Joy Adebola Adewopo v. Cheedy Thomas Jaja

Indianapolis, IN - Divorce lawyer represented Appellant with appealing the division of marital estates.

Wife and Husband were married on June 20, 2008. While there were no

children born of the marriage, Husband adopted Wife's biological daughter

(Daughter). Daughter is now emancipated and in medical school in the

Caribbean.

[5] Husband has twenty-eight years of teaching experience in institutes of higher

education. He is currently an associate professor in the College of Nursing at

the University of South Carolina, Columbia. He also holds an adjunct research

faculty appointment in the Department of Emergency Medicine at Augusta

University and the College of Medicine and Emergency Medicine at University

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of Sierra Leone. Husband's annual salary from the University of South

Carolina is approximately $144,000. Husband is also a Registered Nurse and is

a board-certified Psychiatric and Mental Health Nurse Practitioner. As for

Wife, she obtained her nursing degree in Nigeria in 1985, and a bachelor's

degree in Social Sciences and Economics in London in 1991. Since 1997, Wife

has been a Registered Nurse in Indiana and she has worked at Community East

Hospital and at St. Vincent Hospital, both located in Indianapolis.

[6] In addition, Wife is the owner/operator of four businesses. In 2002, Wife

created Joy Health Services, LLC (JHS), which offers home health aide to

patients. JHS also supplies rehabilitative services such as physical,

occupational, speech, and social therapy. Wife is the director of nursing at

JHS, where she oversees and coordinates patient care. Wife also acts as JHS'

office administrator and human resources officer. Her annual salary at JHS is

$118,000. After their marriage in 2008, Husband joined Wife at JHS, replacing

the physician, served on the board of directors, and began receiving a salary.

During his employment with JHS, Husband computerized and set up online

accounts for Wife's businesses, met with Wife's accountants, and assisted Wife

with an IRS audit for her companies.

[7] In October of 2007, Wife set up her second business. Wife bought an adult

daycare franchise, Sarah Care of Indianapolis (Sarah Care), which supplies a

range of daily activities for adults who have disabilities or require daily

supervision. Wife oversees the daily operations of Sarah Care. Following the

purchase of the franchise, Wife set up her third company in October 2007, a

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holding company, JHS Investments, LLC (JHS Investments).

1

Wife also

established Grace Adult and Family, LLC (Grace) in 2014. Grace offers

supportive and personal care services to disabled and/or elderly individuals

who cannot function independently. Husband played a role in Wife's other

business since he computerized and set up online accounts for Wife's

businesses, met with Wife's business accountants, and assisted Wife with an

IRS audit for her companies.

[8] The parties owned separate properties prior to the marriage. Wife inherited

properties in Nigeria and Ghana. Wife also owned a house on Summerfield

Drive in Plainfield, Indiana (Summerfield House), and the parties lived in that

house from 2008 to 2012. Wife paid the mortgage on Summerfield House with

her income. Wife had initially added Husband to the Summerfield House deed

in 2013, but she subsequently removed him from the deed in 2017. She then

transferred the house to Daughter in that same year. In 2012, the parties built a

house at 1025 Heathrow Lane in Avon (Heathrow House), with Husband

contributing $50,000 and Wife paying $20,000 toward the down payment. As

for Husband, prior to the marriage, he had bought a home in Seattle,

Washington, (Seattle Home) in 2003. After their marriage, Husband added

1 In January of 2008, JHS Investments bought the real estate at 2825 East 96th Street in Indianapolis (96th

Street Property). That property is JHS's primary office. In 2015, JHS Investments bought two houses

located at 3444 Allison Avenue, Indianapolis (Allison House) and 2947 North Colorado, Indianapolis

(Colorado House) to house their patients.

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Wife to the deed of that home. In 2007, Husband sold that home and put the

proceeds, $96,966.01, into his Wells Fargo account.

[9] Prior to their marriage, Husband had approximately $80,000 in student loans.

Unbeknownst to Husband, Wife had incurred a substantial tax liability of

$409,087 prior to the marriage between 2005 and 2007. Following a federal tax

lien assessment in 2011, Wife paid all her tax liability with marital funds,

including $101,000 that she levied from Husband's Bank of America bank

account which she had access to.

[10] Sometime in 2013, the parties began having marital issues. Wife later ousted

Husband from JHS, and it became apparent to Husband that Wife did not want

him involved in the operation of her businesses. In 2014, the parties began

living separate lives. Husband enrolled at IUPUI to earn a master's degree in

nursing and volunteered for six months with the CDC to be part of the relief

effort for the Ebola pandemic in Sierra Leone.

[11] In 2018, Husband filed his petition for dissolution of marriage. After

mediation, the parties sought appraisals of all their assets and liabilities. Upon

Husband's request, the trial court appointed Jeff Donovan (Donovan), who

holds licenses and certificates as a Certified Public Accountant and a Certified

Valuation Analyst, to evaluate Wife's operating companies, i.e., JHS, Sarah

Care, and Grace.

[12] On March 3, 2021, the trial court conducted a two-day final hearing. Donovan

testified that he performed a combined valuation of JHS, Sarah Care, and

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Grace using an income-based valuation method. Donovan determined that

there was a significant amount of personal goodwill attributable to Wife and her

involvement in the businesses. Donovan opined that using a combination of

market-based and income-based valuation methods, the fair market value of

enterprise goodwill was approximately $730,000.

[13] Based upon the testimony, the stipulated values of the marital assets, and the

expert business valuation opinion offered by Donovan, the trial court

determined the total value of the marital estate to be $3,141,274.11. That sum

included $730,000 of combined enterprise goodwill from Wife's businesses,

$166,800 of the value of the Summerfield House, $8,000 of Wife's property

interests in her inherited properties in Nigeria and Ghana, and $76,189 of

Husband's student loans. The trial court then equally divided the marital estate

between the parties, finding such division proper and equitable, resulting in an

equalization payment due to Husband in the amount of $1,318,288.91. The

trial court additionally ordered Wife to pay $20,000 of Husband's attorney's

fees.

[14] Wife now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[15] Initially we observe that the dissolution court entered special findings of fact

and conclusions thereon pursuant to Indiana Trial Rule 52(A). Accordingly,

our standard of review is two-tiered: first, we determine whether the evidence

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supports the findings, and second, whether the findings support the judgment.

O'Connell v. O'Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008). Findings of fact

are clearly erroneous when the record lacks any evidence or reasonable

inferences from the evidence to support them. Id. The judgment will be

reversed if it is clearly erroneous. Id. To determine whether the findings or

judgment are clearly erroneous, we consider only the evidence favorable to the

judgment and all reasonable inferences flowing therefrom. Id. We will not

reweigh the evidence or assess witness credibility. Id. Even though there is

evidence to support it, a judgment is clearly erroneous if the reviewing court's

examination of the record leaves it with the firm conviction that a mistake has

been made. Id.

II. Marital Pot

[16] Challenging the property division, Wife first contends that the trial court erred

by including certain items in the marital pot. In dissolution actions, it is wellsettled that all marital property goes into the marital pot for division, whether it

was owned by either spouse before the marriage, acquired by either spouse after

the marriage and before final separation of the parties, or acquired by their joint

efforts. Ind. Code § 31-15-7-4(a); Beard v. Beard, 758 N.E.2d 1019, 1025 (Ind.

Ct. App. 2001), trans. denied. For purposes of dissolution, property means "all

the assets of either party or both parties.” I.C. § 31-9-2-98. "The requirement

that all marital assets be placed in the marital pot is meant to insure that the

trial court first determines that value before endeavoring to divide property.”

Montgomery v. Faust, 910 N.E.2d 234, 238 (Ind. Ct. App. 2009). "Indiana's 'one

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pot' theory prohibits the exclusion of any asset in which a party has a vested

interest from the scope of the trial court's power to divide and award.” Wanner

v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008). While the trial court

may decide to award a particular asset solely to one spouse as part of its just

and reasonable property division, it must first include the asset in its

consideration of the marital estate to be divided. Hill v. Hill, 863 N.E.2d 456,

460 (Ind. Ct. App. 2007). The systematic exclusion of any marital asset from

the marital pot is erroneous. Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind.

Ct. App. 2014).

[17] Wife argues that the trial court erred when it included the Summerfield House,

her property interest in her inherited properties in Africa, and Husband's

student loans in the marital pot.

A. Summerfield House

[18] Wife argues that the house belonged to Daughter at the time Husband filed for

dissolution, therefore, the trial court erred by including that house as a marital

asset. We agree with Wife's contention that a trial court may not distribute

property not owned by the parties. See England v. England, 865 N.E.2d 644, 649

(Ind. Ct. App. 2007). However, we have held that when distributing marital

property, a trial court may consider the use and occupancy of property titled in

the name of a third party. Id.; see also In re Dall, 681 N.E.2d 718, 722-23 (Ind.

Ct. App. 1997) (holding that the trial court erred by including the parties'

residence in the marital estate as it was owned by wife's parents; however, the

court could consider the value of wife's continued dwelling in the home);

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Hacker v. Hacker, 659 N.E.2d 1104, 1111 (Ind. Ct. App. 1995) (holding that the

trial court properly considered husband's occupancy of a farm owned by his

parents when distributing marital assets). Use and occupancy of property

owned by a third party is also relevant to distribution as it pertains to the

economic circumstances of the parties at the time of dissolution under Section

31-15-7-5(3). See England, 865 N.E.2d at 650.

[19] The record shows that Wife purchased the Summerfield House in 2000, the

parties lived there between 2008 and 2012, and the mortgage was paid from

Wife's income. In 2013, Wife included Husband's name on the deed.

Sometime thereafter, the parties began having marital issues, and by 2014, the

parties were living separate lives. In 2017, Wife removed Husband's name

from the deed, and she transferred the house to Daughter. Husband filed for

divorce in 2018. During her deposition, Wife stated even though she had

transferred the Summerville House to Daughter, she was still paying the

mortgage. In relation to that transfer, Husband testified, "I have no idea how

that transaction occurred. Ordinarily I would have been involved but was not,

so it is mystery how that occurred in the first place.” (Transcript Vol. II, p. 74).

Wife testified that although Daughter owned the home, Daughter did not reside

in the house since she was in medical school. Wife claimed that she, and not

Daughter, had collected rent in the past. Wife testified that her nephew now

lives at the house rent free, and whenever she has her extended family visiting,

she allows them to stay at the house rent free. Though Wife claimed to have

transferred the house to Daughter, her conduct suggests that she has a present

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possessory interest in the house for her use and enjoyment. During her

deposition, she admittedly stated that she continued paying the mortgage

following the transfer. In addition, her conduct suggests she is capable of

occupying the property in lieu of collecting rent, if she is so inclined. See

Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App. 2011) (holding that a

Husband's present possessory interest in real property could be considered in

making distribution of marital assets in divorce action, even though husband

claimed to have made a gift of the property to his daughter, husband evicted

daughter from the property and began collecting rent from tenants living there,

suggesting that he was capable of occupying the property in lieu of collecting

rent, if he was so inclined). Based on the foregoing, we hold that the trial court

did not abuse its discretion by including the Summerfield House into the pot of

marital assets when dividing the marital estate.

B. Wife's Inheritance

[20] Wife claims that the properties in Ghana and Nigeria that she inherited prior to

the marriage should not have been included in the marital estate. The trial

court entered the following pertinent findings:

55. Wife inherited property prior to the marriage in Nigeria and

Ghana.

56. During her deposition, Wife described the Nigerian property

as [a]3-4-bedroom house in a subdivision worth $25,000-30,000

in US Dollars divided between siblings and her mother.

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57. However, at final hearing, Wife indicated the property in

Nigeria was an apartment building with units and that she

received varying amount of rent from the property.

58. The fair market value of the international properties is

uncertain, they are included in the marital pot as the parties have

stipulated and Exhibit provides, and the [c]ourt orders those

properties set over to Wife's and she alone retains any right, title,

and interest therein.

(Appellant's App. Vol. II, pp. 15-16). Indiana Code section 31-15-7-4 (a)

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. Wife's interests in the African

properties was clearly a marital asset subject to distribution and were rightfully

added to the marital pot. Wife's additional assertion that she jointly inherited

those properties with her siblings and mother should lead to the properties being

excluded to the marital pot also fails. The trial court expressly took that into

consideration, and it did not include the value of the properties, but only

included a certain value of her inherited property in the marital pot. Thus, we

hold that the trial court did not abuse its discretion by including Wife's property

interest in her inherited property in the marital pot.

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C. Husband's Student Loan

[21] Wife argues that Husband's student loans should have been excluded from the

marital estate. She claims that it was unclear whether the loan was incurred

prior or during the marriage. As noted, it is well-established that all marital

property goes into the marital pot for division, whether it was owned by either

spouse before the marriage, acquired by either spouse after the marriage and

before final separation of the parties, or acquired by their joint efforts.” Smith v.

Smith, 938 N.E.2d 857, 860 (Ind. Ct. App. 2010). Marital property includes

both assets and liabilities. Id. "The trial court has no authority to exclude or set

aside marital property but must divide all property.” Id. Here, the trial court

properly included Husband's student loan debt, which was incurred prior to the

marriage. To the extent that Wife argues that it is unclear when the loan was

incurred, Husband provided a statement showing that as of August 1, 2008, his

remaining balance was $76,189.94. Wife has not met her burden of persuading

us that the trial court erred in including Husband's student loans.

III. Valuation and Division of Marital Pot

[22] Wife next argues that the trial court erred by adopting Donovan's calculation of

the enterprise goodwill of her businesses. She also contends that the trial court

erred by equally dividing the marital estate. The decision regarding the

valuation and division of marital property lies within the sound discretion of the

trial court, and we will reverse only for an abuse of that discretion. Hartley v.

Hartley, 862 N.E.2d 274, 285 (Ind. Ct. App. 2007). We address each of Wife's

concerns in turn.

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A. Goodwill

[23] Wife contends that the trial court erred by accepting Donovan's methodology

in calculating the enterprise goodwill of her businesses. "A trial court has broad

discretion in ascertaining the value of property in a dissolution action, and its

valuation will not be disturbed absent an abuse of that discretion.” Nowels v.

Nowels, 836 N.E.2d 481, 485 (Ind. Ct. App. 2005). The trial court has not

abused its discretion if its chosen valuation is supported by sufficient evidence

and the reasonable inferences drawn from it. Id. Even when the circumstances

would support a different award, we will not substitute our judgment for that of

the trial court. Id.

[24] In Yoon v. Yoon, 711 N.E.2d 1265 (Ind. 1999), our supreme court analyzed the

issue of goodwill as follows:

Goodwill has been described as the value of a business or

practice that exceeds the combined value of the net assets used in

the business. Goodwill in a professional practice may be

attributable to the business enterprise itself by virtue of its

existing arrangements with suppliers, customers or others, and its

anticipated future customer base due to factors attributable to the

business. It may also be attributable to the individual owner's

personal skill, training or reputation. This distinction is

sometimes reflected in the use of the term "enterprise goodwill,”

as opposed to "personal goodwill.”

Enterprise goodwill "is based on the intangible, but generally

marketable, existence in a business of established relations with

employees, customers and suppliers.” Factors affecting this

goodwill may include a business's location, its name recognition,

its business reputation, or a variety of other factors depending on

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the business. Ultimately these factors must, in one way or

another, contribute to the anticipated future profitability of the

business. Enterprise goodwill is an asset of the business and accordingly

is property that is divisible in a dissolution to the extent that it inheres in

the business, independent of any single individual's personal efforts and

will outlast any person's involvement in the business. It is not

necessarily marketable in the sense that there is a ready and

easily priced market for it, but it is in general transferrable to

others and has a value to others.

* * * *

In contrast, the goodwill that depends on the continued presence

of a particular individual is a personal asset, and any value that

attaches to a business as a result of this "personal goodwill”

represents nothing more than the future earning capacity of the

individual and is not divisible. Professional goodwill as a

divisible marital asset has received a variety of treatments in

different jurisdictions, some distinguishing divisible enterprise

goodwill from nondivisible personal goodwill and some not.

Indiana's dissolution law opts for recognition of this distinction.

The General Assembly has determined that the "relative earning

power” of the parties is not a divisible asset because it is not

property, but may be considered in determining the percentage of

property to be given to each. Accordingly, we join the states that

exclude goodwill based on the personal attributes of the

individual from the marital estate.

Id. at 1268-69 (emphasis added) (citations omitted). The trial court in this case

entered the following findings regarding the combined enterprise goodwill of

Wife's businesses:

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75. Jeff Donovan of Donovan CPA was jointly retained by the

parties to conduct [a] business valuation of Joy Health Services,

Grace Adult Family Care, and Sarah Care of Indianapolis.

76. Mr. Donovan has [a] significant amount of experience

conducting business valuations of this nature. He conducted site

a visit to the businesses and met with Wife and her staff to obtain

necessary information. He also reviewed tax returns for the

multiple businesses.

77. None of the business real estate owned by Wife's holding

company is included in Mr. Donovan's valuation.

78. Mr. Donovan determined that there is [a] significant amount

of personal goodwill attached to the value of the businesses

attributable to Wife and her specific involvement in the

businesses.

79. "Enterprise goodwill” in professional practice may be

attributable to the business enterprise itself by virtue of its

existing arrangements with suppliers, customers or others, and its

anticipated future customer base due to factors attributable to the

business. Yoon v. Yoon, 711 N.E.2d 1265, 1268-69 (Ind. 1999).

80. Mr. Donovan indicated that, using combination of market

based and income-based valuation methods, the fair market value

of Wife's business interests was approximately $730,000.00,

absent personal goodwill. The [c]ourt includes this amount in

the parties' marital assets on Exhibit A.

(Appellant's App. Vol. II, pp. 17-18). At the final hearing, Donovan stated that

he implemented an income-based valuation method and he explained that using

the income-based approach allowed him to consider the combined enterprise

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goodwill of Wife's businesses. However, he conceded that the method was not

a "hard and fast calculation” but depended "on the facts and circumstances of

each individual business.” (Tr. Vol. II, p. 186). Donovan noted that the

process of arriving at the value of enterprise goodwill was complicated by the

fact that each of Wife's businesses owned a small percentage of each other and

because Wife's personal and business finances were unaccountably intertwined

since Wife loaned money to the businesses and borrowed money from the

businesses.

[25] As an alternative to Donovan's calculation, Wife requested the trial court to

accept valuation amounts based only on JHS's book equity value as calculated

by her accountant Kim Kock (Kock). Kock only evaluated JHS, and she

quoted an increased equity value of $210,442 for JHS, which was accumulated

between 2008, the date of marriage, and 2018, the date of filing. When asked

how the book equity value of $210,442 was computed, Wife stated, "my

accountant put it together.” (Tr. Vol. II, p. 124). When asked whether her

calculations considered the intercompany loans, Wife stated, "I should think

so.” (Tr. Vol. II, p. 124). When Donovan was asked about Wife's valuation

method, he testified that his understanding of Wife's valuation method was

"assets minus liabilities.” (Tr. Vol. II, p. 188). Donovan explained that "an

operating entity with income by default has usually a component of goodwill”

and that he had disregarded an asset-based approach during his valuation

because that methodology did not arrive at enterprise goodwill. (Tr. Vol. II, p.

183).

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[26] Specific to the division of marital property, it has been held repeatedly that it is

incumbent on the parties to present evidence of the value of property to the trial

court and that trial courts do not err in failing to assign values to property where

no evidence of such value was presented. See Quillen v. Quillen, 671 N.E.2d 98,

103 (Ind. 1996). Further, as we noted, if the trial court's chosen valuation is

within the range of values supported by the evidence, the court does not abuse

its discretion. Nowels, 836 N.E.2d at 485. The trial court, as the factfinder, had

discretion to credit Donovan's expert valuation opinion regarding the enterprise

goodwill value of Wife's businesses. Moreover, Wife presented no evidence,

through an expert witness or otherwise, as to an alternate methodology to

calculate enterprise goodwill, and the gravamen of her arguments is that we

should ignore Donovan's methodology, which was supported by the evidence,

and which we will not do. Here, we conclude that the trial court did not abuse

its discretion by crediting Donovan's valuation method, or in concluding that

Wife had $730,000 enterprise goodwill in her businesses, and that amount was

divisible as a marital asset.

B. Equal Division of Marital Property

[27] Wife argues that the trial court abused its discretion in concluding that she

failed rebut the presumption of equal division of marital property. As noted,

the division of marital property is a two-step process in Indiana. Estudillo, 956

N.E.2d at 1090. First, the trial court determines what property must be

included in the marital estate. Id. After deciding what constitutes marital

property, the trial court must then divide the marital property under the

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presumption that an equal split is just and reasonable. I.C. § 31-15-7-5. This

presumption may be rebutted by a party who presents relevant evidence,

including evidence of 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.

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I.C. § 31-15-7-5. In dividing marital property, the trial court must consider all

of these factors, but it is not required to explicitly address all of the factors in

every case. Eye v. Eye, 849 N.E.2d 698, 701-02 (Ind. Ct. App. 2006). To the

contrary, we presume that the trial court considered these factors. Hatten v.

Hatten, 825 N.E.2d 791, 794 (Ind. Ct. App. 2005). This is one of the strongest

presumptions applicable to our consideration on appeal. Id.

[28] Wife argues the trial court abused its discretion when it ordered an equal

division of the marital estate because Husband did not contribute to her

businesses, and her inherited properties were never commingled with marital

assets.

A. Wife's Businesses

[29] At the final hearing, Wife testified that Husband did not play a significant role

at JHS, Sarah Care, or Grace. Contrary to Wife's claim that Husband did not

contribute to the growth of her businesses during the marriage, the evidence

presented showed that shortly after their marriage in 2008, Husband joined

Wife at JHS. Husband replaced the physician, served on the board of directors

and began receiving a salary. Husband computerized and set up online

accounts for Wife's businesses, met with Wife's accountants, and assisted with

an IRS audit. In reference to that IRS audit, Wife settled her tax liability and

she used $101,000 from Husband's bank account. The record also showed that

Husband aided with the expansion of Wife's business interests by supervising

the construction of the Sarah Care franchise building, hiring of staff,

procurement office materials and furniture, and attending a Sarah Care training

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in Ohio. While Wife contributed a great deal to the accumulation of the

business interests for JHS, Sarah Care and Grace, the record shows that

Husband also contributed to the growth of JHS, Sarah Care, or Grace.

Accordingly, we find no abuse of discretion.

B. Wife's Inheritance

[30] Wife additionally claims that her inherited properties in Ghana and Nigeria,

which were acquired prior to the marriage, were never commingled with

marital assets. In support of her claim, Wife cites to Castaneda v. Castaneda, 615

N.E.2d 467 (Ind. Ct. App. 1993). In Castaneda we upheld the trial court's

award of the wife's inheritance when dividing the marital estate, which resulted

in an unequal division of the marital estate in the wife's favor. Id. at 470. The

Castaneda court concluded that where the inheritance was never commingled

with other marital assets and the wife did not treat it as marital property, the

trial court did not abuse its discretion in setting aside the inheritance to the wife.

Id. However, as our supreme court explained

Castaneda does not stand for the proposition that a trial court is

required to reach an unequal division of property because one

spouse brought some items separately to the marriage. Rather,

Castaneda permits the trial court, in its discretion, to choose to

distribute the marital property unequally in favor of one spouse

based on statutorily identified considerations . . . Whether to do

so is a matter of trial court discretion in light of all other relevant

factors.

Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). Turning to Wife's argument,

we note that whether or not property was commingled is not an included

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component of the statutory analysis required to rebut the presumption of an

equal distribution of marital assets, although relevant evidence might also

indicate whether property was kept separate and distinct, or whether a type of

de facto commingling occurred. Eye, 849 N.E.2d at 703. Therefore, the fact that

the proceeds from the inheritance were kept separate by Wife does not

automatically indicate that the presumption was rebutted. Id. Wife's argument

that her inherited properties were not commingled with marital assets and

therefore should not be included in the marital pot for division fails.

[31] As to whether her inherited properties were divisible, we have held that the trial

court's disposition is to be considered as a whole, not item by item. Simpson v.

Simpson, 650 N.E.2d 333, 335 (Ind. Ct. App. 1995). In crafting a just and

reasonable property distribution, a trial court is required to balance a number of

different considerations in arriving at an ultimate disposition. Fobar, 771

N.E.2d at 60. The court may allocate some items of property or debt to one

spouse because of its disposition of other items. Id. Similarly, the factors

identified by the statute as permitting an unequal division in favor of one party

or the other may cut in different directions. Id. As a result, if the appellate

court views any one of these in isolation and apart from the total mix, it may

upset the balance ultimately struck by the trial court. Id.

[32] Looking at other factors, there is ample basis justifying the trial court's

inclusion of Wife's interests in the Nigerian and Ghanaian properties and the

equal division of the entire marital pot. Husband is an associate professor in

the College of Nursing at the University of South Carolina, Columbia, earning

Court of Appeals of Indiana | Memorandum Decision 21A-DC-880 | January 21, 2022 Page 22 of 24

$144,000 per year. Husband stated that when he fails to teach in the summer,

his annual income is about $120,000. Husband stated that beginning in 2008,

he received an income from JHS. Wife, as director of nursing at JHS, earned

an annual income of $118,071. Evidence presented showed that between 2009

and 2018, aside from her wages, Wife withdrew additional income from her

businesses in varying amounts, and her gross withdrawals during that period

amounted to $6,310,957. Wife's average annual business income during the

marriage was $631,095.70.

[33] During the marriage, Husband contributed an additional $123,000 to his

retirement account and paid down $24,000 of student loan debt during the

marriage. Wife contributed $285,534.35 to her JHS 401k account and

purchased whole life insurance policies with cash values of $29,410.86. Aside

from their income and the growth of their individual retirement accounts, the

record reflects that Wife dissipated marital assets. Wife failed to cooperate with

discovery requests as to her bank accounts except to provide her 2018 bank

statements for her Indiana Members Credit Union (IMCU) accounts. Wife's

JHS income/business income was deposited into her IMCU. A review of her

2018 checking account statements showed that Wife transferred $65,880 to

various individuals, wrote checks totaling $70,475.52, and took cash

withdrawals of over $108,000. Wife's 2018 married but filing separately tax

return indicates she earned $118,071 in wage income and $457,430 in business

income, for a total income of $575,501. She owed $148,617 on the taxable

portion of this income, for a net income of $426,884. Wife provided little to no

Court of Appeals of Indiana | Memorandum Decision 21A-DC-880 | January 21, 2022 Page 23 of 24

explanation for the disposition of her personal income and business income.

During her deposition, when asked how her income was disbursed, Wife

replied alternatively "I don't know”, and "who knows. Hello?” (Exh. Vol. IV,

pp. 48, 49). At the final hearing, Wife indicated she financially helped her

mother and extended family in Nigeria but failed to offer any evidence

supporting her claim. Wife also claimed that she paid for Daughter's medical

school tuition and other expenses, but she failed to provide any evidence

documenting those expenses.

[34] In many circumstances, it may be appropriate to award a greater share of the

marital property to one spouse by reason of inheritance. Fobar, 771 N.E.2d at

60. But Indiana statute requires all property to be considered in the marital

estate. I.C. § 31-15-7-4. Even if some items meet the statutory criteria that may

support an unequal division of the overall pot, the law does not require an

unequal division if overall considerations render the total resolution just and

equitable. Id. The trial court considered 131 exhibits and the testimony of

several witnesses, which were presented over the course of two days. Although

several of the parties' assets were brought to the marriage, there was no

requirement that any be set off for one spouse, nor was there any requirement

that the overall pot be unequally divided. It was well within the trial court's

discretion in offsetting Wife's higher earning capacity and resources by

including her inherited properties in the overall 50–50 split, rather than setting it

off to Wife as a separate item prior to division. We find no abuse of discretion.

Court of Appeals of Indiana | Memorandum Decision 21A-DC-880 | January 21, 2022 Page 24 of 24

[35] In sum, Wife has not met her burden of overcoming the presumption on appeal

that the trial court acted correctly in applying the statutory presumption of an

equal division of the marital estate. The trial court weighed the factors required

to rebut the presumption of an equal division, found them in equipoise, and

determined that an equal distribution was just and reasonable because the

presumption had not been rebutted. The trial court's findings support its

conclusion that an equal division is just and reasonable, and we find no abuse

of discretion

In sum, we conclude that the trial court did not abuse its discretion by including

certain items in the marital pot, and by equally dividing the marital estate

between the parties.



Affirmed.