ILNews

Court failed to include all assets in marital pot

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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.

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  1. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  3. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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