Chaleff v. Chaleff, 568A86

• Decision Date: 29 April 1969
• Docket Number: No. 568A86,No. 2,568A86,2
• Citation: 144 Ind.App. 438,17 Ind.Dec. 285,246 N.E.2d 768
• Parties: Violet CHALEFF, Appellant, v. Stephen CHALEFF, Appellee
• Court: Indiana Appellate Court

Page 768

246 N.E.2d 768

144 Ind.App. 438

Violet CHALEFF, Appellant, v. Stephen CHALEFF, Appellee.

No. 568A86.

Appellate Court of Indiana, Division No. 2.

April 29, 1969.

John M. Cregor, Dongus, Ging, Stein & Cregor, Indianapolis, for appellant.

Joe L. Tipton, Indianapolis, for appellee.

SHARP, Judge.

This is a divorce case wherein the Appellant was awarded an absolute divorce from the Appellee on her cross-complaint. The divorce decree provided for property settlement and child support.

At the time of the decree, which was entered January 29, 1968, the parties were the parents of an 18 year old son and daughters, ages 16 and 17.

The Appellee has been an insurance salesman for the past 15 years and in 1967 had gross earnings of approximately $26,000.00. There has been a steady inclining pattern of his income. The parties owned a home valued at $16,000.00, subject to a $9000.00 mortgage. There is furniture worth at least $2000.00 which was acquired during their marriage, subject to $600.00 indebtedness on an air conditioner. The wife had title to a 1965 Oldsmobile, subject to $800.00 indebtedness and the husband held title to a 1967 Mustang purchased for $2700.00 in 1967 and subject to $1500.00 indebtedness. The husband has an interest in a profit-sharing fund with his employers worth about $36,000.00.

At the time of the decree the son had graduated from high school and was attending the Indiana School of Business and Technology for which the tuition is $1680.00. The Appellee has paid $280.00 down on the tuition and has undertaken to pay the balance. Both parties express the desire for their children to have a college education. The children are honor roll students. The evidence most favorable to Appellee indicates the son was receiving post-high school education of his own choice and the Appellee has paid the tuition by borrowing the money to do so. The school which the son was attending was so located that the son lived at home and could work part-time. The father was assisting the son in the purchase of an automobile. The daughters were still in high school.

The wife is employed and earns $80.00 per week.

The court's decree provided for $25.00 per week per child support for all three children. Title to the residence was vested in the wife subject to the mortgage, as was the furniture. The wife was awarded an alimony judgment of $18,000.00, payable in equal installments over a period of 10 years and 6 months, secured by a lien on the husband's profit-sharing fund. The husband was permitted to claim all 3 children as exemptions for Federal and State Income Tax purposes so long as he paid support. Each party was awarded the automobile titled in his or her name. The wife was awarded.$1000.00 attorney fee payable within one year.

The Appellant-wife raised two questions:

(a) Is the property settlement and alimony an abuse of discretion?

(b) Was the court obligated to provide in the decree for education beyond the twelfth year provided by the public schools:

Each question must be answered in the negative.

The trial court has a duty to settle and determine the property rights of the parties. The trial court's determination will not be disturbed on appeal in the absence of an abuse of discretion. This court is required to consider the evidence most favorable to the Appellee and all reasonable inferences in his favor. McDaniel v. McDaniel, 245 Ind. 551, 201 N.E.2d 215 (1964); Shula v. Shula, 235 Ind. 210, 132 N.E.2d 612 (1956); Holst v. Holst, 139 Ind.App. 683, 212 N.E.2d 26 (1965); Grant v. Grant, Ind.App., 230 N.E.2d 339 (1967); Von Pein v. Von Pein, 136 Ind.App. 283, 200 N.E.2d 230 (1964); Tomchany v. Tomchany, 134 Ind.App. 27, 185 N.E.2d 301 (1962); and Draime v. Draime, 132 Ind.App. 99, 173 N.E.2d 70 (1961).

The fact that circumstances would have justified a different conclusion than that reached by the trial court does not warrant this court in substituting its judgment for that of the trial court. Buckner v. Buckner, 128 Ind.App. 654, 152 N.E.2d 97 (1958).

The essential facts in this case do not disclose an abuse of discretion regarding property settlement and alimony. This is not Bahre v. Bahre, 133 Ind.App. 567, 181 N.E.2d 639 (1962). A simple reading of Bahre will disclose that it is a vastly different case than this. In Bahre, the husband had a net worth of almost $600,000.00 which had been accumulated during his marriage. Of this, the court awarded an alimony judgment of $24,400.00 payable in 10 years and 2 months, attorney fees, real estate worth $55,000.00, furniture worth $17,000.00, securities in the wife's name worth $10,000.00, automobiles worth $2800.00 and money int he wife's bank account. This court held that such an award, which was approximately 1/6 of the total net assets of the parties, was an abuse of discretion because it did not leave the wife in as good a position as she would have been if her husband had died and left her as surviving widow or as well off in non-cohabitation as in cohabitation.

In Shula v. Shula, supra, in 235 Ind. at page 214, 132 N.E.2d at page 614 our Supreme Court stated:

'Alimony is awarded in Indiana for the purpose of making a present and complete settlement of the property rights of the parties. It does not include future support for the wife, nor is it intended as a medium for providing financial compensation for injured sensitivities during marriage. The primary factor in fixing the alimony is the existing property of the parties.'

In this instant case the award of alimony and property settlement are well within the bounds of the trial court's discretion under the rules set out in Bahre.

The Appellant next contends the trial court should have entered as part of its decree a provision for education beyond the twelfth year under Burns' Ind.Stat.Ann., § 3--1219.

The evidence and record in this case reveal that one of the circumstances which prevailed at the time the decree was entered reflected clearly that the father did in fact provide...