Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 1 of 31



### 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 Richard Ranucci Carmel , Indiana A TTORNEY FOR A PPELLEE Katherine J. Noel Noel Law Kokomo , Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Vance Voorhis , Appellant

- Respondent

,

v.


### Danielle Voorhis , Appellee

- P etitioner

. October 22, 2019 Court of Appeals Ca se No. 1 8A

- DR

- 1778 Appeal from the Tipton Circuit Court The Honorable Thomas R. Lett , Judge Trial Court Cause No. 80C01

- 1508

- DR

- 263



### Friedlander, Senior Judge
.

[1] In this dissolution action, the trial court issued its findings of fac t, conclusions thereon , and decree of dissolution that dissolved the parties’ marriage, valued the parties’ assets, and divided the ma rital estate. To effect an equal distribution of the parties’ marital assets , the trial court entered a judgment inCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 2 of 31

the amount of $15,167.50 against Vance Voorhis (“ Husba nd ”) and in favor of Danielle Voorhis (“Wife”) . The court also directed Husband to pay $10,000.00
of Wife’s attorney fees as well as outstanding valuation expenses that Wife owed to the company that she hired to perform business valuation services. Husba nd appeals , presenting three issues for our review , which we consolidate
and restate as follows :

1. W hether the trial court abused its discretion when valuing the p roperty of the marriage and then distributing it ; and 2 . Whether the trial court improperl y ordered Husband to pay Wife’s attorney fees and outstanding valuation expenses.

We affirm in part, reverse in part, and remand with instructions

.

[2] The facts of this case are as follows. Husband and Wife were married on July 27, 1991. Wife filed a petition for dissolution on July 2, 2015. At the time Wife sought dissolution of the marriage, t he parties h ad no children under nineteen years old. Wife was employed as an elementary school teacher , and Husband was self

- e mployed

.

[3] During the marriage, t he parties jointly owned a home , located in Tipton County, Indiana ( “ marital home ” ) , that had an attached lot. T he parties owned several vehicles , including a 2011 Chevrolet HHR. The pa r ties also owned a Kubota mower that was used to mow the ground s at the marital home

.

[4] During the course of the marriage , the parties also owned three businesses : D&V Housing, LLC ( “ D&V ” ); B.E.S. Enterprises, Inc. ( “ BES ” ); andCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 3 of 31

Tomorrow Transport (“TT”)

. D&V is a real estate holding company , owned by both Husband and Wife , that held four different real estate properties . The properties were located on College Street in Windfall, Indiana; East Street in Tipton, Indiana; Washington Street in Tipton, Indiana; and Dea rborn Street in Tipton, Indiana. BES , owned solely by Husband, is a company that provides concession stand services for sporting events. T T was created as a holding company for the vehicles used by BES, which included two Ford Transits, a GMC Cargo Van, a fork truck, and two Isuzu vehicles. All t he businesses were run by Husband , and Wife did not participate in the day

- to

- day operations of the businesses. The marital estate also included insurance proceeds for fire damage to the property located on East Street, as well as additional personal property, retirement assets, and bank account funds.

[5] O n December 18, 2017, and then continuing on May 22, 2018 , t he trial court conducted a final hearing where the parties presented competing evidence regarding the valuation of the marital assets

. Wife’s experts were Brian Minor from Blue & Co., LLC, and Steven Taylor, a real estate appraiser. Husband’s experts were Douglas Speer, an appraiser, and Penny Lutocka, a certified public accountant with Houlihan Valuation Advisors. W ith respect to the values assigned to the mar i tal assets, t he trial court largely accepted the valuations, methodolog ies, and conclusions of Wife’s experts.

[6] On July 22, 2018, the trial court entered a final dissolution decree, accompanied by extensive f

indings of f

act and c onclusions thereon , dissolving the parties’ marriage , ordering an equal distribution of the parties’ assets, and detailing theCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 4 of 31

distribution of the marital proper ty

. To achieve an equal distribution, the trial

court entered a $15,167.50 judgment against Husband . The trial court also require d him to “be responsible for $10,000.00” of Wife’s attorney fees and the outstanding balance that Wife owed to Blue & C o. , the company that she hired

to perform the valuations of Husband’s businesses. Appellant’s App. Vol. 2 , p. 18. The trial court’s findings , conclusions thereon , and decree provide in relevant part as follow s:
10. Just prior to the filing of the dissolution, the rental home located at 116 Dearborn St., Tipton, was destroyed by fire [sic]

. [ 1 ] Husband received insurance proceeds in the sum of $29,250.00. He kept said sum and did not divide it with Wife.

. . . 14. Wife had business valuations performed to appraise the value of Husband ’ s three business entities, BES, Tomorrow Transport, and D&V Housing. Mr. Brad Minor of Blue & Company presented and testified to his valuations in great detail. Mr. Minor concluded the value of BES was $243,000.00, Tomorrow Transport was $34,000.00, and D&V Housing was $81,000.00. Mr. Minor ’ s testimony was credible and un biased. The Blue & Co. report was substantially delayed due to [Husband’s] failure to cooperate in turning over documentation. 15. Husband had a valuation of BES and Tomorrow Transport conducted by Houlihan Valuation Advisors. The valuation presented by Husband concluded the value of both entities to be $209,207.00. This value is perplexing in that Tomorrow

1 The trial court’s findings, conclusions thereon, and dissolution decree mistakenly found that the Dearborn Street property was destroyed by fire prior to Wife filing the dissolution petition

. It was, how ever, the East Street property that was damaged by a fire that occurred after Wife filed her petition for dissolution. We have determined that these errors are immaterial.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 5 of 31

Transport alone owns six commercial vehicles, commercial real estate , and has provided a significant source of income to the marriage. The Court als o believes this valuation was based on inaccurate property values for the [College Street] building, as [Husband’s] appraisal was almost 1⁄2 that of the assessed value of the property and prior appraisals.

. . . 18. The Court finds there is a disparity in in come between Wife and Husband. While Husband testified he believes he makes less than Wife, the Court finds this suspicious. Husband is in controls [sic] of what salary, expenses, costs, and income the business provides. The parties have acquired substa ntial assets and little debt during the marriage. This was clearly not accomplished on a teacher ’ s salary alone. 19. The Court finds the parties [sic] assets and liabilities shall be divided pursuant to Exhibit [1 ]

. [ 2 ] Further, [W] ife shall receive a judgment against [H] usband in the sum of $$15,167.50 [sic] to effectuate an equal distribution of the martial [sic] estate. The Court declines to deviate from an equal distribution.

. . . 21. Due to the disparity in income, [Husband] shal l be responsible for $10,000.00 of [Wife’s] attorney fees. [Husband] shall also be responsible for [Wife ’s] outstanding balance to Blue & Co.

*****

DECREE OF DISSOLUTION

. . . 1. The marriage of the parties is hereby dissolved.

2 Exhibit 1 contains a table illustrating the distribution of the parties’ marital assets ( hereinafter, “marital balance sheet ”)

. While information from the marital balance sheet has been included in this opinion, the sheet itself has not been re produced and included herein

.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 6 of 31

2. Wife is awarded as her sole and separate property the following: all property (and its value therein) listed in the “ Wife ” Column in Exhibit 1, and the [marital home and the attached ] real estate

. . . , and her personal property now in her possession.

. . . 4. Husband is awarded as his sole and separate property the following: all property (and its value therein) listed in the

“ Husband ” Column in Exhibit 1, and the real estate located at

. .

. College [St .] , . . . East St.,

. . . Washington St.,

. . . and

. . . Dearborn S t.

. . . , and his personal property now in his possession. 5. Husband is awarded BES, Tomorrow Transport, and D&V Housing and all the assets and liabilities associated therewith, . . .

. Husband is awarded the [fire] insurance proceeds [for the damage to the East Street property] in the sum of $29,250.00. He is further awarded [the] . . . 2011 Chevy HHR, . . . [the] 1995 Kubota [mower] and attachments,

. . . household goods and furnishings in his possession, and the guns and ammunition.

Id. at 16

- 21.

[7] This appeal follow ed

. Additional facts will be provided as necessary.

[8] Husband contends that the trial court abused its discretion when it valued the property of the marriage , distribut ed it , and ord ered him to pay Wife’s attorney fees and outstanding valuation expenses

. The division of marital assets is within the trial court’s discretion, and we will reverse only for an abuse of that discretion. DeSalle v. Gentry , 818 N.E.2d 40 (Ind. Ct. App. 2004). The parties must overcome the presumption that the trial court considered and complied with the applicable law, and that presumption is one of the strongest presumptions pertinent to our consideration on appeal. Id. We may notCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 7 of 31

reweigh the evidence or judge t he credibility of the witnesses, and we consider only the evidence most favorable to the trial court’s disposition of the marital property. Id.

[9] According to the record before us, neither party filed a Trial Rule 52(A) written request with the trial court for special findings and conclusions ther e on

. I nstead , at some point during the final hearing, the parties asked to submit to the court proposed findings and conclusions , and a t the c lose of the final hearing , the trial court directed the parties to do so

. See Tr

. Vol. 2 , p. 227

. We therefore treat the trial court ’ s findings as sua sponte findings of fact. See P iles v.
Gosman , 851 N.E.2d 1009 , 1012 (Ind. Ct. App. 2006) ; see also Estudillo v.
Estudillo , 956 N.E.2d 1084, 1089 (Ind. Ct. App. 2011)

.

[10] Sua sponte findings control only as to the issues they cover, and a general judgment standard will control as to the issues upon which there are no findings. Yanoff v. Muncy , 688 N.E.2d 1259 (Ind. 1997). We will affirm a
gener al judgment entered with findings if it can be sustained on any legal theory supported by the evidence. Id. When a court has made special findings of fact, we review sufficiency of the evidence using a two

- step process. Id. First, we
must determine whe ther the evidence supports the trial court ’ s findings of fact. Id. Second, we must determine whether those findings of fact support the
trial court's conclusions of law. Id.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 8 of 31

[11] We “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A).
A decision is clearly erroneous if it is clea rly against the logic and effect of the facts and circumstances before the dissolution court, or if a review of the record leaves this court with a firm conviction that a mistake has been made. In making this determination, we will not weigh the evidence or make credibility determinations, and we will only consider the evidence favorable to the judgment and reasonable inferences drawn therefrom.

R.R.F. v. L.L.F. , 956 N.E.2d 1135, 1139 (Ind. Ct. App. 2011) ( internal citation omitted). “Findings are clearl y erroneous if there are no facts in the record to support them either directly or by inference, and a judgment is clearly erroneous if the wrong legal standard is applied to properly found facts.” Crider v.
Crider , 26 N.E.3d 1045, 1047 (Ind

. Ct. App. 201 5). “[W]e may look both to other findings and beyond the findings to the evidence of record to determine if the result is against the facts and circumstances before the court.” Stone v.
Stone , 991 N.E.2d 992, 998 (Ind. Ct. App. 2013), aff ’ d on reh ’ g, 4 N .E.3d 666

.

[12] On appeal, Husband specifically contends that the trial court abused its discretion by: including certain assets and debts in the mar i tal pot and excluding others , improperly valuing certain marital property , and awarding Wife attorney fees and outstanding valuation expenses

. Husband’s first two arguments are, essentially, a challenge to the trial court’s valuation and distribution of certain marital assets, and we will consolidate and address thoseCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 9 of 31

arguments as such. Thereafter, w e will address Husband’s argument regarding the award to Wife of fees and expenses.


## Husband’s Challenge to Trial Court’s Valuation and Distribution of Certain Mar i tal Assets

[13] Husband takes issue with the trial court’s valuation and distribution of the following marital assets: (1) D&V , specifically the East Street property held by the business and the fire insurance proceeds for the property ; (2) BES and T T ; ( 3 ) the lot adjoining the marital residence ; ( 4 ) the Chevrolet HHR ; ( 5 ) the
K u bota mower; ( 6 ) Husband’s household items; and ( 7 ) the parties’ jewelry

. “We review a trial court ’ s decision in ascertaining the value of property in a dissolution action for an abuse of discretion.” Ba licki v. Balicki , 837 N.E.2d 532, 536 (Ind. Ct. App. 2005), trans. denied

. Generally, there is no abuse of
discretion if a trial court ’ s chosen valuation is within the range of values supported by the evidence. Id. “A valuation submitted by one of the parties is competent evidence of the value of property in a dissolution action and may alone support the trial court ’ s determination in that regard.” Alexander v.
Alexander , 927 N.E.2d 926, 935 (Ind. Ct. App. 2010) (quot ation and citation
omitted ), tr

ans. denied

. In reviewing a trial court ’ s valuation of property in a dissolution, we will neither reweigh the evidence nor judge the credibility of witnesses. Bass v. Bass , 779 N.E.2d 582 (Ind. Ct. App. 2002), trans. denied

.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 10 of 31



### 1
. D&V

– East Street Property and Fire Insurance Proceeds

[14] D&V , which held four properties , was valued at $81,000.00. 3 O ne of the properties held by D&V was t he East Street property . The East Street property was a double that contained two residential rental units . On April 16, 2016, a fire damaged the property. On June 2, 2016, Husband received from the insurance company two checks, both in the amount of $14,625

— for a total payment of $29 ,250.00. H usband , however, refused to disclose the amount of the insurance proceeds to Wife’s expert at Blue & Co. , as Husband determined
that the expert did not need to know the amount o f the insurance proceeds to calculate the value of the property.

[15] Blue & Co. valued the East Street property at $60,000.00. To arrive at th is value, Blue & Co. listed a net book value for the property of $26,457.00 and added a $33,543.00 adjustment “based on [the] Douglas Speer report plus estimated insurance proceeds b ased on prior rent amount s .” Appellant’s App. Vol. 2, p. 60

. Thus, Blue & Co. utilized the income approach to value wh en it based the $60,000.00 value in part on the amount of rental income the property had produced in the past. Husband’s expert , Douglas Speer , assessed a value of

3 The $81,000.00 valuation for D&V was based on the trial court’s a cceptance of the following values for the four properties held by the business: East Street at $60,000.00; Washington Street at $38,000.00; Dearborn Street at $2,500.00; and College Street at $158,000.00. The marital balance sheet lists the four properties but d oes not assign individual values to the properties

. Instead, t he sheet lists the valu e assigned to D&V ($81,000.00) and show s that D&V was awarded to Husband

.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 11 of 31

$8,000.00 for the property , pre - fire , based upon the condition in which previous tenants had left the property

.

[16] Husband contends tha t the trial court erred by accepting Blue & Co.’s valuation of the East Street property because , according to Husband, the valuation failed

to account for the fact that “renters had about destroyed the inside [of the property,] and [the property] needed everything to be repaired” ; and the valuation “rested on the mistaken assumption that the East Street fi r e occurred
be fore Speer’s appraisal of East Street for $ 8,000.00.” Appellant’s Br. pp. 19, 29 (emphasis added)

. He argues that the trial court should have accepted the $8,000.00 value that Speer placed on the property because th at value was assessed p re - fire. Husband also argues that by overvaluing the East Street property, the trial court overvalued D&V. We disagree.

[17] The trial court heard testimony regarding both valuations for the property , including the impact of the fire and the tenants’ vandalism on the value of the property . For example, Wife’s expert from Blue & Co., Brian Minor, testified during cross

- examination as follow s regarding how he arrived at the $60,000.00
valuation and his opinion of Speer’s $8,000.00 valuation for the property :

A . . . [W] e utilized the appraisal but then we had to estimate the value of the real estate based on some prior rents. So, that property was receiving rents of about [$] 9500 a year. [Speer’s] appraisal valued the property at [$] 8,000, but the appraisal valued it a fter the property was destroyed by fire

. . . . Q Now, are you sure that the appraisal was done after the fire? A Yes.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 12 of 31

Q But if it ’ s not then that number’s incorrect? A Then the 8,000 would be accurate. Well, it wouldn ’ t make sense. I mean obviously a property that’s receiving rents of 9500 a year wouldn’t be worth $8,000. It would pay for itself in less than a year. That wouldn’t make any sense. . . . So, just common sense says that no, that appraisal would not be a ccurate. Common sense tells me that it was after the fire.

Tr. Vol. 2 , pp. 22

- 23 (emphasis added)

. Speer testified that the reason he valued the property at $8,000.00 , pre - fire, was because the property had been “destroyed inside” by the previous tenants , and the property needed extensive repair work. Id. at 92. He also testified , however, that if an individual “put about 50,000 [dollars ] in [the property], ” it might be worth between $70,000.00 and $75,000.00. Id.

[18] T he trial court he ard the testimony of both experts , including Minor’s mistaken belief that Speer’s appraisal was performed post

- fire, and determined that the East Street property was worth $60,000.00 and that D&V was worth $81,000.00 . The trial court’s determination is wi thin the scope of the evidence and therefore not an abuse of discretion.

[19] Husband further argues that the trial court “improperly double counted insurance proceeds for the fire [that occurred] at [the] East Street [property]

. ” Appellant’s Br. p. 9. According to Husband, the $60,000.00 valuation that the court accepted for the property accounted for the $29,250.00 in insurance proceeds. Thus , Husband claims that the trial court erred in “includ[ing] the fire insurance payments in the marital estate a second time, by counting them asCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 13 of 31

a separate asset ” attributable to Husband. Id. We agree and , t herefore, must
remand for the trial court to remove the $29,250.00 as an asset attributable to Husband as that amount was include d in arriving at the value placed on the
East Street p roperty

. 

### 2. BES and T T

[20] Husband next challenges the valuation s of BES and T T . His argument is two

fold . F irst , he argues that the trial court abused its discretion by failing to include in the marital estate , as a d ebt of the marriage , a $23,293. 26 debt owed

to BES . H e also argues that the trial court erred by assigning a value of $243,000.00 to BES and a separate value of $34,000.00 to T T

.


### A. Debt Owed to BES

[21] I n 2010, Husband and Wife refinanced their home to obtain a lower interest

rate on funds they borrowed to finance BES. As part of th e refinance, they were required to pay off the existing home mortgage in the amount of $52,000 .00 . Husband and Wife borrowe d the $52,000.00 from BES and paid off the mortgage

. As a result, Husband and Wife owed BES $52,000 .00

. Blue & Co. listed this $52,000 .00 debt o n the BES balance sheet as an asset and labeled it “ L oan s to s hareholders [

. ] ” Appellant’s App

. Vol. 2 , p. 43. When Blue & Co. determined the valuation of BES, it counted th e loan as an asset to BES.

[22] Between 2010, and the date of the dissolution filing, Husband withheld money from his paychecks to pay down this debt owed to BES. As of the date of theCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 14 of 31

dissolution filing, the BES b alance s heet showed a remaining debt of $23,293.26.

[23] Husband asserts that the trial court e rr ed by not including the $23,293 .00 (amount rounded to nearest whole number) as a debt on the marital balance sheet. According to Husband, since this debt was counted as an asset of BES, the debt increased the value of BES by $23,293 .00

. Husband argues that because the amount was not inclu ded as a marital debt , Husband receiv ed no credit for the debt , and the debt on BES ’s books is, essentially, dissolved. Husband claims that “[t] he net effect is for Wife to take a residence without mortgage, and Husband owes the equivalent to BES, but get s no credit for the debt, even though he was assigned the corresponding asset within BES. ” Appellant’s Br. p. 25. Husband contends that t his was an abuse of discretion
that requires remand so that the trial court can add the debt to the marital pot

an d divide the debt equally between the parties

. We disagree.

[24] Blue & Co. valued BES at $243,000.00, taking into account the $23,293.00 owed to BES and an additional $156, 353. 00 that Blue & Co. listed on BES’s balance sheet as “Loans from shareholders”

— an amo unt BES owes to the parties

. Appellant’s App. Vol. 2, p. 43 (emphasis added)

. Regarding the $156,353.00, Minor, with Blue & Co., testified that the amount was a “shareholder note[,] which is monies that were owed to [Husband.]” Tr. Vol. 2, p. 14. He fu rther testified that the amount was an account receivable owed to Husband from BES

. O n direct examination , Minor was asked , “ If [Husband] were to waive that claim or request that he not have those moniesCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 15 of 31

returned to him, would that number then need to be added into [BES ’s valuation ] ? ” Id. at 19. Minor answered , “Correct

. ” Id. When asked, “ [a] nd in fact, just to clarify, you ’ ve discounte d the value of the business due to that

account receivable[,]” Minor replied, “ I lowered the value by that

. . . exact number. ” Id.

[25] Returning to the $23,293.00 at issue, and applying Husband’s argument regarding the de b t , i f the trial court erred by f ailing to include the $23,293.00
owed to BES in the marital pot as a debt of the parties , then the trial court also erred in failing to include in the marital pot as an asset the $156, 353 .00 that BES

owes the parties. Husb and has not carried his argument thus far

.

[26] Both the debt and the asset values were taken into account in Blue & Co.’s determination of the value of BES. T he trial court accepted the valuation , included the val uation amount in the marital pot, and awarded BES to
Hus band. As the $23,293.00 debt was already account ed for in the valuation of
BES , t he trial court did not need to list the amount as a separate, line

- item

- debt on the marital balance sheet . No abuse of discretio n occurred here.



### B. Valuation of BES and T T

[27] Husband argues that the trial court abused its discretion by adopting Blue & Co.’s valuation s for BES at $243,000.00 and T T at $34,000.00. Blue & Co. used an income approach in reaching the valuation s

— evaluating income stream, capitalization rate, value of operations, excess working capital, and structured debt for both companies, and making adjustments for lack ofCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 16 of 31

marketability as well as for personal goodwill (the persona l relationships that Husband has develope d with his customers)

. Husband takes particular issue with the addition of excess working capital in the values of the two businesses. According to Husband :

I f Blue [ & Co.] had not added excess working capital to the values of BES and TT, the

. . . value s of these businesses would have been $71,888 less ($67,604 for BES plus $4,284 for TT). [Thus,] Blue’s

. . . valuations of BES and TT, together $277,000 ($243,000 + $34,000), without excess working capital increases for both ($277,000

- $71,888), would h ave been $205,112.
Appellant’s Br. p. 33. Husband also notes that his expert with Houlihan Valuation Advisors, Penny Lutocka, did not include excess working capital in her determination of the value of the businesses and calculated a combined
indicated value for BES and T T , together , at $206,300.00. 4

[28] Husband attempts to support his arguments by asserting that Blue & Co. used incorrect accounting ratio methodologies to calculate the excess working capital values and that this error led to an overvaluation of the businesses

. Husband maintains that there is no evidence in the record to support the use of the particular ratios Blue & Co. used to calculate excess working capital in its final determination of the valuations for the businesses. We dis agree.

4 We note that the trial court found Lutocka’s valuation “perplexing in that Tomorrow Transport alone owns six commercial vehicles, commercial real estate, and has provided a significant source of income to the marriage. ” Appellant’s App. Vol. 2 , p. 17.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 17 of 31

[29] T he trial court heard extensive testimony from both parties’ experts regarding the valuations for BES and T T , which included testimony r egarding excess working capital and ratios . The trial court ultimately adopted Wife’s valuations that were provided by Blue & Co. The court was well within its discretion to do so. See Balicki , 837 N.E.2d at 536 (g enerally, there is no abuse of discretion
if a trial court ’ s chosen valuation is within the range of values supported by the evidence )

. 

### 3. Lot Adjoining Marital Residence

[30] Husband also argues that the trial court abused its discretion by failing to include in the marital pot the value of the lot that adjoins the marital residence

. Wife’s expert, Steve n Taylor, apprais ed the marital residence and the adjacent lot as having a combined va lue of $300,000.00

. The trial court adopted th e appraised amount and awarded the marital residence and the lot to Wife

. Husband maintains that Taylor’s appraisal included the lot upon which the marital residence sat but did not include the value of the s eparate lot that was
located adjacent to that of the mar ital residence

. According to Husband, “[t]his
mistake in turn resulted in incorrect valuation of the entire marital estate and corrupted the intended equal division of the whole pot.” Appellant’s Br . p. 10. We find that t he evidence of record does not support Husband’s argument and that Husband’s argument is an invitation to reweigh the evidence , which we cannot do

. See DeSalle , 818 N.E.2d 40

.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 18 of 31

[31] Taylor testified on direct examination as follows regarding his appraisal of the

mar i tal residence and the adjacent lot:
Q And in fact did you go to the home site and inspect the home? A Yes, uh

- huh. Q And the land around the area? A Yes.

***** Q Okay. And the p roperty you appraised had some acreage with it as well; is that correct? A Correct. Q And what is, I ’ m sorry, your appraisal actually includes that acreage; is that accurate? A Yes, it ’ s -- yeah. Q And what value did you determine that the property located [in Tipton] was as of the day of your valuation? A It was 300,000. Q And that was for the house and the property attached thereto? A Yes, the land and the outbuilding and everything, yes.
Tr. Vol. 2, pp. 6

- 7 (emphasis added)

. Wife testified that she recalled that Taylor’s appraisal included the marital residence and the adjacent lot.
Husband , on the other hand, testified that Taylor’s appraisal did not include the
value of the lot in question , and Husband o ffered the testimony of his expert, Douglas Speer, who testified that the lot had a separate value of $20,000.00

.

[32] Husband ’s argument, essentially , is that the trial court should have believed his testimony, and that of his expert, over the testimony of W ife ’s expert. The trialCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 19 of 31

court, however, was not required to believe Husband’s testimony. “[I] t is the province of the trial court to determine which witnesses to believe when it hears the evidence.” In re Marriage of Julien , 397 N.E.2d 651, 654 (Ind. Ct . App. 1979)

. T he trial court determined that Taylor’s appraisal included the marital
residenc e and the adjacent lot and that the appraised value of the two properties totaled $300,000.00. We will not second

- guess the trial court and assume the role of factfinder. No error occurred here.



### 4. Chevrolet HHR

[33] Husband next argues that the trial court a bused its discretion by assigning a value to the parties’ 2011 Chevrolet HHR vehicle that, according to Husband, was not supported by the evidence

. The trial court has broad discretion in ascertaining the value of property in a dissolution action, and its valuation will only be disturbed where the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Trabucco v. Trabucco , 944 N.E.2d 544 (Ind. Ct. App. 2011). If the trial court ’ s chosen valuation is within the range of values supported by the evidence, we will affirm. Goossens v.
Goossens , 829 N.E.2d 36 (Ind. Ct. App. 2005).

[34] Wife originally placed zero dollars on the value of the HHR on her proposed assets and liabilities sheet, as the vehicle was driven exclusively by the parties ’ daughter. Wife wanted the vehicle to be given to their daughter and any value associated with the vehicle to be excluded from the divorce proceedings. At the final hearing , however, Husband testified that he was not “c omfortable” givingCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 20 of 31

the vehicle to his daughter and exclud ing the vehicle ’s value from the marital pot. Tr. Vol. 2, p. 126.

[35] Husband also testified that the HHR was worth $4,237 .00, based upon the Kelley Blue Book value of the vehicle

. 5 He admitted into evidence a copy of the valuation from Kelley Blue Book , listing the vehicle’s condition as “Good Condition” an d a value of $4,237.00. Respondent’s Ex. Q, Ex. Vol. 4, p. 15. Wife then testified that she had placed a value of $4,700.00 on the vehicle , a nd
that this was reflected on her revised assets and liabilities spreadsheet that was admitted into evidence

. Wife did not submit any documentation supporting her valuation of the vehicle. The trial court ultimately found the HHR to be an asset of the marriage, assigned a value of $4,700.00, and awarded the vehicle to
Husband.

[36] Husband maintains that the trial court erred by adopting Wife’s valuation for
the HHR , clai ming that “Wife offered no basis for her valuation [,]” whereas his
val uation was based upon the value listed in the Kelley Blue Book pricing report

. Appellant’s Br. p. 41. Husband’s argument, however, is a request for us to reweigh the evidence and judge witness credibility, which we cannot do. Crider , 15 N.E.3d 10 42

. It is well

- settled that a valuation submitted by one of the parties is competent evidence of the value of pr operty in a dissolution

5 The Kelley Blue Book has been used since 1926 as a resource used to find the value of a vehicle. See K ELLEY B LUE B OOK ® , h ttps:// www.kbb.com (last visited Sept

. 11, 2019 ).Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 21 of 31

proceeding and may alone support the trial court’s determinations in that regard. See, Alexander , 927 N.E.2d at 935

. Additionally, w e “ will not reverse a judgment on the basis of conflicting evidence [

. ] ” Ernst v. Ernst , 503 N.E.2d 619, 621 (Ind. Ct. App. 1987 ) (citation omitted)

. The trial court’s determina tion that the HHR was worth $4,700.00 was not clearly against t he logic and effect of the facts and circumstances before the court. We therefore find that t he trial court did not abuse its discretion by a dopting the value

.

[37] Husband also argues that the trial court abused its discretion by failing to include on the mar i tal balance sheet the $4,463.53 debt (remaining loan) associated with the HHR. We agree.

[38] It is well established that all marital property goes into the marital pot for division, including both the assets and the liabilities of the parties, whether it was owned by either spouse before the marriage, acquired by either spouse after the marriage and before final separation of the parties, or acquired by their joint efforts. Ind. Code § 31

- 15

- 7

- 4(a); Webb v. Schleutker , 891 N.E.2d 1144 (Ind. Ct. App. 2008 ) ; Capehart v. Capehart , 705 N.E.2d 533 (Ind. Ct. App. 1999), trans. denied

. This “one

- pot” theory ensures that all assets are subject to the trial

court ’ s power to divide and award. Thompson v. Thompson, 811 N.E.2d 888,
91 4 (Ind. Ct. App. 2004), trans. denied

. While the trial court may ultimately determine that a particular asset should be awarded solely to one spouse, it must first include the asset in its consideration of the marital estate to be divided. Id.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 22 of 31

[39] Here, the evidence establi shes that as of June 30, 2015, two days prior to the filing of the dissolution petition, the HHR carried a loan balance of $4,4 63.53. No evidence was presented that the debt was retired during the dissolution proceedings. Thus, the loan debt is a marital liability and it should have been considered by the trial court in fashioning an equitable division of the mar i tal property. Therefore, we remand with instructions to the trial court to include the debt associated with the HHR in the mar i tal pot and dete rmine how the debt should be allocated

.


### 5. K u bota Mower

[40] Husband next contends that the trial court abused its discretion by valuing the parties’ Kubota mower at $4,000.00 and assigning the mower to Husband

. According to Husband, “[t]his was error because the parties, by their respective attorneys, made a verbal, on

- the

- record stipulation that the Kubota would be assigned to Wife at a value of $3,500.” Appellant’s Br. p. 40.

[41] On the first day of the final hearing, Wife testified on direct examination as follows regarding her desire to keep the Kubota mower and how much she thought the mower was worth:
Q You want to keep that vehicle [sic]? A Yes. That mower, yes. Q That mower. And you ’ ve valued that at $3500? A Correct.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 23 of 31

Tr. Vol. 2, p. 3 4

. Husband’s attorney then stipulated to the assignment of the

mower to Wife, and Wife’s attorney agreed

.

[42] A pproximately five months later, however, a t the continuation of the final hearing, Wife presented testimony on direct examination indicating that she wanted the mower assigned to Husband and that the mower should be valued

at $4,000.00 because it had a snowblower attachment. The testimony was as follows:
Q Okay. And then we have also moved the Kubota tractor and attachments o ver to Husband ’ s column; is that correct? A Correct. Q Now, that Kubota mower is $3500 I believe a stipulated value, but it also has an attachment that wasn ’ t included at the last hearing; is that correct? A Correct. He also to ok the snowblower that went with it. Q And that has a value of $500 so you ’ ve totaled it to 4,000? A Correct.

Id. at 154. Husband did not object to Wife’s desire to have the mower assign ed
to him

. Later, however, on cross - examination , he testified tha t he believed the value of the mower, including the attachment, was $3,500 .00

.

[43] The parties originally agreed that the mower would be assigned to Wife; however, Wife later indicated that she wanted the mower assigned to Husband, and Husband did not object

. The trial court heard the testimony of the parties
and ultimately determined that the mower and its attachment w ere valued atCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 24 of 31

$4,000.00 and that the mower should be assigned to Husband

. The court was within its discretion to do so.



### 6. Husband’s Household Items

[44] Husband argues that the trial court abused its discretion by assigning to Husband’s household items a value that , according to Husband, was not supported by the evidence. Husband “[took] a garage sale approach” in estimating the value of his household items and introduced into evidence a detailed item

- by

- item inventory that indicated his household items were worth $4,100.00. Appellant’s Br. p. 38. Wife testified on direct examin ation as follows regarding her belief that Husband’s items were worth $7, 685.00 :
Q Okay. Now, you have various household items; is that accurate? A Correct. Q And pursuant to your husband ’ s estimate, he has $7,685 of household goods and furnishings? A Yes.

. . . Q And this is going through, your husband has lots of tools and equipment and things like that; is that accurate? A That is accurate.
Tr. Vol. 2, p. 36. The trial court adopted Wife’s valuation for Husband’s household items

.

[45] Husband ’s argument, essentially , is that because Wife offered only her testimony a s to what value she believed should be placed on Husband’s item sCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 25 of 31

and did not provide her own detailed valuation for the items , Wife’s evidence was not sufficient to support the trial court’s adoption of her valuation. Husband further argues that the manner in which Wife’s attorney examined Wife at the hearing, and the answers that Wife provided, failed to provide context for Wife’s answers or clarify whether the $7,685.00 va luation was an estimate that was “a holdover from confidential negotiations or mediation. ” Appellant’s Br. p. 39

.

[46] A valuation “submitted by one of the parties is competent evidence of the value of property in a dissolution action and may alone support the trial court ’ s determination in that regard.” Skinner v. Skinner, 644 N.E.2d 141, 144 (Ind. Ct. App. 1994) (citations omitted). Additionally, we “will not reverse a judgment on the basis of conflicting evidence [

. ] ” Ernst, 503 N.E.2d at 621 (citation omitted).

[47] H ere, H usband provided the trial court with an item

- by

- item list of his household items

— items that included numerous tools and equipment

— and the estimated values that Husband believes should be placed on each item, using a “garage sale approach , ” for a total value of $4,100.00 Appellant’s Br. p. 38. Wife testified that Husband’s items were valued at $7, 685.00. The trial court was not obliged to accept Husband ’ s assertion of the value of individual household items , even if Wife did not expressly refute Husband ’ s evidence. To the contrary, it is well established that “[a] trial court, like a jury, is entitled to take into consideration in weighing the evidence its own experience and the ordinary experiences in the li ves of men and women.” Clark v. Hunter , 861Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 26 of 31

N.E.2d 1202, 1207 (Ind. Ct. App. 2007) (alteration original; quotation and citation omitted). Here, because Husband’s valuations were estimations based
upon a garage sale approach, and i n light of our standard of review, we decline to question the trial court ’ s determination of the valuation evidence for Husband’s household items

. We therefore find that the trial court did not abuse its discretion in adopting Wife’s valuation for Husband’s household items.



### 7. Parties’ Jewelry

[48] Next, Husband argues that the trial court erred in not including in the marital pot a n engagement ring that Husband purchased for Wife sometime in 2013 , that Husband valued at $2,300.00 , and a pair of diamond earrings that Husband purchased during the marriage for $1,500.00

. Evidence was presented at the final hearing that the earrings were a wedding gift to the parties’ daughter. While H usband disputes this , he presented testimony at the final hearing that he does not know “what happened to those earrings [,]” and has no “idea whose possession those earrings are in[

. ]” Tr. Vol. 2, p. 207.

[49] T he evidence presented at trial indicates that neither party is in possession of the earrings. As such, the trial court did not abuse its discretion in excluding them from the marital pot. However, regarding the engagement ring, the evidence indicates tha t the ring was purchased during the marriage and that Wife is in possession of the ring. Although the trial court may have wis hed to allow Wife to keep the ring, the value of the ring should have been included in the marital estate and considered by the t rial court in fashioning the equitable division of the property

. See Thompson, 811 N.E.2d 888, 912 ( trial court mayCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 27 of 31

ultimately determine that a particular asset should be awarded solely to one
spouse, but must first include asset in its consideration of t he marital estate to be divided )

. Thus, w e remand for inclusion of the value of the engagement ring in the marital estate and recalculation, if necessary, of the distribution of the
marital property. 

## Attorney Fees and Valuation Expenses

[50] Finally, Husband contends that the trial court abused its discretion by requiring
him to “be responsible for $10,000.00” of Wife’s attorney fees and the outstanding balance that Wife owed to Blue & Co. Appellant’s App. Vol. 2 , p. 18. Husband argues that Wife should not be awarded attorney fees and valuation expenses for a number of reasons. According to Husband, “ [ t ] he trial court’s finding of income disparity to justify fee awards was unreasonable and contrary to the evidence that neither party enjoyed a superior position from which to afford fees

. ” Appellant’s Br. p. 46. Husband also argues that none of his conduct during the dissolution proceedings amounted to a level of misconduct sufficient “to justify the fee awards and did not cause Wife to incur additional attorney or valuator fees.” Id. at 47. Husband maintains that between 2012 and 2015, his businesses, in total, averaged $12,010.00 of annual income before taxes. According to Husband, “[e]ven adding these undistributed, pre

- tax profits to [h is $45,000.00 ] salary, he still earned less thanCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 28 of 31

Wife’s salary [($45,000 + $12,010) = $57,010; $57,010 < $60,000]. ” 6 Id. at 44. Husband notes that Wife’s salary is earned for thirty

- nine weeks of work per year, and his salary is earned for fifty

- two week s of work per year. He argues that, contrary to Wife’s testimony, the income from the businesses w as not used to purchase the parties’ personal vehicles; and that, while business income was used for personal expenses related to cell phones, vehicles, gas, f ood, and earned rewards points, the amount of money that was put toward these things was so insignificant that it cannot be used to justify a finding that Husband’s salary exceeded Wife’s. He further argues that the attorney fee s award is not properly reflected on the marital balance sheet and that the trial court’s award of the valuation expenses is ambiguous, and thus improper, because it fails to state the amount that Husband owes to Blue & Co.

[51] Indiana statutory law pertainin g to dissolution proceedings authorize s a court to order a party to pay the attorney fees of the other party:
The court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding und er this article and for attorney ’ s fees and mediation services, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment.

6 Husband argued at the final hearing that Wife earned a salary of between $58,000.00 and $60,000.00 per year.Court of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 29 of 31

Ind. Code § 31

- 15

- 10

- 1(a) (1997)

. The legislative purp ose of this statute is to provide access to an attorney to a party in a dissolution proceeding who would not otherwise be able to afford one. Balicki , 8 37 N.E.2d at 543

. We review a
trial court ’ s award of attorney fees in connection with a dissolution de cree for an abuse of discretion. Hartley v. Hartley , 862 N.E.2d 274 (Ind. Ct. App. 2007). Reversal is proper only where the trial court’s award is clearly against the logic and effect of the facts and circumstances before the court. Bessolo v. Rosario , 966 N.E.2d 725 , 733 (Ind. Ct. App. 2012), trans. denied

. In assessing attorney’s fees, the trial court may consider such factors as the resources of the parties, the relative earning ability of the parties, and other factors bearing on the

re asonableness of the award. Id

. In addition, any misconduct on the part of a party that directly results in the other party incurring additional fees may be taken into consideration. Id

. “Further, the trial court need not give its reasons
for its decisi on to award attorney’s fees.” Id . (quoting Thompson , 811 N.E.2d at 928 )

.

[52] Here, we find that t he trial court’s award of attorney fees to Wife is supported by the record. At the final hearing, Wife testified that her salary from her elementary school teaching position wa s $58,000.00 a year . Husband testified that he is self

- employed; his “paycheck comes from [BES]”; and he earns a salary of $45,000.00 a year

. Tr. Vol. 2, p. 108. Although the trial court was not
req uired to give re asons for its decision to award attorney’s fees, i t noted in its findings its skepticism regarding Husband’s stated salary and ultimatelyCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 30 of 31

determin ed that there was a disparity in income between the parties and that Husband earned more than Wife. Specifica lly, t he court found as follows:
While Husband testified he believes he makes less than Wife, the Court finds this suspicious. Husband is in controls [sic] of what salary, expenses, costs, and income the business provides. The parties have acquired substantial assets and little debt during the marriage. This was clearly not accomplished on a teacher’s salary alone.
Appellant ’ s App. Vol. 2, p. 1 7

. This evidence alone supports the trial court’s award of attorney fees to Wife and there was no abuse of discretion. Lik ewise, the trial court was within its discretion to require Husband to pay the outstanding valuation expenses that Wife owed to Blue & Co. See I.C. § 31

- 1 5

- 10

- 1(a) ( “ court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article ”). Furthermore, the trial court’s award of attorney fees and valuation expenses wa s n ot improperly reflected on the marital balance sheet , as t he award does not constitute marital property and is not eligible for inclusion in the marital estate

.

[53] Finally, we disagree with Husband’s assertion that the trial court’s requirement
that he pay the outstanding valuation expense s amoun ts to an order to “write a blank check to Blue [& Co.]” Appellant’s Br. p. 48. To the contrary, w hen Wife testified that she had an outstanding balance with Blue & Co. for business valuation services and requested that the trial court require Husband to pay theCourt of Appeals of Indiana | Memorandum Decision 1 8A

- DR

- 1778 | October 22, 2019 Page 31 of 31

balance , she introduced into evidence an invoice that listed the amount due as $9,244.37.

[54] Based on the foregoing, we conclude that the trial court did not abu se its discretion or commit clear error when valuing and distributing the marital property of the parties and awarding Wife attorney fees and valuation expenses, except that the trial court err ed when it (1) counted the $29,250.00 in fire insurance proceed s as an asset attributable to Husband , (2) failed to include in the marital pot the debt associated with the HHR vehicle , and ( 3 ) failed to include in the mar i tal pot the value of the engagement ring that Husband purchased for Wife

. Thus, we reverse the dissolution decree to that extent and remand for the trial court to correct th ese error s and adjust its split of the marital property accordingly.

[55] The judgment of the trial court is affirmed in part and reversed in part, and we remand for fu rther proceedings with instructions

.

Najam, J., and Bradford, J., concur.