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COA orders equal division of ex’s retirement interest

September 28, 2018

The Dearborn Circuit Court erred when it awarded the entirety of a nearly $207,000 retirement account to a husband as part of divorce proceedings, the Indiana Court of Appeals ruled in a decision that remanded the case for equal distribution of the interest on the account.

In Jamie Lynn Gish v. Patrick Michael Gish, 15A05-1711-DR-2628, Patrick Gish opened a Hilliard Lyons retirement account in his name in 1987, depositing $15,000 into the account and planning to let that amount grow until the time of his retirement. Gish then married Jamie Gish two years later, but the parties filed for divorce in May 2016.

During that time, the retirement account grew to nearly $206,950 through compounded interest. Though Patrick – who holds an engineering degree from Rose Hulman Institute of Technology – told the trial court he had initially planned to use the money for both he and his wife, he requested that he receive the entire amount in the divorce.

For her part, Jamie testified that she ran a one-chair salon and had health problems that required her to pay roughly $800 per month in insurance. She requested half of the interest income and investment increase on the retirement account, but the trial court granted Patrick’s request to award him the full amount.

Specifically, the trial court found Patrick had rebutted the presumption in favor of an equal division of marital assets, but the Indiana Court of Appeals disagreed in its Friday opinion. Judge Rudolph Pyle wrote for the unanimous appellate panel that the judge considered only two of the five statutory factors that should be taken into account when dividing marital property pursuant to Indiana Code section 31-15-7-5.

“Our review of the testimony at the dissolution hearing reveals that the trial court disregarded evidence that Husband has the ability to earn four times the yearly salary than Wife has the ability to earn,” Pyle wrote. “Further, Wife’s ability to earn is restricted by her ‘one chair, one sink, one dryer salon,’ and, in light of Wife’s age and health, it appears unlikely that her earning ability will increase in the future.”

“… In addition, another of the statutory factors is the economic circumstances of each spouse at the time the disposition of the property is to become effective,” Pyle continued. “The trial court disregarded evidence that despite the vast difference in the parties’ earning abilities, Husband was receiving 67% of the marital estate and Wife was only receiving 33% of the estate.”

Considering that evidence, Pyle said the trial court erred when it found Patrick had rebutted the presumption of an equal distribution. The award of the retirement account was, thus, reversed and remanded with instructions for the trial court to equally divided the interest on the account that accrued during their marriage.

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