Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017 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

Renee M. Ortega

Merrillville, Indiana

ATTORNEY FOR APPELLEE

David P. Matsey

Valparaiso, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael Kelley,

Appellant-Defendant,

v.

Wendy Kelley,

Appellee-Plaintiff

March 7, 2017

Court of Appeals Case No.

45A04-1607-DR-1705

Appeal from the Lake Circuit 

Court

The Honorable George C. Paras, 

Judge

Trial Court Cause No.

45C01-1407-DR-672

Altice, Judge.

Case Summary
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[1] Michael Kelley (Husband) appeals from the dissolution court’s order dissolving 

his marriage to Wendy Kelley (Wife). On appeal, Husband argues that the 

dissolution court abused its discretion in dividing the marital estate.

[2] We affirm.

Facts & Procedural History

[3] On May 30, 2008—prior to the marriage—Wife received a distribution from 

her grandfather’s estate in the amount of $305,865.26. Wife used the money to 

purchase what would become the marital home. Although Husband did not 

contribute financially toward the purchase of the home and Husband and Wife 

were not yet married at the time of the purchase, both Wife’s and Husband’s 

names were included on the deed. Thereafter, on September 29, 2008, 

Husband and Wife were married. The parties subsequently had one child, a 

daughter who was born in August 2009. 

[4] Aside from the marital home, neither party brought any assets of substantial 

value into the marriage, nor did the parties accumulate anything of value 

thereafter. During the marriage, the parties took out a home equity line of 

credit, which was used for home improvements and other living expenses. At 

the time of final separation, the loan had a balance of $19,639.28. 

[5] On July 28, 2014, Wife filed a petition for dissolution of marriage. An agreed 

provisional order was approved on January 6, 2015, pursuant to which Wife 

was awarded sole physical and legal custody of the parties’ child and Husband 
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was awarded parenting time and ordered to pay child support in the amount of 

$51 per week. Husband was also ordered to return Wife’s jewelry in his 

possession. Husband, however, failed to pay child support and he did not 

return Wife’s jewelry as agreed, later testifying that he had thrown the jewelry 

into a lake instead. 

[6] At the final hearing on March 14, 2016, the parties submitted a partial 

settlement agreement resolving issues of child custody, parenting time, and 

child support.1 The agreement also provided that the parties were awarded any 

financial accounts in their individual names and any vehicles in their possession 

and that each party was to be responsible for any debt related to their respective 

vehicles and any other debts held in their individual names. Further, the parties 

were to divide their personal property “according to agreements between them” 

and any items not agreed upon were to be submitted at the final hearing. 

Appellant’s Appendix at 17. Thus, the only significant issues remaining for the 

dissolution court to resolve with respect to property division were the 

distribution of the marital home and the allocation of the debt owed on the 

home equity line of credit. At the conclusion of the hearing, the dissolution 

court took the matter under advisement. 

 

1 They copy of the settlement agreement included in the Appellant’s Appendix is incomplete. Specifically, 

the page reflecting the parties’ agreement with respect to custody and parenting time is missing. It is 

apparent, however, that these issues were resolved by agreement. 
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[7] The dissolution court entered its final decree on June 27, 2016, in which it 

concluded that an unequal distribution of the marital estate was just and 

reasonable under the circumstances of this case. The dissolution court awarded 

the marital home to Wife and also allocated liability for the debt owed on the 

home equity line of credit to Wife. Father now appeals. Additional facts will 

be provided as necessary.

Discussion & Decision

[8] On appeal, Husband argues that the dissolution court abused its discretion in 

awarding the only marital asset of any significant value—the marital home—

solely to Wife. As an initial matter, we note that the dissolution court in this 

case entered special findings of fact and conclusions thereon pursuant to Ind. 

Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we 

determine whether the evidence supports the findings and, second, whether the 

findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 

N.E.2d 213, 216 (Ind. 2012). We view the evidence in the light most favorable 

to the judgment and defer to the court’s findings if they are supported by the 

evidence or any legitimate inferences flowing therefrom. Id. at 216-17. Legal 

conclusions, on the other hand, are reviewed de novo. Id. at 217. 

[9] The disposition of marital assets is within the dissolution court’s sound 

discretion, and we will reverse only for an abuse of that discretion. Eye v. Eye, 

849 N.E.2d 698, 701 (Ind. Ct. App. 2006). In so doing, we consider only the 

evidence most favorable to the dissolution court’s decision, without reweighing 
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the evidence or assessing the credibility of witnesses. Id. A dissolution court 

abuses its discretion if its decision is clearly against the logic and effect of the 

facts and circumstances before the court, or if it has misinterpreted the law or 

disregards evidence of factors listed in the controlling statute. Id.

[10] Pursuant to Ind. Code § 31-15-7-5, the dissolution court is required to divide the 

marital estate in a just and reasonable manner. An equal division is presumed 

just and reasonable, but a party may rebut this presumption by presenting 

evidence that an equitable division would not be just and reasonable, including 

evidence concerning the following factors:

(1) The contribution of each spouse to the acquisition of the 

property, regardless of whether the contribution was income 

producing.

(2) The extent to which the property was acquired by each 

spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the 

disposition of the property is to become effective, including the 

desirability of awarding the family residence or the right to dwell 

in the family residence for such periods as the court considers just 

to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to 

the disposition or dissipation of their property.
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(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.

Id. A party challenging the dissolution court’s division of marital property must 

overcome a strong presumption that the dissolution court “‘considered and 

complied with the applicable statute, and that presumption is one of the 

strongest presumptions applicable to our consideration on appeal.’” McCord v. 

McCord, 852 N.E.2d 35, 43 (Ind. Ct. App. 2006) (quoting DeSalle v. Gentry, 818 

N.E.2d 40, 44 (Ind. Ct. App. 2004)), trans. denied. Accordingly, we will reverse 

a property distribution only if there is no rational basis for the award, and 

although the circumstances may have justified a different property distribution, 

we may not substitute our judgment for that of the dissolution court. Augspurger

v. Hudson, 802 N.E.2d 503, 512 (Ind. Ct. App. 2004).

[11] The dissolution court in this case made several findings relevant to the factors 

set forth in I.C. § 31-15-7-5. Specifically, the court found that Wife had 

received the funds used to purchase the marital residence prior to the marriage 

through gift or inheritance from her family, and that Husband had brought 

nothing of economic value into the marriage. The court further found that the 

value of the marital home was $312,500 and that the balance owed on the home 

equity line of credit was $19,639.28 at the time of final separation. The court 

further found that Husband had relocated to Florida, where he was working at 
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Hilton Resorts and making nine dollars per hour, or approximately $18,700 per 

year.2 Wife was working full-time for her father’s business and earning 

approximately $38,000 per year. The court also found that although Husband 

had been employed since the final separation, he had made no child support 

payments and no contributions toward the payment of property taxes, the home 

equity loan, or maintenance of the marital home.3 In considering the impact of 

these facts on the division of property, the court made the following findings:

17. Wife’s contribution of effectually of all of [sic] the marital 

assets rebuts an equal division of property. Wife is responsible 

for the contribution of virtually all of the marital property. The 

only marital asset of any value is the Marital Home. It is 

undisputed that the exclusive source of this property was the 

funds provided to the Parties by Wife’s family. The extent that 

the marital property was acquired by Wife through gift from her 

family rebuts an equal division of property. Husband brought 

nothing of material value into the marriage and, in fact, without 

the gift of funds from Wife’s family to acquire the Marital Home, 

the Parties would not have been able to purchase such a home. 

This was not a long term marriage nor was it a marriage where 

the Parties, through joint or individual efforts, accumulated any 

assets during the marriage.

 

2 We note that Husband testified he made an hourly wage plus commission, and that with commission, he 

could make as much as $2,000 per week.

3 Husband seems to take issue with the dissolution court’s finding that he made no payments toward marital 

debts and obligations during the dissolution proceedings. Specifically, he notes that the provisional order did 

not require him to make such payments. It should be noted, however, that the provisional order did not 

allocate responsibility for these debts and obligations to Wife, either. Rather, the provisional order simply 

did not address the issue.
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18. The economic circumstances of the Parties at the time of 

dissolution also rebut an equal division of the marital estate. An 

equal division would give Husband approximately $150,000, 

presumably in liquid assets, and no debt, and Wife the 

uncertainty of relocating and finding new shelter for herself and 

the Parties’ daughter and the payment of the debt of $19,639.28.

19. The conduct of the Parties during the marriage also rebuts an 

equal division of property. Husband took and failed to return 

Wife’s jewelry. Husband has not maintained regular and reliable 

employment while this case was pending and failed to materially 

contribute to marital debts and obligations during the provisional 

period in this case.

20. Each Party’s earnings and earnings ability do not mitigate 

against and support an unequal division of property. Husband 

had employment provided through Wife’s Father until he was 

fired. He has had short term non-career employment until the 

present, where he claims he now has career opportunities with 

Hilton Resorts. Wife, in the meantime, was employed part-time 

with her father until the dissolution was filed and now works full 

time at her Father’s business.

21. It will not be just and reasonable for Husband to be awarded 

50% or any substantial portion of the marital assets when he 

brought nothing of financial value into the marriage, when 

virtually all of the marital assets resulted from a generous gift 

from Wife’s family, when Husband contributed nothing of 

economic value to the marriage while married, and when Wife 

had to bear the full brunt of financially supporting herself and the 

parties’ minor daughter while this matter was pending.

Appellant’s Appendix at 30-31. 
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[12] Husband does not appear to dispute any of the dissolution court’s factual 

findings, but instead argues that the facts do not support the court’s decision to 

award the marital residence solely to Wife. In support of his argument, he 

relies solely on Swinney v. Swinney, 419 N.E.2d 996 (Ind. Ct. App. 1981), trans. 

denied. That case, however, is readily distinguishable from this one.

[13] In Swinney, this court held that the dissolution court abused its discretion by 

awarding 97% of the marital estate to the wife where the bulk of the property at 

issue was acquired during the marriage and by way of gifts made by the wife’s 

father to the husband and wife jointly. Id. at 997. Because the property was 

given to the husband and wife jointly, they were on the same footing with 

respect to the acquisition of property by way of gift or inheritance. Id. at 998. 

This is unlike the situation presented here, where Wife alone acquired the funds 

used to purchase the marital home before the marriage. Husband and Wife 

certainly do not stand in parity when it comes to the acquisition of property 

either before the marriage or through gift or inheritance. 

[14] Swinney is distinguishable in a number of other ways as well. Perhaps most 

notably, in Swinney, this court noted that it appeared that the dissolution court 

“did not consider the family residence, which was primarily the result of gifts 

from wife’s father, to be a part of the ‘marital pot.’” Id. at 999. This is clearly 

not the case here, where the dissolution court expressly indicated that the home 

was a marital asset. Moreover, the marital estate in Swinney included several 

assets—two cars, a savings account valued at $1,010, a checking account valued 

at $60, household goods valued at $2,000, and the marital home valued at 
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$40,000. Id. at 997.4 Nevertheless, the dissolution court awarded the husband 

only one vehicle valued at $1,300 and a few items having only sentimental 

value. Id. In other words, it would have been feasible for the dissolution court

in Swinney to fashion a somewhat more equitable award without forcing a sale 

of the marital home the wife was sharing with the parties’ children. In this case, 

however, the marital home is the only asset of any significant value, and in 

order for it to be divided equally, a sale would be necessary, and the parties’ 

child would lose the only home she had ever known. Additionally, unlike the 

husband in Swinney, Husband dissipated marital assets by disposing of Wife’s 

jewelry. 

[15] For all of these reasons, we do not find Swinney controlling. The dissolution 

court’s findings are supported by the evidence, and the findings support the 

judgment with respect to the division of property. We find no abuse of 

discretion in the dissolution court’s distribution of the marital estate.

[16] Judgment affirmed. 

[17] Riley, J. and Crone, J., concur.

 

4 We note that the electronic version of Swinney appearing on Westlaw omits this list of assets. The list can 

be found in the version of the opinion appearing in the bound volume of the North Eastern Reporter.