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Thursday, April 21, 2005

Ind. Decisions - Court of Appeals posts one today

Richard A. Gard v. Henriann Gard (4/21/05 IndCtApp) [Family Law]
Crone, Judge

Case Summary. Richard A. Gard (“Husband”) appeals the trial court’s order on the motion to correct error filed by Henriann Gard (“Wife”) with respect to a dissolution decree. We reverse and remand.

Issue. We restate Husband’s issue as whether the trial court abused its discretion in granting Wife’s motion to correct error. * * *

Here, Husband’s premarital debts became marital property upon his marriage to Wife, and those debts were satisfied prior to dissolution with marital assets. In other words, Husband’s premarital liabilities and the marital assets used to satisfy those liabilities did not exist when Wife petitioned for dissolution. See footnote As such, the trial court improperly included these liabilities and assets in the marital estate in its original dissolution decree and in its order on Wife’s motion to correct error, respectively. We therefore conclude that the trial court abused its discretion in granting Wife’s motion to correct error.

Accordingly, we reverse and remand with instructions to revise the dissolution decree consistent with this opinion and to determine a just and reasonable division of the marital estate in light of that revision. We note that

[t]he division of marital property in Indiana is a two-step process. The trial court must first determine what property must be included in the marital estate.… After determining what constitutes marital property, the trial court must then divide the marital property under the presumption that an equal split is just and reasonable. Ind. Code § 31-15-7-5 (1998). If the trial court deviates from this presumption, it must state why it did so.
Thompson v. Thompson, 811 N.E.2d 888, 912-13 (Ind. Ct. App. 2004) (some citations omitted), trans. denied (2005).
Husband states that he does not challenge the current 60%-40% division of the marital estate, but given that $95,613.14 must be subtracted from its value, the trial court may determine that a different distribution is more just and reasonable. In this second step of marital property division, the trial court is not prohibited from considering Husband’s premarital debts and their satisfaction with marital assets as factors relating to an appropriate division of the marital assets existing at the time of final separation. See Ind. Code § 31-15-7-5 (providing nonexhaustive list of factors that court may consider in determining just and reasonable division of marital property).
Reversed and remanded.
RILEY, J., and ROBB, J., concur.

Posted by Marcia Oddi on April 21, 2005 01:48 PM
Posted to Ind. App.Ct. Decisions