Dean v. Dean

Decision Date30 September 1982
Docket NumberNo. 1-382A69,1-382A69
Citation439 N.E.2d 1378
PartiesDevota DEAN, Respondent-Appellant, v. Lawrence W. DEAN, Petitioner-Appellee.
CourtIndiana Appellate Court

Stephen R. Heimann, Goltra & Heimann, Columbus, for respondent-appellant.

Larry L. Eaton, Eaton & Taylor, Versailles, for petitioner-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF CASE

DeVota Dean, Respondent, appeals that part of a Dissolution of Marriage Decree dealing with the property settlement. We affirm with modification.

FACTS

DeVota and Lawrence W. (Larry) Dean, Petitioner, were married November 20, 1965, and four children were born of the marriage. Cross-petitions for Dissolution of the Marriage were filed by the parties and after a two-day trial, July 16 and 17, 1981, the trial court granted the dissolution but took the matter of the division of the property under advisement. Pursuant to Indiana Rules of Procedure, Trial Rule 52, DeVota requested that the trial court make specific findings of fact. The trial court adopted Larry's proposed findings of fact and conclusions of law which read as follows:

"Comes [sic] now the parties in person and by counsel and this matter is submitted to the Court for trial, finding and judgment. The Court having considered the evidence herein and the argument of counsel, now makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The parties were bona fide residents of Ripley County, Indiana, for more than six (6) months prior to November 12, 1980.

2. There were born of the marriage four (4) children, namely, Angela Rena, Rachele Lynn, Nathan Robert and Basil Albert, all of whom are under the age of eighteen (18) years.

3. The marriage of the parties is irretrievably broken.

4. The petitioner inherited the following described property from his father, Robert Dean, during this marriage:

a. 3.255 acres together with an old house and some outbuildings.

b. A 1/9 interest in the business then known as Napoleon Lumber Company together with certain farmland, antique autos, and bank stock, subsequently formed into the corporation known as Napoleon Lumber Company of which the Petitioner owns 25 shares of the common capital representing 25% of the outstanding capital of the corporation.

5. From the business interests derived from the Napoleon Lumber Company Petitioner together with two brothers formed the Napoleon Hardwood, Inc. in which the Petitioner owns thirty-three (33) shares of common capital representing 1/3 of the outstanding shares.

6. From the business assets known as the Napoleon Lumber Company, Petitioner and two brothers formed a partnership known as Dean Brothers Rentals in which the Petitioner owns a 1/3 interest.

7. The parties have accumulated household goods and personal property including four motor vehicles.

8. That the Petitioner and Respondent constructed a home in 1974 on the property inherited by the Petitioner from his father which is subject to the lien of a mortgage in favor of the Napoleon State Bank dated December 28, 1974, in the principal amount of $30,000.00 having an unpaid balance as of this date of approximately $25,000.00.

9. That Respondent should have the care and custody of the minor children of the parties, and Petitioner should pay a reasonable sum for the support of said children.

10. That the Petitioner should be entitled to visitation each weekend and at reasonable times upon at least twenty-four (24) hours prior notice.

CONCLUSIONS OF LAW

1. That the marriage of the parties should be dissolved.

2. That the property of the parties should be divided as follows:

a. To Petitioner:

i. 25 shares of Napoleon Lumber Company stock.

ii. 33 shares of Napoleon Hardwood, Inc. stock.

iii. 1/3 interest of Dean Bros. Rentals partnership.

iv. 287 shares of the Napoleon State Bank stock.

v. Cash value of life insurance.

vi. 1980 Federal and State tax refunds vii. Personal property including motor vehicles in his possession.

viii. Interest in antique autos.

b. To Respondent:

i. Family residence together with all improvements; provided, that Petitioner should pay the mortgage indebtedness against said property.

ii. Household goods and personal property located at the family residence.

iii. The 1977 Chrysler automobile.

iv. A judgment against the Petitioner in the sum of $97,500.00, payable in installments of $9,750.00 each, the first payment being due December 1, 1981 and nine subsequent payments due on the first day of December thereafter of each succeeding year, with interest on the unpaid balance of 12% per annum; provided, Petitioner may prepay said judgment at any time without penalty.

3. That custody of the minor children should be with the Respondent and the Petitioner should have the right to visit with said children at reasonable times and places to be agreed upon by the parties and upon 24 hours prior notice.

4. That Petitioner should pay support for said minor children in the sum of Fifty Dollars ($50.00) per child per week, said payments to be made into the office of the Clerk of this Court. In addition, Petitioner should pay One Hundred Dollars ($100.00) per school age child (kindergarten through college) per year on or before August 15th of each year into the office of the Clerk of this Court, beginning in 1982.

5. That the Petitioner should maintain health insurance on the minor children and the parties should divide equally any unpaid medical, dental, orthodontic, pharmaceutical, optical and hospital expenses.

6. That the Petitioner should be entitled to claim the parties' minor children as dependents for income tax exemption purposes.

7. That Petitioner should pay Respondent's legal expenses in the sum of Five Thousand Dollars ($5,000.00), within sixty days from this date.

So ORDERED this 9th day of October, 1981."

Record at 324-327.

ISSUES

DeVota presents these issues for our review:

"1. Whether the trial court committed reversible error by failing to set forth monetary values of the marital assets in its findings of facts and conclusions of law?

2. Whether the trial court committed reversible error by failing to award certain assets of the marriage to either party?

3. Whether the trial court abused its discretion by allowing Phil Banawitz to testify to valuations of three business interests when he was not an expert in that field and had not qualified as an expert?

4. Assuming that the Court valued the three business entities for purposes of property division at the values testified to by Husband's expert witness, whether the trial court abused its discretion in using said valuations since the underlying valuing technique was contrary to the evidence and law in that the technique

a) arbitrarily weighted corporate years earnings,

b) arbitrarily discounted minority interest by sixty-six percent (66%),

c) arbitrarily assigned capitalization rates,

d) was inconsistent in using supporting data, and,

e) did not incorporate goodwill in its computations.

5. Whether the trial court committed reversible error by not dividing the property acquired during the course of the marriage in a just and reasonable manner as mandated by I.C. 31-1-11.5-11 in that it awarded husband two and one-half (2 1/2) times as much property than to wife?"

DISCUSSION AND DECISION

Issue One

DeVota argues that the trial court erred and that its judgment with respect to the division of property in this case should be set aside because the court failed to set forth in its findings of fact specific monetary values of all the marital assets. DeVota did, pursuant to Trial Rule 52 of the Indiana Rules of Procedure, request in writing prior to trial that the court enter special findings of fact and reminded the trial court of this request prior to the presentation of evidence. When the court asked why counsel was requesting special findings, DeVota's counsel explained,

"Your Honor I want to be able to clearly delin[e]ate the facts which the Court is going to base and render its decision on are the facts concerning the valuation of some of the properties that are involved. That is basically what I'm most concerned about."

Record at 337-38. In a round about way counsel appears to be limiting his request for special findings on the issue of asset valuation. Nevertheless, counsel states that DeVota's request for special findings "was not limited in any manner to specified issues." Appellant's Brief at 16. Thus, while it appears DeVota was concerned with the court's valuation of marital assets, she does not argue that she specifically requested the trial court to establish a set value for each asset. Now, however, she contends that without a specific value attributed to each asset it is impossible to determine if the trial court made a just and reasonable distribution of the marital assets under Indiana Code Section 31-1-11.5-11. We disagree.

In essence a trial court's judgment will be set aside by this court only when it is contrary either to law or to the facts of the case. In this case DeVota seems to complain that the judgment is contrary to law because the facts found by the court are inadequate as special findings. Special findings of fact may be distinguished from general findings in favor of one party or the other. See Hunter v. Milhous, (1973) 159 Ind.App. 105, 121, 305 N.E.2d 448, 458. Special findings of fact have been said to consist of all the facts necessary to a judgment for the party in whose favor conclusions of law are rendered. Id.; Salk v. Weinraub, (1979) Ind., 390 N.E.2d 995, 997. Where special findings are properly requested, parties are entitled to have the court state those ultimate facts upon which it determined the legal rights of the parties. Stanzione v. Pascevich, (1982) Ind.App., 431 N.E.2d 847, 849; Hunter v. Milhaus. However, the purpose of a trial court's making specific findings is to provide the reviewing court with the legal basis upon which the trial court decided the case. Miller v....

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