Court of Appeals of Indiana | Memorandum Decision 37A03-1411-DR-414| June 30, 2015 Page 1 of 13

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

Robert A. Plantz

Robert A. Plantz & Associates, LLC

Merrillville, Indiana

ATTORNEY FOR APPELLEE

Samantha M. Joslyn

Rensselaer, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Starla Gough,

Appellant-Petitioner,

v.

Dale Gough,

Appellee-Respondent.

June 30, 2015

Court of Appeals Case No.

37A03-1411-DR-414

Appeal from the Jasper Superior 

Court

The Honorable Robert M. Hall, 

Senior Judge

Cause No. 37D01-1212-DR-1156

Najam, Judge.

Statement of the Case

[1] Starla Gough (“Mother”) appeals the dissolution court’s final decree, which 

ended her marriage to Dale Gough (“Father”). Mother presents the following 

issues for our review:
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1. Whether the dissolution court abused its discretion when it 

awarded Father parenting time pursuant to the Indiana 

Parenting Time Guidelines.

2. Whether the dissolution court abused its discretion when it 

calculated Father’s child support obligation.

3. Whether the dissolution court abused its discretion when it 

divided the marital pot.

4. Whether the dissolution court abused its discretion when it 

denied Mother’s request that Father pay her attorney’s 

fees.

[2] We affirm.

Facts and Procedural History

[3] Father and Mother married in 1996, and they have three children together: 

W.G., born November 20, 2000; and twins C.G. and L.G., born January 22, 

2003 (collectively “the children”). During the marriage, Father worked full 

time and, after W.G.’s birth, Mother was a stay-at-home mom. In January 

2012, Mother was hospitalized for a serious illness, and, after undergoing three 

surgeries during early 2012, Mother suffered a stroke in June 2012. As a result 

of the stroke, Mother developed various mental and physical impairments.

[4] On December 13, 2012, Mother filed a petition for dissolution of the marriage. 

Following a hearing, the dissolution court issued a provisional order whereby 

Mother was awarded physical custody of the children; Father was awarded 

parenting time every other weekend, but with “no overnights until further court 
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order”; Father was ordered to pay $475 per week in child support; Father was 

ordered to pay certain “ongoing marital debts and obligations”; and Father was 

ordered to pay $1500 to Mother’s attorney for fees. Appellant’s App. at 19-20.1 

Mother and the children continued to reside in the marital residence, with 

Father paying the mortgage and bills. Father moved in with his fiancée, who 

was living in a one-bedroom apartment.

[5] At the final hearing in June 2014, Mother testified that, as a result of the stroke 

she suffered in 2012, she is unable to work. Mother presented evidence that she 

is currently seeking employment through a program called IMPACT, which 

helps disabled2 people seek employment. But Mother testified that IMPACT 

has been unsuccessful in finding her work that she is able to do. Still, when 

asked to describe her daily activities, Mother testified that she “do[es] laundry 

and cook[s], clean[s], take[s] care of the dogs, the cats, the birds, the fish tank, 

the kids—help[s] them with their [sic] driving them for their games [and other 

activities].” Tr. at 48. Mother did not testify that she had any difficulty 

completing those tasks. And Mother submitted two child support obligation 

worksheets to the trial court—one worksheet listed her income as zero and the 

second listed her income at minimum wage.

 

1

 We note that we had difficulty finding relevant pleadings in the Appendix submitted on appeal because, in 

her table of contents, Mother did not specify the page numbers associated with each pleading.

2

 Mother has applied for Social Security disability benefits, but she has been denied.
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[6] Mother did not submit a list of marital assets to the trial court. Father 

submitted a list of personal property that he wanted the trial court to award 

him, but neither party submitted evidence of the value of any of those items. It 

is undisputed that the parties have no equity in the marital residence. The 

evidence shows that Father used to have a 401(k) account, but that account had 

no value as of the final hearing. And the evidence shows that Father has a 

pension through his employment, but neither party presented any evidence 

regarding the value of that pension or whether Father’s interest in the pension 

has vested.

[7] Following the hearing, the dissolution court took the matter under advisement 

and subsequently issued the decree, which provides in relevant part:

CUSTODY, SUPPORT AND VISITATION

As to custody, the court finds the parties should have joint legal 

custody with primary physical possession with Mother subject to 

Father’s rights as provided in the Indiana Parenting Time 

Guidelines, with no restrictions thereon.

Support is established pursuant to Wife’s Exhibit 4 with Father to 

pay Four Hundred Forty-seven Dollars ($447.00) per week 

commencing on Friday July 11, 2014. . . .

* * *

PROPERTY:

The court finds there are no assets of the marriage with any 

value, based on the evidence submitted. The court finds that 

there are debts incurred by the parties during the marriage that 
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need to be determined, including the payment of the debts 

ordered in the Provisional Order. The court finds that the 

marital residence, which has no equity, should be and hereby is 

awarded to Father subject to the debt thereon. Father shall hold 

Mother harmless thereon. Mother has requested and Father has 

agreed that Mother may continue to reside in the marital 

residence. Father shall keep Mother informed as to the status of 

the foreclosure on the marital residence. Absent a court order 

evicting Mother from said residence, of which Father is unaware, 

he shall give her at least thirty (30) days notice of any 

requirement to vacate said residence.

Father may have a 401k Pension and the evidence discloses that 

there is no value therein for division by the court. The court 

finds that the same should be set over to Father as his sole and 

separate property.

As to the van that is in possession of Mother, she has had it 

refinanced, it is in her name, and shall be set over to her as her 

sole and separate property subject to the debt thereon. Mother 

shall hold Father harmless on said debt.

As to the personal property set forth in Husband’s Exhibit C, the 

court finds the tangible property listed thereon, with the 

exception of the thirty-nine (39) inch TV, shall be set over to 

Father and all remaining tangible personal property, including 

the thirty-nine (39) inch TV, shall be set over to Mother. Counsel 

stipulated in open court that they would make arrangements for 

Father to acquire the property set over to him and are to do so. 

All intangible personal property shall remain in the possession of 

whoever currently has any such property in his or her name.

MARITAL DEBT:

Father shall be responsible for paying all bills of the marriage, 

specifically including those set forth in the Provisional Order and 

shall hold Mother harmless from any such debts. Further the 
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court notes that Father’s requirement to pay any ongoing bills 

during the pendency of the case pursuant to the Provisional 

Order terminates on the entry of this Decree.

ATTORNEY FEES:

The court further finds that each of the parties shall be 

responsible for his or her own attorney fees, except for the 

allowance made in the Provisional Order herein.

Appellant’s App. at 25-27. Father and Mother filed cross motions to correct 

error, which the dissolution court denied. This appeal ensued.

Discussion and Decision

Standard of Review

[8] The dissolution court entered findings and conclusions sua sponte. Sua sponte 

findings control only as to the issues they cover and a general judgment will 

control as to the issues upon which there are no findings. Mullin v. Mullin, 634 

N.E.2d 1340, 1341 (Ind. Ct. App. 1994). A general judgment entered with 

findings will be affirmed if it can be sustained on any legal theory supported by 

the evidence. Id. When a court has made special findings of fact, an appellate 

court reviews sufficiency of the evidence using a two-step process. First, it must 

determine whether the evidence supports the trial court’s findings of fact; 

second, it must determine whether those findings of fact support the trial court’s 

conclusions of law. Estate of Reasor v. Putnam Cnty., 635 N.E.2d 153, 158 (Ind.

1994). Findings will only be set aside if they are clearly erroneous. Id. 

Findings are clearly erroneous only when the record contains no facts to 
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support them either directly or by inference. Id. A judgment is clearly 

erroneous if it applies the wrong legal standard to properly found facts. State v. 

Van Cleave, 674 N.E.2d 1293, 1296 (Ind. 1996), reh’g granted on other grounds, 681 

N.E.2d 181 (Ind. 1997). In order to determine that a finding or conclusion is 

clearly erroneous, an appellate court’s review of the evidence must leave it with 

the firm conviction that a mistake has been made. Id. at 1295.

Issue One: Parenting Time

[9] Mother first contends that the dissolution court abused its discretion when it 

awarded Father parenting time pursuant to the Indiana Parenting Time 

Guidelines (“the Guidelines”). In particular, Mother objects to Father having 

overnight visits with the children. We review a trial court’s determination of a 

parenting time issue for an abuse of discretion. J.M. v. N.M., 844 N.E.2d 590, 

599 (Ind. Ct. App. 2006), trans. denied. No abuse of discretion occurs if there is 

a rational basis in the record supporting the trial court’s determination. Id. We 

will neither reweigh evidence nor judge the credibility of witnesses. Id. In all 

parenting time controversies, courts are required to give foremost consideration 

to the best interests of the child. Id.

[10] Mother begins by directing us to Indiana Code Section 31-17-4-1(a), which 

provides that a parent who is not granted custody of the child is entitled to 

reasonable parenting time rights unless the court finds, after a hearing, that 

parenting time by the noncustodial parent might endanger the child’s physical 

health or significantly impair the child’s emotional development. Mother

asserts that Father’s “one bedroom apartment with his girlfriend is not a proper 
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or safe environment, physically or emotionally, for these three small children.” 

Appellant’s Br. at 12. Thus, she maintains that the dissolution court abused its 

discretion when it ordered parenting time under the Guidelines.

[11] Mother’s contention on this issue is merely a request that we reweigh the 

evidence, which we will not do. Mother supports her argument on appeal with 

her self-serving testimony at the final hearing. The dissolution court was 

entitled to discredit that testimony. Moreover, Father testified that he would 

provide air mattresses and a couch for the children to use when they stayed at 

his residence, and he also testified that he was seeking a new residence with 

more than one bedroom to accommodate the children. Mother has not 

demonstrated that the dissolution court abused its discretion when it awarded 

Father parenting time under the Guidelines, including overnight visits.

Issue Two: Child Support

[12] Mother next contends that the dissolution court abused its discretion when it 

calculated Father’s child support obligation. In particular, Mother asserts that 

the dissolution court erred when it imputed her income at a minimum-wage 

level. Mother states that, because of her physical disabilities, she is unable to 

work, even at a minimum-wage job. But at the final hearing, Mother submitted 

as Exhibit 4 a child support obligation worksheet that attributed minimumwage income to her. The dissolution court adopted the calculation of Father’s 

child support obligation as indicated on that exhibit. As such, any error was 

invited, and Mother cannot now complain. Balicki v. Balicki, 837 N.E.2d 532, 

541 (Ind. Ct. App. 2005) (reiterating doctrine of invited error is grounded in 
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estoppel and precludes a party from taking advantage of an error that she 

commits, invites, or which is the natural consequence of her own neglect or 

misconduct), trans. denied.

Issue Three: Marital Pot

[13] Mother appears to raise several issues regarding the marital pot. We address 

each in turn. Mother first contends that the dissolution court abused its 

discretion when it excluded Father’s pension from the marital pot. In an action 

for dissolution of marriage under Indiana Code Section 31-15-2-2, the court 

shall divide the property of the parties, whether:

(1) owned by either spouse before the marriage;

(2) acquired by either spouse in his or her own right:

(A) after the marriage; and

(B) before final separation of the parties; or

(3) acquired by their joint efforts.

[14] This statute requires all property to be considered in the marital estate. Fobar v. 

Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002). With certain limited exceptions, the 

“one-pot” theory of Indiana family law specifically prohibits the exclusion of 

any asset from the scope of the trial court’s power to divide and award. 

Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied. 

“Only property acquired by an individual spouse after the final separation date 

is excluded from the marital estate.” Id.
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[15] Here, Mother asserts that Father has a pension and that the dissolution court 

abused its discretion when it excluded that pension from the marital pot. But it 

is well established that, for a pension to be included in the marital pot, the 

pension must be vested. See Ind. Code § 31-9-2-98; Dowden v. Allman, 696 

N.E.2d 456, 458 (Ind. Ct. App. 1998). And neither party presented evidence to 

show that Father’s interest in his pension is vested.3 Absent any evidence that 

Father’s interest in his pension is vested, the trial court appropriately excluded it 

from the marital pot. See Dowden, 696 N.E.2d at 458; see also Grammer v. 

Grammer, 566 N.E.2d 1080, 1083 (Ind. Ct. App. 1991) (holding trial court 

erroneously included the husband’s pension plan in the marital assets where the 

record was not clear that the pension had vested); Livingston v. Livingston, 583 

N.E.2d 1225, 1228 (Ind. Ct. App. 1992) (holding trial court did not err by 

excluding husband’s 401(k) plan from the marital assets where the “evidence 

does not establish unequivocally a vesting or present value of the plan”), trans. 

denied. Therefore, the dissolution court did not err when it excluded from the 

marital pot the value of Father’s pension plan, if any.

4

[16] Next, to the extent Mother contends that the dissolution court erred when it 

found that there are no assets of the marriage with any value, Mother does not 

support that contention with cogent argument, and the issue is waived. Ind. 

Appellate Rule 46(A)(8)(a). Waiver notwithstanding, Mother did not present

 

3

 There is no indication that Mother attempted to obtain this crucial information through discovery.

4

 We also note that neither party presented evidence regarding the value of Father’s pension.
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evidence showing that the parties had any assets other than items of personal 

property of unknown value discussed at the hearing. And the parties stipulated

to the division of the bulk of the personal property during the hearing. Because 

Mother did not present any evidence regarding the values of various marital 

assets to the dissolution court, again, any error was invited, and she cannot now 

complain. Balicki, 837 N.E.2d at 541; see also In re Marriage of Church, 424 

N.E.2d 1078, 1081-82 (Ind. Ct. App. 1981) (noting “that any party who fails to 

introduce evidence as to the specific value of the marital property at the 

dissolution hearing is estopped from appealing the distribution on the ground of 

trial court abuse of discretion based on that absence of evidence”).

[17] Finally, to the extent Mother contends that the dissolution court abused its 

discretion when it “order[ed] an equal division of the parties’ debts,” again, that 

contention is not supported by cogent argument. Appellant’s Br. at 14. 

Regardless, the evidence clearly shows that the dissolution court ordered Father 

to pay the majority of the parties’ marital debts, totaling approximately $20,000, 

and it ordered Mother to pay only the debt associated with her van, which is 

approximately $5,000.5 Thus, the dissolution court did not order an equal 

division of the parties’ debts. This contention is entirely without merit. Mother 

has not demonstrated that the dissolution court abused its discretion when it 

divided the marital pot.

 

5

 The evidence does not show the present value of that van, which was awarded to Mother.
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Issue Four: Attorney’s Fees

[18] Mother contends that the dissolution court abused its discretion when it denied 

her request that Father pay her attorney’s fees. Indiana Code Section 31-15-10-

1 provides that a trial court may order a party to pay a reasonable amount to 

the other party for the cost of maintaining or defending any action in 

dissolution proceedings. We review a trial court’s award of attorney fees in 

connection with a dissolution decree for an abuse of discretion. Hartley v. 

Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007). The trial court abuses its 

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

circumstances before it. Id. When making such an award, the trial court must 

consider the resources of the parties, their economic condition, the ability of the 

parties to engage in gainful employment and to earn adequate income, and 

other factors that bear on the reasonableness of the award. Id.

[19] Mother’s sole contention on this issue is that, because she is unable to work and 

Father makes approximately $100,000 per year, the dissolution court should 

have ordered Father to pay her attorney’s fees. But this court has held that, 

“while disparity of income may be considered in awarding attorney[’s] fees, a 

trial court is not required to award fees based on disparity of income alone.” 

Russell v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App. 1998), trans. denied. There 

is no abuse of discretion for the trial court not to do that which it is not required 

to do. Id.

[20] Affirmed.
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Baker, J., and Friedlander, J., concur.