Court of Appeals of Indiana | Opinion 22A-DC-1972 | May 26, 2023 Page 1 of 22

ATTORNEY FOR APPELLANT

Christian P. Skordos

Cordell & Cordell, P.C.

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Thomas L. Stucky

Stucky, Lauer & Young LLP

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Craig Randolph,

Appellant-Petitioner,

v.

Karen A. Randolph,

Appellee-Respondent.

May 26, 2023

Court of Appeals Case No.

22A-DC-1972

Appeal from the Allen Superior 

Court

The Honorable Lori K. Morgan, 

Judge

Trial Court Cause No.

02D08-2102-DC-171

Opinion by Judge Tavitas

Judges Vaidik and Foley concur.

Tavitas, Judge.

Case Summary

[1] Craig Randolph (“Father”) appeals the trial court’s dissolution of his marriage 

to Karen Randolph (“Mother”). Father argues that the trial court erred by: (1) 

restricting his parenting time with their child; (2) including his pre-marital 
Court of Appeals of Indiana | Opinion 22A-DC-1972 | May 26, 2023 Page 2 of 22

retirement account in the marital estate; and (3) awarding Mother sixty percent 

of the marital estate. On cross-appeal, Mother argues that she should be 

awarded appellate attorney fees for defending against Father’s appeal. We find 

Father’s arguments to be without merit and that Mother is not entitled to 

appellate attorney fees. Accordingly, we affirm.

Issues

[2] Father raises three issues, and Mother raises one issue, which we restate as:

I. Whether the trial court improperly restricted Father’s 

parenting time.

II. Whether the trial court abused its discretion by including 

Father’s pre-marital retirement account in the marital 

estate.

III. Whether the trial court abused its discretion by awarding 

Mother sixty percent of the marital estate.

IV. Whether Mother is entitled to appellate attorney fees.

Facts

[3] Father and Mother were married in October 2003, and their daughter, E.R., 

was born in January 2006. Mother also had two older children from a previous 

relationship. The parties separated in February 2021, and Father filed a petition 

for dissolution of marriage.
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[4] Prior to the parties’ marriage, Father and Mother each owned a residence. The 

parties sold both residences and purchased a marital residence in Fort Wayne. 

[5] Father is a mechanical engineer. Prior to the parties’ marriage, Father worked 

at Navistar and had a 401(k) retirement account, which Father estimated was 

valued at $85,000 at the time of the marriage. Father stopped making 

contributions to the account shortly before the marriage. At the time of the 

petition for dissolution, the 401(k) was valued at $248,854.72. 

[6] Father’s employment with Navistar ended in 2011, and Father began doing 

contract work. Beginning in approximately 2015, Father’s employment was 

often out of town, and he returned home on the weekends. For two years, he 

was employed in Wisconsin and returned home every other weekend. Since 

the start of the Covid-19 pandemic, Father has worked from home.

[7] At the beginning of the marriage, Mother had student loans of approximately 

$33,000. Mother is a nurse and worked in a doctor’s office until E.R. was born. 

Mother stayed home to care for the children until E.R. was eight years old. 

Mother then worked weekends as a surgical nurse in a hospital. Approximately 

five or six years ago, Mother began working as a school nurse.

[8] In April 2021, the trial court entered provisional orders that provided, in part, 

for joint legal custody of E.R. with Mother having primary physical custody

and Father having parenting time as follows:

[Father] is granted parenting time with [E.R.] pursuant to the 

provisions of the Indiana Parenting Time Guidelines. Until such 
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time, if ever, that [Father] is again required to work out of state, 

he is granted additional overnight parenting times on one 

[weekday] overnight each week. The express intent of this order 

is that the child stay with [Father] during the school hours on the 

day of and the day following the weekday overnight parenting 

times so that he may assist her with her virtual school 

attendance.

Appellant’s App. Vol. II p. 17. The trial court granted Mother temporary 

possession of the marital residence for four months, at which time Mother

would vacate the marital residence and give possession of the residence to 

Father.

[9] During Mother’s possession of the marital residence, Father relocated to a 

camper at a lake in Steuben County, which was forty-five miles away from Fort 

Wayne. E.R.’s relationship with Father is strained, and E.R. did not want to 

visit Father at the camper. E.R. and Father disagreed about E.R.’s 

participation in extracurricular activities because they interfered with parenting 

time, and they disagreed regarding E.R.’s desire to have employment.

[10] The parties participated in therapy with Timothy Theye. Theye opined that the 

“biggest issue” in the relationship between Father and E.R. is that Father has 

“very rigid ideas in terms of parenting [ ] that tend[ ] to irritate” E.R. Tr. Vol. II 

p. 10. Theye was concerned that E.R.’s psychological and emotional 

development “could [be] adversely impact[ed]” if she was forced to meet 

Father’s parenting time demands. Id. at 16. Theye was also concerned that 

E.R. will “reject [Father] all together [sic]” when she turns eighteen years old if 
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he “continued to push [E.R.] for parenting time that she’s not comfortable 

with.” Id. at 17. Theye supported E.R.’s request for parenting time consisting 

of a Saturday overnight every other weekend and a mid-week evening visit 

without an overnight.

[11] The trial court appointed a Guardian ad litem (“GAL”), who believed that 

Father and E.R. have “very different” personalities, which “clash.” Tr. Vol. III 

p. 74. The GAL noted that “there doesn’t seem to be a whole lot of empathy 

on either one of their parts about how the other one feels . . . .” Id. She 

believed that Father, Mother, and E.R. were “a lot alike . . . in that, they want 

what they want when they want it and why they want it.” Id. at 75. The GAL 

had hoped that therapy would improve the relationship between Father and 

E.R., but it did not. The GAL shared Theye’s concerns and also supported

E.R.’s proposed parenting time schedule. 

[12] The trial court held a final hearing in April 2022. At the hearing, Father

requested seventy-one percent of the marital estate, and Mother requested sixty 

percent of the marital estate. The trial court conducted an in camera interview 

with E.R. The trial court then entered findings of fact and conclusions thereon. 

The trial court awarded the parties joint legal custody of E.R. with Mother

having primary physical custody. Regarding Father’s parenting time, the trial 

court found:

71. [Father] argues that [Mother] and [GAL]’s position with 

regard to the modification of his parenting time amounts to a 

restriction on his parenting time and in order to grant the request 
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of [Mother] and modify and “restrict” his parenting time as 

requested by [Mother] and [GAL], the Court must find that 

continuing the current parenting time schedule in full force and 

effect might endanger the child’s physical health or significantly 

impair the child’s emotional development.

* * * * *

74. The child is experiencing anxiety, nausea and vomiting 

associated with parenting time with [Father]. The Court finds 

that modifying the parenting time schedule to alternate weekends 

from Saturday overnight to the next day (Sunday) and mid-week 

for up to four hours as well as alternate holidays and extended 

parenting time pursuant to the Indiana Parenting Time 

Guidelines is in the minor child’s best interests and that said

schedule does not amount to a “restriction” of [Father’s]

parenting time requiring the Court to find that the continued 

exercise of the current schedule might endanger the child’s 

physical health or significantly impair the child’s emotional 

development. In the event that it is determined that such a 

finding is required, there was sufficient evidence presented at trial 

demonstrating that the child might suffer emotional harm if the 

current parenting time schedule was maintained in full force and 

effect and therefore, the Court[] further finds[] that the current 

schedule is not in the child’s best interests as it might endanger 

the child’s physical health or significantly impair her emotional 

development due to the decline in the parent-child relationship 

between [Father] and child.

75. The Court finds that the parenting time schedule that is in the 

child’s best interests is the schedule that provides [Father] with 

parenting time with [E.R.] on alternate weekends commencing 

on Saturday overnight with mid-week parenting time for up to 

four (4) hours and holiday and extended parenting time pursuant 

to the dictates of the Indiana Parenting Time Guidelines.
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Appellant’s App. Vol. II pp. 66-68. Thus, the trial court granted Father

parenting time with H.R. on “alternate weekends commencing on Saturday at 

12:00 p.m. and concluding the next day (Sunday) at 6:00 p.m., as well as midweek (each week) for 4 hours and alternate holidays and extended parenting 

time pursuant to the provisions of the Indiana Parenting Time Guidelines.” Id.

at 83.

[13] Regarding the parties’ marital estate, the trial court included Father’s entire 

Navistar 401(k) in the marital estate and divided the marital estate as follows:

93. In considering the requirements of Ind. Code §31-15-7-5, the 

Court finds that both spouses contributed to the acquisition of 

property whether it was income producing or non-income 

producing. [Father] was employed during the majority of the 

parties’ marriage, however, there were a few short periods of 

time when he was without employment while he was looking for 

a new job. [Mother] was employed during portions of the 

parties’ marriage. There was a period of time when she did not 

work because she was at home with the parties’ child and 

providing care for her as well as managing the household 

responsibilities. As it relates to the second statutory factor, 

[Father] had a 401([k]) through Navistar at the time of the 

parties’ marriage. The value of the plan at the time of the 

marriage was $84,000.00. He has not personally made a

contribution to the plan since the date of the parties’ marriage, 

however the value of the plan has increased significantly over the 

course of the parties’ marriage. [Father] had approximately 

Thirteen Thousand Dollars ($13,000.00) of credit card debt just 

prior to the parties’ marriage that the parties paid off while 

[Father] was residing with [Mother] in her home. [Mother]

brought approximately Thirty-Three Thousand Dollars 

($33,000.00) of student loan debt into the marriage. With regard 

to the third statutory factor, the Court finds that [Father] earns 
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more than twice the income that [Mother] earns from his [sic]

employment and is likely to continue doing so into the future. 

As it relates to the fourth statutory factor, there is no credible 

evidence at trial that either party has dissipated marital assets. 

As it relates to the fifth statutory factor, the Court finds that 

[Father] earns more than twice the income that [Mother] earns 

from employment. He has historically earned a higher income 

than [Mother] and will likely continue to do so into the future. 

He has been awarded more of the marital assets that will afford 

him the opportunity to continue to build upon his wealth and 

earning potential. In light of these considerations, the Court 

finds that [Mother] has rebutted the presumption that a 50-50 

division of the marital estate is just and reasonable and the Court, 

therefore, finds that the entry of an order awarding [Father] 40% 

and [Mother] 60% of the marital estate is appropriate.

Id. at 74-75. Father now appeals.

Discussion and Decision

[14] In addressing the parties’ dissolution of marriage, the trial court entered

findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), 

which “prohibits a reviewing court on appeal from setting aside the trial court’s 

judgment ‘unless clearly erroneous.’” Smith v. Smith, 194 N.E.3d 63, 72 (Ind. 

Ct. App. 2022) (quoting Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). 

“When a trial court has made special findings of fact, as it did in this case, its 

judgment is clearly erroneous only if (i) its findings of fact do not support its 

conclusions of law or (ii) its conclusions of law do not support its judgment.”

Id. “Findings are clearly erroneous only when the record contains no facts to 

support them either directly or by inference.” Id.
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I. Parenting Time

[15] Father first challenges the trial court’s parenting time order. Parenting time 

decisions require us to “give foremost consideration to the best interests of the 

child.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). We review 

parenting time decisions for an abuse of discretion. Id. “Judgments in custody 

matters typically turn on the facts and will be set aside only when they are 

clearly erroneous.” Id. (citing Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.

2008)). “We will not substitute our own judgment if any evidence or legitimate 

inferences support the trial court’s judgment.” Id.

[16] Father argues that the trial court abused its discretion by “restricting” his 

parenting time with E.R. Appellant’s Br. p. 14. Father contends that the trial 

court “reduced a parenting time order that exceeded the schedule laid out in the 

Indiana Parenting Time Guidelines to one that was significantly less.” Id. at 

15. Under the provisional order, Father was entitled to two overnights on 

alternating weekends and one mid-week overnight each week. Under the 

dissolution decree, however, Father was granted one overnight on alternating 

weekends and one mid-week visit of four hours. According to Father, in order 

to “restrict” his parenting time, the trial court was required to find that 

parenting time would endanger the child’s physical health or significantly 

impair the child’s emotional development, and the trial court did not make such 

a finding. 

[17] Father relies upon Indiana Code Section 31-17-4-2, which provides:
Court of Appeals of Indiana | Opinion 22A-DC-1972 | May 26, 2023 Page 10 of 22

The court may modify an order granting or denying parenting 

time rights whenever modification would serve the best interests 

of the child. However, the court shall not restrict a parent’s 

parenting time rights unless the court finds that the parenting 

time might endanger the child’s physical health or significantly 

impair the child’s emotional development.

(emphasis added).1

 

[18] First, we note that this statute applies to the modification of parenting time 

rights. Here, however, the trial court made an initial determination regarding 

Father’s parenting time rights, not a modification of parenting time rights. The 

provisional order was not a final determination of parenting time rights; rather, 

the provisional order was “temporary in nature and terminate[d] when the final 

dissolution decree [was] entered or the petition for dissolution [was] dismissed.”

Linenburg v. Linenburg, 948 N.E.2d 1193, 1196 (Ind. Ct. App. 2011). 

Accordingly, Indiana Code Section 31-17-4-2 does not apply here. 

[19] Applicable here, Indiana Code Section 31-17-4-1 provides: “[A] parent 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 

1 Although the statute uses the word “might,” our Supreme Court has held: “Extraordinary circumstances 

must exist to deny parenting time to a parent . . . . If the trial court finds such extraordinary circumstances do 

exist, then the trial court shall make specific findings regarding its conclusion that parenting time would

endanger the child’s physical health or significantly impair the child’s emotional development.” Perkinson, 

989 N.E.2d at 765 (emphasis added).
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child’s emotional development.” (emphasis added). Thus, we will address 

whether a finding that parenting time would endanger the child’s physical 

health or significantly impair the child’s emotional development was required 

here.

[20] Father seems to argue that any deviation of parenting time below that 

recommended by the Indiana Parenting Time Guidelines amounts to a 

“restriction” requiring a finding that parenting time would endanger the child’s 

physical health or significantly impair the child’s emotional development. The 

Guidelines, however, specifically allow “[d]eviations from these Guidelines by 

either the parties or the court that result in parenting time less than the 

minimum time set forth below” provided that the deviations are “accompanied 

by a written explanation indicating why the deviation is necessary or 

appropriate in the case.” Ind. Parenting Time G. Preamble. Accordingly, there

is a difference between a “restriction” of parenting time, which requires a 

finding of endangerment or impairment, and a “deviation” from the parenting 

time contemplated by the Guidelines, which requires only a written explanation 

from the trial court. 

[21] We addressed a similar issue in In Re of Paternity of J.K., 184 N.E.3d 658, 666 

(Ind. Ct. App. 2022). There, a father challenged the modification of his 

parenting time to his teenage son in the context of the paternity statutes, 

Indiana Code Section 31-14-14-1 and Indiana Code Section 31-14-14-2, which 
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are similar to the statutes at issue here.2

 Distance was a major factor in the trial 

court’s decision to modify parenting time, as the father lived in Texas, and the 

teenage son lived in Indiana; the father argued that the trial court “restricted”

his parenting time by awarding less parenting time than that contemplated by 

the Guidelines. In re Paternity of J.K., 184 N.E.3d at 665. We concluded that 

the trial court’s parenting time award was reasonable. 

[22] We first held that the trial court’s parenting time award was consistent with the 

Guidelines. Moreover, we held:

[E]ven if the parenting time order was inconsistent with the 

minimums established by the Guidelines, we do not find that the 

parenting time ordered was unreasonable such that a finding of 

endangerment or impairment under Indiana Code Section 31-14-

14-1 would be required. We are not aware of any authority 

establishing that a parenting time award that falls below the 

presumptive minimums set forth in the Parenting Time

Guidelines is per se unreasonable for purposes of Indiana Code 

Section 31-14-14-1 Thus, even if we were to accept Father’s 

claim that the parenting time award fell below the minimums 

contemplated by the Guidelines, which we do not, that does not 

necessarily render the parenting time award here unreasonable.

J.K., 184 N.E.3d at 666 (emphasis added). 

2 Indiana Code Section 31-14-14-1(a) provides: “A noncustodial parent is entitled to reasonable parenting 

time rights unless the court finds, after a hearing, that parenting time might: (1) endanger the child's physical 

health and well-being; or (2) significantly impair the child's emotional development.” Indiana Code Section 

31-14-14-2 provides: “The court may modify an order granting or denying parenting time rights whenever 

modification would serve the best interests of the child.”
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[23] We further noted:

It surely cannot be the case [ ] that any alteration in parenting 

time amount or condition imposed upon how parenting time is to 

be spent constitutes an unreasonable restriction of parenting time 

rights under Indiana Code Section 31-14-14-1. The practical 

result would be that any parenting time order that does not 

match the Guidelines verbatim is only justifiable if the child is in 

danger. Reading Indiana Code Section 31-14-14-1 in its entirety, 

however, gives the proper context to the meaning of the statute as 

a whole. Specifically, the statute references situations in which 

supervised parenting time should or must be ordered. 

Accordingly, supervised parenting time requires a finding that the 

supervision restriction be justified by a risk of harm to the child. 

See I.C. § 31-14-14-1(d)-(e). The contemplated factual finding is 

only required where parenting time rights are curtailed in an 

unreasonable manner. To require a factual finding of threat of 

harm to the child in order to justify any departure from our 

Parenting Time Guidelines would be to defy the fact-sensitive, 

nuanced nature of the trial court’s endeavor. We cannot 

conclude that the legislature intended to impose such a 

significant handicap on such a sensitive function of our State’s 

courts, or to rob those courts of the flexibility given to them by 

the Guidelines. They are, after all, guidelines. As always, the 

focus of a trial court’s considerations when modifying parenting 

time must be reasonableness and the best interests of the child.

Indeed, the Guidelines contemplate deviations below the socalled minimum and require simply that such deviations be 

“accompanied by a written explanation indicating why the 

deviation was necessary or appropriate in the case.” Ind. 

Parenting Time Guidelines Preamble (C)(3).

Id. at 666-67 (footnote and record citation omitted).
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[24] In applying these principles to this case, we cannot say that Father’s parenting 

time was “restricted” or that the parenting time awarded by the trial court was 

unreasonable. First, Father does not explain how the parenting time schedule 

ordered by the trial court differs from the Indiana Parenting Time Guidelines. 

Parenting Time Guideline II(E) applies to adolescents and teenagers and 

provides: 

1. Regular Parenting Time. Regular parenting time by the 

noncustodial parent on alternating weekends, during holidays, 

and for an extended time during the summer months as set forth 

in the Parenting Time Guidelines (Section II. D.) shall apply to 

the adolescent and teenager.

2. Special Considerations. In exercising parenting time with a 

teenager, the noncustodial parent shall make reasonable efforts to 

accommodate a teenager’s participation in his or her regular 

academic, extracurricular and social activities.

Accordingly, under the Guidelines for teenagers, Father would have been 

entitled to parenting time on alternating weekends, certain holidays, and 

extended time during the summer. The trial court here reduced the weekend 

parenting time to eliminate Friday overnights but added a four hour visit during 

the week, which is not part of the Guidelines for teenagers.3

 

3 There is a conflict between the Guidelines for parenting time with teenagers and the commentary. The 

commentary to the Guidelines for parenting time with teenagers gives an example for a student athlete and 

implies that a mid-week visit is required. The Guidelines for teenagers, however, do not require such a midweek visit.
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[25] This is not a case where Father’s parenting time was eliminated, required to be 

supervised, or significantly deviated from the Guidelines. See, e.g., J.M. v. N.M., 

844 N.E.2d 590, 600 (Ind. Ct. App. 2006) (addressing whether parenting time 

would significantly impair the child’s emotional development where the trial 

court ordered supervised parenting time), trans. denied; Barger v. Pate, 831 

N.E.2d 758 , 763 (Ind. Ct. App. 2005) (addressing the same where, at mother’s 

discretion, father was not allowed parenting time with one child when another 

child was present); Duncan v. Duncan, 843 N.E.2d 966, 972 (Ind. Ct. App. 2006)

(addressing the same where father molested one of the three children), trans. 

denied. Accordingly, we cannot conclude that Father’s parenting time was 

restricted in a manner that required a written finding that parenting time would 

endanger E.R.’s physical health or significantly impair her emotional 

development. 

[26] Nevertheless, the trial court’s parenting time schedule did deviate from the 

Guidelines, and the trial court was required to issue a written explanation for 

the deviation. The trial court properly explained the deviation by noting that 

E.R. was “experiencing anxiety, nausea and vomiting associated with parenting 

time” with Father. Appellant’s App. Vol. II p. 67. E.R.’s relationship with 

Father was significantly strained at that time. E.R. proposed the parenting time 

schedule awarded by the trial court, and the GAL and therapist agreed that the 

proposed schedule was in E.R.’s best interest. Under these circumstances, we 

cannot say that the parenting time award was unreasonable. 
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II. Marital Estate

[27] Next, Father challenges the trial court’s inclusion of his entire Navistar 401(k)

in the marital estate. “It is well settled that in a dissolution action, all marital 

property goes into the marital pot for division, whether it was owned by either 

spouse before the marriage, acquired by either spouse after the marriage and 

before final separation of the parties, or acquired by their joint efforts.”

Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014). Specifically, 

Indiana Code Section 31-15-7-4(a) provides:

In an action for dissolution of marriage under IC 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.

For purposes of dissolution, property means “all the assets of either party or 

both parties.” Ind. Code § 31-9-2-98. “Marital property includes both assets 

and liabilities.” McCord v. McCord, 852 N.E.2d 35, 45 (Ind. Ct. App. 2006), 

trans. denied.
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[28] “‘The requirement that all marital assets be placed in the marital pot is meant to 

insure [sic] that the trial court first determines that value before endeavoring to 

divide property.’” Falatovics, 15 N.E.3d at 110 (quoting Montgomery v. Faust, 

910 N.E.2d 234, 238 (Ind. Ct. App. 2009)). “‘Indiana’s ‘one pot’ theory 

prohibits the exclusion of any asset in which a party has a vested interest from 

the scope of the trial court’s power to divide and award.’” Id. (quoting Wanner 

v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008)). In general, “[w]hile 

the trial court may decide to award a particular asset solely to one spouse as 

part of its just and reasonable property division, it must first include the asset in 

its consideration of the marital estate to be divided.” Id. “The systematic 

exclusion of any marital asset from the marital pot is erroneous.” Id.

[29] All assets and liabilities of both parties must be included in the marital pot. 

Accordingly, the trial court properly included the Navistar 401(k) in the marital 

pot. The trial court may then award a particular asset to one party as part of its 

division of the marital estate. See Ind. Code § 31-15-7-5. Moreover, “[e]ven 

where the trial court properly sets aside the value of premarital assets to one 

spouse, the appreciation over the course of the marriage is a divisible marital 

asset.” Wanner, 888 N.E.2d at 263. The trial court did not abuse its discretion 

by including Father’s Navistar 401(k) as a marital asset; rather, the trial court 

was required to consider all property obtained prior to the filing of the petition. 

See, e.g., Meyer v. East, 205 N.E.3d 1066, 1072 (Ind. Ct. App. 2023) (holding that 

the trial court properly included assets in the marital estate but abused its 

discretion by excluding a liability from the marital estate).
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III. Division of the Marital Estate

[30] Next, Father argues that the trial court’s division of the marital estate was an 

abuse of discretion. “‘The party challenging the trial court’s property division 

bears the burden of proof.’” Smith, 194 N.E.3d at 72 (quoting Smith v. Smith, 

854 N.E.2d 1, 5 (Ind. Ct. App. 2006)). “That party must overcome a strong 

presumption that the court complied with the statute and considered the 

evidence on each of the statutory factors.” Id.; see Ind. Code § 31-15-7-5. “The 

presumption that a dissolution court correctly followed the law and made all 

the proper considerations when dividing the property is one of the strongest 

presumptions applicable to our consideration on appeal.” Smith, 194 N.E.3d at 

72. “Thus, we will reverse a property distribution only if there is no rational 

basis for the award.” Id.

[31] Pursuant to Indiana Code Section 31-15-7-4(b), the trial court “shall divide the 

property in a just and reasonable manner. . . .” We “presume that an equal 

division of the marital property between the parties is just and reasonable.” I.C. 

§ 31-15-7-5.

However, this presumption may be rebutted by a party who 

presents relevant evidence, including evidence concerning the 

following factors, that an equal division would not be just and 

reasonable:

(1) The contribution of each spouse to the acquisition of the 

property, regardless of whether the contribution was income 

producing.
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(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.

(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.

[32] “After determining what constitutes marital property, the trial court must then 

divide the marital property under the presumption that an equal division is just 

and reasonable.” Eads v. Eads, 114 N.E.3d 868, 874 (Ind. Ct. App. 2018). The 

presumption of an equal division may be rebutted by the presentation of certain 

factors detailed in Indiana Code Section 31-15-7-5. The trial court, however, 
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must state its reasons for deviating from the presumption of an equal division in 

its findings and judgment. Eads, 114 N.E.3d at 874.

[33] Here, both parties requested an unequal division of the marital estate. Father

requested seventy percent of the marital estate, while Mother requested sixty 

percent. The trial court found that a deviation from the presumption of an 

equal division was just and reasonable and awarded Mother sixty percent of the 

marital estate. The trial court noted that: (1) both parties contributed to the 

acquisition of property, whether by income-producing employment or by 

providing care to E.R.; (2) Father’s Navistar 401(k) significantly increased 

during the marriage, the parties paid off $13,000 of Father’s credit card debit 

shortly before the marriage, and Mother had $33,000 in student loan debt at the 

time of the marriage; (3) Father earns more than twice Mother’s income; (4) no 

evidence of dissipation of assets was presented; and (5) Father will likely 

continue to earn significantly more income than Mother. 

[34] Father, however, argues that Mother voluntarily remained unemployed for 

several years despite economic difficulties in the family; Father worked “long 

and difficult hours” during the marriage and desired to work less for the sake of 

his health; and the order “forces Father to liquidate his primary retirement 

account and continue working hours that are detrimental to his health in order 

to replace his lost retirement funds.” Appellant’s Br. pp. 18-19.

[35] At the time of the dissolution hearing, Mother was sixty years old, and Father

was fifty-four years old. Father earned more than twice Mother’s income. 
Court of Appeals of Indiana | Opinion 22A-DC-1972 | May 26, 2023 Page 21 of 22

Although Father entered the marriage with his Navistar 401(k), the account’s 

value significantly increased during the marriage. Moreover, Father’s future 

earning potential is significantly greater than Mother’s future earning potential 

given their age differences and income levels. Father presented evidence of his 

dissatisfaction with his employment, but the trial court was required to weigh 

this evidence against other factors here. We will not substitute our judgment 

for that of the trial court; the trial court’s division of marital property was just 

and reasonable and supported by a rational basis. See, e.g., Hartley v. Hartley, 

862 N.E.2d 274, 286 (Ind. Ct. App. 2007) (affirming the trial court’s sixty 

percent/forty percent division of the marital estate).

IV. Appellate Attorney Fees

[36] As a final matter, we address Mother’s request for attorney fees pursuant to 

Indiana Appellate Rule 66. “Our discretion to award attorney fees under 

Indiana Appellate Rule 66(E) is limited to instances when an appeal is 

permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or 

purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 

2003). Mother makes no argument explaining how Father’s appeal was 

frivolous or in bad faith. While we find Father’s argument unpersuasive, we 

cannot say that his appeal was permeated with frivolous claims or brought in 

bad faith. Accordingly, we decline Mother’s request for appellate attorney fees. 

See, e.g., Falatovics v. Falatovics, 72 N.E.3d 472, 481-82 (Ind. Ct. App. 2017)

(declining to award appellate attorney fees).
Court of Appeals of Indiana | Opinion 22A-DC-1972 | May 26, 2023 Page 22 of 22

Conclusion

[37] Father’s parenting time was reasonable; the trial court properly included 

Father’s Navistar 401(k) in the marital estate; and the trial court did not abuse 

its discretion in dividing the marital estate. Moreover, Mother fails to 

demonstrate that she is entitled to appellate attorney fees. Accordingly, we 

affirm.

[38] Affirmed.

Vaidik, J., and Foley, J., concur.