Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 1 of 22 

### 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

.

A TTORNEY FOR A PPELLANT Andrea L. Ciobanu Ciobanu Law, P.C. Indianapolis, Indiana A TTORNEY FOR A PPELLEE Kelly A. Lonnberg Stoll Keenon Ogden, PLLC Evansville, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

In Re the Marriage of: Jeffrey E. Nelson , Appella nt /Cross

- Appellee

- Respondent ,

v.


### Julie A. Nelson , Appellee /Cross

- Appellant

- P

etitioner. July 6, 2020 Court of Appeals Ca se No. 19A

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- 264 2 Appeal from the Vanderburgh Superior Court The Honorable J. Zach Winsett, Special Judge Trial Court Cause No. 82D01

- 1 601

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- 32

Najam , Judge
.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 2 of 22 

### Statement of the Case

[1] Jeffrey Nelson (“Husband”) appeals the dissolution court ’ s final decree dissolving his marriage to Julie Nelson (“Wife”). Husband presents three issues for our review:

1

. Whether the dissolution court abused its discretion when it excluded his expert witness es ’ testimony

.
2. Whether the dissolution court abused its discretion when it divided the marital estate.

3. Whether the dissolution court erred when it did not award Husband a setoff against Wife ’ s share of the marital estate.

[2] Wife cross

- appeals and requests attorney ’ s fees.

[3] We affirm in part, reverse in par t, and remand with instructions. 

### Facts and Procedural History

[4] This is the sixth appeal in this contentious dissolution action between Husband and Wife , who were married for four years and have been litigating their dissolution for just as long

. In a prior appeal, where Husband appealed the court’s order finding him in contempt, this C ourt set out the relevant foundational facts and procedural history a s follows:
Husband and Wife married in Illinois on April 28, 2012. The day before their marriage, the parties executed a prenuptial agreement. On January 8, 2016, Wife filed a verified petition for dissolution of marriage as well as a motion for provisio nal order. Following a hearing, the trial court entered a provisional orderCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 3 of 22 that provided in relevant part that, during the pendency of the dissolution proceedings, Husband was to pay Wife ’ s monthly rent payments plus $2500 per month in spousal maintenance

. Husband w as also ordered to pay $20,000 in both current and prospective attorney ’ s fees to Wife ’ s counsel. Husband was granted temporary possession of the marital residence and was responsible for all debts and expenses associated therewith.

Thereafter , Wife file d various motions and petitions requesting the trial court to interpret the parties ’ prenuptial agreement and seeking other provisional relief, including additional attorney ’ s fees. Accordingly, the trial court has held multiple hearings and
en tered multi ple provisional orders. Husband appealed each of those orders, and different panels of this Court have issued memorandum decisions on the narrow issues presented therein. See Nelson v. Nelson , No. 18A

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- 248, 2018 WL 4403437 (Ind. Ct. App. Sept . 12, 2018) [(“ Nelson III ”)] ; Nelson v. Nelson , No. 18A

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- 794, 2018 WL 4003368 (Ind. Ct. App. Aug. 9, 2018) [(“ Nelson II ”)] ; Nelson v. Nelson , No. 82A01

- 1607

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- 1706, 2017 WL 765900 (Ind. Ct. App. Feb. 28, 2017) [(“ Nelson I ” )]

.

Nelson v. Nelson , No. 18A

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- 1577 , 201 9 WL 386414 , at *1 (Ind. Ct. App. Jan. 31, 2019) (“ Nelson I V ”)

.

[5] At the final evidentiary hearing on Wife’s dissolution petition , which occurred over the course of six days beginning in November 2018 and conclud ed on July 12, 2019, Wife testified and presented evidence, including expert testimony regarding the parties’ oil interests and the valuation thereof. Husband did not testify. And when Husband offered expert testimony regarding his oil interests, the trial court found that H usband’s witne ss did not qualify as an expert and excluded his testimony. On July 11, one day before the final day of the hearing,Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 4 of 22 Husband notified Wife that he intended to call two previously unidentified expert witness es , Terry White and Mr. Schmitt , 1 to testify at t he hearing on July
12. Due to the late notice, Wife objected to the witnesses’ testimony, and t he dissolution court excluded them

.

[6] In its final decree, the diss olution court stated in relevant part as follows:
6. Certain real and personal property was ac cumulated as a result of the marriage, which should be divided equitably by the court.

7. There exists a valid prenuptial agreement which contains “Schedule A” and “Schedule [ B ] ” which outlines the property o f the pa rties at the time of ma rr iage

. The pr enuptial agreement is attached t o this order (Husband’s Exhibit A o f 1/ 1 6/2019).

8. The following prope rt y is non

- marital in nature, and shall be awarded t o the Husband, f r ee and clear from any claim from the Wife:

a. Ea ch and every item o f property lis ted in Schedule A of the prenuptial agreement; b. Any property owned individually by Husband prior t o the date o f ma rriage pursuant t o the prenuptial agreement.

9. The following property is non

- marital in nature, and sha ll be awarded t o the Wife, free a nd clear from any claim from the Husband:

1 The record does not reveal Mr. Schmitt’s first name.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 5 of 22 a. Any property owned individually by [Wife] prior t o the date o f marriage pursuant t o the prenuptial agreement.

10. The following property is marital prope r ty, and subject to di vision:

a. Real Estate and Resid ence located at 1000 Oak Trace, Eva n sville, Indiana;
b. Real Estate located at 1220 Hillsdale Rd., Evansville, Indiana;

c. Certain f urn iture/personal property items;

d. Personal Vehicles o f the parties obtained during the marriage;

e. Certain Oil inter ests; f. First Federal Bank Accts ending 9197, 3687.
g. Regions Bank Accts ending 2644, 9459, 2792.

11

. A ll other property not specifically listed in this order is non

marital property.

12. The co ur t initiall y p r esumes that an equal division of ma rit al p r operty between the pa r ties is just and r easonabl e , and the p r enuptial ag r eement r equi r es an equal divis io n of ma r ital p r operty between the pa r ties.

13. The Wife s hall be the sole, exclusive owner o f the real estate and residence located at 1000 Oak Trace, Evansville, Indiana, free and clear from any claim from the Husband. This property is valued by the court at $370,000.00.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 6 of 22 14. The Husba n d shall be the sole, exclusive owner o f the real estate located at 1 220 Hillsdale Rd, Evansville, Indiana, sub ject to c ertain amounts that the Husband owes to the Wife and others. This prope rt y is valued by the court at $247,000.00.

15. The court orders that the Husband sha l l be the sole and exclusive owne r o f First Federal and Regions Bank accounts as referenc ed below, f r ee and clear from any claim from the Wife. The following joint bank accounts were in existence at the t im e of the filing of the dissolution, and the Court designates the following values to e ach account: a. Regions Bank Acct. No. ending 2644 $ 3,236.94 b. First Federal Bank Acct. No. ending 9197 $26,800.18 c. Regions Bank Acct. No. ending 3687 $200.0 1

d. First Federal Bank Acct. No

. ending 9459 $19,803.36
e. Regions Bank Acct. No. ending 2792 $83.93
f. TOTAL BANK ACCOUNTS $50,124.42

1 6. T he Wife is awarded, and therefore credited for purposes o f asset allocation, $2000

. 00 from the bank accounts listed in the preceding paragraph

. She withdrew $2000.00 from these accounts at or ne ar the time o f filing of the petition for dissolution. The H usband is awarded, and therefore credited for purposes o f asset allocation, $48,124.42 from these bank accounts, which represents the remainder of the bank account values after deducting the Wife ’s $2000.00 withdraw [ a l ]

. 17. The Husband shall have sole, e xclusive possession and ownership of the “M orr is Lease” oil lease. The Wife shall haveCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 7 of 22 no rights, ownership, or responsibilities associated with the “Morris Lease”. The Wife shall not be responsible for any fines, fees, or any other costs associated with the “Morris Lease”.

18. The Husband shall have the sol e , exclusive possession and ownership o f the following items [of] personal property free and clear from any claim from the Wife, and the co ur t assigns the personal property the following values:

a. 200 7 Mercedes CL 550 $45 , 200 b. 2007 Mercedes CLK550 $10,000
c. 2014 Ford 250 Super Duty $54,594 d. Kubota Tractor $30,228 e. Wright Motor Car $20,509 f. Horchow Loveseats $8,898

* * *

x . Total Personal Property HUSBAND $205 , 369.00

19. The Wife shal l have the sole exclusive possession and ownership of the following items of pe r sonal p r operty, f ree and clea r from any claim f r om the Husband, and the court assigns the pe r sonal p r ope r ty the following values:

* * *
c. Leather Sofas, Old Hick ory Tanner (at 700 Reserve) $4,000.00

* * *

h. All other personal property remaining in the Home $18,263.00

i. Total Persona l Property WIFE $54,588.00Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 8 of 22 * * *

21. The Husband Shall be the sole owner of the following oil related assets, free and clear from any claim from the Wife, and the cou rt considers these assets marital property, and assigns the following values to each:

a. Armstrong Spore $129.00 b. A r mstrong Unit $233.00
c. B r aselton

- Armstrong Unit $28.00 d. Creamer Tract 10 $3,555.00
e. Darrell O Ga rre t t Lease $4 0.00 f. Carl V Hardiman $1.00 g. Elmer T hompson Lease $28.00 h. FH Ackerman#1 Lease $1,072 .00 i. Flora Clark Unit $5.00 j. JH Spore $40.00 k. Knowles Unit $123.00 l. Leo W. Dyball Lease $23.00
m. Luther Armstrong Lease $13.00
n. MA Knowles Lease $155.00
o. Mae Mauck Lease $18.00 p. Marvel Braselton Unit $53.00 q. Morris Lease $0.00
r. Moser

- Spore Unit $20.00
s. North Owensville Pooled Leases $ 721.00 t. Robb Unit $979.00
u. Rosa Braselton Heris $1,3 63.00
v. Rosa G Braselton $20.00
w. Sharon Bolinn Stoltz e t a l Lease $49.00
x. Wagner Consolidated $83, 555.00 y. William Marvel $692.00
z. Total Oil Related Assets allocated t o HUSBAND $92,915.00

* * *Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 9 of 22 27. Except as otherwise specifically stated in this order, each respective party shall be solely responsible fo r his or her own attorney’s fees.
Appellant’s App. Vol. 3 at 4

- 9. This appeal ensued.


### Discussion and Decision

Issue One: Expert Witness es

[7] Husband first contends that the dissolution court ab used its discretion when it excluded two expert witness es from t estifying at the final hearing. Again, Husband first notified Wife of his intent to present testimony from White and Schmitt the day before the final day of the hearing. Wife objected to the experts’ testimony because Husband had a duty under Trial Rule 26(E)(1)(b) to supplement his response to an interrogatory asking Husband to identify “each expert ” witness he expected to cal l. Appellee’s App. Vol. 2 at 8. Wife a sked that the dissolution court exercise its discretion under Tria l Rule 37 to exclude Whi te’s and Schmitt’s testimony as a sanction for the late notice to Wife , which the court did

.

[8] A s our Supreme Court has stated,

Tria l Rule 37 provides broad latitude for the trial court to impose sanctions to ensure cooperative discovery, and thus encompasse s remedies which may be sought by or imposed against either party. See Ind. Trial Rule 37 (“Failure to make or cooperate in discov ery: Sanctions”). Trial Rule 37(B) permits the trial court to “make such orders

. . . as are just,” including “treating as a contempt of court the failure to obey,” “prohibiting [the disobedient party] from introducing designated matters intoCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 10 of 22 evidence,” “ dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party” whe n that party “fails to obey an order to provide or permit discovery.” T.R. 37(B).
Wright v. Miller , 989 N.E.2d 324, 327 (Ind. 2013). When challenged on appeal, trial court sanctions for failure to comply with court orders are reviewed for an abuse of dis cretion. Id. at 330. We presume that the trial court will act in accord with what is fair and equitable in each case, and thu s we will only reverse if the trial court ’ s decision is clearly against the logic and effect of the facts and circumstances befor e the court, or if the trial court has misinterpreted the law. Id. The conduct and equities will vary with each case, and we thus generally leave that determination to the sound discretion of the trial courts. Id.

[9] On appeal, Husband asserts that “he cou ld not have recognized his need for rebuttal expert witnesses until [Wife’s expert] Mr. Pope testified during the June 25, 2019 hearing and it became known to Husband that Mr. Pope’s calculations were clearly wrong ” and that it was “unreasonably difficult for Husband to retain an expert witness” during “the short timeframe of seventeen days between the June 25, 2019 hearing . . . and the July 12, 2019 hearing[.]” Appellant’s Br. at 36. And Husband maintains that the late notice “did not place any harm on Wife.” Id. In his offer of proof to the dissolution court, Husband argued that White would have testified that Wife’s expert testimony regarding the valuation of the parties’ oil interests was “inaccurate in a way that harmed [Husband ]” in “overvalu[ing] any asset that was deemed a maritalCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 11 of 22 asset [.]” Tr. Vol. 4 at 70. And Husband argued that Schmitt would testify regarding Husb and’s income and the sources thereof.

[10] Again, Husband did not testify at the final hearing. That he did not anticipate needing to call his own witnesses to testify regarding his oil interests and his income until after Pope testified on June 25 is baffling

. W hile Husband may have had difficulty finding another expert witness between June 25 and July 11, Husband’s suggestion that he had no idea prior to June 25 of a need to rebut Wife’s expert witness is not well taken. Moreover, as we stated in Nelson IV ,

“ our review of the record reveals that Husband has repeatedly interrupted, obstructed, embarrassed, and prevented the due admini stration of justice in these dissolution proceedings .” 2019 WL 386414 , at *4. In light of Husband’s conduct, we cannot say that the dissolution court abused its discretion when it excluded White’s and Schmitt’s testimony at the final hearing

.


### Issue Two: Division of Marital Estate

[11] Husband next contends that the dissolution court abused its d iscretion when it divided the marital estate. Dissolution actions invoke the inherent equitable and discretionary authority of our trial courts, and, as such, we revi ew their decisions with “substantial deference.” See, e.g. , R.W. v. M.D. (In re Visitati on of
L

- A.D.W.) , 38 N.E.3d 993, 998 (Ind. 2015). Further,
[w] hen reviewing valuation decisions of trial courts in dissolution actions, [our] standard of review [is as follows] : that the trial court has broad discretion in ascertaining the value of proper ty in a dissolution action, and its valuation will not be disturbed absent an abuse of that discretion. Cleary v. Cleary , 582 N.E.2d 851, 852Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 12 of 22 (Ind. Ct. App. 1991). T he trial court does not abuse its discretion if there is sufficient evidence and reasonab le inferences therefrom to support the result. Id. In other words, we will not reverse the trial court unless the decision is clearly against the logic and effect of the facts and circumstances before it. Porter v. Porter , 526 N.E.2d 219, 222 (Ind. Ct. App. 1988), trans. denied . A reviewing court will not weigh evidence, but will consider the evidence in a light most favorable to the judgment. Skinner v. Skinner , 6 44 N.E.2d 141, 143 (Ind. Ct. App. 1994)

.
Quillen v. Quillen , 671 N.E.2d 98, 102 (Ind. 199 6)

.

[12] Initially, again, we note that Husband did not testify at the dissolution hearing , and, in support of his arguments on appeal, he largely relies on evidence introd uced by Wife

. Further, o ur consideration of Husband’s contentions on appeal is hindered by his failure to direct us to the relevant portions of the transcript demonstrating that he made certain arguments to the dissolution court to preserve issues for app eal. Despite these defic iencies , we address Husband ’s five separate challenges to the dissolution court’s division of the marital estate.


### No Findings and Conclusions

[13] Husband first contends that the dissolution court erred when it did not make findings and conclusions in support o f the final decree pursuant to an Illinois

statute . Husband acknowledges that neither party requested findings and conclusions. However, Husband asserts that, because the parties agreed that Illinois law would govern their prenup tial agreement, the disso lution court wasCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 13 of 22 required to make certain findings and conclusions under Illinois law. We cannot agree.

[14] As Wife correctly points out , while Illinois law governs the substantive law in these proceedings, Indiana law governs procedu ral issues. See JKL Comp onents Corp. v. Insul

- Reps, Inc. , 596 N.E.2d 945, 950 (Ind. Ct. App. 1992) ( stating that a contract provision that an agreement is to be governed by the law of another state operates only to import the substantive law of that state ; the procedural law of t he forum state applies to procedural issues ) , trans. denied

. Whether a trial court is required to enter findings and conclusions in a dissolution decree is a matter of procedure, not substance. See id. (“ Laws which fix duties, es tablish rights and responsibilities among and for persons, natural or otherwise, are substantive in character, while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are procedural ”)

. And, in Indiana, dissolution courts are not required to sua sponte enter findings and conclusions in a dissolution proceeding. As such,
Husband’s contention on this issue is without merit.


### Personal Property Other Than Oil Leases

[15] Husband next contend s that the dissolut ion court abused its discretion when it included certain personal property in the marital estate and assigned values to that property. In particular, Husband asserts that : two vehicles included in the marital estate were not owned by h im at the time Wife filed the dissolution petition , namely, a Mercedes CL550 and a Ford truck , and they should have been considered nonmarital property ; the dissolution court’s assigned values toCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 14 of 22 those two vehicles were not supported by the evidence; a Kub ota tractor include d in the marital estate was not marital property; and the Horchow loveseats awarded to Husband are duplicative of the leather sofas awarded to Wife.

[16] First, as to Husband’s argument that the two vehicles were not marital property, Husband ’s daughter testified at the hearing that, while the two vehicles were in her name at the time the dissolution petition was filed, she later sold the vehicles and gave the proceeds to Husband. Thus, as Wife points out, th e dissolution court was entitled t o consider the transfer of those vehicles to Husband’s daughter to be a sham transfer. Moreover , the dissolution court was entitled to find Husband’s daughter’s testimony on the ownership of the vehicles not credible. An d Wife presented evidence to suppo rt the court’s valuation of the vehicles.

[17] Second, Wife presented evidence that the Kubota tractor was a marital asset, and Husband does not direct us to any evidence in the record to dispute that evidence. To the extent H usband relies on Wife’s attorney’s summary of his deposition testimony, that is not evidence.

[18] Third, Husband does not direct us to any evidence to show that the “ Horchow
loveseats ” awarded to Husband are the same as the “Leather Sofas” awarded to Wife. In sum, Husband asks that we reweigh the evidence, which we cannot do. Husband’s contentions on these items of personal property are without merit.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 15 of 22 

### Real Property

[19] Husband contends that the dissolution court erred when it valued the parties’ real properties l ocated at 1000 Oak Trace and 1220 Hills dale . But Husband ignores the evidence that those properties were worth $370,000 and $247,000, respectively. In particular, Commissioner Charles Berger’ s report to the court dated July 29, 2019, states that 1000 Oak Trace was appraised at $370,000. And Berger testified to the dissolution court that the parties had received an offer to purchase 1220 Hillsdale for $247,000. Again, Husband asks that we reweigh the evidence, which we can not do.



### Bank Accounts

[20] Husband contends that the dissolution court abused its discretion when it included several bank accounts in the marital estate that should have been excluded as the parties’ separate property under the prenuptial agreement. However, Wife’s Exhibit 1, whic h the trial court admitted without objection from Husband , largely supports the dissolution court’s distribution and valuation of the parties’ joint bank accounts . As Wife points out, the court’s order is supported by the evidence but for a few scrivener’ s errors: the account identified as Regions Bank a ccount 3687 and valued at $200.01 is actually a First Federal Savings Bank account with that same account number and value;
and the account identified as First Federal Savings Bank account 9459 and valued at $19,803.36 is actually a Regions Bank acc ount with the same account number and value

.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 16 of 22 [21] Wife also points out that the dissolution court “mistakenly referred to Regions
Account #0234 as Account #2644 .” Appellee’s Br. at 22. Wife presented evidence that Regions Bank account number 0234 had a valu e of $3,236.94 and belonged to Husband and his daughter. In the final decree, the dissolution court identified Regions Bank account number 2644 as a joint account worth $3,236.94. Wife avers that, while Regions Bank account number 2644 was her individual account and, thus, non

- marital property , Regions Bank account number 0234 “is a joint account and must be viewed as marital.” Id. But the undisputed evidence presented to the dissolution court shows that Regions Bank account number 0234 was not a joint account. Accordingly, Husband is
correct that the dissolution court erred when it included Regions Bank account number 0234 in the marital estate. We remand to the dissolution court to correct the errors listed above, which will require a recalculation o f the marital

estate to exclude from the marital pot and the distributions to Husband the $3,236.94 in the Regions Bank account num ber 0234 and a recalculation of the fifty

- fifty division of the estate between the parties.



### Oil Lease s
[22] Husband contends that the dissolution court abused its discretion when it identified as marital assets certain oil leases. In particular, Husband mainta ins
that the oil leases identified in paragraph 21 of the decree as marital assets and awarded to Husband should have been ex cluded from the marital estate under the prenuptial agreement. We cannot agree.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 17 of 22 [23] First, with respect to the Morris Lease, which the court valued at $0 and awarded to Husband, Husband directs us to evidence that he had gifted the Morris Lease to Wife in 201 4. And Husband asserts that, under the prenuptial agreement, gifts should be treated as nonmarital property. However, a s Husband points out, in Nelson I , he asked this Court to interpret Section 3 of the prenuptial agreement regarding inter

- spousal gifts

. We observed that
Section 3 of the Agreement

. . . states that “any property .

. . which is given to the spouse by retitling in the other spouse’s name or in the joint name of the parties .

. . during the period of their marriage” is marital property. A ppellant’s App. at 56. Accordingly, we find that, under the express terms of the Agreement, gifts may be made from on e spouse to the other during marriage, and such gifts may be, but are not necessarily , the separate property of the recipient spouse.

Nelso n I , 2017 WL 765900 , at *8 (emphasis added)

. We cannot say that the
dissolution court abused its discretion when it found that the Morris Lease was a marital asset. Further, to the extent Husband contends that the court abused its discretion when it awar ded the Morris Lease to Husband rather than to Wife , Husband does no t support that contention with cogent argument.

[24] S econd, Husband contends that the dissolution court abused its discretion when
it identified the Wagner Consolidated Lease as a marital asse t because in 2013 it “was transferred by a Quit Claim Deed . . . to the Nelson Family Trust , ” of which Husband’s mother was the beneficiary

. Appellant’s Br. at 33. However, Husband ignores Wife’s expert’s testimony that the quit claim deed only
transferr ed some or all of the mineral interests in the Wagner Cons olidatedCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 18 of 22 Lease but did not transfer ownership of the lease itself. And Wife’s expert examined production records showing income to Husband from the Wagner Consolidated Lease throughout the marriage , past the date of the quit claim mineral deed.

[25] Finally, w ith respect to the other oil leases identified in paragraph 21 of the decree as marital assets, Husband does not direct us to any argument to the dissolution court or evidence in support thereof tha t those oil leases were not marital assets. 2 Husband can not now complain. See, e.g. , Zavodnik v. Harper , 17 N.E.3d 259, 264 (Ind. 2014) (holding party waived claim for failing “ to show any effort to present his request to the trial court in the first ins tance as the Appellate Rules require. ”) Further, Wife ’s expert identified the oil leases as marital assets and presented evidence of their respective values . Neither Schedule A of the parties’ prenuptial agreement, which lists several oil leases to be ex cluded from the marital estate, nor Husband’s subsequent discovery
responses indicate that any of the oil leases identified in paragraph 21 as marital assets were, in fact, non

- marital assets. Indeed, in his offer of proof when the dissolution court exclu ded White’s testimony at the conclusion of the hearing, Husband stated that White would have presented evidence that conflicted with Wife’s expert’s valuations of the oil leases, but he did not dispute that the listed

2 Husband cites to Wife’s Exhibit 8, which includes “payment histories” relevant to the listed oil leases

. Husband asserts “that the payments to Husband clearly predated the parties’ marriage” in 2012. Appellant’s Br. at 31. But Husband did not argue to the dissolution court that the payment histories prove that the oil leases identified in paragraph 21 of the decree are non - marital a ssets , and , in any event, Husband does not explain on appeal how the payment histories are definitive proof on this issue

.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 19 of 22 oil leases were marital property. For all of these reasons, H usband has failed to show that the dissolution court erred when it identified these oil leases as marital assets

. 

### Issue Three: Setoff

[26] Finally, Husband contends that the dissolution court abused its discretion when it denied him a setoff against Wife’s sh are of the marital estate. Hu sband maintains that, pursuant to the parties’ prenuptial agreement, he is entitled to a setoff for paying off the mortgage on the home owned by Wife when they got married, as well as various expenses h e paid on Wife’s behalf during the pendency of the dissolution. However, while Husband submitted his Exhibit O to the dissolution court, which his attorney described as “a summary exhibit of items that [he] is requesting setoff for,” Husband does not dire ct us to any argument to the dissolution court in support of the requested setoff. Tr. Vol. 4
at 73

- 74.

[27] Without any indication that Husband argued to the dissolution court the

reasons why he is entitled to the setoff as claimed in his Exhibit O, we cannot say that the court abus ed its discretion when it denied Husband a setoff

. See,

e.g. , Z avodnik , 17 N.E. 3d at 264

. As Husband points out, both the dissolution court and this Court in a prior appeal acknowledged Husband’s right to “ argue for a setoff” at t he final hearing. Appellant’s Br. at 39 (citing Nelson III , 2018
WL 4403437 , at *3 ) (emphasis added)

. But withou t any indication that Husband made such an argument to the dissolution court, Husband has not shown an abuse of discretion

.Court of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 20 of 22 

### Cross

- Appeal

[28] In he r cross - appeal, Wife requests that we order Husband to pay “the entirety of Wife’s attorneys’ fees.” Appellee’s B r. at 46. In support, Wife cites the following provision in the parties’ prenuptial agreement: “ Attorney Fees. Should either party retain c ounsel to enforce or prevent the breach of any provision of this Agreement, that party shall be entitled to reason able attorney fees and costs for services rendered if such party prevails. ” Appellant’s App. Vol. 3 at 17. Wife maintains that Husband’s dil atory tactics throughout these proceedings caused her to incur attorney’s fees that would have been less had “Husb and complied with the parties’ Prenuptial Agreement and court orders[.]” Appellee’s Br. at 45. Wife asserts that, because she has only “soug ht the enforcement and application of the Prenuptial Agreement” during these proceedings, and because the court ul timately enforced the prenuptial agreement when it divided the marital estate equally, she is the “prevailing party” in this litigation and en titled to attorney’s fees. Id. at 46.

[29] However, Wife does not cite any case law in support of her broad assertion that she is the “prevailing party” under the terms of the prenuptial agreement to support an award of all of her attorney’s fees. And under I llinois law, “[w] hen a dispute involves multiple claims, and both parties have won and lost on different claims, it is appropriate to find that neither party is the prevailing party and that an award of attorney fees to either would be inappropriate. ” Lin ta v.
Linta ( In re Linta ) , 18 N.E.3d 566 , 571 ( I ll. App. Ct. 2014 ). Here, Wife ignores
the fact that Hus band prevailed or partially prevailed in three of his priorCourt of Appeals of Indiana | Memorandum Decision 19A

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- 264 2 | July 6, 2020 Page 21 of 22 appeals. Thus, Wife’s contention that she is entitled to have Husband pay all of
her attor ney’s fees, without even an attempt to break out those sums expended in the course of the appeals where H usband prevailed is not well taken. Wife has not shown that she is entitled to “the entirety” of her attorney’s fees over the course of this litigatio n. Appellee’s Br. at 46. Moreover , Wife makes no contention that the dissolution court abused its discr etion when it order ed that, with a few exceptions delineated in the decree , “each respective party shall be solely responsible for his or her own attor ney’s fees.” Appellant’s App. Vol. 3
at 9.



### Conclusion

[30] Husband has not satisfied his burden on appeal to show that the dissolution court abused its discretion when it excluded his expert witness testimon y . And, other than one bank account erroneously incl uded in the marital estate, Husband has not shown that the dissolution court abused its discret ion when it divided the marital estate . Husband has waived his contention that the dissolution court abused its discretion when it denied his request for a seto ff against Wife’s share of the marital estate.

[31] As Wife points out, the dissolution decree contains some scrivener’s errors and erroneously includes a small non - marital bank account . We remand and instruct the court to correct the subheadings in paragraph 15 of the dissolution
decree to read as follows:
a. First Federal Bank Acct. No. ending 91 97 $26,800.18 b

. First Federal Bank Acct. No. ending 3687 $200.0 0Court of Appeals of Indiana | Memorandum Decision 19A

- DR

- 264 2 | July 6, 2020 Page 22 of 22 c

. Regions Bank Acct. No

. ending 9459 $19,803.36 d . Regions Bank Acct. No. ending 2792 $83.93
e

. TOTAL BANK ACCOUNTS $ 46,887.47
Accordingly, the dissolution court shall recalculate the ma rital estate to exclude
the $3,236.94 in Regions Bank account number 0234, which was erroneously included as Regions Bank account number 2644 and is not a marital ass et. And the court shall redistribute the marital assets to achieve the desired equal divi sion.

[32] Affirmed in part, reversed in part, and remanded with instructions

.

Kirsch, J., and Brown, J., concur

.