Bill v. Bill
| Decision Date | 29 December 1972 |
| Docket Number | No. 172A10,172A10 |
| Citation | 290 N.E.2d 749,34 Ind.Dec. 545,155 Ind.App. 65 |
| Parties | , 60 A.L.R.3d 820 Michael M. BILL, Appellant (Defendant below), v. Patricia H. BILL, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
William P. Wooden, Wooden, Stark, McLaughlin & Sterner, Felson Bowman, Walter E. Bravard, Jr., Lewis, Bowman & St. Clair, Indianapolis, for appellant.
Robert A. Rose, Franklin I. Miroff, Klineman, Rose & Wolf, Indianapolis, for appellee.
CASE SUMMARY--This is an appeal by Defendant-Appellant, Michael Bill (Michael) from an adverse Pendente Lite Support Order (as to children only) in an absolute divorce action filed by Plaintiff-Appellee, Patricia Bill (Patricia), claiming abuse of discretion by the trial judge. We affirm.
FACTS--In April of 1962, Patricia and Michael were married. By October, 1968, four children had been born as a result of this marriage.
Michael's assets at the time of the marriage amounted to about $45,000.00. While Patricia had no assets at the time of the marriage, shortly thereafter she inherited a Trust Fund of Unicoa Stock valued at One Million Dollars. Until 1968, Patricia received an annual dividend income from this Trust Fund of from $16,000.00 to $20,000.00 per year.
In 1963, Michael founded his own insurance company. Since Patricia was receiving a sizeable annual income from the Trust Fund, Michael and Patricia agreed to use her income as their primary source of funds for family maintenance. As a result, during the early years of the marriage, Michael's salary from his insurance business was returned to the capital fund of the business to stimulate its growth. Eventually, Michael was able to withhold enough of his salary so that both he and Patricia were each contributing about fifty percent (50%) towards family maintenance. As is shown by the evidence, the use of Patricia's dividend income and portions of Michael's salary permitted Patricia and Michael and their children to lead a comfortable life.
In 1968, due to drastic decline in the value of Unicoa Stock the annual dividend income received from the Trust Fund stopped. As a result, Patricia began to withdraw amounts from the principal of the Trust Fund to supplement Michael's income from the insurance business so that the parties could maintain the standard of living to which they had become accustomed.
By mid 1971, Michael's net worth amounted to $106,639.00 and Patricia's net worth was approximately $450,000.00. While a large portion of Michael's assets were tied up in several unsuccessful corporations, Patricia's assets included a one-half interest in the family house and furniture, stocks held jointly with Michael, and her sole ownership of other stocks and margin accounts.
On August 18, 1971, Patricia filed a Complaint for Absolute Divorce on the grounds of cruel and inhuman treatment. On October 1, 1971, Patricia filed a Petition for Preliminary Hearing for Temporary Allowance, Support, Attorneys Fees and Restraining Order.
A hearing was held on October 15, 1971. Patricia testified that from August 5, 1971 (the time of her separation from Michael) to October 15, 1971 (the date of the hearing), she was required to spend approximately $4,500.00 for actual living expenses for herself and the four children. Michael contributed only $485.00.
Michael testified that his total income was in the form of salary of $2,160.00 per month. The evidence, however, indicated that Michael could have increased his salary but that he chose instead to reinvest any possible increases into his insurance company.
Michael estimated that his living and fixed expenses per month amounted to $2,486.00, excluding child support payments, computed as follows:
His separate living expenses--rent
food, clothing, etc. $ 420.00
Loan payments--Merchants National
Bank & Trust Company of Indianapolis 550.00
Federal Tax Liability for 1970 227.00
Federal Tax Liability for 1971 338.00
State Taxes for 1971 55.00
Life Insurance Premiums 150.00
Family Health Insurance Premiums 42.00
Car Insurance Premiums--on Patricia's
Automobile 16.00
Real Estate Taxes on Jointly Owned
Apartment Building 250.00
Expenses for the family home--Mortgage
Payments, property tax, property
insurance 350.00
Gas 24.00
Electricity 53.00
Telephone 11.00
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TOTAL PER MONTH $2,486.00
* All amounts rounded off to nearest
dollar
(Hereinafter referred to as "Estimated
----------
Monthly Expenses".)
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After analyzing the evidence, trial briefs and oral arguments by counsel, on December 8, 1971, the Trial Court issued its Pendente Lite Order. The following is a brief summary of the relevant portions of this Order:
1. During the remainder of the litigation, Patricia shall have custody of the four children;
2. Patricia has ample funds to provide for her own support and attorney's fees in the prosecution of the divorce action;
3. Michael shall provide support for the children in the amount of $60.00 per week per child or a total of $240.00 per week commencing retroactively to August 20, 1971, and payable each week thereafter;
4. The unpaid support accruing from August 20, 1971, (the date of separation) to December 8, 1971, (the date of the Court's Order) shall be paid by Michael within ten (10) days of the entry of the Pendente Lite Order. However, Michael's retroactive obligation shall be credited in the amount of $485.00, representing support payments already made;
5. As further support for the children, Michael shall continue to pay the mortgage payments, property taxes, Home Owner's Insurance, and repair and maintenance expenses of the family home;
6. As further support for the children, Michael shall pay any medical, dental and educational expenses of the children following the date of the entry of the Order;
7. Michael shall pay to Patricia the sum of $500.00 as reasonable attorney's fees incurred by her in seeking a Support Order for the children;
8. The Pendente Lite Support Order shall be a continuing Order subject to modification by Petition of either party based upon the needs of the children or the financial ability of Michael to provide for such support (the Support Order herein).
A review of the terms of the Support Order and Michael's Estimated Monthly Expenses indicates that their combined effect is to require Michael to pay a minimum monthly expense total of $3,536.00 (Minimum Monthly Expenses herein).
The total of $3,546.00 does not include fluctuating expenses required by the Support Order to which a specific monetary value cannot be assigned, i.e., medical, dental, and educational expenses of the children and any maintenance and repair expenses for the family home. These expenses, when incurred, are required to be paid by Michael in addition to the Minimum Monthly Expenses of $3,536.00.
Michael now appeals from the Trial Court's Pendente Lite Support Order.
ISSUE ONE. Did the trial court abuse its discretion by requiring Michael to pay Patricia $500.00 for attorney's fees which were incurred by her in seeking the Pendente Lite Support Order?
ISSUE TWO. Did the the trial court have the power on December 8, 1971, to retroactively order Michael to pay child support payments from a date commencing two days after the Divorce Complaint was filed?
ISSUE THREE. Is the amount of the Pendente Lite Support Order so excessive as to constitute an abuse of discretion?
Patricia has not favored us with a brief. Such an omission, however, will only be considered as a confession of error if Michael's brief demonstrates prima facie reversible error. Fagan v. Royer (1963), 244 Ind. 377, 193 N.E.2d 64; Meadows v. Hickman (1947), 225 Ind. 146, 73 N.E.2d 343.
As to ISSUE ONE, Michael argues that the trial court abused its discretion in awarding $500.00 attorney's fees to Patricia for the reason that the evidence revealed that Patricia had more than sufficient assets with which to pay attorney's fees. Michael contends that the court ignored this evidence, as well as evidence of the relative financial standing of the parties.
As to ISSUE TWO, Michael asserts that the trial court did not have the power to order him to pay support payments retroactive to August 20, 1971.
As to ISSUE THREE, Michael argues that the amount of the Pendente Lite Support Order was so excessive as to constitute an abuse of discretion. Michael says that prior to the filing of the divorce, both he and Patricia shared equally in the responsibility of providing the family with a comfortable standard of living but the Support Order requires him to provide this standard of living alone and imposes on him exclusively a financial burden which results in monthly liabilities in excess of his monthly income.
ISSUE ONE--It is our opinion that the trial court did not abuse its discretion when it required Michael to pay Patricia $500.00 attorney's fees which were incurred by her in seeking the Pendente Lite Support Order.
Ind.Ann.Stat. § 3--1216 (Burns' 1968), IC 1971, 31--1--12--11, in part provides that:
* * *' (Emphasis supplied.) (3--1216 herein.)
3--1216 on its face expresses concern...
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