Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Nicholas J. Hursh

Shambaugh, Kast, Beck

& Williams, LLP

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Douglas E. Johnston

Tourkow, Crell, Rosenblatt

& Johnston, LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Roxann R. Behnke,

Appellant-Petitioner,

v.

James C. Behnke,

Appellee-Respondent

January 9, 2020

Court of Appeals Case No.

19A-DN-1627

Appeal from the Noble Superior 

Court

The Honorable Robert E. Kirsch,

III, Judge

Trial Court Cause No.

57D01-1710-DN-10

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020 Page 2 of 10

[1] Roxann Behnke (Wife) and James Behnke (Husband) dissolved their marriage. 

Wife appeals the trial court’s valuation and division of property, arguing that 

the trial court erred in both respects. Finding no error, we affirm.

Facts

[2] Husband and Wife married in 2006. Sometime in 2013, Husband and Wife 

formed YNot Metal, Inc. (YNot), a closely-held corporation. The business 

specialized in fabricating, bending, welding, and cutting metal. Both Husband 

and Wife contributed funds from their retirement accounts to capitalize the 

business. Husband contributed $166,282.10 and owned 166.2821 shares, and 

Wife contributed $75,835.30 and owned 75.8353 shares.

[3] On August 1, 2017, Wife filed her petition for dissolution of the marriage. The 

trial court conducted an August 9, 2018, final dissolution hearing, at which 

Husband and Wife submitted findings of fact and called witnesses to testify. 

Finally, on February 25, 2019, the trial court issued its findings of fact, 

conclusions of law, and decree of dissolution of marriage. The trial court found 

and held, in pertinent part, as follows: 

Asset Analysis – [YNot]

***

8. At the time of the filing of the divorce, the business had no 

intrinsic value other than a liquidation value. 

9. As part of the divorce, the hard assets of the business were 

appraised at a value of $102,835.00. . . . The business had certain 
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020 Page 3 of 10

outstanding indebtedness, which brought that value of the business 

down to $78,426.20. 

10. James Houlihan, a certified public accountant and licensed 

business evaluator, testified as to the value of the business, [YNot].

11. Mr. Houlihan reviewed various tax matters supplied by both 

parties to him, as well as the tax returns for the business and 

consideration of other factors, including the fact that 75% of the 

customer base was one customer, Titan Metal.

12. Based upon all of the information available to him, Mr. 

Houlihan found the business to be worth $78,217.00, representing 

the liquidation value of the assets, less liabilities. This amount was 

not taking into account any pre-marital assets of either party.

13. Mr. Houlihan explained why there was no intrinsic value, in 

the form of enterprise or personal goodwill for this entity. In short, 

its lack of profitability prevented such a finding. 

***

18. Wife also took the position that there were substantial 

revenues during the year 2017 that should have resulted in the 

business actually being on the rise in profitability. However, 

evidence indicated that she communicated direct[ly] with 

[Husband] that the business was in trouble. The combination of 

her own words recognizing trouble, coupled with the default on 

the loan, all indicate that the liquidation analysis of the expert was 

based on real world facts and circumstances, as opposed to the 

position advanced by [W]ife.

19. Wife had argued the business was worth $271,000.00 as 

reflected on her balance sheet. 

20. There was no evidence presented to support that valuation, 

and the Court declines to accept that as accurate.

21. Accordingly, the Court finds that the net value of the business, 

[YNot], is $78,217.00 and is set over to Husband.
Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020 Page 4 of 10

Analysis of the Respective Inheritances

22. Wife testified that [H]usband had inherited property from his 

parents, and that his interest in that property was roughly 

$25,000.00.

23. The evidence established that, as of the date of the filing of the 

divorce, [H]usband’s father was still alive. Thus, any real estate 

which passed to [H]usband was not a countable asset in the 

marriage as of the date of filing. 

24. Accordingly, the Court is excluding any of [H]usband’s 

inheritance from the marital pot. 

25. Similarly, [W]ife had an inheritance of just over $8,000.00, and 

[H]usband’s position was that [W]ife should receive that 

inheritance without setoff. The combination of [H]usband’s 

inheritance not even being in existence at the time of the divorce, 

coupled with his position that [W]ife should be entitled to retain 

the entirety of her inheritance is eminently reasonable in light of 

the evidence presented. 

26. Accordingly, the Court does not factor any inheritance into the 

marital pot. 

Analysis of Real Estate

27. At the time of filing of the divorce, Wife owned real estate 

which she purchased in November[] 2000 for $85,000.00.

28. For the tax year covering the date of filing, the tax assessor 

placed the value of the real estate at $94,400.00.

29. Wife has taken the position that [H]usband had a prior piece of 

real estate that should be determined to be his separate property. 

Husband owned the real estate before the marriage and it was sold 

during the marriage.

30. The evidence at trial, as presented by [W]ife, indicates that the 

real estate was sold well before the divorce action. The undisputed 

testimony was that the funds were consumed in the marital estate 

and do not separately still exist. 
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31. Accordingly, the court declines [W]ife’s offer to identify the 

sale of [H]usband’s pre-marital estate as a continuing asset in 

existence for purposes of division herein. 

Appealed Order p. 2-4 (emphases omitted).

[4] Ultimately, the trial court ordered an equal 50/50 split of the marital estate. See 

id. at 9. On March 27, 2019, Wife filed a motion to correct errors, which the 

trial court denied on June 17, 2019, following a hearing. Wife now appeals.

Discussion and Decision

I. Standard of Review 

[5] Our standard of review for these types of cases is well established:

When reviewing judgments with findings of fact and conclusions 

of law, Indiana’s appellate courts “shall not set aside the findings 

or judgment unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to judge the credibility of 

the witnesses.” Ind. Trial Rule 52(A). Appellate judges are not to 

reweigh the evidence nor reassess witness credibility, and the 

evidence should be viewed most favorably to the judgment. See 

Ind. Dep’t of Child Servs. v. LaPorte Circuit Court (In re T.S.), 906 

N.E.2d 801, 804 (Ind. 2009); J.I. v. J.H. (In re K.I.), 903 N.E.2d 

453, 457 (Ind. 2009); Dunson v. Dunson, 769 N.E.2d 1120, 1123 

(Ind. 2002). “Findings are clearly erroneous only when the record 

contains no facts to support them either directly or by inference.” 

Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997) (quoting Estate 

of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind. 1994)). 

Appellate deference to the determinations of our trial court judges, 

especially in domestic relations matters, is warranted because of 

their unique, direct interactions with the parties face-to-face, often 

over an extended period of time. Thus enabled to assess credibility 

and character through both factual testimony and intuitive 

discernment, our trial judges are in a superior position to ascertain 
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information and apply common sense, particularly in the 

determination of the best interests of the involved children.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “[I]t is not enough that the 

evidence might support some other conclusion, but it must positively require 

the conclusion contended for by appellant before there is a basis for reversal.” 

Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).

II. Valuation

[6] First, Wife argues that the trial court erred in its valuation of property. 

Specifically, Wife contends that the trial court improperly valued their metal 

business, YNot.

[7] “[T]he trial court has broad discretion in ascertaining the value of property in a 

dissolution action[.]” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). “[W]e 

will not reverse the trial court unless the decision is clearly against the logic and 

effect of the facts and circumstances before it.” Id. The trial court does not err 

when its valuation of property is within the range of values supported by the 

evidence. Sanjari v. Sanjari, 755 N.E.2d 1186, 1191-92 (Ind. Ct. App. 2001).

[8] From the record, we know that Husband called expert witness James Houlihan, 

a certified public accountant and licensed business evaluator, to testify as to 

YNot’s business value. Based on his experience and an independent evaluation 

of the financial documents, Houlihan concluded that YNot was worth 

$78,217.00. This sum included all liquidated assets in addition to all liabilities

and outstanding debts. Wife disputed this figure, arguing that YNot should 
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have been valued at $271,000.00 given the inherent profitability and intrinsic 

value of the company.

[9] It is apparent that the trial court gave substantial weight to the testimony of 

Husband’s expert witness, Houlihan. By contrast, the trial court deliberately did 

not give weight to Wife’s contentions about the value of YNot because she did 

not proffer witnesses—or any reliable evidence, for that matter—to refute 

Husband’s or Houlihan’s conclusion. See Alexander v. Alexander, 927 N.E.2d 

926, 935 (Ind. Ct. App. 2010) (holding that “[a] valuation submitted by one of 

the parties is competent evidence of the value of property in a dissolution action 

and may alone support the trial court’s determination in that regard[]”).

Furthermore, the value calculated by Houlihan was at or near $78,426.20—the 

net value of YNot—and is within the range of values supported by the evidence. 

[10] We will not second-guess the trial court’s findings and conclusions unless there 

is clear error, and here, nothing leads us to believe that the trial court ruled

erroneously. Thus, we hold that the trial court did not err in its valuation of 

YNot.

III. Division

[11] Next, Wife argues that the trial court erroneously divided the marital estate.

Specifically, Wife contends that the trial court should have deviated from the 

equal division of property by including other assets. “The distribution of marital 

assets is committed to the sound discretion of the trial court.” Breeden v. Breeden, 

678 N.E.2d 423, 427 (Ind. Ct. App. 1997). “We will only reverse the trial 
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court’s decision when it is clearly against the logic and effect of the facts and 

circumstances before the court.” Id.

[12] “The court shall presume that an equal division of marital property between the 

parties is just and reasonable, and may deviate from an equal division only 

when that presumption is rebutted.” Campbell v. Campbell, 993 N.E.2d 205, 212 

(Ind. Ct. App. 2013). Pursuant to Indiana Code section 31-15-7-5, one party can 

produce evidence of the following, among other things, to demonstrate 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 incoming 

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 the 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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[13] First, Wife argues that the trial court should have ordered that her and her 

Husband’s respective inheritances would be included in the ultimate division of 

marital property. The trial court ordered, instead, that Wife and Husband 

would each keep their own respective inheritance money. The trial court 

reached this decision, in part, because Husband’s father, from whom Husband

will receive his inheritance, was still alive at the time Wife filed for divorce. 

Further, there is manifest evidence that Husband wanted Wife to maintain her 

own inheritance because he felt that he was not entitled to any of that money. It 

was within the trial court’s discretion to make this decision, and we hold that 

the trial court did not err in determining that the parties would each retain their 

respective inheritances.

[14] Next, Wife contends that the trial court erred by not including the value of 

Husband’s real estate that he “sold shortly before the dissolution action and 

final date of separation.” Appellant’s Br. p. 16. However, according to the trial 

court, “[t]he undisputed testimony was that [those] funds were consumed in the 

marital estate and do not separately still exist.” Appealed Order p. 4. Thus, in 

evaluating the evidence, the trial court decided that those profits from 

Husband’s sale of property did not constitute a separate asset that could be 

factored into the division of property. Once again, nothing in the record 

suggests that the trial court erred in making this determination. 

[15] Finally, Wife argues that the trial court should have considered her lower 

earning capacity and economic circumstances. This amounts to a request that 

we reweigh the evidence in Wife’s favor, which we may not do. Based on the 
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record and the trial court’s final decree, it is clear to us that the trial court 

carefully and prudently evaluated both parties’ assets while simultaneously 

considering Wife’s requests to deviate from the 50/50 split. Nevertheless, the 

trial court reached the conclusion that an even split would be in the best 

interests of Husband and Wife, and the record supports such a conclusion. As 

such, the trial court did not err in this respect.1

[16] Thus, we find no error in the trial court’s division of property or determination 

that Wife presented no credible evidence to deviate from the presumption of an 

equal 50/50 division.

[17] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

 

1 Additionally, Wife argues that the trial court did not consider evidence of Husband’s actions postseparation as they pertained to YNot and the sale of certain business property. However, this is nothing more 

than another attempt by Wife to have us revalue the YNot business entity, which, as we have already 

discussed, was a decision left to the sound discretion of the trial court. Accordingly, we dismiss this argument 

as redundant.