Cornett v. Cornett

Decision Date01 December 1980
Docket NumberNo. 1-680A155,1-680A155
Citation412 N.E.2d 1232
PartiesEugene P. CORNETT, Appellant (Respondent Below), v. Adaline M. CORNETT, Appellee (Petitioner Below).
CourtIndiana Appellate Court

G. Daniel Kelley, Jr., Indianapolis, for appellant; Ice, Miller, Donadio & Ryan, Indianapolis, Phillips B. Johnson, Johnson & Eaton, Versailles, of counsel.

James P. Seidensticker, Jr., Daniel C. Emerson, Indianapolis, for appellee; Bose, McKinney & Evans, Indianapolis, Greeman, Kellerman & Lindenmeyer, Batesville, of counsel.

ROBERTSON, Presiding Judge.

Eugene P. Cornett (Eugene) appeals from the dissolution of marriage decree entered by the trial court, in which Eugene received somewhat more than fifty percent (50%) of the parties' assets, while his wife of ten years, Adaline M. Cornett (Adaline) received the remainder. On appeal, Eugene argues that the trial court: failed to follow the dictates of Ind.Code 31-1-11.5-11; erred in excluding certain evidence; erred in its disposition of certain joint venture property, and; erred in including certain property in the marital estate. We affirm.

The record reveals that Eugene was a licensed public accountant who practiced for about 28 years. In 1965, he hired Adaline, who was also a licensed public accountant. By the time of their marriage, in 1969, Adaline had risen to the level of office manager. Adaline continued to work during their marriage until 1975, but received no salary for her work. During their marriage, the net income produced by the practice, increased from $40,119 in 1969, to a high of $77,797 in 1974. The practice and an office building were sold in 1976. At the time of the separation, $172,049 was still owed to Eugene from the sale of the practice.

The Cornetts also worked to develop farm investment parcels during the marriage and entered into joint venture agreements with some of Eugene's clients whereby Eugene would generally put up 10% of the purchase price but would receive 25% of the profit, if any, when the property was sold. In return for the increased share of the profit, the Cornetts did not charge their partners for their accounting services. In addition, for his services in managing these parcels, Eugene received a management fee of three percent (3%) of the gross income realized on the crops from the land. With the exception of one parcel, Eugene and Adaline took title to the parcels jointly.

In 1975, some "lake property" was purchased in Ripley County which was to be used for Eugene's retirement. Eugene and Adaline moved there in 1977 from their home in Hamilton County. For purposes of the dissolution, the lake property was valued at $250,000.

The trial court was requested to make specific findings of fact and conclusions of law pursuant to Indiana Rules of Procedure, Trial Rule 52. Of the eleven findings of fact, four deal with marriage property and assets. Of the three conclusions of law, the court declared in Conclusion # 2 that:

The net value of the property of the parties as of the date of final separation should be divided between Petitioner and Respondent with each party to own the income from the property awarded to him or her, except that Respondent shall earn the management fee on properties where he retains an interest.

The court in its final decree then divided the various assets of the marriage.

Eugene first argues that the findings of fact, conclusions of law, or final disposition were contrary to the evidence, contrary to law, and an abuse of discretion. Basically, the findings are attacked as not being sufficient to support the court's single conclusion (quoted above) as to the awarding of the marital property. Eugene contends that because the evidence revealed he brought so much more into the marriage than Adaline, and because the award created a negative cash flow of $80,000 for him, while creating a positive cash flow of $35,000 for Adaline in 1980, that the court abused its discretion and that the division was not "just and reasonable."

It is clear that when findings of fact and conclusions of law are filed, "the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Indiana Rules of Procedure, Trial Rule 52(A). Findings are construed liberally and in conjunction with each other on appeal to support the judgment, and a reviewing court will accept the findings made by the trial court if they are supported by evidence of probative value. In re Marriage of Miles, (1977) Ind.App., 362 N.E.2d 171. Although we find the findings of fact and conclusions of law to be at best minimal, when viewed in context of the evidence within the record, we cannot say the court's division was clearly erroneous.

"Clearly erroneous" means that although there is evidence to support the trial court's decision, the record leaves the reviewing court with the definite and firm conviction that a mistake has been committed. Young v. Bryan, (1977) Ind.App., 368 N.E.2d 1. Following our review of the record, we are not left with that conviction. The evidence was conflicting and subject to various interpretations. Consequently, deference must be given to the trial judge due to his opportunity to judge the demeanor and credibility of the witnesses. T.R. 52.

The disposition of property is governed by Ind.Code 31-1-11.5-11, which provides in essence that:

the court shall divide the property of the parties, whether owned by either spouse prior to the marriage, acquired by either spouse in his or her own right after the marriage and prior to the final separation of the parties, or acquired by their joint efforts, in a just and reasonable manner, ...

In determining what is just and reasonable the court shall consider the following factors:

(a) the contribution of each spouse to the acquisition of the property, including the contribution of a spouse as homemaker;

(b) the extent to which the property was acquired by each spouse prior to the marriage or through inheritance or gift;

(c) the economic circumstances of the spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell therein for such periods as the court may deem just to the spouse having custody of any children;

(d) the conduct of the parties during the marriage as related to the disposition or dissipation of their property;

(e) the earnings or earning ability of the parties as related to a final division of property and final determination of the property rights of the parties.

In challenging the court's disposition of the marital assets, Eugene contends the trial court did not properly consider all of the statutory factors and argues that specific findings should be required on each of the factors. We do not agree. There is no mandate in T.R. 52 that a trial judge state how or why he found and concluded the way he did. Colonial Life & Accident Ins. Co. v. Newman, (1972) 152 Ind.App. 554, 284 N.E.2d 137. Also, it is a basic tenet, that on appeal, this court presumes the court below followed the law and considered the statutory factors in making its decision. Dahlin v. Dahlin, (1979) Ind.App., 397 N.E.2d 606; In re Marriage of Patus, (1978) Ind.App., 372 N.E.2d 493.

Eugene can point to no instance where the trial judge clearly disregarded any of these factors, and we are not persuaded that the evidence is so totally without conflict to permit such an inference to be drawn from the court's disposition of the assets. The mandate of the court is to determine a "just and reasonable" disposition of the marital assets. Given the growth of the accounting practice and the investment program during the...

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