## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEY FOR APPELLEE : MATTHEW S. WILLIAMS MARK C. CHAMBERS Fort Wayne, Indiana Haller & Colvin, P.C. Fort Wayne, Indiana



## IN THE COURT OF APPEALS OF INDIANA

IN RE THE MARRIAGE OF: ) JOSE DE JES US CARRILLO PEREZ and ) MARIA GUADALUPE CARRILLO PEREZ, ) ) MARIA GUADALUPE VIDRIOS ZEPEDA f/k/a ) MARIA GUADALUPE CARRILLO PEREZ, ) ) Appellant

- Respondent, ) ) vs. ) No. 02A05

- 1305

- DR

- 256 ) JOSE DE JESUS CARRILLO PEREZ, ) ) Appellee

- Petitioner. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Charles F. Pratt , Judge Cause No. 02D07

- 1103

- DR

- 183
April 23 , 2014 OPINION
- FOR PUBLICATION MAY, Judge2

Maria Guadalupe Vidrios Zepeda appeals the division of the marital estate in her
dissolu tion proceeding. S he alleges the trial court abused its discretion when it awarded her only 2.5% of her ex - husband’s lottery winnings. We affirm.

FACTS AND PROCEDURAL HISTORY
Maria married Jose De Jesus Carrillo Perez on February 7, 2002 , and they live d together until their physical separation in March 2006. The couple never again lived together
after the physical separation , but they did not file for legal separation or dissolution

. During
the ne xt six year s, the couple spoke only two or three times, never comingle d assets, had separate bank accounts, and generally lived as single individuals. In January 2011, Jose purchased a Hoosier Lottery scratch off ticket and won two million dollars. Jose filed for dissolution of the couple’s marriage in March 2011

. On Oct ober 21, 2011, Maria served Request s for Admission pursuant to Indiana Trial
Rule 36 on Jose. Jose did not answer any of those requests within the thirty days required by
R ule 36

. The trial court issued its Decree of Dissolution of Marriage on June 19, 2 012. I t ordered Jose to p ay Maria $10,000.00 each year for five years from his annual lottery
distributions , for a total payment of $50,000.00. Jose was further ordered to pay $2,852.00
toward Maria’s attorney fees and $2,484.39 of her debts

. DISCUSSION AND DECISION
The division of marital assets is within the trial court’s discretion, and we will reverse only for an abuse of discretion. McCord v. McCord , 852 N.E. 2d 35, 43 (Ind. Ct. App. 2006) , trans. denied

. A party challenging the division of marital property must overcome a3

st rong presumption that the t rial court considered and compli ed with the applicable statute.
Id. at 44. We consider only the evidence most favorable to the trial cou rt’s disposition of the
marital property, and we may not reweigh the evidence or asses s the credibility of the
witnesses. Id.
A number of Maria ’s arguments relate to the impact of Jose’s failure to respond to her Request for A dmission s . The failure to respond in a timely manner to a request for
admissions causes those matter s to be admitted and conclusively established by operation of
law

. Corby v. Swank , 670 N.E.2 d 1322, 1324 (Ind. Ct. App. 1996). M aria first notes the trial

court ’ s dissolution decree did not explicitly mention several admission s . However, we will
not infer from th e absence of an explicit reference to an admission that the court did not
consider that admission

. See Eye v. Eye , 849 N.E.2d 698 , 703 (Ind. Ct. App. 2006) ( holding trial court’s failure to mention certain evidence in its written findings does not me an that it
did not consider it ). In fact, the trial court did acknowledge that: the lottery winnings are a marital asset, as established in the first request for admission ; the relative inc omes of the parties , as addressed in admission six ; and that Maria had not received any of the lottery winnings, as
established in admission nine. The trial court also considered each factor rebutting an equal division of marital assets, listing several facts that supported its conclusion. The trial court
found that the extended physical separation, during which time no funds were ever comingled and each person lived as an individual, justified limiting Maria’s equitable interest in the lottery winnings. This determination was squarely within the discretion of the trial4

court. See Castaneda v. Castaneda , 615 N.E.2d 467, 469 (Ind. Ct. App. 1993) (upholding award of inheritance solely to wife, even though it was included in the marital pot). Maria
has not overcome the strong presumption that the trial court considered an d complied with the applicable statute.
Maria argues Jose’s second admission, that a distribution to Maria of 70% of the lottery winnings “ is a fair and equitable distribution , ” conclusively establishes th e marital
estate must be so divided

. It does not

. Requests for admission can establish legal
conclusion s . General Motors Corp., Chevrolet Motors Div. v. Aetna Cas. &Sur. Co. , 573 N.E.2d 885, 888 (Ind. 1991). Jose admitted “ a 70/30 distribution of the lottery winnings and
other marital assets in this c ase, in which 70% goes to your wife, is a fair and equitable
di stribution of assets in this divorce case.” ( App. to Appellee’s Br. at 2 6) (emphasis added).
That conclusively established a 70/30 split was a fair and equitable division, but it d id not
esta blish such was the only fair and equitable division. T he court had an obligation to
determine what spl it would be “ just and reasonable

. ” 1 Ind. Code § 31

- 15

- 7

- 5. The trial court
had broad discretion in making this determination. Wortkoetter v. Wortkoett er , 971 N.E. 2d
685 , 689 (Ind. Ct. App. 2012). Jose’s admission established only a fair and equitable
division , and it remained within the trial court’s discretion to determine whether some other
division could be just and reasonable

. Discretion signifie s choice , and a decision

- maker exercising discretion has the ability to choose from a range of permissible conclusions.

1 Jose’s admission addresses a “fair and equitable” division of marit al property, (App. t o Appellee ’ s Br. at 26 ), while the statute requires a “just and reasonable” division. Ind. Code § 31

- 15

- 7

- 5. Because the language of5

Johnson v. U. S. , 398 A.2d 354, 361 (D.C. 1979)

. The decision

- making activity is not ministerial and the various elements of the probl em do not preordain a single permissible
conclusion. Id . T he decision

- maker can rely largely upon his own judgment in choosing among the alternatives. Id

. Although the act of choosing will be guided by various legal and other considerations, the decisi on - maker, and not the law, decides. Id. In this sense, the core
of “discretion” as a jurisprudential concept is the absence of a hard and fast rule that fixes the results produced under varying sets of facts. Id

. Here , the broad discretion of the trial court must include the ability to consider a range of just and reasonable division s even though a request for admission establishes one division is fair and equitable. Therefore, the trial court
committed no reversible error when it declined to divide th e lottery winnings in the manner Jose admitted would be “a fair and equitable distribution.” Maria’s remaining arguments, that the trial court did not give sufficient weight to the income disparities of the parties or to Jose’s history o f purchasing lot tery tickets , and her allegation her testimony was more credible than Jose’s , are invitations for us to reweigh the evidence and judge witness credibility, which we cannot do. See McCord , 852 N.E.2d at 43 (appellate court cannot reweigh evidence or judge the credibility of witnesses).

the admission did not preclude the trial court from dividing the lottery proceeds as it did, we need not address whether “fair and equitable” and “just and r easonable” mean the same thing.6 CONCLUSION Because the language of the admission did not preclude the trial court from awarding Maria only two point five percent of her husband’s lottery proceeds and Maria fails to overcome the strong presumption that th e trial court considered and complied with the applicable statute, t he trial court did not abuse its discretion

. 2 Accordingly, we affirm.
Affirmed. VAIDIK, C.J., and RILEY, J., concur.

2 In one paragraph at the end of her brief, Maria claims that she is also appealing th e denial of her request for $6,402.23 in attorney’s fees. She does not explain why that was error and she provides no legal authorit y supporting this claim. Because her argument does not conform with Indiana Appellate Rule 46 (A)(8)(a), which requires cogent argument and citation to authorit y ,” it is waived. See, e.g. , Pittman v. Pittman , 717 N.E.2d 627, 633 (Ind. Ct. App. 1999) ( argu ment waived for failure to present cogent argument supported by authority and references to the record ).