ATTORNEY FOR APPELLANT

Stephen P. Rothberg

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Lindsey A. Grossnickle

Columbia City, Indiana

In the

Indiana Supreme Court

_________________________________

No. 02S03-1002-CV-122

ANNE M. BINGLEY,

Appellant (Defendant below),

v.

CHARLES B. BINGLEY,

Appellee (Plaintiff below).

_________________________________

Appeal from the Court, No. 02D07-0605-DR-274

The Honorable Charles F. Pratt, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-0904-CV-187

_________________________________

September 29, 2010

Shepard, Chief Justice.

Charles Bingley filed to dissolve his marriage with appellant Anne Bingley. Charles had

retired from his employment with Navistar Corp., which paid premiums to a health insurance 

company on Charles‟s behalf as part of his pension plan. Anne argued that the premiums 

constituted property subject to division. The trial court held that the benefits Charles was 

receiving did not constitute a marital asset.
2

Because we conclude that employer-provided health insurance benefits do constitute an 

asset once they have vested in a party to the marriage, we reverse.

Facts and Procedural History

On May 9, 2006, Charles Bingley filed to dissolve his marriage with Anne Bingley, his 

wife of thirty-seven years. At the time of filing, Charles was seventy-five years old and had 

retired from Navistar Corp. During Charles‟s retirement, Navistar paid him a monthly stipend as 

part of his participation in a defined-benefit pension plan.

Under the pension plan, Navistar also paid a health insurance company $845.74 per 

month in premiums on Charles‟s behalf and had promised to do so for the remainder of Charles‟s

life. (App. at 19.) Charles did not elect this arrangement in lieu of a larger monthly stipend, nor

did he have the choice to do so. (App. at 17, 19.) His right to health insurance benefits was not 

subject to divestiture, division, or transfer. (App. at 17, 19.)

After the final hearing, the trial court left the record open so the parties could submit 

additional information about Charles‟s health insurance benefits. Anne filed a supplement to the 

record in which she argued using actuarial principles that the premiums had a present value of 

$101,556. (App. at 25, 39, 44.) The trial court considered this value a contention instead of 

evidence because Charles limited his response to arguing that the premiums did not constitute 

property (he did not address the question of valuation).

1

 (App. at 25.)

 

1 The trial court based its decision to consider Anne‟s valuation a contention instead of evidence on the 

fact that Charles did not have the opportunity to respond to Anne‟s valuation. (App. at 25.) It is not clear 

from the record why Charles did not have this opportunity because he filed a Response to Anne‟s Motion 

to Supplement the Record. (App. at 35.)
3

When the trial court issued its decree of dissolution, it held that the premiums did not

constitute property within the meaning of Indiana Code § 31-9-2-98(b) (2008). The court 

reasoned that because Charles‟s premiums had no cash surrender value, they more closely 

resembled employer-provided group term life insurance than pension payments. (App. at 25); 

see also Metropolitan Life Ins. Co. v. Tallent, 445 N.E.2d 990, 991 (Ind. 1983).

Anne appealed, and the Court of Appeals affirmed. Bingley v. Bingley, 915 N.E.2d 1006

(Ind. Ct. App. 2009). We granted transfer, thereby vacating the decision of the Court of Appeals. 

Bingley v. Bingley, 929 N.E.2d 785 (Ind. 2010) (table); Ind. Appellate Rule 58(A).

Standard of Review

We review a trial court‟s valuation of an asset in a marriage dissolution for an abuse of 

discretion. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996) (citing Cleary v. Cleary, 582 

N.E.2d 851 (Ind. Ct. App. 1991)). With respect to findings of fact about an asset‟s value, a trial 

court has not abused its discretion if sufficient evidence and reasonable inferences support that 

valuation. Id. (citing Porter v. Porter, 526 N.E.2d 219 (Ind. Ct. App. 1988)). Questions of law, 

however, are subject to de novo review. Fobar v. Vonderahe, 771 N.E.2d 57 (Ind. 2002).

I. The Health Insurance Benefits Are Property.

When a trial court dissolves a marriage, it must divide the property of the parties between 

them. Ind. Code § 31-15-7-4(a). For the purposes of such a dissolution, “property” means

all assets of either party or both parties, including:

(1) a present right to withdraw pension or retirement benefits;

(2) the right to receive pension or retirement benefits that are not 

forfeited upon termination of employment or that are vested (as 
4

defined in Section 411 of the Internal Revenue Code) but that are 

payable after the dissolution of marriage; and

(3) the right to receive disposable retired or retainer pay (as 

defined in 10 U.S.C. § 1408(a)) acquired during the marriage that 

is or may be payable after the dissolution of marriage.

Ind. Code § 31-9-2-98(b) (emphasis added). The trial court may divide the property by awarding 

parts of the property to one of the parties and requiring either party to pay an amount to the other 

to achieve a just and proper distribution. Ind. Code § 31-15-7-4(b)(2).

Anne argues that health insurance premiums being paid for Charles constitute retirement 

benefits that Charles earned during marriage, so the trial court should have included them in the 

marital property subject to division. (Appellant‟s Br. at 2.) She further argues that Navistar‟s 

paying premiums on Charles‟s behalf is analogous to a retirees receiving pension benefits. 

(Appellant‟s Br. at 3–4.) Finally, Anne argues that because Charles‟s right to his health 

insurance benefits had vested, the premium payments are analogous to vested pension benefits. 

(Appellant‟s Br. at 4.)

Charles responds that his health insurance premiums do not constitute marital assets 

because he cannot transfer or alienate his health insurance benefits, nor did he choose to receive 

them in lieu of a larger monthly stipend under his pension plan. (Appellee‟s Br. at 4.) Charles 

also argues that the value of the premiums is speculative because of the possibility that Navistar 

may someday file for bankruptcy or cancel his health insurance benefits. (Appellee‟s Br. at 4.)

Framing the question as whether the premiums constitute property misconceives the 

question. Rather than analyze whether Charles‟s health insurance premiums constitute 

retirement benefits within the meaning of subsection (2), we think it plain enough that Charles‟s 

health insurance benefits constitute an intangible asset.

The phrase “all assets” is broadly inclusive and is not limited to the list of examples that 

follows it. See Beckley v. Beckley, 822 N.E.2d 158, 163 (Ind. 2005) (holding lump sum 
5

payment for lost wages and pain and suffering was an asset to the extent it compensated for pain 

and suffering). It has been customary to view the statute‟s list of examples simply as instances 

falling within the ambit of “all property” rather than as suggestions that “all” is somehow less 

than all-inclusive.

2

 See, e.g., Helm v. Helm, 873 N.E.2d 83 (Ind. Ct. App. 2007) (lottery 

payments); Henry v. Henry, 758 N.E.2d 991 (Ind. Ct. App. 1995) (stock options); Sedwick v. 

Sedwick, 446 N.E.2d 8 (Ind. Ct. App. 1983) (structured settlement annuity).

Whether a right to a present or future benefit constitutes an asset that should be included 

in marital property depends mainly on whether it has vested by the time of dissolution. Compare

Hill v. Hill, 863 N.E.2d 456, 460–61 (Ind. Ct. App. 2007) (holding pension plan was an asset 

when party was receiving payments at time of dissolution); with Bizik v. Bizik, 753 N.E.2d 762, 

767–68 (Ind. Ct. App. 2001) (holding retirement plan was not an asset when it had not vested by

time of dissolution). In other words, vesting is both a necessary and sufficient condition for a 

right to a benefit to constitute an asset. See Helm, 873 N.E.2d at 88 (“The common denominator 

. . . is whether the interest in the future payment is „vested.‟”).

A right to a benefit can vest either in possession or in interest. In re Marriage of Preston, 

704 N.E.2d 1093, 1097 (Ind. Ct. App. 1999) (“Vesting in possession connotes an immediate[ly] 

existing right of present enjoyment, while vesting in interest implies a presently fixed right to 

future enjoyment.”). Vested pension rights represent “„intangible assets of a spouse [that] have 

been earned during the marriage, either through the contributions of the spouse [that] otherwise 

would have been available as assets during the marriage, or through contributions of the 

employer [that] constitute deferred compensation.‟” Preston, 704 N.E.2d at 1097 (quoting 2

 

2

Indeed, this is Anne‟s principal argument. The statute expressly includes retirement benefits in the 

definition of property even if they are payable after the marriage dissolution. Ind. Code § 31-9-2-

98(b)(2). The only condition is that either the beneficiary does not forfeit them on termination of 

employment or the benefits have vested as defined in Section 411 of the Internal Revenue Code. Id.
6

Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 16.6, at 208 (2d ed. 

1987)).

A similar theory explains why disability payments received after a marriage dissolution

are not assets for the purposes of a marriage dissolution. Leisure v. Leisure, 605 N.E.2d 755

(Ind. 1993) (holding workers‟ compensation payments were not assets to the extent they replaced 

lost future wages after marriage dissolution); see also Beckley, 822 N.E.2d at 162 (holding

person did not have a vested interest in future wages). The exception to this rule occurs when a 

party purchases or contributes to disability insurance with marital assets, namely, wages in which 

the party had a present interest. Gnerlich v. Gnerlich, 538 N.E.2d 285, 286 (Ind. Ct. App. 1989).

Vesting also explains our holding that employer-provided group term life insurance is not 

an asset. Tallent, 445 N.E.2d at 991 (Ind. 1983). In Tallent, a husband changed the beneficiary 

on his life insurance policy from his wife to his mother after his wife filed to dissolve their 

marriage and just before he committed suicide. Id. The husband was subject to an order 

restraining him from disposing of his property, but we held that the life insurance policy was not 

an asset of the husband‟s. Id. The beneficiary, not the insured, had “„a defeasible vested interest 

in the policy, a mere expectancy, until after the death of the insured.‟” Id. at 992 (quoting 

Bronson v. N.W. Mut. Life Ins. Co., 129 N.E. 636, 639 (1921) (emphasis in original)).

We think Charles‟s health insurance benefits constitute an asset in the plain meaning of 

the word. Charles has a right to the medical services his health insurance will cover for the rest 

of his life. Because Navistar has assumed a monthly liability that Charles would otherwise have 

had to bear, Charles‟s health insurance benefits more closely resemble a right to future pension 

payments, which the Court of Appeals described as an intangible asset in Preston. 704 N.E.2d at 

1097. Unlike the term life insurance in Tallent, the policy holder of which was not the same 

person as the beneficiary, the health insurance in this case benefits the same party to the marriage 

dissolution who owns the policy. 445 N.E.2d at 991.
7

Most importantly, Charles‟s health insurance benefits have vested. The parties did not 

dispute that Navistar was paying Charles‟s premiums at the time of dissolution. As a result, 

Charles had a present right to enjoy his health insurance benefits. Moreover, the parties did not 

even dispute that Charles‟s health insurance benefits were not subject to divestiture in future 

years. Tallent is doubly not on point because the beneficiary in that case had an interest that was 

defeasible. 445 N.E.2d at 992.

Charles‟s principal argument is that his health insurance benefits cannot constitute an 

asset because he cannot transfer or alienate them. (Appellee‟s Br. at 4.) As a result, Charles 

could not dispose of his health insurance benefits to generate cash to pay Anne in order to 

achieve a just and proper distribution. This illiquidity is relevant to the value a trial court may 

assign to an asset, but not to whether benefits constitute an asset in the first place. See Part II, 

infra.

Charles further argues that his health insurance benefits cannot constitute an asset 

because their value is speculative. As a result, Charles may have to pay Anne more to retain the 

asset than his share ends up being worth. As with illiquidity, however, the fact that a person

bears the risk of future changes in value is relevant to the present value a trial court may assign

to an asset, but not to whether benefits constitute an asset in the first place. See Part II, infra.

II. What Are These Benefits Worth?

Because the trial court held that Charles‟s premiums did not constitute an asset, it

understandably did not reach the question of valuation. Valuation is the more difficult aspect of 

this case.

We have not previously addressed the possible methods of valuing health insurance

benefits in a marriage dissolution. We begin by noting that a trial court has broad discretion to 

value an asset based on the evidence. Quillen, 671 N.E.2d at 102 (citing Cleary, 582 N.E.2d at
8

852). Appellate courts review such valuations for an abuse of discretion. Id. So long as

sufficient evidence and reasonable inferences support the valuation, the trial court has not abused

its discretion. Id. (citing Porter, 526 N.E.2d at 222).

The method a trial court uses to value health insurance benefits may vary case by case 

and may depend on the type of evidence the parties introduce. Three possible methods of 

valuing health insurance benefits seem plausible, though still other methods may be more 

appropriate in certain circumstances.

3

For example, a trial court might value health insurance benefits by considering the cost of 

obtaining comparable alternative benefits. Presumably, this would involve discounting to 

present value the premiums a person would have to pay to obtain individual health insurance if 

he did not have the benefit of employer-provided health insurance. This method may be more 

likely to overstate the value of health insurance because of adverse selection and the taxdisfavored status of the individual health insurance market. It might also entail a higher cost in 

terms of expert witnesses.4

 

3 The potential application of multiple methods of valuation exists in other settings. For instance, we 

have described somewhat similar methods of estimating the fair market value of property taken by 

eminent domain using

(1) the current cost of reproducing the property less depreciation from all sources; (2) the 

“market data” approach or value indicated by recent sales or comparable properties in the 

market; and (3) the “income-approach,” or the value which the property‟s net earning 

power will support based upon the capitalization of net income.

Bishop v. State, 800 N.E.2d 918, 923–24 (2003) (emphasis in original). We noted that any or all of these 

three methods were appropriate ways of valuing real estate. Id. at 924.

4 We caution that we have not found a decision from a court that has used this method to value health 

insurance benefits, and at least one court has expressly disapproved of it. See, e.g., Hansen v. Hansen, 

119 P.3d 1005, 1016 (Alaska 2005).
9

Second, a court might value health insurance benefits by considering the premium 

subsidy from the employer.

5

 Presumably, this would involve discounting to present value all the 

premiums an employer had agreed to pay on behalf of a party while also taking into account the 

party‟s remaining life expectancy and the probability of the policy lapsing before the termination 

date. Anne effectively urged the trial court to adopt this discounted premium subsidy method 

when she submitted her Motion to Supplement the Record with her contentions of the asset‟s 

value. (App. at 39.)

Third, a trial court might value health insurance benefits by considering the cost of 

providing medical services covered by health insurance.

6

 We anticipate that this would involve 

discounting to present value the expected costs of the medical services a health insurance plan 

would cover while also taking into account the party‟s remaining life expectancy and the 

probability of the policy lapsing before the termination date. Although this method may be 

necessary in certain circumstances, it also appears to be the most difficult to apply.

Regardless of how a trial court chooses to value health insurance benefits, the next 

question will always be how to divide the assets between the parties. There is a rebuttable 

presumption that an equal division of the marital property is just and reasonable. Ind. Code § 31-

15-7-5. A party may rebut that presumption by introducing evidence that relates to “[t]he 

economic circumstances of each spouse at the time the disposition of the property is to become 

effective.” Ind. Code § 31-15-7-5(3).

 

5 Although academics and practitioners have argued over whether health insurance benefits should be 

included in marital property, they seem to assume that using a discounted premium subsidy method 

would be the appropriate method. Compare William R. Horbatt & Alan Grossman, Division of Retiree 

Health Benefits on Divorce: The New Equitable Distribution Frontier, 28 Fam. L.Q. 327, 331–32 (1994) 

(arguing in favor of including health insurance benefits in marital property); with Jerry Reiss & Michael 

R. Walsh, Post-Retirement Medical Benefits: A Not-So-Certain Property Right, 15 J. Amer. Acad. 

Matrimonial Lawyers 375, 386–87 (1998) (arguing against including health insurance benefits in marital 

property).

6 We have not found a decision from a court that uses this method, and at least one court appears to have 

disapproved of it. See, e.g., Hansen, 119 P.3d at 1016.
10

If a party met this burden, then a trial court could deviate from an equal division to 

achieve a just and proper distribution. For instance, Charles has repeatedly argued that his health 

insurance benefits are illiquid and subject to risk. Although these factors cannot shield his health 

insurance benefits from their proper categorization as an asset, they may be sufficient grounds 

for the trial court to adjust the distribution of the marital property between the parties.

Conclusion

We therefore reverse the trial court‟s division of property and remand for further 

proceedings on the valuation of Charles‟s benefits and reconsideration of the division of assets.

Sullivan, Boehm, and Rucker, JJ., concur.

Dickson, J. dissents with separate opinion.
1

Dickson, Justice, dissenting.

I dissent, believing that the Court‟s opinion expands the division of marital property 

contrary to statute, intrudes upon the legislature‟s public policy prerogatives, and significantly 

and harmfully disrupts Indiana marriage dissolution law and practice.

Today‟s revision of the present understanding of divisible property to now include vested 

future entitlements to health insurance benefits is predicated upon Indiana Code § 31-9-2-98(b), 

which designates the property subject to division in a marriage dissolution as follows:

(b) “Property” . . . means all the assets of either party or both parties, including:

(1) a present right to withdraw pension or retirement benefits;

(2) the right to receive pension or retirement benefits that are not forfeited upon 

termination of employment or that are vested (as defined in Section 411 of the 

Internal Revenue Code) but that are payable after the dissolution of marriage; 

and

(3) the right to receive disposable retired or retainer pay (as defined in 10 U.S.C. 

1408(a)) acquired during the marriage that is or may be payable after the 

dissolution of marriage.

Id. (emphasis added). As to the entitlement to receive future retirement health insurance 

benefits, which falls within only subsection (b)(2) above, the legislature has designated the 

vested rights defined in Section 411 of the Internal Revenue Code.

Section 411, however, includes an important express limitation. It states that “normal 

retirement benefit[s]” are to be “determined without regard to – (A) medical benefits, and (B) 

disability benefits not in excess of the qualified disability benefit.” 26 U.S.C. § 411(a)(9). By 

specifically referencing Section 411, the legislature has thus indicated its intent to exclude 

medical benefits from marital property subject to division. 

Today‟s decision, in my view, represents a substantial departure not only from legislative 

direction and intent but also from the common practice and understanding relating to the division 

of vested future interests in dissolution cases. One extremely troubling application of today‟s 
2

ruling is its impact in dissolution cases involving Hoosiers with retirement medical benefits from 

their United States military service. Active duty military members receive exceptional benefits 

for their years of service upon retirement. One of those benefits includes lifetime health 

insurance care through the TriCare system.

7

 The military member‟s benefit can vest at the age of 

thirty-eight and continue for the rest of the retiree‟s life. This benefit extends to the military 

retiree‟s dependants, which includes the spouse of the retiree.8 In the event of a marriage 

dissolution, however, the non-military spouse will almost always lose this benefit.9 Under 

today‟s holding, the military retiree‟s health benefits would be considered divisible marital 

property and often warrant a sizeable valuation because of the potentially lengthy time the 

military retiree would be eligible for the lifetime benefit. The resulting inclusion of its present 

value as marital property would likely preclude a divorcing military retiree from retaining any 

other marital property and require post-dissolution periodic property settlement payments to the 

non-military former spouse. I seriously doubt that our legislature intended such potentially 

catastrophic results.

Today‟s holding also introduces other substantial challenges to the valuation and 

equitable distribution of marital property as parties and courts attempt to apply this new standard 

to the wide variety of non-pension, assured future benefit packages that are becoming more 

commonplace with many employers. For example, Hewlett-Packard (HP) provides discounts to 

its retirees, allowing them to purchase HP products ranging from laptops to printer ink cartridges 

at a reduced price.10 The airline industry is known for its retirement benefits that can include 

 

7 TriCare, http://tricare.mil/mybenefit/home/overview/Eligibility? (last visited Sept. 15, 2010).

8

Id.

9 TriCare, http://tricare.mil/mybenefit/home/overview/Eligibility/Loss? (last visited Sept. 15, 2010). The 

former spouse may retain this benefit as long as: (a) he or she does not remarry, (b) he or she was married 

to the same military retiree for at least twenty years, (c) the military retiree has at least twenty years of 

creditable service towards determining retirement pay, and (d) the marriage and creditable service 

substantially overlap. Id.

10 HP Retirees: Employee Purchase Program, http://www.hp.com/retiree/epp.html (last visited Sept. 15, 

2010). 
3

free flights for its employees and retirees, giving them the value of flying to any destination 

worldwide that is serviced by the airline. Some automobile manufacturers also have a benefit 

package for their employees and retirees. General Motors (GM) and Ford Motor Company both 

provide their employees discounts on periodic vehicle purchases.11 Furthermore, many 

companies, such as Verizon have teamed up with other companies to offer non-monetary 

benefits to their retirees.12 Some of these benefits include discounts at Barnes & Noble, Dell 

Computers, 1-800-Flowers, National Car Rental, and Sears Commercial.13 All of these benefits 

have potential but speculative value to the beneficiary and provide no direct monetary 

compensation to the designated beneficiary. Assigning a present value to such vested benefits 

will be a formidable if not impossible task. 

Believing that today‟s decision is contrary to statute, intrudes upon legislative policymaking, and harmfully disrupts existing dissolution property division law, I dissent. 

 

11 See GM Family First, https://www.gmfamilyfirst.com/ip-gmemployee/; Ford Motor Company, http://w

ww.ford.com/about-ford/careers/careers-benefits (last visited Sept. 15, 2010). 

12 See Verizon, http://www22.verizon.com/content/retiree/your+discounts/other+discounts/other+discount

s.htm (last visited Sept. 15, 2010).

13 Id.