ILNews

Court failed to include all assets in marital pot

Back to TopE-mailPrintBookmark and Share

For the second time in the same case, the Indiana Court of Appeals reversed a trial court's division of assets in a marital dissolution because the trial court excluded from the marital pot the property the parties brought into marriage.

In Lori (Faust) Montgomery v. Dennis Faust, No. 85A04-091-CV-32, Lori Montgomery appealed the trial court's ruling on remand that excluded land and a car owned by Dennis Faust from the marital pot. The trial court excluded the same property in its original ruling on the dissolution, but the Court of Appeals remanded with instructions to put all the marital property into the marital pot before determining the appropriate division.

On remand, the trial court issued its order which stated the land and the car are included in the marital pot, but it still ruled the same way it had in the first order. The court returned the land and car to Faust, ordered Montgomery to pay Faust $5,451 as an equalization payment and reaffirmed its original order. It noted the order resulted in an unequal distribution of all the marital assets, but it was appropriate because of the short duration of the marriage.

The Court of Appeals agreed with Montgomery's argument that simply setting off all property owned by each party prior to the marriage in such a "perfunctory manner" constituted the type of systematic exclusion of assets the appellate court held to be an abuse of discretion in its original opinion.

"Purporting to put all marital assets into the marital pot but then removing certain assets before dividing the rest is equivalent to excluding those assets from the pot in the first place," wrote Judge Patricia Riley.

Knowing the numerical split of the entire estate may alter the trial court's view of the appropriateness of its division and having the trial court determine the total value of the marital estate helps appellate courts when reviewing the division.

Also, by failing to include all the marital assets in the marital pot, the trial court abused its discretion by failing to adequately consider all of the factors listed in Indiana Code Section 31-15-7-5. The trial court shall presume that an equal division of the marital property between the parties is just and reasonable, and the presumption may be rebutted by evidence that an equal division wouldn't be just and reasonable, wrote Judge Riley. The Court of Appeals was unable to infer from the trial court's order that it considered all the statutory factors.

"There is nothing in either order to suggest that the trial court considered the present economic circumstances of each spouse, the future earnings ability of each spouse, or the conduct of the parties during the marriage as related to the disposition or dissipation of their property," she wrote.

Instead of remanding the case again for further proceedings, the Court of Appeals remanded with instructions to eliminate the equalization payment from Montgomery to Faust from its dissolution decree.

The appellate court also affirmed the trial court denial of attorney fees in favor of Montgomery.

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT