Court of Appeals of Indiana | Opinion 82A01-1611-DR-2699 | November 30, 2017 Page 1 of 9

ATTORNEYS FOR APPELLANT

Laurie Baiden Bumb

Bumb & Vowels, LLP

Evansville, Indiana

Douglas K. Briody

Law Office of Doug Briody

Evansville, Indiana

ATTORNEY FOR APPELLEE

Erin Bauer

Barber & Bauer, LLP

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joseph H. Harrison, Jr.,

Appellant-Petitioner,

v.

Terry Royal Harrison,

Appellee-Respondent.

November 30, 2017

Court of Appeals Case No.

82A01-1611-DR-2699

Appeal from the Vanderburgh 

Superior Court

The Honorable Robert R. 

Aylsworth, Special Judge

Trial Court Cause No.

82D06-1510-DR-1282

Pyle, Judge.

Statement of the Case

[1] In this interlocutory appeal in a dissolution action, Joseph Harrison, Jr.,

(“Husband”) appeals the trial court’s order determining that Terry Royal 
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Harrison’s (“Wife”) interests in discretionary irrevocable family trusts were too 

speculative and remote to be included in the marital pot. Concluding that the 

trial court did not abuse its discretion, we affirm its judgment.

[2] We affirm.

Issue

Whether the trial court abused its discretion when it excluded 

Wife’s interests in discretionary irrevocable family trusts from the 

marital pot. 

Facts

[3] Husband and Wife were married in January 1985. During the course of the 

marriage, Wife’s father, Charles R. Royal, Jr., (“Royal”) established the 

following six irrevocable trusts:

1) The Royal Family Irrevocable Investment Trust, effective 

November 2003;

2) The Royal Irrevocable Insurance Trust, effective May 

2005;

3) The Royal Irrevocable Insurance Trust II, effective 

November 2005;

4) The Charles R. Royal, Jr., 2012 Trust Agreement, effective 

November 2012;

5) The 2013 Royal Family Irrevocable Trust, effective 

November 2013;

6) The 2014 Royal Family Irrevocable Trust, effective August 

2014.
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(collectively, “Royal Family Trusts”). 

[4] The provisions of the Royal Family Trusts are nearly identical.1 Specifically, 

Wife and her four sisters are co-trustees (individually, “Co-trustee”) 

(collectively, “Co-trustees”) of the trusts. They and their children are the trusts’

beneficiaries. Pursuant to the provisions of the Royal Family Trusts, the Cotrustees may only make distributions of income or principal with a majority 

vote. Further, the Royal Family Trusts specifically state that the Co-trustees are 

not required to make any distribution. According to the trusts, “no beneficiary 

has an entitlement of any sort to receive any distribution . . . . Distributions are 

within the sole discretion of the Co-[t]rustees.” (App. Vol. 2 at 24, 46, 68, 87, 

105, 127). Additionally, if a majority of the Co-trustees choose to make a 

distribution to one of the beneficiaries, all of the beneficiaries must receive an 

equal distribution. In 2013, 2014, and 2015, the Co-trustees each took a 

$50,000 distribution. 

[5] Further, upon the death of both of the Co-trustees’ parents, the Co-trustees are 

to apportion and divide the trust property and set aside equal shares to the 

living Co-trustees. Co-trustees are then to determine by majority vote within 

sixty days whether to distribute the shares in full to each Co-trustee or her 

descendants. If the determination is made not to distribute the shares, they are

 

1 The 2012 Trust Agreement contains a marital trust provision for the benefit of Wife’s mother that is not 

present in the other Royal Family Trusts.
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to be held in trust. If a Co-trustee dies before her parents, the remaining Cotrustees are to set aside her share for her collective descendants. The trust sets 

forth specific instructions for distributing it to descendants of the Co-trustees. 

[6] In October 2015, Husband filed a petition for dissolution of marriage. In June 

2016, he filed a petition for a determination that Wife’s interests in the Royal 

Family Trusts constituted marital assets. In July 2016, Wife filed a counterpetition for dissolution of marriage. She also filed a response to Husband’s 

determination petition, wherein she argued that the trusts should not be 

considered as part of the marital estate because they were subject to 

discretionary distributions by the trustees. According to Wife, the trusts were 

“too remote” to be considered marital assets and Wife did not presently possess

a pecuniary value of which the Court might dispose. (App. Vol 3. at 4).

[7] At the September 2016 hearing on the petitions, Wife argued that she had no 

present interest in the Royal Family Trusts and had no control over 

distributions from the Trusts. Shortly after a hearing, the trial court issued the 

following order denying Husband’s petition:

1) Upon review of the matters submitted to the court, 

including the Royal Family Trust documents themselves, 

the court believes that the [W]ife’s position in this matter is 

correct as a matter of law in that the [W]ife’s proportional 

interest in these discretionary trusts is in fact in the nature 

of an expectancy, embodies no enforceable rights accruing 

to her during the parties’ marriage, and she has anticipated 
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but indefinite opportunities for the future acquisition of 

assets of income from the Royal Family trusts.

2) As such, the court believes the [W]ife’s interest in the 

Royal Family trusts to be too remote and speculative for 

the inclusion of any trust assets as marital property and 

insertions into the marital pot for division by the court in 

this proceeding.

It is therefore ordered by the court that the [H]usband’s 

request for inclusion as marital property in this proceeding 

of any property held by the co-trustees in the Royal Family 

trusts must be and is hereby denied. The court shall not 

deal with nor include any of the Royal Family trust 

property as marital property and shall not attempt to nor 

apportion any of that property between the parties to this 

proceeding.

(App. Vol. 2 at 10). 

[8] Husband filed a motion to certify the order for interlocutory appeal. The trial 

court certified the order, and Husband sought this Court’s permission to appeal. 

We granted the request and accepted Husband’s interlocutory appeal.

Decision

[9] Husband’s sole argument is that the trial court abused its discretion when it 

excluded Wife’s interests in the Royal Family Trusts from the marital pot. The 

division of marital assets, including a determination as to whether an asset is a 

marital asset, is within the trial court’s discretion. Antonacopulos v. 

Antonacopulos, 753 N.E.2d 759, 760 (Ind. Ct. App. 2001). This Court will 
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reverse the determination of a trial court only if that discretion is abused. Id. 

We have previously explained that an abuse of discretion occurs when the trial 

court’s decision is clearly against the logic and effect of the facts and 

circumstances before the court. Id. We will not reweigh the evidence or judge 

the credibility of witnesses, and we consider only the evidence most favorable to 

the decision of the trial court. Id. Further, the party challenging the trial court’s 

property division must overcome a strong presumption that the court complied 

with the statutory guidelines. Id. This presumption is one of the strongest 

presumptions on appeal. Id.

[10] It is well-settled that in a dissolution action, 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 the final 

separation of the parties, or acquired by their joint efforts. INDIANA CODE § 31-

15-7-4(a); Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014). 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 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 
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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. Wilson v. 

Wilson, 409 N.E.2d 1169, 1173 (Ind. Ct. App. 1980).

[11] Despite this broad definition of property for the purposes of the dissolution 

statutes, some property interests are still considered too remote to be assets 

capable of division. Fiste v. Fiste, 627 N.E.2d 1368, 1372 (Ind. Ct. App. 1994), 

disapproved of on other grounds by Moyars v. Moyars, 717 N.E.2d 976, 979 n.2 (Ind. 

Ct. App. 1999). For example, in Loeb v. Loeb, 261 Ind. 193, 301 N.E.2d 349 

(1973), a case of first impression, the Indiana Supreme Court considered 

whether the husband’s vested remainder subject to a condition subsequent in a 

trust created by his mother should have been included in the marital estate. In 

holding that it should not have been included, the supreme court noted that the 

central question was whether the husband’s future interest was so remote that it 

should not have been included in the marital pot. Id. at 353. Noting that the 

husband’s interest was subject to a complete defeasance because if he 

predeceased his mother, he would take nothing under the trust, the Indiana 

Supreme Court held that the husband was “not presently possessed of any 

pecuniary value which could have been before the court for disposition.” Id. 

Accordingly, the supreme court affirmed the trial court’s exclusion of the 

husband’s remote interest in the trust from the marital pot. Id. See also Fiste, 627 

N.E.2d at 1371-72 (holding that where husband’s grandfather had devised real 

estate first to his wife for life, then to their daughter (husband’s mother) for life, 
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and then to her child or children in fee, husband’s remainder interest in the real 

estate was too remote to be considered marital property, as it was subject to a 

complete defeasance if he predeceased his mother).

[12] Here, as in Loeb and Fiste, Wife’s interests in the Royal Family Trusts are 

subject to a complete defeasance because if she should predecease her parents, 

she would take nothing from the trusts. In addition, during her lifetime, Wife 

will receive nothing unless a majority of the co-trustees elect to make a 

disbursement. The Royal Family Trusts do not require them to do so. As in 

Loeb and Fiste, Wife’s interests in the Royal Family Trusts are too remote. Wife 

is “not presently possessed of any pecuniary value which could have been 

before the court for disposition.” See Loeb, 301 N.E.2d at 353. 2 Accordingly, 

 

2 We disagree with Husband’s argument that Loeb is no longer good law because it was overruled by 

INDIANA CODE § 31-1-11.5-2, which was enacted in 1985 and defines marital property as “all the assets of 

either party or both parties.” As Wife points out, this Court recognized this statutory change in Fiste, 627 

N.E.2d at 1372. After acknowledging the change, we applied Loeb to the facts of the case before us and 

determined that Roger Fiste’s remainder interest in real estate was too remote to constitute marital property. 

Id. This Court also discussed and analyzed Loeb in Falatovics, 15 N.E.3d at 110-11 and in England v. England, 

865 N.E.2d 644, 649 (Ind. Ct. App. 2007), trans. denied. Loeb is still good law.

We further note that Husband’s reliance on Moyars, 717 N.E.2d at 976, is misplaced. There, during David 

Moyars (“David”) and Mechelle Moyar’s (“Mechelle”) marriage, David and his siblings inherited real estate 

as tenants in common subject to a life estate in David’s mother. Mechelle later filed for divorce. In valuing 

the marital estate, the trial court excluded David’s remainder interest in the inherited property. Mechelle 

appealed. We concluded as follows:

David’s interest is not too remote to be included in the property settlement award. David 

owns a remainder interest as a tenant in common with his two siblings, subject to a life 

estate in his mother. David’s interest became vested at his father’s death. Although 

David has no legal present possessory interest in the land, we note that he and Mechelle 

have in fact enjoyed the possession of a portion [of] the land for many years now. 

Further, unlike in Loeb v. Loeb, 261 Ind. 193, 301 N.E.2d 349 (1973), David’s interest in 

the real property does represent a present pecuniary interest; David could sell or mortgage 

his interest if he chose to. Remainder interests, like fee simple interests, are capable of 

valuation.... David’s interest in the property is a valuable asset. Thus, we hold that 

David’s vested remainder in the real estate was not too remote to be included in the 

property division.
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the trial court did not abuse its discretion by excluding Wife’s interests in the 

Royal Family Trusts from the marital pot.

Affirmed.

Barnes, J., and Brown, J., concur. 

 

Id. at 979. Here, however, Wife does not have possession of her interests in the Royal Family Trusts, and 

they do not represent a present pecuniary interest because she has nothing to sell. Further, her interests are 

not capable of valuation.

Lastly, we also disagree with Husband’s contention that Wife’s receipt of Royal Family Trust distributions in 

the past supports his argument that the trusts should be included in the marital pot. Instead, we find 

instructive the Supreme Court of Colorado’s determination that the “fact that some income has been 

distributed to the wife, at the sole discretion of the [co-]trustees, [does not] change the nature of the 

underlying trust.” In re Marriage of Jones, 812 P.2d 1152, 1156 (Colo. 1991). Wife is correct that her interests 

in the Royal Family Trusts “remain subject to the pure discretion of the Co-Trustees regardless of past 

distributions. Her receipt of distributions in previous years does not guarantee future distributions.” (Wife’s 

Br. 13).