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CourtListener opinion 4409505

Date unknown · US

Extracted case name
In re Marriage of Nickels
Extracted reporter citation
935 N.E.2d 152
Docket / number
18A-DN-1693 v
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
Research-use warning: This page contains machine-draft public annotations generated from public opinion text. The headnote is not Willie-approved gold-label work product and is not legal advice. Verify the full opinion and current law before relying on it.

Machine-draft headnote

Machine-draft public headnote: CourtListener opinion 4409505 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

Retrieval annotation

Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: pension / defined benefit issues

Evidence quotes

QDRO

ate. The only evidence in the record concerning the annuity is its value. Also, in her proposed division of the marital estate, Wife requested that the trial court award the annuity to Husband. 5 A trial court may not divide PERF pension accounts by way of qualified domestic relations order ("QDRO") or otherwise order a party to assign benefit payments to a former spouse. See Everette v. Everette, 841 N.E.2d 210, 213–214 (Ind. Ct. App. 2006) (concluding that pursuant to Indiana Code § 5-10.3-8-9(a) the husband's PERF account was exempt from levy, sale, garnishment, attachment, or other legal process, including a QDRO, but this did not leav

retirement benefits

sset. But since Husband's 2 Husband was 54.56 years old on the date of valuation and will not qualify to receive his full pension benefit under the Rule of 85 until he is 56.1 years old. Tr. pp. 69, 73. 3 A spouse's "present right to withdraw pension or retirement benefits" constitutes property that belongs in the marital pot, as does a vested "pension or retirement benefit[ ] . . . payable after the dissolution of marriage." See I.C. § 31-9-2-98(b)(1), (2). Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 3 of 9 pension rights are vested, the pension is a marital asset . . . According

pension

t Jill Creech, The Honorable J. Richard Appellee-Respondent. Campbell, Judge Trial Court Cause No. 29D04-1710-DN-9239 Mathias, Judge. [1] In this dissolution proceeding, Marvin Creech ("Husband") appeals the Hamilton Superior Court's valuation of his pension and the order to make a Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 1 of 9 lump sum equalization payment to Jill Creech ("Wife"). Concluding that the trial court acted within its discretion, we affirm. Facts and Procedural History [2] The parties' nearly thirty-five-year marriage was dissolved on June 18, 2018,

domestic relations order

nly evidence in the record concerning the annuity is its value. Also, in her proposed division of the marital estate, Wife requested that the trial court award the annuity to Husband. 5 A trial court may not divide PERF pension accounts by way of qualified domestic relations order ("QDRO") or otherwise order a party to assign benefit payments to a former spouse. See Everette v. Everette, 841 N.E.2d 210, 213–214 (Ind. Ct. App. 2006) (concluding that pursuant to Indiana Code § 5-10.3-8-9(a) the husband's PERF account was exempt from levy, sale, garnishment, attachment, or other legal process, including a QDRO, but this did not leav

Source and provenance

Source type
courtlistener_qdro_opinion_full_text
Permissions posture
public
Generated status
machine draft public v0
Review status
gold label pending
Jurisdiction metadata
US
Deterministic extraction
reporter: 935 N.E.2d 152 · docket: 18A-DN-1693 v
Generated at
May 14, 2026

Related public corpus pages

Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.

Clean opinion text

MEMORANDUM DECISION

 Pursuant to Ind. Appellate Rule 65(D), FILED
 this Memorandum Decision shall not be Jun 24 2019, 6:15 am
 regarded as precedent or cited before any CLERK
 court except for the purpose of establishing Indiana Supreme Court
 Court of Appeals
 the defense of res judicata, collateral and Tax Court

 estoppel, or the law of the case.

 ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
 Angela B. Swenson Shana D. Tesnar
 Swenson & Associates, P.C. Christopher J. Evans
 Carmel, Indiana Adler Tesnar & Whalin
 Noblesville, Indiana

 IN THE
 COURT OF APPEALS OF INDIANA

 Marvin Creech, June 24, 2019
 Appellant-Petitioner, Court of Appeals Case No.
 18A-DN-1693
 v. Appeal from the Hamilton
 Superior Court
 Jill Creech, The Honorable J. Richard
 Appellee-Respondent. Campbell, Judge
 Trial Court Cause No.
 29D04-1710-DN-9239

 Mathias, Judge.

[1] In this dissolution proceeding, Marvin Creech ("Husband") appeals the

 Hamilton Superior Court's valuation of his pension and the order to make a

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 1 of 9
 lump sum equalization payment to Jill Creech ("Wife"). Concluding that the

 trial court acted within its discretion, we affirm.

 Facts and Procedural History

[2] The parties' nearly thirty-five-year marriage was dissolved on June 18, 2018,

 and their children are emancipated. The issues in this appeal involve the trial

 court's valuation of Husband's pension account. Husband, who is employed

 with Carmel Clay Schools, is vested in the Public Employees' Retirement Fund

 ("PERF") pension system.

[3] At the June 1, 2018 dissolution hearing, Wife presented evidence from Dan

 Andrews ("Andrews"), a pension evaluator. Andrews testified that he has

 evaluated over 3100 pensions, including over 400 "state type pensions," i.e.

 PERF, teacher pensions, and legislator pension plans. Tr. p. 66. Husband

 agreed that Andrews was qualified to evaluate pensions. Tr. pp. 65–66.

[4] Andrews described the model he used to evaluate Husband's pension, and

 applying the "Rule of 85,"1 he concluded that the fair market value of the

 pension near the date of filing was $479,419.32. Tr. pp. 73–74. Andrews's

 report was also admitted into evidence, and it established how Andrews

 calculated the value of Husband's pension benefit. Ex. Vol. 3, Respondent's Ex.

 AA.

 1
 Under the Rule of 85, a participant may "draw their pension unreduced anywhere between the age of 55
 and just less than 60 if the total of their years of service and age is equal to 85." Tr. p. 67.

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 2 of 9
 [5] Husband's counsel questioned Andrews's valuation because Husband was not

 eligible to receive pension payments on the date of valuation under the Rule of

 85.2 Andrews explained:

 [I]t's not significant that it was not met on that date because all
 that had to happen was that the participant had to live 1.5 more
 years in order to achieve that nonreduced early benefit. And the
 fact that he may not have lived to that age has been accounted for
 because each payment is reduced for mortality and also for
 interest.

 Tr. p. 76. Andrews also testified that, on the date of filing, if Husband had

 retired early, he would have been entitled to a reduced monthly pension benefit

 in the amount of $1364. Tr. p. 92. Husband conceded that his pension was a

 marital asset,3 but he wanted to make payments to Wife when he eventually

 began receiving his pension benefits. Tr. p. 100.

[6] In its decree of dissolution, the trial court equally divided the marital estate and

 made the following finding concerning Husband's pension:

 Husband disagreed as to the value of his pension but presented
 no expert testimony in that regard. The expert pension evaluator
 valued the pension at $479,419.32. Husband argued that since he
 currently had no right to receive any pension payments, the
 pension should not be a marital asset. But since Husband's

 2
 Husband was 54.56 years old on the date of valuation and will not qualify to receive his full pension benefit
 under the Rule of 85 until he is 56.1 years old. Tr. pp. 69, 73.
 3
 A spouse's "present right to withdraw pension or retirement benefits" constitutes property that belongs in
 the marital pot, as does a vested "pension or retirement benefit[ ] . . . payable after the dissolution of
 marriage." See I.C. § 31-9-2-98(b)(1), (2).

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 3 of 9
 pension rights are vested, the pension is a marital asset . . .
 Accordingly, the Court rules that the PERF pension is a marital
 asset and that the value is $479,419.32.

 Appellant's App. pp. 7–8.

[7] The trial court awarded the pension to Husband. As a result, to effectuate a

 50/50 split of the marital estate, Husband was ordered to make a lump sum

 equalization payment to Wife in the amount of $32,189.44 within 60 days. Id.

 at 10. Husband now appeals.

 Value of Husband's Pension
[8] Husband argues that the trial court abused its discretion when it found that his

 pension had a value of $479,419.32. We review a trial court's valuation of an

 asset in a marriage dissolution for an abuse of discretion. Bingley v. Bingley, 935

 N.E.2d 152, 154 (Ind. 2010). The trial court does not abuse its discretion where

 the evidence is sufficient and reasonable inferences support the valuation. Morey

 v. Morey, 49 N.E.3d 1065, 1069 (Ind. Ct. App. 2016) (citing In re Marriage of

 Nickels, 834 N.E.2d 1091, 1095 (Ind. Ct. App. 2005)). "Although the facts and

 reasonable inferences might allow for a different conclusion, we will not

 substitute our judgment for that of the trial court." Id.

[9] Husband contends that Andrews's valuation was inaccurate because he used

 the Rule of 85 in calculating the fair market value of the pension, and Husband

 was not yet eligible to receive benefits under that rule. Husband asserts that the

 trial court should have assigned the reduced benefit value that Husband was

 eligible to receive on the date of filing.
 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 4 of 9
 [10] First, we observe that Husband agreed that Andrews qualified as an expert on

 the subject of valuing pensions. Tr. pp. 65–66. Moreover, "[a] valuation

 submitted by one of the parties is competent evidence of the value of property in

 a dissolution action and may alone support the trial court's determination in

 that regard." Alexander v. Alexander, 927 N.E.2d 926, 935–36 (Ind. Ct. App.

 2010) (quoting Houchens v. Boschert, 758 N.E.2d 585, 590 (Ind. Ct. App. 2001),

 trans. denied), trans. denied.

[11] To value a pension, the court must "determine (1) what evidence must be

 presented to establish the value of the benefit, (2) what date must be used to

 assign a dollar amount to the benefit, and (3) how much of the benefit's value

 was the result of contributions made after the final separation date." Leonard v.

 Leonard, 877 N.E.2d 896, 900 (Ind. Ct. App. 2007) (citing Granzow v. Granzow,

 855 N.E.2d 680, 682–83 (Ind. Ct. App. 2006)). Andrews described how he

 calculated the value of Husband's pension benefit. He also explained that the

 value was reduced because Husband did not qualify for benefits under the Rule

 of 85 on the date the pension was valued.

[12] Because the parties did not agree to a value of the pension benefit, the trial

 court was required to value the pension based upon the evidence presented. The

 trial court accepted Andrews's expert valuation of the pension, which was the

 only evidence admitted during the hearing. Therefore, we conclude that the trial

 court acted within its discretion when it found that Husband's pension had a

 value of $479,419.32.

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 5 of 9
 Lump Sum Equalization Payment

[13] Husband also argues that the trial court abused its discretion when it ordered

 him to make a lump sum payment to Wife to effectuate an equal division of the

 marital estate. Wife asserts that Husband had sufficient marital assets set over

 to him to provide a lump sum payment to her. Wife also observes that the trial

 court's division of the marital estate assigned approximately 85% of the marital

 debt to her.

[14] Husband was awarded the following marital assets: his PERF valued at

 $479,419.32, two trucks valued at $28,032 and $3,026 respectively, a PNC bank

 account with a balance of $5,139.85, and an annuity valued at $24,000.4 The

 trial court also assigned $11,047.84 in marital debt to Husband. The value of

 Husband's pension is nearly half of the net value of the marital estate as each

 spouse received $496,579.89 in net marital assets.5 To achieve a 50/50 division

 of the marital estate, Husband was ordered to make a lump sum equalization

 payment in the amount of $32,189.44 within 60 days.

 4
 It is not clear from the record why the trial court did not award the annuity to Wife to effectuate an equal
 division of the marital estate. The only evidence in the record concerning the annuity is its value. Also, in her
 proposed division of the marital estate, Wife requested that the trial court award the annuity to Husband.
 5
 A trial court may not divide PERF pension accounts by way of qualified domestic relations order
 ("QDRO") or otherwise order a party to assign benefit payments to a former spouse. See Everette v. Everette,
 841 N.E.2d 210, 213–214 (Ind. Ct. App. 2006) (concluding that pursuant to Indiana Code § 5-10.3-8-9(a) the
 husband's PERF account was exempt from levy, sale, garnishment, attachment, or other legal process,
 including a QDRO, but this did not leave the trial court without recourse to evenly divide the marital estate,
 and that distribution to the wife of an equalizing amount of the proceeds from the sale of property could be
 an appropriate mechanism to balance the distribution without violating the PERF statutes).

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 6 of 9
 [15] Indiana Code section 31-15-7-4(b) gives the dissolution court authority to divide

 the marital property by "setting the property or parts of the property over to one

 (1) of the spouses and requiring either spouse to pay an amount, either in gross

 or in installments, that is just and proper[.]" With regard to the division of

 pension benefits in dissolution proceedings, our court has observed that:

 Courts utilize a number of methods for distributing pension
 benefits, including an immediate offset method, a deferred
 distribution method, or a variation or combination of the
 methods. Under the immediate offset method, the court
 determines the present value of the retirement benefits and
 awards the nonowning spouse his or her share of the benefits in
 an immediate lump sum award of cash or property equal to the
 value of his or her interest. Under the deferred distribution
 method, the court makes no immediate division of the retirement
 benefits but determines the future benefits to which the
 nonowning spouse is entitled. Traditionally, the benefits have
 been stated as a share of the owning spouse's future benefit, and
 payment can be made directly to the nonowning spouse by the
 plan administrator under certain circumstances or payment can
 be ordered to come directly from the owning spouse.

 Several fact situations may favor the use of an immediate offset
 method, including where the present value of the pension is
 relatively modest, the parties are highly litigious, the separating
 parties are relatively young, and the receiving spouse has
 immediate and substantial financial need. Other fact situations
 may favor a deferred distribution method, including where there
 is not sufficient other tangible property remaining in the marital
 estate so that a present award is possible, there is an unusually
 substantial risk that benefits will never be received, the present
 value of benefits is difficult to compute with reasonable accuracy,
 and both spouses have no other steady source of income for their
 retirement years.

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 7 of 9
 It is also possible to apply both the deferred distribution and
 immediate offset methods in a single case. One such way to
 combine the methods is to order an offsetting cash award payable
 in installments. Such an award can give the benefits of immediate
 offset in a case where there are not sufficient funds available for
 an immediate cash payment. Like the immediate offset method,
 deferred offset awards are limited by the liquid funds available in
 the marital estate. However, the limitation is not as severe as
 with an immediate offset award, because a deferred award is
 spread out over time, but the payor must still have sufficient
 liquid funds to make the installment payments.

 Kendrick v. Kendrick, 44 N.E.3d 721, 726-27 (Ind. Ct. App. 2015), trans. denied

 (internal citations omitted).

[16] Here, the trial court utilized the immediate offset method, and Husband

 advocates using the deferred distribution method. Using the deferred

 distribution method in this case presents certain challenges because PERF

 pension accounts cannot be divided by way of qualified domestic relations

 order, and the court may not otherwise order a party to assign benefit payments

 to a former spouse. See Everette v. Everette, 841 N.E.2d 210, 213–214 (Ind. Ct.

 App. 2006).

[17] On the date the dissolution decree was issued, both Husband and Wife were

 gainfully employed, and therefore, their respective retirement accounts were

 continuing to increase in value. Both parties were awarded assets that could be

 reduced to cash fairly easily. Specifically, Husband was awarded a bank

 account and a truck totaling over $8,100. Husband also had almost $20,000

 equity in his other truck. Husband was also awarded his "VALIC profit

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 8 of 9
 sharing" annuity valued at $24,000. Appellant's App. p. 9. The record does not

 disclose a reason why this annuity could not be assigned to Wife.

[18] Wife was awarded the parties' marital residence but was also ordered to pay the

 mortgage on that residence, the most significant marital debt. As a result, Wife

 was ordered to pay nearly 85% of the parties' marital debt.

[19] We certainly agree that Husband has limited liquid assets to pay the immediate

 offset equalization judgment to Wife in the amount of $32,189.44. However, he

 does have sufficient assets to pay the equalization judgment. And because he is

 still employed, the value of his pension will continue to grow. For these

 reasons, and recalling the deferential standard of review for division of marital

 property, we cannot conclude that the trial court abused its discretion when it

 ordered Husband to make a lump sum equalization payment to Wife.

 Conclusion
[20] The trial court's valuation of Husband's pension is supported by the evidence

 and is therefore not an abuse of discretion. In addition, the trial court acted

 within its discretion when it ordered Husband to make a lump sum equalization

 payment to Wife.

[21] Affirmed.

 Vaidik, C.J., and Crone, J., concur.

 Court of Appeals of Indiana | Memorandum Decision 18A-DN-1693 | June 24, 2019 Page 9 of 9