On appeal from The Rush Circuit Court ">

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Date: 05-08-2022

Case Style:

Kevin C.M. Peggs v. Hollee P. Peggs

Case Number: 21A-DC-02430

Judge: L. Mark Bailey

Court:

COURT OF APPEALS OF INDIANA

On appeal from The Rush Circuit Court

Plaintiff's Attorney:





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Defendant's Attorney: Joel E. Harvey
Hayes Copenhaver Crider Harvey

Description:

Indianapolis, IN - Divorce lawyer represented Appellant with challenging the property division in the dissolution of his marriage charge.


Kevin Peggs (“Husband”) appeals the denial of his motion to correct error, which
challenged the property division in the dissolution of his marriage to Hollee Peggs
(“Wife”). Husband presents the sole issue of whether the trial court abused its
discretion by dividing the marital pot without deviation from the statutory
presumptive fifty-fifty split. We affirm.
Facts and Procedural History
[2] The parties were married on March 23, 2013. Two children were born of the
marriage. On June 25, 2018, Husband petitioned for dissolution of the marriage.
On November 23, 2020, the trial court entered an order dissolving the marriage
and reserving for hearing matters of property distribution, child custody, and
parenting time. The trial court conducted a bifurcated hearing on May 6 and May
7, 2021.
[3] On August 5, 2021, the trial court entered its post-dissolution order, granting
Husband primary legal and physical custody of the parties’ children, awarding
Wife parenting time in excess of that afforded by the Indiana Parenting Time
Guidelines, ordering Husband to pay $88.00 weekly in child support, and dividing
the marital pot equally. Husband was ordered to make an equalization payment to
Wife in the amount of $81,347.06. He now appeals.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 21A-DC-2430 | April 26, 2022 Page 3 of 7
Standard of Review
[4] The division of marital assets lies within the sound discretion of the trial court.
Bloodgood v. Bloodgood, 679 N.E.2d 953, 956 (Ind.Ct.App.1997). Here, the trial
court issued specific findings upon a timely written request from Wife, pursuant to
Indiana Trial Rule 52(A). Our standard of review for specific findings entered after
a party has requested them is two-tiered. Id. First, we determine whether the
evidence supports the findings, and then whether the findings support the
judgment. Id. We will reverse the judgment only when it is clearly erroneous. Id.
Findings are clearly erroneous when the record lacks any evidence to support
them. Id. In conducting our review, we will neither reweigh the evidence nor
assess witness credibility. Id.
[5] Additionally, there is a longstanding policy that appellate courts should defer to the
determination of trial courts in family law matters. Gold v. Weather, 14 N.E.3d 836,
841 (Ind. Ct. App. 2014), trans. denied. We accord this deference because the trial
court, who saw and interacted with the witnesses, is in the best position to assess
credibility and character. Id.
Property Division
[6] Indiana Code Section 31-15-7-5 provides:
The court shall presume that an equal division of the marital
property between the parties is just and reasonable. However,
this presumption may be rebutted by a party who presents
relevant evidence, including evidence concerning the following
factors, that an equal division would not be just and reasonable:
Court of Appeals of Indiana | Memorandum Decision 21A-DC-2430 | April 26, 2022 Page 4 of 7
(1) The contribution of each spouse to the acquisition of the
property, regardless of whether the contribution was income
producing.
(2) The extent to which the property was acquired by each
spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the
disposition of the property is to become effective, including the
desirability of awarding the family residence or the right to dwell
in the family residence for such periods as the court considers just
to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to
the disposition or dissipation of their property.
(5) The earnings or earnings ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the
parties.
[7] “If the court deviates from the presumptive equal division, it must state its reasons
for that deviation in its findings and judgment.” Bock v. Bock, 116 N.E.3d 1124,
1130 (Ind. Ct. App. 2018). A party challenging the trial court’s division of the
marital estate on appeal must overcome a strong presumption that the trial court
Court of Appeals of Indiana | Memorandum Decision 21A-DC-2430 | April 26, 2022 Page 5 of 7
considered and complied with the applicable statute. Eye v. Eye, 849 N.E.2d 698,
701 (Ind. Ct. App. 2006). Although the facts and reasonable inferences might
allow for a different conclusion, we will not substitute our judgment for that of the
trial court. Akers v. Akers, 729 N.E.2d 1029, 1032 (Ind. Ct. App. 2000).
[8] Here, Wife requested that all property in the marital pot be divided between the
parties while Husband requested that all property he acquired before the marriage
be set aside to him. The trial court declined to set aside any property to Husband
before dividing the marital pot, and then divided the marital pot on a fifty-fifty
basis. Husband argues that the trial court “erroneously included” assets Husband
held prior to the marriage and failed to properly consider the factors of Indiana
Code Section 31-15-7-5, ultimately abusing its discretion by awarding Wife half the
marital pot. Appellant’s Brief at 10.
[9] At the outset, we observe that the trial court did not err in including Husband’s
premarital property in the marital pot.
It is well settled that in a dissolution action, all marital property
goes into the marital pot for division, whether it was owned by
either spouse before the marriage, acquired by either spouse after
the marriage and before final separation of the parties, or
acquired by their joint efforts. . . . “The requirement that all
marital assets be placed in the marital pot is meant to insure [sic]
that the trial court first determines that value before endeavoring
to divide property.” Montgomery v. Faust, 910 N.E.2d 234, 238
(Ind. Ct. App. 2009). “Indiana’s ‘one pot’ theory prohibits the
exclusion of any asset in which a party has a vested interest from
the scope of the trial court’s power to divide and award.”
Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind. Ct. App. 2008).
While the trial court may decide to award a particular asset solely
Court of Appeals of Indiana | Memorandum Decision 21A-DC-2430 | April 26, 2022 Page 6 of 7
to one spouse as part of its just and reasonable property division,
it must first include the asset in its consideration of the marital
estate to be divided. Hill v. Hill, 863 N.E.2d 456, 460 (Ind. Ct.
App. 2007). The systematic exclusion of any marital asset from
the marital pot is erroneous. Wilson v. Wilson, 409 N.E.2d 1169,
1173 (Ind. Ct. App. 1980).
Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014).
[10] Relative to the decision to split the marital pot on a fifty-fifty basis, the trial court
found that Husband had greater earnings capacity than Wife. Husband earns in
excess of $100,000.00 per year by farming and operating excavating equipment.
Wife earns $14.00 per hour as a hospital technician.
[11] Husband argues that the trial court focused solely upon the disparate earnings and
ignored other relevant factors of Indiana Code Section 31-15-7-5. Husband
emphasizes the fact that the marriage was of five years’ duration. He considers it
to be a marriage of “short duration” in which pre-marital assets were not
“commingled.” Appellant’s Brief at 14. The trial court’s order recites the dates of
marriage and separation; thus, the trial court was aware of the duration of the
marriage. The trial court’s order, with detailed attachments, also acknowledges
that, during the marriage, two children were born, the excavating business was
formed, and the value of the couple’s assets increased. The trial court determined
that, upon termination of the personal and professional partnership, a fifty-fifty
split was just and reasonable. Husband’s arguments present a request for
reweighing of evidence, an invitation that we decline. See Bloodgood, 679 N.E.2d
at 956.
Court of Appeals of Indiana | Memorandum Decision 21A-DC-2430 | April 26, 2022 Page 7 of 7

Outcome: Husband has failed to demonstrate an abuse of the trial court’s discretion in its
decision to retain all assets, however acquired, within the marital pot, and then
divide those assets equally.

Affirmed.

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