Court of Appeals of Indiana | Memorandum Decision 19A-DR-2642 | 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.

ATTORNEY FOR APPELLANT

Andrea L. Ciobanu

Ciobanu Law, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Kelly A. Lonnberg

Stoll Keenon Ogden, PLLC

Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In Re the Marriage of:

Jeffrey E. Nelson,

Appellant/Cross-Appellee-Respondent,

v.

Julie A. Nelson,

Appellee/Cross-Appellant-Petitioner.

July 6, 2020

Court of Appeals Case No.

19A-DR-2642

Appeal from the Vanderburgh 

Superior Court

The Honorable J. Zach Winsett, 

Special Judge

Trial Court Cause No.

82D01-1601-DR-32

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2642 | 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 witnesses’ 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 part, 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 Court set out the relevant 

foundational facts and procedural history as 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 provisional order. 

Following a hearing, the trial court entered a provisional order 
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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 was 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 filed 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 

entered multiple 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-DR-248, 2018 WL 4403437 (Ind. 

Ct. App. Sept. 12, 2018) [(“Nelson III”)]; Nelson v. Nelson, No. 

18A-DR-794, 2018 WL 4003368 (Ind. Ct. App. Aug. 9, 2018)

[(“Nelson II”)]; Nelson v. Nelson, No. 82A01-1607-DR-1706, 2017 

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

Nelson v. Nelson, No. 18A-DR-1577, 2019 WL 386414, at *1 (Ind. Ct. App. Jan. 

31, 2019) (“Nelson IV”).

[5] At the final evidentiary hearing on Wife’s dissolution petition, which occurred 

over the course of six days beginning in November 2018 and concluded 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 Husband’s witness did not qualify as an expert and 

excluded his testimony. On July 11, one day before the final day of the hearing, 
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Husband notified Wife that he intended to call two previously unidentified 

expert witnesses, Terry White and Mr. Schmitt,

1 to testify at the hearing on July 

12. Due to the late notice, Wife objected to the witnesses’ testimony, and the 

dissolution court excluded them.

[6] In its final decree, the dissolution court stated in relevant part as follows:

6. Certain real and personal property was accumulated 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 of 

the parties at the time of marriage. The prenuptial agreement is 

attached to this order (Husband’s Exhibit A of 1/16/2019).

8. The following property is non-marital in nature, and shall be 

awarded to the Husband, free and clear from any claim from the 

Wife:

a. Each and every item of property listed in Schedule

A of the prenuptial agreement;

b. Any property owned individually by Husband 

prior to the date of marriage pursuant to the 

prenuptial agreement.

9. The following property is non-marital in nature, and shall be 

awarded to the Wife, free and 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-DR-2642 | July 6, 2020 Page 5 of 22

a. Any property owned individually by [Wife] prior 

to the date of marriage pursuant to the prenuptial 

agreement.

10. The following property is marital property, and subject to 

division:

a. Real Estate and Residence located at 1000 Oak 

Trace, Evansville, Indiana;

b. Real Estate located at 1220 Hillsdale Rd., 

Evansville, Indiana;

c. Certain furniture/personal property items;

d. Personal Vehicles of the parties obtained during 

the marriage;

e. Certain Oil interests;

f. First Federal Bank Accts ending 9197, 3687.

g. Regions Bank Accts ending 2644, 9459, 2792.

11. All other property not specifically listed in this order is nonmarital property.

12. The court initially presumes that an equal division of marital

property between the parties is just and reasonable, and the 

prenuptial agreement requires an equal division of marital 

property between the parties.

13. The Wife shall be the sole, exclusive owner of 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.
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14. The Husband shall be the sole, exclusive owner of the real 

estate located at 1220 Hillsdale Rd, Evansville, Indiana, subject 

to certain amounts that the Husband owes to the Wife and 

others. This property is valued by the court at $247,000.00.

15. The court orders that the Husband shall be the sole and 

exclusive owner of First Federal and Regions Bank accounts as 

referenced below, free and clear from any claim from the Wife. 

The following joint bank accounts were in existence at the time 

of the filing of the dissolution, and the Court designates the 

following values to each 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 $200.01

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

16. The Wife is awarded, and therefore credited for purposes of 

asset allocation, $2000.00 from the bank accounts listed in the 

preceding paragraph. She withdrew $2000.00 from these 

accounts at or near the time of filing of the petition for

dissolution. The Husband is awarded, and therefore credited for 

purposes of 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[al].

17. The Husband shall have sole, exclusive possession and 

ownership of the “Morris Lease” oil lease. The Wife shall have 
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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 sole, exclusive possession and 

ownership of the following items [of] personal property free and 

clear from any claim from the Wife, and the court assigns the 

personal property the following values:

a. 2007 Mercedes CL550 $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 shall have the sole exclusive possession and 

ownership of the following items of personal property, free and 

clear from any claim from the Husband, and the court assigns the 

personal property the following values:

* * *

c. Leather Sofas, Old Hickory Tanner (at 700

Reserve) $4,000.00

* * *

h. All other personal property remaining in the Home

$18,263.00

i. Total Personal Property WIFE $54,588.00
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* * *

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 court considers these assets marital property, and assigns the 

following values to each:

a. Armstrong Spore $129.00

b. Armstrong Unit $233.00

c. Braselton-Armstrong Unit $28.00

d. Creamer Tract 10 $3,555.00

e. Darrell O Garrett Lease $40.00

f. Carl V Hardiman $1.00

g. Elmer Thompson 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 $1,363.00

v. Rosa G Braselton $20.00

w. Sharon Bolinn Stoltz et al Lease $49.00

x. Wagner Consolidated $83,555.00

y. William Marvel $692.00

z. Total Oil Related Assets allocated to HUSBAND

$92,915.00

* * *
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27. Except as otherwise specifically stated in this order, each 

respective party shall be solely responsible for his or her own 

attorney’s fees.

Appellant’s App. Vol. 3 at 4-9. This appeal ensued.

Discussion and Decision

Issue One: Expert Witnesses

[7] Husband first contends that the dissolution court abused its discretion when it 

excluded two expert witnesses from testifying 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 call. Appellee’s App. Vol. 2 at 8. Wife asked 

that the dissolution court exercise its discretion under Trial Rule 37 to exclude 

White’s and Schmitt’s testimony as a sanction for the late notice to Wife, which 

the court did.

[8] As our Supreme Court has stated,

Trial Rule 37 provides broad latitude for the trial court to impose 

sanctions to ensure cooperative discovery, and thus encompasses 

remedies which may be sought by or imposed against either 

party. See Ind. Trial Rule 37 (“Failure to make or cooperate in 

discovery: 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 into 
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evidence,” “dismissing the action or proceeding or any part 

thereof, or rendering a judgment by default against the 

disobedient party” when 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 discretion. Id. at 330. We presume that the trial court will act in 

accord with what is fair and equitable in each case, and thus we will only 

reverse if the trial court’s decision is clearly against the logic and effect of the 

facts and circumstances before 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 could 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 marital 
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asset[.]” Tr. Vol. 4 at 70. And Husband argued that Schmitt would testify 

regarding Husband’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. While 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 administration 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 discretion when it 

divided the marital estate. Dissolution actions invoke the inherent equitable 

and discretionary authority of our trial courts, and, as such, we review their 

decisions with “substantial deference.” See, e.g., R.W. v. M.D. (In re Visitation 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 property 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, 852 
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(Ind. Ct. App. 1991). The trial court does not abuse its discretion 

if there is sufficient evidence and reasonable 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, 644 

N.E.2d 141, 143 (Ind. Ct. App. 1994).

Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996).

[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 

introduced by Wife. Further, our 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 appeal. Despite these deficiencies, 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 of 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 prenuptial agreement, the dissolution court was 
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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 procedural issues. See JKL Components 

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 the 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, establish 

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 contends that the dissolution 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 him 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 to 
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those two vehicles were not supported by the evidence; a Kubota tractor

included 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, the 

dissolution court was entitled to 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. And Wife presented evidence to support 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 Husband 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.
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Real Property

[19] Husband contends that the dissolution court erred when it valued the parties’ 

real properties located at 1000 Oak Trace and 1220 Hillsdale. 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 cannot 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, which 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 account 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 account with the same account 

number and value. 
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[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 value 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 of the marital 

estate to exclude from the marital pot and the distributions to Husband the 

$3,236.94 in the Regions Bank account number 0234 and a recalculation of the 

fifty-fifty division of the estate between the parties.

Oil Leases

[22] Husband contends that the dissolution court abused its discretion when it 

identified as marital assets certain oil leases. In particular, Husband maintains 

that the oil leases identified in paragraph 21 of the decree as marital assets and 

awarded to Husband should have been excluded from the marital estate under 

the prenuptial agreement. We cannot agree.
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[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 2014. And Husband asserts that, under the prenuptial 

agreement, gifts should be treated as nonmarital property. However, as 

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. Appellant’s App. at 56. 

Accordingly, we find that, under the express terms of the 

Agreement, gifts may be made from one spouse to the other 

during marriage, and such gifts may be, but are not necessarily, the 

separate property of the recipient spouse.

Nelson 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 awarded the Morris Lease to Husband rather than to 

Wife, Husband does not support that contention with cogent argument.

[24] Second, Husband contends that the dissolution court abused its discretion when 

it identified the Wagner Consolidated Lease as a marital asset 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 

transferred some or all of the mineral interests in the Wagner Consolidated 
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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, with 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 that those oil leases were not 

marital assets.2

 Husband cannot 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 instance 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 excluded 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 excluded 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 assets, and, in any event, Husband does not 

explain on appeal how the payment histories are definitive proof on this issue.
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oil leases were marital property. For all of these reasons, Husband 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 share of the marital estate. Husband 

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 he 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 direct 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 abused its discretion when it denied Husband a setoff. See, 

e.g., Zavodnik, 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 the final hearing. Appellant’s Br. at 39 (citing Nelson III, 2018 

WL 4403437, at *3) (emphasis added). But without any indication that 

Husband made such an argument to the dissolution court, Husband has not 

shown an abuse of discretion.
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Cross-Appeal

[28] In her cross-appeal, Wife requests that we order Husband to pay “the entirety of 

Wife’s attorneys’ fees.” Appellee’s Br. at 46. In support, Wife cites the 

following provision in the parties’ prenuptial agreement: “Attorney Fees. 

Should either party retain counsel to enforce or prevent the breach of any 

provision of this Agreement, that party shall be entitled to reasonable attorney 

fees and costs for services rendered if such party prevails.” Appellant’s App. 

Vol. 3 at 17. Wife maintains that Husband’s dilatory tactics throughout these 

proceedings caused her to incur attorney’s fees that would have been less had 

“Husband complied with the parties’ Prenuptial Agreement and court orders[.]” 

Appellee’s Br. at 45. Wife asserts that, because she has only “sought the 

enforcement and application of the Prenuptial Agreement” during these 

proceedings, and because the court ultimately enforced the prenuptial 

agreement when it divided the marital estate equally, she is the “prevailing 

party” in this litigation and entitled 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 Illinois 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.” Linta v. 

Linta (In re Linta), 18 N.E.3d 566, 571 (Ill. App. Ct. 2014). Here, Wife ignores 

the fact that Husband prevailed or partially prevailed in three of his prior 
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2642 | July 6, 2020 Page 21 of 22

appeals. Thus, Wife’s contention that she is entitled to have Husband pay all of 

her attorney’s fees, without even an attempt to break out those sums expended 

in the course of the appeals where Husband 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 litigation. Appellee’s Br. at 46. Moreover, Wife makes no 

contention that the dissolution court abused its discretion when it ordered that, 

with a few exceptions delineated in the decree, “each respective party shall be 

solely responsible for his or her own attorney’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 testimony. And, 

other than one bank account erroneously included in the marital estate, 

Husband has not shown that the dissolution court abused its discretion 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 setoff 

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 9197 $26,800.18 

b. First Federal Bank Acct. No. ending 3687 $200.00
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2642 | 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 marital 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 asset. And 

the court shall redistribute the marital assets to achieve the desired equal 

division.

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

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