daughters. On the other hand, certificates of registration for two
of the horses from the American Quarter Horse Association indicate that they were
titled in Fobars name until April 1999, when they were transferred to her
daughters name upon advice of Fobars counsel, just prior to Vonderahes filing for
divorce and while the parties were attempting to negotiate a divorce property settlement.
There was also evidence that Fobar attempted to sell one of these
horses and two fillies in April 2000, listing herself as consignor. Fobar
proffered explanations for these titling and consignment arrangements, but the trial court was
not required to accept them. Fobar also identified one of the horses
depicted in a photograph exhibit as my horse. Record p. 300.
Finally, Vonderahe testified regarding the horses that [s]he [the daughter] never really liked
to do it cause she always had other fun things to do but
her mother always seen to it that she was involved, whether she wanted
to be or not. Record p. 596. In light of this
conflicting evidence regarding the horses true owner(s), the trial court did not clearly
err by including them as marital property subject to division and distribution.
In 1997, a Pontiac Sunfire was acquired, the financing of which creates considerable
confusion as to who owns it. The full amount of the purchase
price of this vehicle was financed. The GMAC Financial Services contract is
signed only by Fobar. Fobars exhibit BB, which sets forth a proposed
property distribution, lists the entire outstanding amount of the Sunfire debt as a
marital debt. However, only one-half of the Sunfires value is listed as
a marital asset. Fobar attempted to explain this discrepancy by testifying and
providing documentation that her daughter paid her $7,000 contemporaneously with the Sunfire purchase,
which she considered one-half of the cars purchase price. Thus, Fobar effectively
said, one-half of the Sunfire belonged to her daughter, even though that $7,000
was not immediately used to pay for one-half of the car and Fobar
elected to finance the entire amount of the purchase. This testimony did
not require the trial court to find that the daughter had a one-half
interest in the Sunfire, and it was perfectly logical for it to conclude
that if the full amount of the debt secured by the car is
a marital debt, as proposed by Fobar, the cars full value must be
included as a marital asset as well.
The 1999 Volkswagen Jetta presents the most difficult ownership question. A $14,000
down payment was made on this car, with a personal check from Fobar.
The purchase contract was signed solely by Fobar.See footnote On the other
hand, there is documentation of a $14,500 withdrawal from the daughters savings account
and a deposit in Fobars checking account in that amount on the same
day. The vehicles registration is in Fobars and her daughters name jointly.
Fobars exhibit BB does not list the outstanding debt on this vehicle
as a marital debt. Thus, the extent of Fobars ownership interest in
the Jetta is even more confused than that of the Sunfire. Ultimately,
however, even if we were to conclude the trial court clearly erred by
full value of the Jetta as a marital asset, such error
would have been harmless and would not require reversal. It is clear
from the evidence that Fobar has some claim to an interest in the
vehicle; not only did she sign the purchase contract by herself, she also
cosigned the financing agreement for the remainder of the purchase price and is
included on the vehicles registration. Although it is true that in a
dissolution proceeding a trial court may not award property that is not owned
by the parties, Fobars interest in the vehicle could be considered by the
court in determining a just and reasonable distribution of the total assets.
See Moore v. Moore, 482 N.E.2d 1176, 1179 (Ind. Ct. App. 1985).
Finally, Fobar apparently argues that a parcel of real estate in Buffalo, Indiana
that she inherited when her first husband died should not have been included
in the marital estate because the property was never commingled in any way
with other assets. We disagree. Indiana Code Section 31-15-7-4 clearly states
that the trial court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage . . . .
Thus, all property, whether acquired before or during the marriage, is generally included
in the marital estate for property division. Bertholet v. Bertholet, 725 N.E.2d
487, 495 (Ind. Ct. App. 2000), trans. denied. Additionally, there is no
requirement that assets of individual origin must have been physically commingled during the
marriage to be considered as marital property. Huber v. Huber, 586 N.E.2d
887, 889 (Ind. Ct. App. 1992), trans. denied. Fobars interest in the
Buffalo property was clearly a marital asset subject to distribution. Her assertion
that her daughter held a one-half interest in the property appears to be
correct, but the trial court expressly took this into consideration and only included
one-half of the value of the property in the marital pot.
C. Total Distribution of Property
By our calculations, the trial court awarded 50.7 % of the total value
of what it considered the marital estate to Vonderahe, and 49.3 % of
its value to Fobar a virtually equal division of property. Without
documenting how she arrived at these numbers, Fobar claims the property should have
been divided 60.9 % to 39.1 % in her favor primarily because she
brought more assets into the marriage, largely from money and property she acquired
after her first husbands death. We conclude, with one exception, that the
trial court did not abuse its discretion.
Indiana Code Section 31-15-7-5 creates the presumption that an equal division of marital
property between the parties is just and reasonable. Because Fobar sought to
receive more than half of the property, it was her burden to rebut
this presumption. Chase v. Chase, 690 N.E.2d 753, 756 (Ind. Ct. App.
1998). Also, although Section 31-15-7-5(2) provides that a court may consider the
extent to which property was acquired by one spouse through inheritance or gift
or before the marriage, there is nothing in this statute which suggests that
the trial court must deviate from the traditional 50/50 split simply because one
party presents evidence that he or she owned certain assets prior to marriage.
Bertholet, 725 N.E.2d at 495.
At trial, Fobar presented a demonstrative exhibit purporting to show that she brought
funds and assets into the marriage totaling $99,500, while Vonderahe brought in funds
and assets totaling only $10,000. The trial court did find that Wife
probably had more net worth at the time of the marriage, but also
that the evidence was conflicting on values. Record p. 135. Thus,
it did not completely accept Fobars exhibit, and the record supports this determination.
First, the exhibit listed a bank account for Fobar with a balance
of $18,000 at the time of marriage. However, when cross-examined, Fobar could
present no documentary evidence to support this claim or that the account even
existed. Second, the exhibit places a $5,000 value on Vonderahes equity in
property located at 113 South Sycamore in Galveston, Indiana, which reflects that Vonderahe
had paid $5,000 toward the property as of the time of the marriage,
in 1983. By contrast, the exhibit places a value of $64,000 on
Fobars interest in the property located at 116 East Jackson in Galveston, which
she owned debt-free at the time of marriage; this value is based on
an appraisal conducted in September 2000. Almost certainly, $5,000 in equity in
1983 would be worth much more today, and $64,000 in equity today would
have been worth less in 1983. The discrepancy in the parties net
worth at the time of marriage is thus grossly overstated by Fobars exhibit;
to be accurate, it should have placed a value on the 116 East
Jackson property as of 1983, or vice versa. The 116 East Jackson
property was also used as a marital residence for several years, during which
time Vonderahe performed routine maintenance there and added a new roof, thereby contributing
to the propertys appreciation in value.
Fobar also claims she is entitled to more property because she apparently earned
more income during the course of the marriage. Evidence was presented that
Fobar earned an average of $37,435 per year for the four years before
the parties separated, and Vonderahe earned an average of $26,617 during the same
See footnote However, we have already observed that one partys contribution of
a greater share of funds to the marriage does not necessarily mean that
he or she made a larger contribution to the acquisition of the marital
Maloblocki, 646 N.E.2d at 363. In fact, when the trial
court divided the marital property it expressly considered the substantial discrepancy in the
parties earnings, which would increase after the dissolution decree was entered because Fobar
was being awarded the Sycamore Street property that had been generating $355 in
monthly rent for Vonderahe. Under Indiana Code Section 31-15-7-5(5), a trial court
may consider the earnings or earning ability of the parties when dividing the
marital property. We cannot say the trial court abused its discretion, for
the most part, in concluding that Fobars greater net worth before the marriage
was counterbalanced by Vonderahes lesser earning capacity, thus justifying a practically equal division
However, with respect to the property located in Buffalo, Indiana, we conclude that
this is an instance in which the trial court should have effectively set
aside that property to Fobar, thus resulting in a slightly greater distribution (more
than fifty percent) of the marital estate to her. We have previously
held that although all property of the parties must be included in the
marital estate, regardless of its source, a court may choose to set aside
certain property to one spouse when it is evident that such property was
brought separately into the marriage, was never commingled with other marital assets, and
was never treated as marital property. See Castaneda v. Castaneda, 615 N.E.2d
467, 470-71 (Ind. Ct. App. 1993). Fobar has clearly made such a
showing in this case, because she obtained the property both by inheritance and
before the marriage. See Ind. Code § 31-15-7-5(2)(A) and (B). Vonderahe
never used the property, contributed to any improvements thereon, or participated in any
decisions concerning the property. We are left with the firm conviction that
a mistake has been made with respect to this asset, and thus we
remand with instructions to enter a property division decree that deviates from a
50/50 division of property in favor of Fobar to the extent necessary to
reflect the value of her interest in the Buffalo property.
Finally, Fobar asserts she is entitled to more of the marital property because
of the social security benefits her daughter received that allegedly contributed to the
operation and maintenance of the household. Appellants Brief p. 29. Fobar
does not explain how and why money that should have inured to the
benefit of her daughter, i.e., by helping pay for the costs of raising
her, should now be considered justification for awarding more property to her (Fobar)
upon the dissolution of her marriage, especially where the records of how this
money was spent were generally unclear and it appears this money was completely
commingled with strictly marital income. There is no indication or argument that
Vonderahe improperly used this social security money for his own benefit and deprived
his step-daughter of its use, nor that he ever requested that any withdrawal
from her accounts be made to pay for ordinary household expenses. In
fact, there is evidence that Fobar used it for her own personal benefit,
as she testified that she used her daughters social security money to pay
for her own (Fobars) college education. Under the circumstances, we cannot say
the trial court abused its discretion by not awarding more property to Fobar
based on her daughters social security income. Cf. Gower v. Gower, 427
N.E.2d 703, 707-08 (Ind. Ct. App. 1981) (holding trial court had no authority
to award portion of the marital property to wifes children from another marriage
even though money they received by way of social security benefits were commingled
with the marital estate and used in part for the acquisition of marital
The dissolution decree is not void due to the failure to strictly comply
with the letter of Howard County Local Rule 16(B)(4), because both parties were
represented by counsel and proceeded to judgment without insisting that the financial disclosure
forms required by that rule be filed or alternatively that a written waiver
of the rule be filed. We remand for more complete findings on
the attorney fees issue. Finally, we conclude the trial court did err
by not deviating from a 50/50 division of property to reflect Fobars separate
interest in the Buffalo property and remand with instructions to enter a new
property division decree that effectively sets aside this property to Fobar. In
all other respects, the trial courts findings and conclusions concerning the marital property
were not clearly erroneous.
Affirmed in part and remanded in part.
DARDEN, J., and NAJAM, J., concur.
We do not believe the insistence of one of Fobars former attorneys
on compliance with Local Rule 16(B)(2), which apparently only purports to limit discovery
until after financial disclosure forms are filed, was sufficient to avoid waiver of
strict compliance with Rule 16(B)(4). Fobars subsequent attorneys, including the one who
represented her at the final hearing, apparently never made mention of Local Rule
16 at all and seem to have abandoned insisting on strict compliance with
Footnote: We observe that Fobar actually was awarded the property in question here,
so her argument is not against how the trial court divided this property,
but that it was subject to division at all and therefore the total
value of the marital estate was increased because of its inclusion, resulting in
a higher award of other property to Vonderahe.
Footnote: Fobars daughter was twenty when this contract was entered into, and was
eighteen when the Sunfire was purchased.
Footnote: It is unclear from the record and the findings whether these income
figures included rental income or only included income from Fobars employer and Vonderahes