Stigall v. Stigall

• Decision Date: 02 February 1972
• Docket Number: No. 971A177,971A177
• Citation: 277 N.E.2d 802,29 Ind.Dec. 74,151 Ind.App. 26
• Parties: Esther STIGALL, Plaintiff-Appellant, v. Orien STIGALL, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 802

277 N.E.2d 802

151 Ind.App. 26

Esther STIGALL, Plaintiff-Appellant, v. Orien STIGALL, Defendant-Appellee.

No. 971A177.

Court of Appeals of Indiana, First District.

Feb. 2, 1972.

James H. Voyles and Charles W. Symmes, Symmes, Fleming, Ober & Symmes, Indianapolis, Melvin Richards, Castor & Richards, Noblesville, for plaintiff-appellant.

M. Daniel Friedland, Yockey & Yockey, Indianapolis, for defendnat-appellee.

LOWDERMILK, Judge.

This action was instituted by the plaintiff-appellant against her husband, wherein she prayed for a divorce, suit money and restraining order on June 17, 1970. The defendant-appellee filed a cross-complaint for divorce on June 29, 1970, and the matter came on for trial before a Judge Pro Tempore of the Marion Superior Court, Room 2.

Following this portion of the trial of the cause defendant-appellee and plaintiff-appellant, by and through new counsel for plaintiff-appellant, stipulated on February 3, 1971, that all the evidence presented on December 16, 1970, before the Judge Pro Tempore was one and the same evidence being heard by the Honorable Wilbur H. Grant, the regular judge of Superior Court, Room 2.

The parties further stipulated that additional evidence may be presented as it pertains only to the assets accumulated during the married life of the parties in connection with any property settlement that may be made in the cause.

This stipulation, together with another stipulation of counsel, preceded the additional hearing which was held concerning the assets of the parties before Judge Grant.

Thereafter, on March 11, 1971, plaintiff-appellant filed her brief with Judge Grant concerning the issues of the property distribution between the parties and on March 12, 1971, filed her tentative special findings of fact and conclusions of law.

Thereafter, on March 25, 1971, defendant-appellee filed with the court his brief concerning the issues of property between the parties and also filed his tentative special findings of fact and conclusions of law.

On April 14, 1971, the court duly entered its judgment together with special findings of fact and conclusions of law thereon, which, in the interests of brevity, are summarized as follows.

The court found the allegations of plaintiff's complaint were true and granted her an absolute divorce from the defendant.

The court found adequate residence requirements had been met.

On these findings the court entered judgment of absolute divorce.

The court further decreed that the parties had acquired certain personal property and real estate during their marriage and a division of the same and a set-off of the same should be that:

The plaintiff have set off to her as her sole and separate property:

'(1) All right, title and interest in and to the Savings and Profit Sharing Pension Fund, Sears, Roebuck & Company, (as of December 31, 1969 statement placed in evidence February 24, 1971), having a value of Two Thousand Six Hundred Forty-two Dollars and Ninety-five Cents ($2,642.95) (cash) and approximately One Hundred Fifty-four (154) shares of Sears, Roebuck & Company stock which are listed ont he New York Stock Exchange with the value as of April 12, 1971, of Eighty-nine Dollars and Twenty-five Cents ($89.25) per share, having a value of Thirteen Thousand Seven Hundred Forty-four Dollars and Fifty Cents ($13,744.50)';

All household furnishings and effects formerly located in the residence of the parties at 4547 Tincher Road, Indianapolis, and which plaintiff-appellant at that time had in her possession, by agreement was her separate property. However, certain tools formerly located at the Tincher Road residence were excepted from the award to her and remained the property of the defendant-appellee.

The court further decreed that the defendant-appellee was to receive as his sole and separate property a 1969 Ford LTD 4-door hardtop automobile in his possession and which the parties had agreed to be of the value of $2,000, as was the agreed value of the household furnishings.

The real estate located at 4547 Tincher Road, which was owned by the parties as tenants by the entireties, was decreed to be the sole and separate property of the defendant--appellee and plaintiff-appellant was ordered to transfer by quitclaim deed all her right, title and interest in and to said real estate to the defendant forthwith. Taxes ont he real estate for the year 1969, payable in 1970, and all subsequent taxes on said real estate were made the obligation of the defendant-appellee.

The court decreed that the parties were the joint owners of certain items of personal property and that George M. Ober was trustee thereof and that said property consisted of the following:

40 United States Series E Bonds of the value of $2,000.

$1,017.45, being the balance of funds on deposit in a joint checking account of the parties at Citizens Bank of Mooresville, Indiana, which was then being held by George M. Ober, Trustee, at the Indiana National Bank, Indianapolis.

Approximately $5,000, representing two certificates of deposit, numbered 63153 and 63155, in the amount of $2,500 in the joint names of the parties, plus acrued interest on said certificates of deposite with the Citizens Bank of Mooresville and which funds were now in the account of said George M. Ober as Trustee at the Indiana National Bank, Indianapolis.

The sum of $1,232.12, being the joint checking account of the parties at the Indiana National Bank, Indianapolis, which funds are in the account of George M. Ober, Trustee, and the sum of $12,267.95 plus accrued interest thereon which is a joint savings account in the names of each of the parties with the funds in the Indiana National Bank, George M. Ober, Trustee.

The court further decreed that all of said items owned by the parties jointly or which were in the name of George M. Ober, Trustee checking account, be, and the same were, ordered divided and severed between the parties equally so that each should share in the property equally and each eaual share shall be the property and estate of each party respectively.

The court further decreed that George M. Ober, Trustee, had, on March 30, 1971, expended monies from said account to plaintiff-appellant in the sum of $525 for back support and three appraisal fees, two of which were created by the plaintiff in the preparation of her cause of action herein, namely, two appraisers who received $50 each and the court appointed another appraiser for appraisement of the real estate herein who was paid $75. The court further decreed that the costs of the appraisers should be borne equally between the parties.

The court further decreed that as per a prior order of the court, under date of July 7, 1970, defendant paid to Thomas Corey, former attorney for the plaintiff herein, $500 attorney fees and that the defendant be and he is hereby ordered to pay Melvin H. Richards, Jr. and James H. Voyles, the present attorneys for the plaintiff, the sum of $850 in full payment of all attorneys fees for the prosecution of her said cause, which the court deemed 'is believed to be reasonable under the circumstances.'

The court further decreed that George M. Ober, attorney at law, be, and he was, appointed commissioner to ascertain and, if necessary, transfer and divide the assets of the parties hereinbefore described, pursuant to order of the court, after first taking the oath, to do certain acts as follows:

1. In the event the plaintiff fails to make transfer of the real estate as ordered by the court and to execute any and all instruments necessary to accomplish such conveyance, then the commissioner was authorized and directed to execute a commissioner's deed of conveyance of the real estate to the defendant-appellee.

2. In the event it becomes necessary for the commissioner to qualify as such the commissioner was authorized and directed to execute any and all instruments necessary to carry out the terms and conditions of the court's findings.

3. In the event George M. Ober qualifies as commissioner he is ordered to make a report of his actions within ten days after the accomplishment of the same.

4. In the event of said commissioner qualifying as such, then the plaintiff-appellant shall compensate him for such services in the amount of $150.

The defendant was ordered to pay the court costs, which were then paid.

This finding and judgment was followed by the findings of fact and conclusions of law, also duly executed by the judge, which we do not find necessary to set out verbatim herein because of the findings and decree heretofore entered.

However, the special findings did show that the residence of the parties, on which there was no mortgage, is of approximately the same value as the profit sharing plan plaintiff-appellant had with Sears, Roebuck & Company. The residence was built by the defendant-appellee with his own hands and he had personally built three prior homes during the marriage, except that he had hired some help which he contracted himself.

Plaintiff-appellant timely filed her motion to correct errors with memorandum in support thereof, and with request for oral argument, which was overruled by the court. Plaintiff-appellant then timely filed her praecipe for a full record of the cause. The motion to correct errors contained eventeen grounds, which are set out verbatim in the argument section of her brief.

It must necessarily be inferred from the evidence that the parties to this marriage were hard working and thrifty people. They purchased the ground on which the three bedroom home was located out of their savings. Plaintiff-appellant contended she contributed to the savings from her working and her paying for the essentials enabled him to acquire the money to save to buy the materials to build the house. Of course, his labor would be considered a part of his contribution.

The profit sharing pension fund with Sears, Roebuck & Company was collectible by the employee only...