Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 1 of 10

ATTORNEY FOR APPELLANT

Jonathan R. Deenik

Cross Pennamped Woolsey

& Glazier, P.C.

Carmel, Indiana

ATTORNEY FOR APPELLEE

C. Richard Marshall

Columbus, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In Re the Marriage of:

Courtney Carr,

Appellant-Petitioner,

v.

Beth E. Carr,

Appellee-Respondent

January 27, 2016

Court of Appeals Case No.

03A01-1505-DR-436

Appeal from the Bartholomew 

Superior Court

The Honorable Kathleen Tighe 

Coriden, Judge

The Honorable Timothy Day, 

Special Judge

Trial Court Cause No.

03D02-1310-DR-5399

Baker, Judge.
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 2 of 10

[1] Courtney Carr appeals the trial court’s dissolution order, which, in part, did not 

count the survivor benefit plan feature of his military pension as a marital asset. 

Finding that the survivor benefit plan should have been counted as a marital 

asset, we affirm in part, reverse in part, and remand with instructions to 

recalculate the asset distribution.

Facts

[2] Courtney Carr (Husband) and Beth Carr (Wife) were married on October 11, 

1997. On October 8, 2013, Husband filed a petition to dissolve the marriage. 

The trial court held a dissolution hearing on February 26, 2015. The parties 

were able to agree on most of the issues arising from the dissolution, including 

the custody of their two children and the disposition of much of their marital 

property, and so we will focus our attention on the facts relevant to this appeal.

[3] Husband had worked in the military for fourteen years prior to the marriage, 

and continued to work there during the marriage. Although he began earning 

his military pension before marrying Wife, that pension vested during their 

marriage. Also before the marriage, he had worked for, and earned a pension 

from, a private company named Rock Tenn.

[4] While both parties made significant contributions to the acquisition of marital 

assets, Husband made more economic contributions and Wife made more noneconomic contributions. Husband’s then-current deployment was set to end in 

May 2015, at which time he expected to find a less remunerative job in 
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 3 of 10

Columbus, Indiana. Even with the reduction in income, Husband’s earning 

capacity is far greater than that of Wife.

[5] Husband and Wife disagreed over the value and treatment of Husband’s 

military and civilian pensions. They retained an expert, Dan Andrews, to 

calculate the value of these assets. The parties agreed that Husband would elect 

a survivor benefit as part of his military pension, to be received by Wife in the 

event of Husband’s death, in the amount of $2,750 per month. Andrews 

testified that the present value to Wife of receiving these payments was 

$226,443.86. He also testified that the total present value of Husband’s military 

pension after this election1 was roughly $1.2 million. Husband earned a total of 

6,103 points toward this pension, 3,025 of which he earned prior to the 

marriage and 3,078 of which he earned during the marriage. Andrews testified 

that if the coverture formula2 were applied, the portion of the military pension

earned during the marriage equaled 50%.

[6] Wife argued that the coverture fraction should not be applied—she contended 

that Husband’s military pension had vested during the marriage; that her noneconomic contribution to the household enabled him to continue in the 

military; that if he had quit the military, he would be entitled to no pension; 

 

1 By making the election, Husband agreed to receive lower monthly pension payments during his lifetime.

2 The coverture formula “is one method a trial court may use to distribute pension or retirement plan benefits 

to the earning and non-earning spouses. Under this methodology, the value of the retirement plan is 

multiplied by a fraction, the numerator of which is the period of time during which the marriage existed 

(while pension rights were accruing) and the denominator is the total period of time during which pension 

rights accrued.” In re Marriage of Preston, 704 N.E.2d 1093, 1098 n.6 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 4 of 10

that she counseled him to maximize his retirement benefits; and that, therefore, 

she should be entitled to half of the $1.2 million total. The trial court, however, 

disagreed with Wife, applied the coverture share, and granted her half of the 

coverture share; Wife received half of half of the total military pension, or a 

present value of $315,463.54. Appellant’s App. 16. The trial court also applied 

a coverture share to Husband’s civilian pension, which was roughly one-third of 

the total. The trial court, utilizing Andrews’s calculations, found the coverture 

share of the civilian pension to be $36,234. Again, the trial court awarded half 

of this—$18,117—to Wife.

[7] The parties also disagreed over whether the survivor benefits should be counted 

as a marital asset. The trial court ruled that they would not: “The election for 

such benefits was not agreed upon until after the dissolution was filed. It is 

speculation whether Wife will ever even collect survivor benefits or how much 

she might receive. To do so, she must live longer than Husband.” Appellant’s 

App. 13. Accordingly, while ratifying the parties’ agreement to grant the 

survivor benefits to Wife, the trial court did not count the survivor benefit as a 

marital asset, nor did it list it in its summation of assets to be given to Wife.

[8] The trial court acknowledged the presumption in favor of an equal division of 

the marital estate, but found reason to deviate from a precise split. Based on 

Wife’s smaller earning capacity, the trial court found that an equal division 

would not be just and reasonable, but that a sixty/forty split in Wife’s favor 

would be equitable. While the two pensions were divided evenly, the other 

assets were shifted in favor of Wife such that she ended up with $804,888.14 of 
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 5 of 10

the total marital estate of $1,349,633.04. Finally, the trial court awarded 

attorney fees to Wife. Husband now appeals.

Discussion and Decision

[9] Husband raises two issues on appeal, which we consolidate into a single issue: 

whether the trial court erred by not counting the survivor benefit plan portion of 

the military pension (the SBP) as a marital asset with a value of $226,433.86. 

[10] Husband argues that the parties stipulated the SBP’s value and treatment; that 

an agreement by parties in open court to do or not do a thing is ordinarily 

binding, State ex rel. Burdge v. Cummings, 208 Ind. 292, 295, 195 N.E. 879, 880 

(1935); and that, therefore, the trial court’s decision to rule otherwise was error. 

Husband contends that, by not treating the SBP as a marital asset, the trial court

gave Wife a windfall in excess of the sixty/forty split. Husband cites Thompson 

v. Thompson, 811 N.E.2d 888, 915 (Ind. Ct. App. 2004), for the proposition that 

where omissions of marital assets cause the actual property distribution to 

deviate from the ratio set by the trial court, a proper remedy is to remand the 

cause to the trial court to recalculate the property division.

[11] We note initially that our dissolution scheme depends on the inclusion of all 

marital assets in the marital pot. This “one-pot” theory insures that all assets 

are subject to the trial court’s power to divide and award. Hill v. Hill, 863 

N.E.2d 456, 460 (Ind. Ct. App. 2007). The systematic exclusion of any marital 

asset from the marital pot is erroneous. Wilson v. Wilson, 409 N.E.2d 1169, 

1173 (Ind. Ct. App. 1980).
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 6 of 10

[12] The only Indiana case to deal with a military pension survivor benefit plan 

stated, “James correctly notes that his survivor benefit plan is a marital asset. 

Likewise, Karen’s survivor benefit annuity is a marital asset.” Leonard v. 

Leonard, 877 N.E.2d 896, 901 (Ind. Ct. App. 2007). We affirmed the trial 

court’s decision to award each spouse’s survivor benefit to the other spouse. Id.

[13] Wife argues that this statement was a passing comment made “without 

discussion, analysis, or supporting authorities.” Appellee’s Br. 20. She argues 

that the SBP is not a marital asset. For the purposes of determining whether an 

asset is marital property, vesting is both a necessary and sufficient condition for 

a right to a benefit to constitute an asset. Bingley v. Bingley, 935 N.E.2d 152, 155 

(Ind. 2010). She argues that since her right to the SBP had not vested, and 

could only vest in the event of Husband’s death, the SBP should not be counted 

as a marital asset.

[14] Formerly, courts adopted a similar argument to exclude any pension from the 

marital pot. For example, in Savage v. Savage, we rejected a wife’s claim that 

her husband’s pension should be counted as marital property, reasoning that

that husband “had only a contingent future interest rather than a vested present 

interest in the payments. He was not entitled to receive payment of his pension 

on demand, but rather was required to wait for monthly payments which were 

contingent upon his continued survival.” 176 Ind. App. 89, 92, 374 N.E.2d 

536, 538-39 (1978). This reasoning is now defunct, and pensions without the 

right of payment on demand are counted as a marital asset. See Hill, 863 

N.E.2d at 461 n.5 (holding Savage to be superseded by statute).
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 7 of 10

[15] Wife is correct that vesting is a necessary condition for an asset to be considered 

marital property. But an evaluation of case law reveals that it is the pensionearner’s right to the pension that must vest. See Harris v. Harris, 31 N.E.3d 991, 

997-98 (Ind. Ct. App. 2015) (holding that a military pension was not marital 

property where pension-earner’s right to the pension vested three years after 

dissolution of the marriage). There is no dispute in this case that Husband’s 

right to the pension vested during his marriage with Wife.

[16] Wife is correct that there is uncertainty whether she will ever receive the SBP. 

But this same uncertainty exists with any pension without a provision for 

survivor benefits—if the pension-earner dies before the other spouse, pension 

payments cease. And if the right to the pension vests in the pension-earner 

during marriage but before retirement, the present value of the pension might be 

included as marital property despite the fact that neither party would receive 

any of it if the pension-earner died before retirement. This was the rationale 

used by early pension cases like Savage that has been jettisoned by modern 

pension cases like Hill. The uncertainty regarding the SBP does factor into the 

analysis: but, as with pensions generally, it factors in to change the value 

assigned to the SBP, rather than to nullify the SBP’s status as marital property. 

The value of the SBP in this case, however, is not at issue; both parties 

unambiguously stipulated to the value to be assigned to it.

[17] We also note that both parties listed the SBP and its value as a marital asset in 

their proposed asset distribution. Respondent’s Ex. F; Petitioner’s Ex. 11. The 

parties initially disagreed over its value: Wife listed its value as $226,443.00 and 
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 8 of 10

Husband listed its value at $117,492.15. The parties stipulated to the former

figure at trial. Tr. 137.

[18] Husband argues that these proposed distributions, along with the colloquy that 

took place at the dissolution hearing, constituted a stipulation to treat the SBP 

as a marital asset. As noted, the parties did stipulate to the value of the SBP. 

Searching the record, however, we find no unambiguous stipulations regarding 

the treatment of the SBP. The general tone of the stipulations made at trial can 

be gleaned from one stipulation made by counsel for Wife when he said, “I 

agree with Professor Andrew’s analysis of whatever.” Tr. 140. We hesitate to 

say that such a statement is akin to a legally binding agreement.

[19] But this argument does suggest public policy reasons to treat the SBP as a 

marital asset. Both parties fully expected the SBP to be counted as a marital 

asset, and both parties expected the value to be counted as an asset going to 

Wife. To hold that SBPs are not marital property would be to remove any

incentive a pension-earner would otherwise have to elect the benefit. By 

making the election, the pension-earner reduces the income he or she would 

have received during his or her lifetime; if the SBP is not counted in the marital 

pot, the pension-earner would clearly benefit financially by not making the 

election. Electing a SBP provides value to the other spouse, which the law 

acknowledges by counting that value as part of the marital pot.

[20] In this case, when the SBP is added to the marital pot, the total pot has a value 

of $1,576,076.90, of which Wife received $1,031,332, or a little more than 65%. 
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 9 of 10

On remand, the trial court should either make new findings justifying a sixtyfive/thirty-five split, rather than the sixty/forty split, or should reallocate 

marital assets from Wife to Husband to bring the actual allocation into 

conformity with the previously-decided sixty/forty split.

Attorney Fees

[21] Along with her brief, Wife filed a motion for attorney fees, arguing that 

Husband’s argument regarding the alleged stipulations was “an egregious and 

outrageous attack of overwhelming fabrication.” Appellee’s Motion for 

Appellate Attorney Fees at 2. Needless to say, given that Husband has won on 

appeal, we deny this motion in an order separate from this opinion.

[22] We note, however, that the trial court retains discretion to award additional 

attorney fees on remand. An award from the Court of Appeals serves a 

different purpose than an award from the trial court. Whereas we award 

attorney fees only to discourage frivolous appeals made in bad faith, Appellate 

Rule 66(E), the purpose behind the trial court’s award of attorney fees in the 

context of marriage dissolution is to enable access to an attorney by a party who 

would not otherwise be able to afford one. Thompson, 811 N.E.2d at 928; Ind. 

Code § 31-15-10-1. And whereas the trial court has substantial discretion to 

insure this access, we exercise our Rule 66(E) power with extreme restraint 

because of the potential chilling effect upon the exercise of the right to appeal. 

Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 384 (Ind. Ct. App. 2012).
Court of Appeals of Indiana | Opinion 03A01-1505-DR-436 | January 27, 2016 Page 10 of 10

Conclusion

[23] The judgment of the trial court is affirmed in part, reversed in part, and 

remanded with instructions to (1) count the SBP as a marital asset and (2) either 

(a) make findings justifying a sixty-five/thirty-five split or (b) reallocate the 

marital assets in accordance with a sixty/forty split.

Bradford, J., and Pyle, J., concur.