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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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