The Indiana Court of Appeals has reversed a lower court’s order for the second time in the same case. In Lori (Faust) Montgomery v. Dennis Faust, No. 85A04-091-CV-32, a second appeal was filed by Lori Montgomery regarding the trial court’s failure to include land and a car owned by Dennis Faust in the marital pot in the original ruling on the dissolution of the parties’ marriage. The Appellate court remanded the case to the trial court with instructions to include all of the marital property before determining the appropriate division.
On remand, the lower court issued a new order including the land and the car in the marital pot, but still ruled the division of assets the same as its prior order, returning the land and car to Faust and ordering Montgomery to pay an equalization payment to Faust in the amount of $5,451. The trial court noted this resulted in an unequal division of the assets, but claimed such division was appropriate due to the short duration of the parties’ marriage.
In its findings, the Court of Appeals agreed with Montgomery’s argument that the trial court abused its discretion by setting off all property owned by each party prior to the marriage in a “perfunctory manner” which resulted in a systematic exclusion of assets. By not including all the assets in the marital pot (or excluding some), the lower court failed to adequately consider all factors listed in IC 31-15-7-5, by which the trial court is to presume that an equal division of marital property between the parties is just and reasonable, unless evidence rebuts that assumption. The appellate court was unable to determine that the trial court had considered all of the statutory factors.
Judge Patricia Riley stated: “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.”
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, but affirmed the denial of attorney fees in favor of Montgomery. To read the case in detail, click the following: