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. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  5. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

ADVERTISEMENT