FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
Dec 13 2011, 9:12 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
G. JAYSON MARKSBERRY
Marksberry Law Office
Danville, Indiana
TIMOTHY J. O'HARA
STEVEN M. BADGER
BRYAN H. BABB
Bose McKinney & Evans, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
M. DALE PALMER,
Appellant-Respondent,
vs.
KAY PALMER,
Appellee-Petitioner.
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No. 32A01-1103-DR-108
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable David H. Coleman, Judge
The Honorable G. Thomas Gray, Special Judge
Cause No. 32D02-0507-DR-103
December 13, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Dale Palmer (“Husband”) appeals the trial court’s property division in his
dissolution proceedings with Kay Palmer (“Wife”). Upon review of Husband’s claims,
we conclude that the trial court did not err in denying Husband’s motions to continue and
motion to dismiss, and in dividing the marital estate. We affirm.
Facts and Procedural History
This case involves a pattern of dishonest and defiant conduct by Husband, which
in effect tied the trial court’s hands when dividing the marital estate. Husband and Wife
were married in 1973. No children were born of the marriage. Husband worked as an
attorney and Wife occasionally worked in Husband’s law office. The parties maintained
their marital residence in Avon, Indiana, and spent winters at their vacation home in Fort
Myers, Florida. Over the course of the marriage, the parties cultivated a marital estate
worth more than nine million dollars.
The most significant marital assets are two
European financial entities created by Husband, the Pakama Foundation and the
International Research Council Foundation, both of which are organized under the laws
of Lichtenstein.
After more than thirty years of marriage, Wife petitioned for dissolution on July 8,
2005. Husband then cross-petitioned for dissolution. Husband’s cross-petition requested
that the trial court grant an “absolute dissolution of marriage” and sought distribution of
the marital estate as would be “just and reasonable under the circumstances and pursuant
to Indiana law.” Appellant’s App. p. 82.
2
The trial court held a preliminary hearing in November 2005 and scheduled a final
hearing for October 2006. Shortly after the preliminary hearing, the parties submitted,
and the court approved, a preliminary order restraining Husband and Wife from
“transferring, encumbering, concealing, selling[,] or otherwise disposing of any joint
property or assets of the marriage except in the usual course of business or for the
necessities of life, without the written consent of the parties or the permission of the
court.” Appellee’s App. p. 3. The order also required the parties to cooperate and
exchange information and documents regarding the assets and liabilities of the marriage.
After several continuances and delay due to discovery issues, the trial court, on its
own motion, set a hearing for September 2007.
Wife testified that after filing for
dissolution she discovered that certain marital assets had disappeared. She testified that
she discovered that some of these assets had been “sent to Zurich to a bank account.” Tr.
p. 24. She expressed confusion regarding the existence and location of numerous marital
assets, stating that Husband had always handled their investments and that she trusted
him in this regard because he was an attorney. Id. at 25. Wife also indicated that she was
struggling to pay living expenses as the dissolution proceedings continued.
When asked by the trial court about the existence of assets held offshore, Husband
indicated he lost his memory after a “double stroke.” Id. at 83. He testified, however,
that he recalled Wife had “opened an account in Switzerland.”1 Id. He also testified that
he had transferred marital funds to a “permanent trust” to support scientific endeavors,
The trial court found that contrary to Husband’s testimony, Wife had never visited any banks in
Switzerland. See Appellant’s App. p. 35.
1
3
but that he had no documentation establishing the existence of such a trust. 2 Id. at 84.
The trial court ordered Husband to make available to Wife all income, interest, or other
distributions from any of the parties’ financial accounts and ordered the parties to consult
with an expert in Swiss banking law. Id. at 121.
Two months later, in November 2007, Wife filed a verified motion to enforce the
restraining order and rule to show cause, alleging that Husband had attempted to dispose
of real estate owned by one of the parties’ joint business ventures, a company known as
Mark IV. The trial court issued an order restraining Husband from disposing of any asset
belonging to Mark IV.
In early 2008, Wife filed a verified petition for contempt, alleging that Husband
refused to distribute to Wife all income, interest, or other distributions from the parties’
financial accounts and refused to exchange information and documents regarding the
assets and liabilities of the marriage. At an emergency hearing on Wife’s petition,
additional information emerged regarding Husband’s foreign financial dealings.
James Collins, a friend of Husband, testified that Husband had shown him a slip of
paper showing amounts denominated in Swiss francs.
After hearing Mr. Collins’
testimony, the trial court asked Husband, who denied having any such paper. The court
then instructed Husband’s counsel to look inside Husband’s wallet. Inside the wallet,
counsel located and produced a slip of paper showing balances as of December 31, 2007,
for the “Pakama Foundation” and “International Research Council (IRC) Foundation”
This is one of the initial references to what is later called “Noetics,” “Harmonic Science
Institute (HSI)” or the “Institute.” For ease of reference, we refer to the entity as HSI. Though the parties
disputed the purpose and legitimacy of HSI, the trial court found that HSI is a not-for-profit corporation
created by Husband, which “purports to engage in research into contacting alternative planes of existence,
including the dead.” Appellant’s App. p. 49.
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totaling “USD $5,151,596.” Tr. p. 145; See Petitioner’s Ex. 2. Faced with discovery of
this document, Husband confirmed the Foundations’ value as of December 2007.
At the conclusion of the hearing, the trial court ordered Husband and Wife to
appear in court one week later. Husband did not appear on that date. Husband’s counsel
informed the trial court that Husband was in Florida and sought a continuance of the
proceedings. The court denied the request and issued a body attachment. Husband never
again personally appeared before the trial court.
In late 2009, the trial court ordered Husband to designate Wife as the beneficiary
of the Foundations.3 The court issued a show cause order regarding Husband’s attempted
sale of the marital residence. Appellee’s App. p. 104. The court also ordered Husband,
who had relocated to São Paulo, Brazil, to appear at the final hearing, scheduled for
October 29, 2009, and show cause why he should not be held in contempt for further
violations of the court’s preliminary order.
One day before the final hearing and more than four years after Wife commenced
dissolution proceedings, Husband filed a motion to dismiss for lack of jurisdiction.
Husband also requested a continuation of the final hearing. The trial court denied both
At this time, Wife also filed a request to enforce the court’s restraining order with respect to
Husband’s financial account at Colonial Bank. See Appellee’s App. p. 106. On appeal, Husband
contends that the trial court erred by freezing his personal account at Colonial Bank, which he allegedly
used to deposit social security payments. Wife indeed sought to restrict Husband from making
withdrawals from his Colonial Bank account. However, Wife withdrew her motion to this effect on
October 29, 2009, upon learning that Husband used the account for the sole purpose of depositing social
security checks, which she described as non-marital funds. Id. at 122. Thus Husband’s contention that
the trial court erred by freezing this account is without factual basis.
In a similar context, Husband states that the trial court erroneously froze HSI’s bank accounts,
which he claims remain frozen. Id. at 106. While the trial court did enter an order regarding HSI, counsel
for HSI later appeared and sought modification of the trial court’s order, which the court granted. Id. at
66. Given that HSI has lodged no complaint regarding the modified order and is not a party to this
appeal, there is no basis for error.
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motions. The final hearing progressed in segments on numerous dates. During this time
period, Husband requested two additional continuances, claiming that his poor heath, a
result of a stroke and cardiac surgery in 2003, and a kidney transplant in 2006, prevented
him from being physically present at the hearing.4 The trial court allowed Husband one
continuance but denied his request for another. See Appellant’s App. p. 15, 16.
After the final hearing, the parties submitted proposed findings of fact and
conclusions of law. The trial court entered its decree of dissolution on June 21, 2010. In
total, the trial court entered 213 findings of fact and 60 conclusions of law describing the
unique factual circumstances pertaining to division of the marital estate.
The trial court began its order by addressing the most significant asset of the
marriage, the Foundations, and explained that Wife had no knowledge of the Foundations
before the dissolution proceedings began. The court described Husband’s attempts to
keep the Foundations hidden by giving false and misleading testimony throughout the
proceedings. Despite the fact that Husband transferred more than five million dollars of
marital funds to the Foundations, the trial court noted that Husband possessed exclusive
control and authority over them. As primary beneficiary, Husband was the only person
who could exert control over them—only Husband could name beneficiaries, authorize
withdrawals, or obtain information about the Foundations. The court emphasized the fact
that Husband had disregarded its order to name Wife as a beneficiary of the Foundations,
and Wife therefore had no access to their funds. The court also explained that Husband
had transferred marital assets to HSI without Wife’s knowledge or consent. Specifically,
4
Husband provided this medical history in an English translation of a neuropsychological
evaluation of him written in Portuguese. The original report was not submitted. See Appellant’s App. p.
110-16.
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Husband purchased a vehicle and a condominium, which he transferred to HSI. Husband
also contributed securities worth approximately $750,000 to HSI.5
Describing Husband’s conduct during the pendency of dissolution proceedings as
“obdurate, unyielding[,] and defiant,” the trial court listed the numerous court orders
Husband had ignored. Appellant’s App. p. 52. Husband failed to abide by the court’s
order restraining him from transferring, encumbering, concealing, selling, or otherwise
disposing of joint property or assets of the marriage by attempting to sell assets related to
the Mark IV Company as well as the marital residence. The court also found that
Husband refused to cooperate or exchange information and documents regarding assets
of the marriage with Wife, most notably information regarding the Foundations, which
hindered Wife’s ability to determine the full extent of the marital estate. The court
sanctioned Husband for this particular failure by excluding the testimony of Jeffrey
Donovan regarding tax calculations for the Foundations, explaining that the calculations
were based upon information Husband had steadfastly refused to provide to Wife.
Husband also failed to turn over interest payments, income or any other distributions
from marital accounts to Wife. In addition, Husband left the jurisdiction in March 2008
and failed to appear as ordered from that time forward.
In contemplating division of the marital estate, the trial court summarized the
unusual challenge presented by Husband’s conduct, naming “Husband’s defiance of court
orders, his flight first from Indiana and then to South America, and the complete and
exclusive control he garnered for himself in the Foundations” as factors complicating the
5
When Wife learned of the purchase of the condominium for HSI, she asked Husband what funds
he used to purchase it. Husband falsely informed her that Christian Bernard, Imperator of the Rosicrucian
Order, had donated to HSI. See Appellant’s App. p. 49.
7
court’s task. Id. at 64. Regarding the Foundations, the court expressed misgivings
regarding Husband’s proposal that the trial court grant Wife one-half of their value.
Given Husband’s previous defiance of the court’s order to name Wife as beneficiary of
the Foundations, the court concluded it would be “sheer folly . . . to believe Husband
would comply with a final order requiring him to transfer a beneficial interest in the
Foundations to Wife.” Id. Thus, the trial court was confident that only assets located in
the United States would be transferred to Wife.
However, the court expressed
dissatisfaction with this result, noting that the greater portion of the marital estate—the
funds used to create the Foundations—remained in Husband’s exclusive control,
unavailable for distribution to Wife.
The trial court concluded that an equal distribution of the marital estate was
proper; noting that Husband had presented no evidence that such division was not just
and reasonable as required by statute. Id. at 48. Because the court was unable to ensure
Husband’s compliance with orders regarding the Foundations, the court awarded
Husband the total value of the Foundations as well as certain other domestic assets. The
trial court determined that the Foundations should be valued as of December 31, 2007, at
the value Husband admitted at that time—$5,151,596—and that any tax liability
pertaining to the Foundations should be borne by Husband alone.
The value of
Husband’s distribution of the marital assets was $5,849,457.48. Id. Wife’s distribution
of the marital assets, comprised primarily of domestically-held assets, had a value of
$3,280,666.74. Id. To equalize the parties, the trial court ordered Husband to pay Wife
$1,284,395.37 within thirty days. Id. at 49.
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Husband filed a motion to correct error, which the trial court denied. Husband
now appeals.
Discussion and Decision
On appeal, Husband raises multiple issues which we revise and restate as: (I)
whether the trial court erred in concluding that Husband had waived his challenge to the
Indiana residency requirements and that Wife nonetheless satisfied those requirements;
(II) whether the trial court erred in denying Husband’s motions to continue; (III) whether
the trial court erred in determining the assets and liabilities of the marriage, particularly
as it relates to the Foundations; and (IV) whether the trial court erred in dividing the
marital estate.
I. Jurisdiction
Husband contends that the trial court erred in denying his motion to dismiss for
lack of jurisdiction, as he claims Wife did not meet the relevant residency requirements
when she filed for dissolution in Indiana.
The standard of review of a trial court’s jurisdictional ruling “is a function of what
occurred in the trial court and is dependent upon: (i) whether the trial court resolved
disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an
evidentiary hearing or ruled on a paper record.” H.D. v. BHC Meadows Hosp., 884
N.E.2d 849, 852 (Ind. Ct. App. 2008), trans. denied. Where, as here, the facts before the
trial court were disputed and the trial court held an evidentiary hearing, we give the
court’s factual findings and judgment deference. Eichstadt v. Frisch’s Rests., Inc., 879
N.E.2d 1207, 1209 (Ind. Ct. App. 2008).
9
The trial court entered findings of fact and conclusions of law regarding
Husband’s objection to jurisdiction. When a trial court has made findings of fact, we
employ a two-tier standard of review: whether the evidence supports the findings of fact
and whether the findings of fact support the conclusions thereon. Yanoff v. Muncy, 688
N.E.2d 1259, 1262 (Ind. 1997). We will set aside findings only if they are clearly
erroneous. Id. “Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.”
Id.
To determine that a finding or
conclusion is clearly erroneous, an appellate court’s review must leave it with the firm
conviction that a mistake has been made. Id. We consider only the evidence favorable to
the judgment and do not reweigh evidence or assess witness credibility. Hurt v. Hurt,
920 N.E.2d 688, 691 (Ind. Ct. App. 2010).
The trial court correctly concluded that Husband waived his argument with regard
to jurisdiction. “A party shall be estopped from challenging a trial court’s jurisdiction
where the party has voluntarily availed itself or sought the benefits of the court’s
jurisdiction.” Kondamuri v. Kondamuri, 799 N.E.2d 1153, 1159 (Ind. Ct. App. 2003),
trans. denied. By filing his cross-petition for dissolution, in which he requested that the
court grant him an “absolute dissolution of marriage,” Husband invited the result he now
challenges. He has therefore waived his claim. Because we prefer to decide cases on
their merits, however, we nonetheless examine Husband’s argument.
In support of his claim that Wife did not meet the relevant residency requirements
at the time she petitioned for dissolution in Indiana, Husband directs our attention to
various portions of Wife’s testimony. Specifically, he notes that Wife stated that she
10
filed a 2004 tax return listing the parties’ Florida residence as her address, the parties
registered a vehicle in Florida in 2004, and she voted in the 2004 general election in
Florida. Wife also testified that she had lived at her Avon address for more than twenty
years, had an Indiana driver’s license, received mail at her Avon address, and voted in
Indiana in every year other than 2004. Tr. p. 416, 542-43. Regarding the parties’ Florida
property, Wife reiterated that it was “a winter place to be,” but neither party lived there
year-round. Id. at 542-43. Having heard this evidence, the trial court concluded that
Wife “is, and at all relevant times has been, a resident of Hendricks County, State of
Indiana,” thus satisfying the residency requirements. Appellant’s App. p. 27. We view
Husband’s argument to the contrary as an invitation to reweigh evidence, which we will
not do.
II. Motions for Continuance
Husband argues that the trial court erred in denying his motions to continue. He
contends that his poor health prevented him from adequately assisting in his own defense,
and the denial of his motions to continue therefore denied him due process of law.
Indiana Trial Rule 53.5 provides, “Upon motion, trial may be postponed or
continued in the discretion of the court, and shall be allowed upon a showing of good
cause established by affidavit or other evidence.” We review a trial court’s decision to
grant or deny a motion to continue for an abuse of discretion, and there is a strong
presumption that the trial court properly exercised its discretion. Gunashekar v. Grose,
915 N.E.2d 953, 955 (Ind. 2009). An abuse of discretion may be found when the moving
party has shown good cause for granting the motion. Thompson v. Thompson, 811
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N.E.2d 888, 907 (Ind. Ct. App. 2004), reh’g denied, trans. denied. However, no abuse of
discretion will be found when the moving party has not demonstrated that he was
prejudiced by the denial. Id. at 908.
Husband argues that he asserted good cause to warrant the granting of his motion
for a continuance. We disagree. Husband requested a continuance because he claimed
he was unable to be present at scheduled hearings due to medical problems. Notably, at
the time he made this claim, Husband had failed to appear at any court proceeding for
more than two years and resided in São Paulo, Brazil. In denying Husband’s motion, the
trial court cited Husband’s repeated misconduct and noncompliance with court orders,
which had resulted in substantial delay—more than four years had elapsed since the
action had commenced. The court determined that granting Husband’s motion would
result in inequitable additional delay. We cannot say, in light of Husband’s conduct, that
the trial court erred in denying Husband’s motions to continue.
Further, by reciting his physical ailments, Husband does not establish that the trial
court’s ruling prejudiced him. In fact, the record suggests that Husband was an active
participant throughout the proceedings, despite his decision to remain outside the trial
court’s jurisdiction. Jeffrey Donovan testified that Husband assisted him in gathering
financial information regarding the Foundations. Tr. p. 685. Further, Husband’s counsel,
when requesting continuances, described Husband’s health and at times including related
documentation, indicating counsel was in contact with Husband. See Appellant’s App. p.
105, 108; Tr. p. 380. We therefore conclude that Husband communicated with his
12
counsel and provided remote assistance while proceedings were ongoing. The trial court
did not abuse its discretion in denying Husband’s motions to continue.
III. Determining Assets and Liabilities
Husband contends that the trial court erred in determining the assets and liabilities
of the marriage. More specifically, he claims that calculations of tax liability regarding
the Foundations, provided by his accountant, Jeffrey Donovan, were erroneously
excluded by the court.6 Husband also argues that the trial court erred in selecting the
valuation date for the Foundations.
A. Testimony of Jeffrey Donovan
Husband argues that the trial court erred in excluding tax liability calculations
provided by Jeffrey Donovan as a sanction against Husband. Husband argues that this
was error because Donovan was essential to the presentation of his case and further, that
the trial court should have allowed the testimony because the relevant evidentiary
requirements were satisfied. Though Husband correctly characterizes the exclusion of
Donovan as a sanction, he fails to address the dispositive issue; that is, whether his
conduct served as the basis for such sanction. We find that it did.
A trial court enjoys broad discretion in determining the appropriate sanctions for a
party’s failure to comply with discovery orders. Smith v. Smith, 854 N.E.2d 1, 4 (Ind. Ct.
6
In addition, Husband claims that the trial court failed to allocate this tax liability and that he was
entitled to “an offset for the tax . . . for the parties’ activity relating to the European funds.” Husband
continues, “The court could also have allocated an equal share of the tax liability to each party’s
allocations . . . .” Appellant’s Br. p. 23. In fact, the trial court did allocate the tax liability—to Husband
alone. The court explained that the liability, which stemmed from failure to report the Foundations’
income, resulted from Husband’s attempts to hide the existence of the Foundations. See Appellant’s App.
p. 41-42. Beyond asserting his entitlement to an offset, Husband does not challenge the court’s allocation
of this liability. Appellant’s Br. p. 23. We do not find this bare argument persuasive.
13
App. 2006). Absent clear error and resulting prejudice, the trial court’s determinations
with respect to violations and sanctions should not be overturned. Id. One sanction
available in cases where a party fails to comply with discovery orders is a bar of
evidence. See Ind. Trial Rule 37(B)(2)(b).
The trial court excluded Donovan’s testimony regarding tax implications for the
Foundations because Donovan based his calculation on information Husband had
continuously refused to make available to Wife, despite a court order requiring him to do
so.
Husband’s unsupported contention that the sanction was “too harsh” is not
persuasive.
Appellant’s Br. p. 21.
The trial court did not abuse its discretion by
excluding Donovan’s testimony.7
B. Valuation Date
Husband contends that the trial court erred in valuing the Foundations. He argues
that the proper date for their valuation is December 31, 2008, rather than the December
31, 2007, date used by the court.
A trial court has broad discretion in ascertaining the value of property in a
dissolution action, and the court’s valuation will only be disturbed for an abuse of
discretion. Trabucco v. Trabucco, 944 N.E.2d 544, 557 (Ind. Ct. App. 2011), trans.
denied; see also Knotts v. Knotts, 693 N.E.2d 962, 968 (Ind. Ct. App. 1998), trans.
denied. Marital assets may be valued at any date between the date of filing and the date
7
Husband alleges that the trial court physically excluded Donovon from the courtroom on
October 29, 2009, Appellant’s Br. p. 19-20, but he provides no citation to the record for this assertion.
Wife directs our attention to the parties’ agreement that expert witnesses were allowed to remain in the
courtroom. Id. at 43, Tr. p. 399. Without specific citation from Husband we must conclude, as does
Wife, that if Donovon left the courtroom, he did so of his own accord and not at the trial court’s direction.
14
of the hearing.” Bertholet v. Bertholet, 725 N.E.2d 487, 497 (Ind. Ct. App. 2000)
(emphasis added). “The selection of the valuation date for any particular marital asset
has the effect of allocating the risk of change in the value of that asset between the date of
valuation and date of the hearing.” Quillen v. Quillen, 671 N.E.2d 98, 103 (Ind. 1996).8
The trial court concluded that Husband presented no evidence regarding the values
of the Foundations at the time of the final hearing, or as to any date since December 31,
2008. As to Husband’s offer of a December 31, 2008, valuation date, the court noted that
the financial markets were in the midst of a severe downturn at that time but had since
recovered.
Again citing Husband’s defiance of court orders and refusal to provide
information regarding the Foundations, the trial court stated that Husband should not
benefit from the lower December 31, 2008, valuation. The court explained, “In light of
Husband’s control and beneficial use of the assets during the proceedings, the December
31, 2007, valuations should be used for distribution purposes in this matter, or a total
valuation of both Foundations of $5,151,598.00.
That $5,151,598.00 valuation was
admitted by Husband . . . .” Appellant’s App. p. 59.
Husband offers no convincing challenge to the trial court’s reasoning. Instead,
Husband simply asserts that he was not responsible for the external market forces that led
to the significant decline in value of the Foundations from December 2007 to December
2008. This may indeed be true. Nevertheless, we have held that when one spouse
8
Husband attempts to distinguish Quillen and Knotts from this case. This undertaking is not
persuasive. For example, Husband claims that Quillen is distinguishable because it involved the
valuation of a tangible asset as opposed to an “investment vehicle.” Appellant’s Br. p. 17. Husband does
not explain, however, why that factual distinction should render the case inapplicable. Further, when
discussing Knotts, Husband relies on unbinding dicta. Id. at 18.
15
controls a financial asset, a trial court may charge that spouse with the risk of a financial
loss, even when the decline in value of that asset was due to forces outside the parties’
control, such as a decline in the stock market. Trabucco, 944 N.E.2d at 559. Husband
clearly had exclusive control of the Foundations. The trial court did not abuse its
discretion in selecting December 31, 2007, as a valuation date for the Foundations.
IV. Equal Division of the Marital Estate
Husband claims that the equalization payment ordered by the trial court was not a
just and reasonable distribution of property. He also argues that the trial court failed to
consider the statutory factors that govern division of the marital estate and that those
factors support a division in his favor.
Husband argues that the trial court erred in ordering him to make an equalization
payment to Wife in the amount of $1,284,395.37. We have held that a trial court may
make its division of the marital estate by awarding to one spouse the bulk of the physical
assets while awarding the other spouse a money award representing a portion of those
physical assets. Neffle v. Neffle, 483 N.E.2d 767, 769 (Ind. Ct. App. 1985) reh’g denied,
trans. denied. As Wife accurately notes, an equalization judgment may be particularly
appropriate where one party expresses an unwillingness to comply with court orders
regarding marital property in their control. Id. at 769.
Husband sets forth recycled arguments in disputing the equalization payment. He
renews his challenges to the trial court’s treatment of tax liabilities and valuation of the
Foundations. Having already affirmed the trial court’s action in those contexts, we
conclude that the trial court did not err in ordering Husband to make an equalization
16
payment to Wife for $1,284,395.37.
Importantly, the trial court’s use of an equalization payment stems from the
circumstances surrounding the Foundations, namely Wife’s lack of knowledge regarding
them and Husband’s exclusive control over them.
Husband argues that the court
committed clear error in finding that Wife was excluded from the majority of the parties’
financial decisions, particularly those involving the Foundations.
In support of this
argument, Husband claims that Wife had “unfettered access [to] the parties’ finances and
property interests.”
Appellant’s Br. p. 14.
Husband also argues that Wife gave
contradictory testimony regarding her knowledge of the Foundations. Id. This brief
argument amounts to nothing more than an invitation to reweigh the evidence, which we
are not at liberty to do.
Husband also argues that the trial court failed to consider the statutory factors that
govern division of the marital estate and that those factors support a division in his favor.
See Appellant’s App. p. 24. This is contrary to the express written findings of the trial
court. Id. at 62-64, 66-67. Again, Husband invites us to reweigh the evidence by arguing
that he should have received more than fifty percent of the marital estate, which we may
not do. Notably, in his proposed findings of fact and conclusions of law, Husband
conceded the propriety of an equal division stating, “[T]here is no basis to deviate from
the statutorily presumed equal division of the marital estate.” Id. at 131.
We note, though not addressed by Husband, the alternative justification for
division provided by the trial court, which is based upon the court’s finding that Husband
dissipated marital assets: “Even if Husband’s arguments regarding the value of the assets
17
in the Foundation[s] and the liabilities . . . had merit (and they do not), the Court
concludes that a deviation from the presumption of the 50-50 split would be warranted.”
Id. at 62. Husband dissipated and secreted marital assets by transferring substantial
amounts of money into the Foundations for his personal use. Husband acted without
Wife’s consent or knowledge, and he denied Wife access to the Foundations’ funds upon
their discovery. Husband’s total dissipation of assets with regard to the Foundations and
HSI is approximately six million dollars. The trial court did not err in concluding that in
the alternative, an unequal distribution was appropriate based upon Husband dissipation
of marital assets.
Affirmed.
FRIEDLANDER, J., and DARDEN, J., concur.
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