Allen v. Allen

Decision Date22 April 1985
Docket NumberNo. 3-184A21,3-184A21
Citation477 N.E.2d 104
PartiesJulian B. ALLEN, Appellant (Petitioner Below), v. Yvonne Pate ALLEN, Appellee (Respondent Below).
CourtIndiana Appellate Court

F. Laurence Anderson, Jr., Gary, for appellant.

Thomas A. Clements, Saul I. Ruman & Associates, Hammond, for appellee.

STATON, Presiding Judge.

Julian B. Allen appeals the trial court's judgment in awarding child support and distributing the marital property in the dissolution of Allen's marriage to Yvonne Pate Allen.

Allen presented five issues for review which we restate as follows:

I. Did the trial court err in adopting verbatim the wife's proposed findings of fact and conclusions of law as the court's final judgment?

II. Did the trial court err in ordering the husband to amend a life insurance trust to give a greater proportion of benefits to the parties' minor child?

III. Are proceeds from a life insurance trust marital property subject to disposition?

IV. Did the trial court abuse its discretion in ordering the husband to pay $1,500.00 per month in child support?

V. Did the trial court abuse its discretion in awarding the wife $25,000.00 cash as a property settlement to be paid by the husband within 30 days?

We affirm.

The Allens were married in September of 1981 and Mr. Allen filed for dissolution in November, 1982. One child was born of the marriage in August, 1982. Mr. Allen is a practicing attorney with an income of approximately $5,000.00 per month at the time of dissolution. He earned an additional $10,000.00 per year as a member of the State Board of Law Examiners. His net worth coming into the marriage was between $230,000.00 and $250,000.00. Mrs. Allen brought into the marriage household goods and furnishings and an automobile. She was employed as an airline flight attendant with a salary of approximately $18,000.00 per year. During the marriage the parties shared responsibility for household expenses with the wife contributing the majority of her income to marital expenditures. Mrs. Allen had no access to or accounting of the majority of her husband's income aside from the specified expenses which he paid each month.

I.

The husband first claims error in the trial court's verbatim adoption of the wife's proposed findings of fact and conclusions of law as the court's judgment in the case. The husband has raised this error for the first time on appeal. While we have no doubt of the acceptability of the trial court's action, since the question was not before the trial court in the Motion to Correct Errors, the issue is waived, and we need not consider it further. Ind.Rules of Procedure, Appellate Rule 8.3(A)(7).

II.

The husband maintained several life insurance policies with a total face value of $450,000.00. The court ordered him to make the couple's child, Lauren, the beneficiary of $250,000.00 of that amount and to transfer to the wife ownership of $250,000.00 of that amount and to transfer to the wife ownership of policies representing that amount. The husband argues that all of the life insurance is in a trust which requires the trustee to pay the death benefits to his mother and in equal amounts to all of his children. 1 The trust document is included in the record, provided in response to the wife's Interrogatories and Motion to Produce, but the document was not admitted into evidence at trial, and the husband offered no evidence concerning the status of the insurance policies or his ability to amend or transfer the policies. The wife testified she felt the insurance was necessary to provide for their child's future in view of the fact that the child was nine months old at the time of trial, and the husband was fifty-two years old.

The husband relies upon principles of trust law for the proposition that the intent of the settlor of a trust should be honored in so far as is possible. See IC 30-4-1-3 (Burns Code Ed.). We find the husband's argument and authorities inapposite for the reason that the rule argued for applies to the construction of trusts. See Hinds v. McNair (1980), Ind.App., 413 N.E.2d 586, 599. The construction, validity or invalidity of the purported trust was not in issue here. The husband made no argument at trial nor does he make any argument on appeal that he is unable to comply with the order. In fact, the terms of the trust provide that the Trustor (Allen) may at any time revoke the agreement in whole or in part and amend it from time to time in any respect. Furthermore, the Trustor retains all rights under the insurance policies including the right to change the beneficiaries.

The husband's argument is essentially that the court has discriminated in favor of one child at the expense of his other children. This amounts to a claim that the trial court abused its discretion in ordering Allen to make his daughter the beneficiary of $250,000.00 in life insurance.

The trial court has broad discretion in determining how minor children will be provided for by divorcing parents. Herron v. Herron (1983), Ind.App., 457 N.E.2d 564, 568. The trial court must consider the station in life of the parties and the particular facts and circumstances in the case. Geberin v. Geberin (1977), 172 Ind.App. 255, 360 N.E.2d 41, 46. In addition, IC 31-1-11.5-12(c) (Burns Code Ed.1980) permits the court, as part of the child support order to set apart such portion of the property of either parent or both parents as may seem necessary for the support of the child. On review we will disturb a child support provision only where an abuse of discretion is clearly shown. In Re Marriage of Rupp (1983), Ind.App., 449 N.E.2d 1164, 1167.

The trial court had before it evidence that the husband maintained $450,000.00 in life insurance; that he was fifty-two years old at the time of trial and his daughter was nine months old. Four of Allen's other children were apparently emancipated; (his financial statement showed no child support obligations for children by previous marriage) one child aged seventeen lived with Allen. From the disparity in age between Allen and his youngest child, Lauren, the court could have reasonably concluded that provision for her future was warranted. Case law supports ensuring a child's support by ordering a parent to maintain life insurance for the child's benefit, Kirk v. Kirk (1982), Ind.App., 434 N.E.2d 571, 572, and we see no abuse of discretion in the trial court's order in this case.

III.

In a related argument Allen argues that the life insurance proceeds are not a marital asset subject to distribution. We find this argument to be meritless for several reasons. In the first place, to the extent that the court ordered Lauren to be made the beneficiary of $250,000.00 worth of life insurance, the court was making a provision for child support--not a disposition of property. The effect is no different than if the court had ordered Allen to obtain a new policy in that amount for Lauren's benefit, a provision which, as we have already seen, is perfectly proper. To the extent that Allen has ownership rights in the policies which permit him to pledge them as security for debts, transfer or cash them or change beneficiaries, he has property 2 which is subject to the court's authority under IC 31-1-11.5-12(c) as we noted above. Moreover, to the extent that such policies constituted a property right, including the cash value which the court found to be $25,000.00, the court could properly award ownership of the policies designated for Lauren's benefit to the wife. This is quite unlike the situation in Metropolitan Life Insurance Co. v. Tallent (1983), Ind., 445 N.E.2d 990, cited by the husband, in which the Supreme Court held that the husband's group term life insurance policy, with no cash surrender value, was not property within the statutory definition of property for purposes of determining marital assets. Id. at 991. The question in Tallent was ownership of the proceeds of the policy where the husband had changed the beneficiary from his wife to his mother during the pendency of the dissolution proceedings. Holding that a restraining order prohibiting the parties from disposing of marital property did not apply to the change of beneficiary the Court said:

"In the case at bar, the appellee had, prior to the change in beneficiary, a mere expectancy in the proceeds. Had there been lifetime benefits associated with the policy, such as a cash surrender value, we believe under our statutory definition of property as well as the guidance provided by Succession of Jackson, supra [ (1981) La.App., 402 So.2d 753]...

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    • United States
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