Brinkmann v. Brinkmann

• Decision Date: 10 July 2002
• Docket Number: No. 55A01-0109-CV-352.,55A01-0109-CV-352.
• Citation: Brinkmann v. Brinkmann, 772 N.E.2d 441 (Ind. App. 2002)
• Parties: Cynthia G. BRINKMANN, Appellant-Petitioner, v. Curtis W. BRINKMANN, Appellee-Respondent.
• Court: Indiana Appellate Court

772 N.E.2d 441

Cynthia G. BRINKMANN, Appellant-Petitioner, v. Curtis W. BRINKMANN, Appellee-Respondent.

No. 55A01-0109-CV-352.

Court of Appeals of Indiana.

July 10, 2002.

M. Kent Newton, C. Duane O'Neal, Todd Richardson, Melanie K. Uptgraft, Amanda R. Blystone, Indianapolis, IN, James Admire, Franklin, IN, Attorneys for Appellant.

Roger P. Ralph, Jarrod K. Ralph, Indianapolis, IN, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Petitioner-Appellant Cynthia G. Brinkmann ("Cynthia") appeals from the trial court's order terminating payments she was receiving from Respondent-Appellee Curtis W. Brinkmann ("Curtis") pursuant to their Decree of Dissolution.

We reverse.

ISSUES

Cynthia raises several issues for our review which we restate as follows:

I. Whether the trial court erred by terminating payments Cynthia was receiving from Curtis after finding that the payments were in the nature of maintenance instead of a property settlement.

II. Whether the reconciliation and subsequent remarriage of the parties abrogates a property settlement agreement.

FACTS AND PROCEDURAL HISTORY

Cynthia filed a petition for dissolution of her marriage to Curtis on September 7, 1994. On October 27, 1995, the trial court entered a decree of dissolution ending Curtis and Cynthia's marriage. In the decree, the trial court approved the Brinkmanns' agreement which was orally presented to the court on October 10, 1995, and then submitted in written form as the decree. At issue is the language contained in the decree as follows:

That the parties entered into the following oral settlement agreement which was stipulated into evidence at the time of final hearing.

1. That Cynthia G. Brinkmann should have as her own and separate property the 1989 Buick automobile, the furniture, household goods and personal property in her possession, the proceeds from the sale of the marital residence in the sum of Seventy-Two Thousand Seven Hundred Sixty Dollars and two cents ($72,760.02); that in addition to the above Cynthia G. Brinkmann shall receive alimony in the sum of Two Hundred Seventy-Seven Thousand Two Hundred Forty Dollars ($277,240.00) with interest, at the rate of 5% per annum payable weekly over a period of ten (10) years and one (1) month pursuant to the amortization schedule attached hereto and marked "Exhibit A"; said payments are includable in Cynthia G. Brinkmann's income and deductible by Curtis W. Brinkmann from his income for state and federal tax purposes; the parties stipulate and agree that said alimony payments are specifically not property settlement and survive Cynthia G. Brinkmann's remarriage or death; that the parties further stipulate and agree that said alimony payments are not dischargeable in bankruptcy.

2. That Curtis W. Brinkmann shall have as his own and separate property all interest in Brinkmann Excavating, Inc., any real estate owned by him in his individual name or corporate name, the houseboat, the furniture, household goods and personal property in his possession.

Appellant's App. 9-10. At the time the decree was entered Brinkmann Excavating, Inc., was valued at approximately, $535,000.00. The marital estate was estimated to have a gross value of approximately $800,000.00 and a net value of approximately $700,000.00. Appellant's App. 79.

Thereafter, Curtis made payments to Cynthia pursuant to the decree. Further, Curtis and Cynthia began seeing each other periodically until 1997 when they began living together. Curtis continued to make the payments while they were dating, and ultimately turned over his income to Cynthia when they began living together. On October 15, 2000, Curtis and Cynthia remarried each other. However, on February 2, 2001, Cynthia filed a petition for dissolution of her second marriage to Curtis. In April 2001, Curtis filed a verified petition to revoke maintenance and child support.

On June 29, 2001, the trial court ordered as follows:

IT IS THEREFORE ORDERED that the Respondent's Petition to Revoke Maintenance is granted. The Respondent's obligation to pay spousal maintenance to the Petitioner terminated, effective October 14, 2000. The Respondent must pay any outstanding arrearage in spousal maintenance due and owing to the Petitioner as of October 14, 2000, less credit for amounts actually paid by the Respondent, the amounts referred to by the Petitioner in Exhibit 1 and the amount of child support arrearage owed by the Respondent to the Petitioner as of October 14, 2000.

Appellant's App. 77.

Cynthia filed a motion to correct errors with the trial court, which was denied on August 28, 2001. This appeal ensued.

DISCUSSION AND DECISION

I. Spousal Maintenance or Property Settlement

Cynthia claims that the trial court erred when it characterized the payments made by Curtis to her as maintenance instead of a property settlement. The trial court specifically found that the payments were for spousal maintenance and not as property settlement or marital property division. Appellant's App. 76.

When a party has requested specific findings of fact and conclusions of law pursuant to Ind.Trial Rule 52(A), the reviewing court may affirm the judgment on any legal theory supported by the findings. Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind.1998). In addition, before affirming on a legal theory supported by the findings but not espoused by the trial court, the reviewing court should be confident that its affirmance is consistent with all of the trial court's findings of fact and inferences drawn from the findings. Id. In reviewing the judgment, we first must determine whether the evidence supports the findings and second, whether the findings support the judgment. Ahuja v. Lynco Ltd. Medical Research, 675 N.E.2d 704, 707 (Ind.Ct. App.1996), trans. denied. The judgment will be reversed only when clearly erroneous. Id. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id. A judgment is clearly erroneous even though there is evidence to support it if the reviewing court's examination of the record leaves it with the firm conviction that a mistake has been made. Owensby v. Lepper, 666 N.E.2d 1251, 1256 (Ind.Ct.App. 1996), reh'g denied.

In this case, neither party requested specific findings of fact or conclusions of law. Nevertheless, the same standard of review applies when the trial court gratuitously enters findings of fact and conclusions of law, with one notable exception. See Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind.Ct.App.1997). When the trial court enters such findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Id. We may affirm a general judgment on any theory supported by the evidence adduced at trial. Id.

A panel of this court stated that a divorce court has not only the power but a mandatory duty to adjust and adjudicate the property rights of parties. See Eppley v. Eppley, 168 Ind.App. 59, 341 N.E.2d 212, 217 (1976). The court further stated that "alimony in Indiana is nothing more than a property settlement worked out by the court." Id. It is not future support for a wife nor is it a medium for compensating a party whose sensitivities were injured during marriage. Id. In Voigt v. Voigt, 670 N.E.2d 1271 (Ind.1996), our supreme court discussed the shift in marital dissolution law from alimony to spousal maintenance. The supreme court noted that:

before the adoption of the Dissolution Act, Pub.L. No. 297, 1973 Ind. Acts 1585, Indiana courts were expressly authorized to award "alimony" in divorce decrees, if the award would be "just and proper." ... The purpose of such an award was to settle property rights, not to provide for spousal support.... In the Dissolution Act of 1973, Indiana edged away from the strict policy against spousal support.... For the first time courts were expressly authorized to award maintenance.... In 1984, the General Assembly revised the maintenance provision and slightly expanded the grounds upon which courts could order maintenance. P.L. 150-1984, §§ 1-2, 1984 Ind. Acts 1290, 1290-92.... In ordering maintenance today, an Indiana court is restricted to three, quite limited options. First, it may grant incapacity maintenance if it "finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself is materially affected." [See now Ind.Code § 31-15-7-2(1).] Second, a court may order caregiver maintenance if it finds that a spouse must forego employment in order to care for a child with a physical or mental incapacity. [See now Ind.Code § 31-15-7-2(2).] Third, a court may order rehabilitative maintenance for no more than three years if it finds that a spouse needs support while acquiring sufficient education or training to get an appropriate job. [See now Ind.Code § 31-15-7-2(3).] Where none of these circumstances exist, a court may not order maintenance without the agreement of the parties.... The parties may themselves provide for maintenance in settlement agreements where the court could not otherwise order it. (Citations omitted).

Voigt, 670 N.E.2d at 1275-77.

Furthermore, a panel of this court specified various factors to be considered when determining whether periodic payments are in the nature of maintenance or a property settlement. See In re Marriage of Buntin, 496 N.E.2d 1351, 1354 (Ind.Ct.App.1986). Factors which tend to indicate an award of maintenance are as follows:

the designation as maintenance; provisions terminating the payments upon the death of either party; payments made from

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