MEMORANDUM DECISION
[1] Alejandro Rodriguez-Soto (“Husband”) appeals from the denial of his motion to correct error related to the division of marital property. We affirm.
Facts and Procedural History
[2] Husband and Janet Luna (“Wife”) were married on June 7, 2019. On July 8, 2022, Husband filed a petition for dissolution of marriage alleging the parties had a child who was born in October 2017. On April 5, 2023, the court held a final dissolution hearing at which Husband and Wife testified and presented records related to their assets and debts. The parties testified and introduced property records related to the purchase and sale of a property on Monninger Drive in Indianapolis.
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They also testified regarding properties on St. Paul Street in Indianapolis and West Superior Street in Kokomo. On cross-examination of Wife, the following exchange occurred:
Q. [W]ould you agree that you would be able to claim [the child] during all odd years, and [Husband] would claim [him] for purpose of the federal and state tax exemption during even years sole [sic] long as hes 95% current on his child support?
A. I thought it was 100% current on child support.
Q. Are you agreeable to that?
A. Per our previous agreement. Sorry.
The Court: Hes asking you something different now. Hes not asking you what your agreement was. Hes asking you ․ if you agree to that, the 95%.
A. We would go ahead and do the odd years if he would like.
Q. Are you ․ saying you would like [Husband] to claim odd years?
A. Uh-huh, and Ill claim even.
Transcript Volume II at 54-55. When asked, “as to federal and state tax exemption ․, since [Wife] has claimed [the child] in 2021, which is an odd year, you claim in even years so long as youre 95% current in child support,” Husband replied: “Thats fine.” Id. at 60.
[3] On September 29, 2023, the trial court issued a “Decree of Dissolution and Orders” (the “Decree”) which provided:
18. Tax Exemption. Wife as custodial parent is entitled to have the tax exemption for minor child every year.
19. Real Property. Wife purchased a house in October 2020, commonly known as [ ] Monninger Drive, Indianapolis, Indiana in 2020. Wife purchased this property with personal savings, a loan from a cousin in the amount of $33,000.00 and tax returns. Wife purchased this property to resell. Wife never lived in the residence. Further, Wife sold this property on or near 8/16/2022. Husband did not make any contribution to the purchase of this property or its renovating for res[ale]. Wife sold the house in August 2022 for $110,575.02. After real estate commissions, taxes, and other transactional fees, Wife received $98,254.45. Out of these proceeds, Wife satisfied the loan to her cousin in the amount of $33,000.00 and related property taxes. This property was acquired during the marriage and as such is considered marital property.
20. [Husband] identifies the following 2 properties as marital property, [ ] St. Paul Street and [ ] W. Superior Street, Kokomo, Indiana. The residence and property, commonly known as [ ] St. Paul Street was purchased by Wifes parents in 2004. Neither Husband nor Wife have any financial interest or ownership in this property. When Husband was released from prison, he moved in with Wifes parents at this residence. Wife was also living with her parents at the time, but in a separate bedroom from Husband. Wife moved out of the [ ] St. Paul residence shortly before Husband filed this Petition. Wife now lives in an apartment that she leases. The residence and property, commonly known as [ ] W. Superior Street is not owned by Wife or her LLC known as Luna Investments, LLC, despite [Husbands] suspicions. The court does not find these properties to be marital property, and as such they are not included in the marital estate.
21. As to the Monninger property the court considers Indiana code 31-15-7-4 which, in relevant part, provides that in an action for dissolution of marriage, the court shall divide the property of the parties, whether: (1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right: (A) after the marriage; and (B) before final separation of the parties; or (3) acquired by their joint efforts. Indiana code 31-15-7-5 further provides that 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, (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 earning 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.
22. Here, Wife was the sole contributor to acquisition of the property. Husband was incarcerated on the date of marriage and continued to be incarcerated until 10/2021. Wife saved money from earnings and tax returns all during a time when Husband was incarcerated and contributing nothing to the marital estate or for the support of their child. Husband and Wife have similar earnings, with Husband earning more than Wife.[2] Not only did Husband not make any financial contributions, [when] he and [Wife] did live together he made no in-kind contributions to the marital household. Petitioner, as Husband, was incarcerated for the 16 months immediately prior to the purchase of the property and did not make any financial, or otherwise, contributions to the acquisition of this property. Husband was incarcerated for about 16 months out of the 37 months that Parties were married (for 43% of the duration of the marriage). Further, the proceeds from the sale of this property make[ ] up for approximately 96% of the value of the marital assets. Further, since [sic] Husband has incurred for his benefit about $18,548.00 in unsecured debt which remains owed. While for [Wife] that amount is about $809.00. The court finds that the presumption of a 50/50 division of marital property has been overcome. The court finds that it is just and reasonable for a 90/10 division of this marital property, with Wife receiving 90% and Husband receiving 10% of the net proceeds from the sale of this property. Therefore, Husband is entitled to $6525.00 from the sale of this property.
23. As for the remainder of the marital estate (debts and assets) it shall be divided 50/50. According to the findings in the marital balance sheet, not including the Monni[n]ger property, Wife owes Husband an equalization payment in the amount of $7917.96.[3]
24. Therefore, the Court finds that Wife owes Husband a total equalization payment in the amount of $14,442.96, payable by, certified, cashiers check or wire transfer, within 30 days of the date of this order.
Appellants Appendix Volume II at 36-41.
[4] Husband, with new counsel, filed a motion to correct error which, pursuant to Ind. Trial Rule 59, requested that the court vacate that portion of its order governing the division of property, grant a new hearing, and vacate the portion of its order dealing with claiming the child for tax purposes so that it comports with the parties’ agreement. In support of the motion, Husband filed a brief which set forth a “timeline of pertinent events,” which stated that, on June 14, 2017, Husband was arrested by U.S. Marshals, on July 31, 2017, he executed a power of attorney naming Wife as his attorney-in-fact, and on August 3, 2017, Wife sold property owned by Husband on North Temple Avenue in Indianapolis for $40,000. Id. at 48. He stated that, in October 2017, the parties’ child was born, on December 12, 2018, Wife sold property on Hiatt Street in Indianapolis for $48,000, on June 7, 2019, the parties were married, and on June 17, 2019, Husband entered a “guilty plea to single charge of failing to file IRS Form 8300 and is sentenced to five months executed and three years supervised release” and he was “remanded into custody of the U.S. Marshalls ․, this time due to an immigration detainer.” Id. at 49. He further asserted that, on October 1, 2019, Wife sold four parcels on Tacoma Street in Indianapolis for $107,000 and, on November 8, 2019, Wife purchased property on South Walcott Street in Indianapolis for $43,000. His timeline also stated: “2019 Wife filed a joint tax return with Husband and received a federal tax refund of $4,718.00”; on August 17, 2020, Wife sold the Walcott property for $80,000; on October 23, 2020, Wife purchased the Monninger property for $67,000; “2020 Wife filed a joint tax return with Husband and received a federal tax refund of $6,741.00”; “2021 Wife filed a joint tax return with Husband and received a federal tax refund of $7,604.00”; and on August 19, 2022, Wife sold the Monninger property for $110,000. Id. at 49-50. Husband attached his affidavit
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as well as property, tax return, and power of attorney documents.
[5] Husband argued that Wife received funds from the sale of his properties and the tax refunds, that she purchased and later sold the Monninger and Walcott properties, and “[c]ontrary to Wifes representations, [he] contributed significantly to the purchase of the Monninger Property and to the support of his child.” Id. at 51. He asserted that he did not discover the extent of compensation received by Wife from the sale of the properties until after the final hearing. He also argued that Wife agreed to allow him to claim their child for tax purposes in the odd years while she would claim the child in even years.
[6] On November 22, 2023, the court held a hearing on Husbands motion to correct error. Husbands counsel argued that, while Husband was in prison, Wife sold properties and received tax refunds and that, due to the property distribution, he “received pretty much virtually nothing of this.” Transcript Volume II at 69. His counsel argued, “if one can show that there has been a dissipation of marital assets such as in this case ․ then that can come into play and thats what should have happened in this case.” Id. Wifes counsel argued:
[T]his isnt newly found evidence like the Trial Rule states. They knew of properties being bought and sold and most of the properties that they mentioned in the motion were bought and sold prior to the marriage. The other properties that were bought and sold during the marriage, as my client had testified to, all kind of boiled down it was purchase, money used to purchase one property. It was sold, and that proceeds was used to buy another property which was sold to use -- and used to buy another property which was, believe, the Monninger property which was disclosed as well as bank account information. Everything that was in the marital pot was disclosed by my client. Theres no new material evidence that has been discovered here ․ everything was disclosed and the money that was remaining from the Monninger property was disclosed ․
Id. at 70-71. The court noted that Wife cared for the child during Husbands incarceration and that Husband brought significantly more debt to the marriage, and it took the matter under advisement.
[7] On December 27, 2023, the court issued an order on Husbands motion to correct error providing that Paragraph 18 of the Decree be replaced with:
Husband is entitled to the federal and state tax exemptions for the minor child in odd years, provided he is at least 95% current in his child support obligation by January 30th of the following year, for the odd year he is seeking to claim the child. Wife is entitled to the tax exemption in even years and in the odd years that Husband does not pay at least 95% of his obligation by January 30th of the following year.
For those odd years that Husband is entitled to a child tax exemption, Wife shall execute and deliver any forms required by the IRS, including IRS form 8332, Release of Claim for Exemption of Child of Divorced or Separate Parents.
Appellants Appendix Volume III at 9-10. The order stated the court denied Husbands motion to correct error concerning the division of property and his request for a new hearing. The court also issued an “Amended Decree of Dissolution and Orders” (the “Amended Decree”) reflecting its order with respect to Paragraph 18. Appellants Appendix Volume II at 249.
Discussion
[8] Husband asserts the trial court abused its discretion in denying his motion to correct error based on alleged newly discovered evidence regarding Wifes property transactions and her alleged dissipation of marital property. Wife has not filed an appellees brief, and thus we may reverse if Husband establishes prima facie error. See Bixler v. Delano, 185 N.E.3d 875, 877 (Ind. Ct. App. 2022). Motions predicated upon newly discovered material evidence are viewed with disfavor. Scales v. Scales, 891 N.E.2d 1116, 1120 (Ind. Ct. App. 2008). We review the denial of such a motion for an abuse of discretion. Id.
[9] Newly discovered evidence is “material evidence ․ which, with reasonable diligence, could not have been discovered and produced at trial.” Ind. Trial Rule 59(A)(1). To prevail on a motion to correct error based on newly discovered evidence, a party must
demonstrate that the evidence could not have been discovered and produced at trial with reasonable diligence; that the evidence is material, relevant, and not merely cumulative or impeaching; that the evidence is not incompetent; that he exercised due diligence to discover the evidence in time for the final hearing; that the evidence is worthy of credit; and, that the evidence raises the strong presumption that a different result would have been reached upon retrial.
Scales, 891 N.E.2d at 1120 (citing Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind. Ct. App. 2006)).
[10] Husband has not demonstrated that the alleged newly discovered evidence to which he points could not have been, with reasonable diligence, discovered and produced at the final dissolution hearing. In his affidavit, Husband stated in part that, at the time of his incarceration, he owned parcels on Temple Avenue, Tacoma Street, Euclid Avenue and Hiatt Street, that Wife sold the parcels while he was incarcerated, and that he informed his previous counsel “about the properties, the sale of the properties and that [Wife] had never shared what happened to the money from the sale of the properties.” Appellants Appendix Volume II at 199. However, we note that information regarding the sale of these parcels, as well as the purchase and sale of the parcels on Walcott Street and Monninger Drive, was available from property records including the recorded deeds and completed sales disclosure forms. The court admitted testimony and documentary evidence at the dissolution hearing related to Wifes purchase and sale of the Monninger Drive property, including the closing statement showing the net amount distributed to Wife at the time of the sale. The parties’ tax returns were also available prior to the dissolution hearing, and the 2019 and 2020 returns show gains from the disposition of property.
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Years before the final dissolution hearing, in July 2017, Husband executed a power of attorney allowing Wife to sell marital assets including any properties titled in his name. Further, we note the court found that Husband was incarcerated until October 2021, more than one year and five months before the final dissolution hearing in April 2023. Husband does not show that the alleged newly discovered evidence upon which he would rely in support of a claim that Wife improperly dissipated marital assets could not have been produced at the final hearing.
[11] In addition, we observe that Husband was incarcerated for a significant part of the parties’ marriage, Wife testified that Husband was unable to provide any sort of income or support while he was incarcerated, Husband executed the power of attorney allowing Wife to sell marital assets, and the parties’ tax returns indicated their income from 2019 to 2021. The tax returns show the parties had income from wages of $24,778 in 2019, $26,653 in 2020, and $27,085 in 2021, and the 2021 return shows Husband had gross receipts of $2,722 working for Uber. We cannot say that Husband has demonstrated the alleged newly discovered evidence raises the strong presumption that a different result as to Husbands claim that Wife improperly dissipated marital assets would have been reached upon rehearing. The trial court acted within its discretion in denying Husbands motion to correct error based on alleged newly discovered evidence.
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[12] For the foregoing reasons, we affirm the trial courts order on Husbands motion to correct error and the Amended Decree.
[13] Affirmed.
FOOTNOTES
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. Wife testified, and the property records indicated, that the property was purchased by Wife in October 2020 and sold by Wife in August 2022.
2
. At the dissolution hearing, the parties stipulated that Husbands weekly gross income was $1,075 and Wifes weekly gross income was $877.
3
. The attached marital balance sheet indicated that, excluding the proceeds from the sale of the Monninger property, the parties’ debts exceeded the value of their assets and that, after Wifes equalization payment of $7,917.96 to Husband, the sum of each partys assets and debts was negative $12,316.04. It shows total credit card and legal fee debts for Husband of $18,237 and credit card debt for Wife of $966.
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. Husbands affidavit also states Wife sold a property on North Euclid in February 2018 for $45,000.
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. While the tax returns were not admitted at the dissolution hearing, Wife testified that she purchased the Monninger Drive property in part with the tax refunds she received in previous years.
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. Husband states, “[a]s [his] motion was deemed denied, [he] also requests that the Court reverse the denial of [his] motion regarding the tax exemption.” Appellants Brief at 23. To the extent Husband states his motion to correct error was deemed denied on December 22, 2023, we note Ind. Trial Rule 53.3(A) states: “In the event a court fails ․ to rule on a Motion to Correct Error within thirty (30) days after it was heard ․, the pending Motion to Correct Error shall be deemed denied.” Further, Ind. Trial Rule 6 provides:In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is:(1) a Saturday,(2) a Sunday,(3) a legal holiday as defined by state statute, or(4) a day the office in which the act is to be done is closed during regular business hours.In any event, the period runs until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which the office is closed․(Emphases added). The Marion Superior Court was closed on December 22, 25, and 26. See https://mscslates.indy.gov/Document/Get?DocName=2023_HolidaySchedule [https://perma.cc/DZ5P-LWAN]; https://www.indy.gov/agency/marion-superior-court [https://perma.cc/L3T8-KTHF]. We cannot say that the trial courts December 27, 2023 order on Husbands motion to correct error was untimely or that Husbands motion to correct error was deemed denied. Wife has not filed an appellees brief or challenged the trial courts order on Husbands motion to correct error. We do not disturb Paragraph 18 of the Amended Decree.
Brown, Judge.
May, J., and Pyle, J., concur.