Court of Appeals of Indiana | Memorandum Decision 90A05-1605-DR-1221 | November 17, 2016 Page 1 of 18

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

Michael H. Michmerhuizen

Barrett McNagny LLP

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Michael A. Setlak

Perry D. Shilts

Shilts & Setlak LLC

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In Re: The Marriage of

Robin R. Phillips,

Appellant-Respondent,

v.

Thomas R. Lloyd,

Appellee-Petitioner.

November 17, 2016

Court of Appeals Case No.

90A05-1605-DR-1221

Appeal from the Wells Circuit 

Court

The Honorable Kenton W. 

Kiracofe, Judge

Trial Court Cause No.

90C01-1504-DR-40

Bailey, Judge.
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Case Summary

[1] Robin Phillips (“Wife”) appeals the trial court’s valuation and division of the 

marital estate following the dissolution of her marriage to Lloyd Phillips 

(“Husband”).

[2] We affirm in part, reverse in part, and remand with instructions.

Issues

[3] Wife raises multiple issues on appeal, which we consolidate and restate as:

I. Whether the trial court abused its discretion in valuing the 

marital estate; and

II. Whether the trial court abused its discretion in dividing the 

marital estate.

Facts and Procedural History

[4] Prior to marrying in 2006, Wife and Husband were in a live-in relationship for 

several years. In November 2001, Wife purchased a home that would later 

become the marital residence (“Marital Residence”). Because the Marital 

Residence needed repairs, Wife and Husband waited to move in together. Over 

the next few months, they worked on the home together and began cohabitating 

there around March 2002. Wife paid the mortgage and the household bills.

[5] When Wife and Husband began living together, each had certain personal 

assets. Among them, Wife owned a restaurant, which she purchased in 1997 
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(“Restaurant”), and a rental property in Zanesville, which she purchased in 

1999. Husband owned a home and had money in a 401(k). 

[6] While Wife and Husband were cohabitating, but before they married, Husband 

sold his home and gave some of the proceeds to Wife. During their

cohabitation, Wife purchased a rental property in Huntington (“Huntington

Rental”).

[7] Wife and Husband married on January 31, 2006. During the marriage, Wife 

purchased two additional rental properties in Zanesville (we refer to the three 

properties in Zanesville collectively as the “Zanesville Rentals”).

[8] Throughout the relationship, Husband was employed and earned between

$30,000 and $35,000 per year since 2011. Toward the end of the relationship, 

Wife earned around $200 per week from the Restaurant, or around $10,400 per 

year. The parties kept separate accounts but would exchange money. When 

Husband received paychecks, he would give Wife money to pay bills. Neither

kept an accounting of the money they exchanged. Once they married, Husband 

paid for Wife’s health insurance. Each year, they filed joint tax returns, and 

Wife received the refunds.

[9] Before and during the marriage, Wife and Husband were engaged in buying 

and selling goods together. The venture involved purchasing goods at auctions 

and attending flea markets, shows, and swap meets. They also sold goods on 

eBay. Husband withdrew money from his 401(k) to purchase a trailer as well as
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goods for the buying and selling venture. Any proceeds from the venture went

to Wife and toward purchasing more goods. 

[10] Wife and Husband also “flipped” properties together. Wife purchased the 

properties in her name and Husband helped renovate them. Sometimes, they 

rented the properties; sometimes they sold the properties outright. Wife paid 

for the properties and received the income whereas Husband contributed labor 

and equipment toward the properties. Husband also contributed labor and 

equipment to the Restaurant, where Wife would allow Husband to eat for free.

[11] During the relationship, Wife incurred credit card debt and eventually 

negotiated a settlement amount. To pay the settlement, Wife borrowed money

from her mother, Melba Edwards (“Edwards”). Wife borrowed additional

money from Edwards to pay off debt associated with the Restaurant.

[12] In April 2015, Wife sold the Zanesville Rentals. Shortly after the sale, Husband 

filed a Petition for Dissolution of Marriage on April 22, 2015. Around this 

time, Wife paid debts using proceeds of the sale along with other assets. 

[13] The parties entered into a mediated partial settlement agreement, which left to

the trial court the division of all real estate and debts. Following a hearing on 

February 24, 2016, the trial court suggested that the parties tender proposed 

findings and conclusions, which they did. On April 28, 2016, the trial court 

entered its findings, conclusions, and order of dissolution of marriage. In so 

doing, the trial court adopted Husband’s proposals verbatim.
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[14] The trial court purported to order an equal division of the marital estate. Based 

on the trial court’s valuation, Wife was to pay a $49,675.00 equalization

payment to Husband. The trial court further ordered that if Wife did not pay 

the judgment within thirty days, Wife was to sell or eventually auction certain 

real estate. The order did not allocate any sale or auction costs to Husband.

[15] Wife now appeals.

Standard of Review

[16] Here, as permitted by Indiana Trial Rule 52(A), the trial court entered findings 

of fact sua sponte. Our court will “not set aside the [trial court’s] findings or 

judgment unless clearly erroneous . . . .” Ind. Trial Rule 52(A). Findings are 

clearly erroneous only when the record contains no facts to support them either 

directly or by inference. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A 

trial court’s judgment is clearly erroneous if “its findings of fact do not support 

its conclusions of law or . . . its conclusions of law do not support its 

judgment.” Id. Where, as here, the trial court adopts verbatim a party’s 

proposed findings and conclusions, it does not alter our standard of review. See 

Cook v. Whitsell-Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003). However, the 

practice “weakens our confidence as an appellate court that the findings are the 

result of considered judgment by the trial court.” Id. (citing Prowell v. State, 741 

N.E.2d 704, 708-09 (Ind. 2001)).
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[17] Here, Wife raises challenges to the trial court’s valuation and division of the 

marital estate. We review such challenges under an abuse of discretion 

standard. Quillen, 671 N.E.2d at 102; Fobar v. Vonderahe, 771 N.E.2d 57, 59

(Ind. 2002). The trial court abuses its discretion when its decision is clearly 

against the logic and effect of the facts and circumstances before it, including 

the reasonable inferences to be drawn therefrom. Quillen, 671 N.E.2d at 102; 

Taylor v. Taylor, 436 N.E.2d 56, 58 (Ind. 1982). We do not weigh the evidence, 

but will consider the evidence in a light most favorable to the judgment. 

Quillen, 671 N.E.2d at 102; Fobar, 771 N.E.2d at 59.

Discussion and Decision

Valuation of the Marital Estate

[18] Wife contends that the trial court abused its discretion in valuing the marital 

estate. In asserting error, Wife points to the trial court’s (1) handling of debts

paid following the sale of the Zanesville Rentals; (2) omission of an undisputed 

mowing bill; and (3) valuation of the Huntington Rental.

[19] Under Indiana Code Section 31-15-7-4(a), a trial court must include all marital 

property in the marital pot for division, whether it was owned by either spouse 

before the marriage, acquired by either spouse before final separation, or 

acquired by their joint efforts. “Marital property includes both assets and 

liabilities.” Birkhimer v. Birkhimer, 981 N.E.2d 111, 120 (Ind. Ct. App. 2012).

Although the trial court has “broad discretion in ascertaining the value of 

property in a dissolution action,” Quillen, 671 N.E.2d at 102, the trial court
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generally has no authority to exclude or set aside any assets or liabilities of the 

parties, and it must divide all property and debts. Birkhimer, 981 N.E.2d at 120.

[20] Starting with the Zanesville Rentals, Wife sold the properties in April 2015, just 

prior to Husband’s initiation of the dissolution proceedings. The parties agree 

that, after costs associated with the sale, Wife netted $49,403.00. Wife alleges 

that she used all of the proceeds, along with additional assets, to pay debts. 

Among those debts, Wife paid $38,000.00 to Edwards.1 The original balance 

of the Edwards loan was $45,943.00.

[21] In its order, the trial court identified the $49,403.00 in proceeds as an asset. 

The order also identified the Edwards loan balance as $45,943.00—the original, 

unreduced amount, which would offset $38,000 of the proceeds. Wife points 

out, however, that she spent a total of $51,461.50 toward reducing debt, thus

spending $13,461.50 more than the $38,000.00 payment on the Edwards loan. 

Although the trial court’s calculation offsets the $38,000.00 payment on the 

Edwards loan, the trial court did not account for the other potential offsets.

[22] At the hearing, Husband challenged the amount paid to Edwards:

Q. Okay. So the debt to her mother of $38,000.00 is what 

you don’t agree to?

 

1

 Wife complains that the trial court erred in finding that it was “obvious that Wife had only paid [Edwards] 

in anticipation of the divorce proceedings,” (Appellant’s App. Vol. II at 12), but establishes no basis upon 

which the alleged error prejudiced her. We accordingly do not address her argument in this respect. See T.R. 

61.
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A. Yes.

Q. Okay. But everything else of the bills that she paid, you 

agree to?

A. Yes.

[23] (Tr. at 47.) However, in Husband’s proposed findings and conclusions—which 

the trial court adopted—Husband nevertheless (1) accounted for the full 

amount owed to Edwards, which encompassed the previously disputed $38,000 

payment; and (2) omitted the remaining debt that Husband did not earlier

dispute. Husband does not now contest the amount of the Edwards loan and 

Husband does not directly address the remaining non-Edwards debt. 

[24] The trial court must divide all marital property. Ind. Code § 31-15-7-4(a). In

valuing the marital estate, it was illogical for the trial court to fully account for 

the Edwards loan, which Husband had initially disputed, yet to exclude the 

non-Edwards debt that Husband agreed to at the hearing. Accordingly, we find 

that the trial court abused its discretion in excluding the additional debt paid 

following the sale of the Zanesville Rentals in its valuation of the marital estate.

[25] Similarly, Wife points to an undisputed $774.00 mowing bill that was not 

included in the trial court’s calculation and which Husband now concedes was 

error. Husband invites us to avoid disturbing the trial court’s judgment because 

the amount of the bill was de minimus. However, in light of the existing 

valuation error, and Husband’s concession of error as to the mowing bill, on 

remand the trial court should include this bill in the marital pot.
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[26] We turn next to the trial court’s valuation of the Huntington Rental. The trial 

court determined that the value of the Huntington Rental was $17,500.00. In 

reaching this value, the trial court used a June 24, 2015 appraisal showing the 

value was $28,000.00 and subtracted a mortgage balance of $10,500.00. Wife 

baldly contends that the trial court should have instead used a mortgage balance 

of $10,971.05. However, the portions of the record that Wife directs us to do 

not provide support for that figure. The argument section of the appellant’s 

brief must “contain the contentions of the appellant on the issues presented, 

supported by cogent reasoning,” along with citations to the authorities, statutes, 

and parts of the record relied upon. Ind. Appellate Rule 46(A)(8)(a). Failure to 

comply with this rule results in waiver of the argument on appeal. See Reed v. 

Reid, 980 N.E.2d 277, 297 (Ind. 2012) (finding waiver when an argument failed 

to conform to Indiana Appellate Rule 46(A)(8)(a)). Moreover, this Court does 

not sift through a record to locate error so as to state an appellant’s case for her. 

Wright v. Elston, 701 N.E.2d 1227, 1230 (Ind. Ct. App. 1998), trans. denied. 

Because Wife’s argument is undeveloped, the issue is waived for review. 

[27] In sum, we find that the trial court abused its discretion by omitting two 

undisputed marital debts when valuing the marital estate, which were the nonEdwards debts paid following the sale of the Zanesville Rentals and the $774.00 

mowing bill. We instruct the trial court to account for these marital debts in 

reaching its valuation of the marital estate.
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Division of the Marital Estate

[28] Wife also argues that the trial court erred in dividing the marital estate. She 

focuses on whether the trial court abused its discretion in (1) ordering an equal 

division of the marital estate and (2) not requiring Husband to share in potential 

sale or auction costs incurred as a result of the trial court’s order.

[29] Indiana law requires that marital property be divided “in a just and reasonable 

manner,” I.C. § 31-15-7-4(b), and provides for the statutory presumption that 

“an equal division of the marital property between the parties is just and 

reasonable.” I.C. § 31-15-7-5. This presumption, however, may be rebutted by 

a party who presents relevant evidence, including evidence of 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.
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(4) The conduct of the parties during the marriage as related to 

the disposition or dissipation of their property.

(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.

[30] In dividing marital property, the trial court must consider all of the statutory

factors, but it is not required to explicitly address all of the factors in every case. 

Eye v. Eye, 849 N.E.2d 698, 701-02 (Ind. Ct. App. 2006). A party challenging 

the trial court’s division of marital property must overcome a strong 

presumption that the court considered and complied with the applicable statute.

Campbell v. Campbell, 993 N.E.2d 205, 212-13 (Ind. Ct. App. 2013), trans. denied. 

Moreover, we are to consider the trial court’s disposition “as a whole, not item 

by item.” Fobar, 771 N.E.2d at 59. We recognize that

in crafting a just and reasonable property distribution, a trial 

court is required to balance a number of different considerations 

in arriving at an ultimate disposition. The court may allocate 

some items of property or debt to one spouse because of its 

disposition of other items. Similarly, the factors identified by the 

statute as permitting an unequal division in favor of one party or 

the other may cut in different directions. As a result, if the 

appellate court views any one of these in isolation and apart from 

the total mix, it may upset the balance ultimately struck by the 

trial court.
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Id. at 60.

[31] Here, in determining that Wife failed to rebut the presumption that an equal 

division was just and reasonable, the trial court found:

[T]he parties cohabitated for four to five years prior to the 

marriage. Both parties contributed financially, and property and 

money was comingled by way of sales of real and personal 

property. While Wife argues she contributed more than 

Husband did during the period of cohabitation and during the 

marriage, Husband always maintained full-time employment. 

He also provided health insurance for the parties and performed 

contributed [sic] his services to the rental properties and business.

(Appellant’s App. Vol. II at 11.) The trial court further concluded:

Deviating from the statutory presumption or excluding some of 

this property from the marital estate would not be just and proper 

given that it had all been comingled with other marital property. 

Further, all property, real and personal, was used to pay down 

marital debts, some of which Wife considered her individual 

debt. Wife has not rebutted the presumption of an equal division 

of assets and debts.

(Appellant’s App. Vol. II. at 12.)

[32] Wife asserts that she rebutted the presumption of an equal division of assets and 

debts. In arguing that the factors supported an unequal division, Wife points to 

specific assets she purchased prior to the marriage, namely, (1) the Restaurant 

where she earns her income; (2) the Marital Residence, which she purchased 

while the parties were cohabitating prior to marriage; and (3) certain rental 

properties, including the Huntington Rental. Wife would also set aside the 
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proceeds from the sale of the three Zanesville Rentals, one of which she 

purchased prior to any relationship with Husband. Wife emphasizes that these 

assets were in her name and that she made all of the payments associated with 

them. Wife also observes that due to her economic circumstances at the time of 

the disposition, she would be forced to liquidate assets to satisfy the payment, 

leaving her with significantly fewer assets than she had prior to the parties’ 

cohabitation and marriage. Wife observes that whereas she may ultimately 

need to liquidate the Restaurant, her source of income, to satisfy the 

equalization payment, Lloyd would leave the marriage with “a substantial cash 

position with his livelihood intact.” (Appellant’s Br. at 24.)

[33] In arguing that the trial court erred, Wife posits that the present case is 

analogous to both In re Marriage of Marek, 47 N.E.3d 1283 (Ind. Ct. App. 2016), 

trans. denied, and Doyle v. Doyle, 756 N.E.2d 576 (Ind. Ct. App. 2001). In Marek, 

this Court reversed the trial court’s equal division of the marital estate where 

“the findings made by the trial court and nearly all the statutory factors listed 

favor[ed] an unequal distribution of the marital estate. No findings support[ed]

an equal division.” Marek, 47 N.E.3d at 1292. In Doyle, we found error when 

the trial court considered the appreciation of certain assets belonging to the wife

to be a marital asset. There, the pertinent accounts were solely in the wife’s 

name and were wholly untouched since the wife had deposited personal injury 

settlement money into them eleven years prior to the parties’ four-year 

marriage. Neither of the parties had contributed marital assets to the accounts.
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[34] Both Marek and Doyle are distinguishable. Unlike in Marek, here, the trial court 

made findings that supported an equal division of the marital estate. The trial 

court noted Husband’s contributions to the rental properties and the 

Restaurant, his funding of the parties’ health insurance, and the extent to which 

the parties commingled “property and money . . . by way of sales of real and 

personal property,” (Appellant’s App. Vol. II at 11). The trial court further 

observed that “all property, real and personal, was used to pay down marital 

debts, some of which Wife considered her individual debt.” (Appellant’s App. 

Vol. II at 12.) Thus, unlike in Doyle, the assets were not wholly sequestered and 

there were marital contributions to them.

[35] Wife separately takes issue with the trial court’s finding that the parties 

commingled money and property because the properties were in her name, she 

paid the bills, and the parties kept separate accounts. However, the evidence 

favoring the judgment supports the finding of commingling. Moreover, 

although wife also takes issue with the trial court’s consideration of the parties’ 

conduct during their period of premarital cohabitation, this Court has

consistently indicated that a trial court may, but is not required to, consider 

periods during which couples cohabitate prior to their marriage when dividing

the marital estate. See Hendricks v. Hendricks, 784 N.E.2d 1024, 1027 (Ind. Ct. 

App. 2003); Chestnut v. Chestnut, 499 N.E.2d 783, 787 (Ind. Ct. App. 1986).

[36] In summary, then, we cannot say that the trial court abused its discretion in 

equally dividing the marital estate.
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[37] We turn next to Wife’s final contention, which is that the trial court abused its 

discretion by not requiring Husband to share in potential sale or auction costs 

incurred as a result of the trial court’s order. In carrying out its equal division 

of the marital estate, the trial court ordered that Wife make an equalization 

payment to Husband within thirty days. The pertinent part of the order 

provides as follows:

If Wife does not pay the judgment in full, then [the Marital 

Estate] shall be listed for sale for a period not to exceed three (3) 

months. If the property does not sell within that time period, 

then the property shall be placed for auction. After expenses of 

the auction have been paid, Husband shall be paid from the 

proceed[s] of that sale up to the amount of the equalization 

judgment in his favor. If the proceeds do not satisfy the 

equalization judgment owed to Husband, then Wife shall 

immediately sell the [Huntington Rental] and use the proceeds of 

that sale to compensate Husband for any shortfall in the 

judgment owed to him. If that property is not sold within three 

months from the date it has been listed for sale, that property 

shall be placed for auction.

(Appellant’s App. Vol. II at 13.) 

[38] Wife challenges the trial court’s failure to allocate potential sale or auction costs 

to Husband. Wife argues that because the order requires her to sell or auction 

property within thirty days if she is unable to pay the judgment, the order’s 

potential effect would be to reduce her equal share. Thus, Wife essentially 

argues that one outcome of the order is a deviation from an equal division of 

the marital estate in Husband’s favor.
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[39] Wife directs our attention to Keown v. Keown, 883 N.E.2d 865 (Ind. Ct. App. 

2008). In Keown, the trial court ordered the wife to sell the marital residence

and had heard evidence regarding the costs of the sale. The trial court factored 

those costs into its valuation of the marital estate, which husband alleged was 

error. In resolving Keown, we looked to Dowden v. Allman, 696 N.E.2d 456, 458 

(Ind. Ct. App. 1998). In Dowden, we found error when a trial court never 

ordered the sale of real estate but nevertheless included costs of sale in its 

valuation. Although there was error in Dowden, we did not find error in Keown, 

reasoning that “because the trial court ordered [the wife] to sell the marital 

residence, it did not abuse its discretion by reducing the property’s value by the 

costs of sale because those costs were a direct result of the disposition and were 

based on evidence presented at the hearing.” Keown, 883 N.E.2d at 870.

[40] Keown and Dowden are inapposite here. Together, Dowden and Keown would 

suggest that it is within a trial court’s discretion to include evidence-based costs 

within the contingency portion of an order such as this one. Here, however, 

Wife is challenging the trial court’s omission of those costs, alleging that the 

omission amounts to error. Unlike in Dowden, here the trial court’s order did 

provide for a potential sale or auction. Although the sale or auction was a 

contingency, turning on Wife’s ability to pay the equalization payment within 

thirty days, a court-ordered sale or auction was nevertheless one potential 

outcome of the order. In contrast to Keown, however, here there was no 

evidence of precisely what the sale or auction costs would be. Yet, at the 

hearing, both Wife and Husband did acknowledge that, should there be a sale 
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of property, there would be costs. (Tr. at 48, 93.) Husband stated that, to some 

extent, he was willing to share in those costs. (Tr. at 48.) Moreover, it was not 

in dispute that due to Wife’s financial circumstances, she would be unable to 

pay an equalization payment without selling real estate. (Tr. at 42, 93.) 

[41] We find that, under these facts and circumstances—where the undisputed 

evidence is that there would be costs following the sale of real estate, that Wife 

would necessarily sell real estate to satisfy an equalization payment, and that 

Husband would be willing to share in those costs to some extent—the trial court 

abused its discretion by allocating those costs solely to Wife when crafting a

contingency in its order that mandated the sale or auction of real estate. This is 

because, under these facts, the trial court’s failure to include costs resulted in 

one potential outcome of its order being a deviation in favor of Husband. The 

outcome would be a deviation because it would effectively reduce Wife’s 

marital share while preserving Husband’s. “A trial court may deviate from an 

equal division so long as it sets forth a rational basis for its decision.” Campbell, 

993 N.E.2d at 212. Here, Husband argued only for an equal division of the 

marital estate and the trial court, by its order, intended to carry out an equal 

division of the marital estate. Thus, the potential deviation in favor of Husband 

was against the logic and effect of the facts and circumstances before the court. 

To achieve a just and reasonable result, on remand we instruct the trial court to 

account for the existence of costs incurred as a result of the contingency in the

trial court’s order, and order that Husband and Wife share those costs.
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Conclusion

[42] The trial court erred in valuing the marital estate. Although the trial court did 

not abuse its discretion in ordering an equal division of the marital estate, the 

trial court abused its discretion in omitting a potential cost when giving effect to 

its equal division of the estate.

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

Riley, J., and Barnes, J., concur.