Glasgo v. Glasgo, 1-380A62

• Decision Date: 29 September 1980
• Docket Number: No. 1-380A62,1-380A62
• Citation: 410 N.E.2d 1325,78 Ind.Dec. 477
• Parties: Laurel GLASGO, Defendant-Appellant, v. Jane C. GLASGO, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1325

410 N.E.2d 1325

Laurel GLASGO, Defendant-Appellant, v. Jane C. GLASGO, Plaintiff-Appellee.

No. 1-380A62.

Court of Appeals of Indiana, First District.

Sept. 29, 1980.

Brent Westerfeld, Indianapolis, for defendant-appellant.

Mark Peden, Foley, Foley & Peden, Martinsville, Steven L. Harris, Harris & Currens, Mooresville, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Defendant-appellant, Laurel Glasgo, appeals from a judgment in favor of plaintiff-appellee, Jane Glasgo, for the sum of $6,062.03 and a hutch or for $8,062.03 without the hutch. We affirm.

FACTS OF THE CASE

Laurel and Jane were married from June 1956 until September 1967 during which time Jane worked outside, as well as within, their home to put Laurel through college "The parties, having tried and argued the above captioned case to the Court, and the Court having had the case under advisement for briefing and argument, hereby finds as follows:

and veterinarian school and during which time two sons were born to them. After the divorce Jane and the boys moved to Arkansas. Laurel remained in Indiana, remarried, but subsequently was divorced. In December 1972 Laurel sought a reconciliation with Jane, and in August 1973, after selling her home in Arkansas, Jane and the children moved back to Indiana to make their home with Laurel. They lived together as a family from August 1973 until August 1978 when Jane and the boys moved out of the home which they had helped the appellant construct on real estate owned by him. Financing for the construction of the home had come from the children's insurance policies and appellant's personal loan and earnings. The parties acquired other household property either jointly or in their separate names. Jane stated that she believed marriage would result upon reconciliation and attempted to convince Laurel approximately every six months that the legal aspect of remarriage was necessary for her security and the children's benefit. Laurel rebuffed her efforts in this direction, saying "what is mine is yours" (transcript, p. 164), "that everything we had was mine is yours" (transcript p. 104), and "we had built it together" (transcript, p. 105). In May 1978 Laurel announced to Jane that a nineteen-year-old girl was pregnant by him and that he guessed he would have to marry her. Jane and the children moved out of the house in August 1978. Jane took the furniture and personal items she had brought from Arkansas, a microwave oven, sweeper, and hutch built by Laurel and a son and which she had finished. Laurel continued to live in the house and remarried. He rejected Jane's requests for a settlement involving property which the parties had accumulated or for services she had rendered from 1973 to 1978. Jane brought the instant action seeking $25,000.00, which was one-half the value of what she believed the house to be worth, based upon their oral agreement that the assets which they were accumulating were owned equally. Laurel moved to dismiss Jane's complaint pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6). Trial to the court resulted in the following findings and judgment:

"1. The Defendant's Motion to Dismiss heretofore filed should be denied.

"2. The plaintiff lived and cohabited together with the defendant for the period of August 1, 1973 until August 5, 1978 and on August 5, 1978, she was forty-one (41) years old. During the course of period that the parties lived and cohabited together, they accumulated certain property which equity and contract dictates should be divided.

"3. During the course of the cohabitation, the parties accumulated real estate with a value of Thirty Eight Thousand Eight Hundred and Fifteen Dollars and Sixty Cents ($38,815.60). The real estate was improved upon land owned by the defendant prior to August 1, 1973 and which, on August 5, 1978 had a fair market value of Ten Thousand Dollars ($10,000.00). The real estate on August 5, 1978 was subject to a mortgage in the amount of Five Thousand Three Hundred Sixty-Two Dollars and Seventy Cents ($5,362.70); thus, the equity value in the real estate accumulated during the above mentioned period was Twenty-Three Thousand Four Hundred Fifty-Two Dollars and Ninety Cents ($23,452.90). During the above mentioned period, the parties accumulated certain radio and airplane equipment in the value of Two Thousand Dollars ($2,000.00) and other miscellaneous personal property in the amount of One Thousand Dollars ($1,000.00). An automobile was purchased during that time but is subject to a mortgage more than its fair market value. During that time, a motorcycle was purchased for the fair market value of Two Thousand Five Hundred Dollars ($2,500.00) based upon the value of a trade-in for that motorcycle. The net equity estate of the parties is Twenty-Eight Thousand Nine Hundred Fifty- "4. Considering the above assets and the consepts (sic) of equity and implied contract, the Court hereby finds as follows:

Two Dollars and Ninety Cents ($28,952.90). Further, the plaintiff has in her possession a hutch constructed by the parties whose personal value to the parties is basically due to their contributions to the construction of the hutch and the Court determines that the value of the hutch is Two Thousand Dollars ($2,000.00).

"1. The parties lived together subsequent to a divorce for the period of August 1, 1973 to August 5, 1978 and equity should provide a division of the above mentioned property and the property shall be divided as follows:

"The defendant, Laurel Glasco (sic), shall pay the plaintiff the sum of Six Thousand and Sixty-Two Dollars and Three Cents ($6,062.03) and not receive the hutch or, in the alternative, the defendant, Laurel Glasco (sic), shall pay the plaintiff, Jane C. Glasco (sic), the sum of Eight Thousand Sixty-Two Dollars and Three Cents ($8,062.03) and receive the hutch from her."

ISSUES

Appellant raises two questions for our consideration:

(1) Did the trial court err in failing to grant his motion to dismiss for failure to state a claim upon which relief could be granted? and,

(2) Was there sufficient evidence to support the trial court's judgment?

DECISION

Issue One

Laurel argues that the trial court erred in failing to dismiss Jane's cause because she presents an unenforceable claim in Indiana. He contends that claims by nonmarried cohabitants are against public policy in Indiana since the legislature has prohibited common law marriages, citing Ind.Code 31-1-6-1. ¹ Laurel states that judicial recognition of Jane's claim permits her to accomplish indirectly what she is prohibited from accomplishing directly and in effect reinstates common law marriages in Indiana.

Jane states that she is not asking to be declared a common law wife, but seeks only to protect her contract rights. She points out that what at one time was considered an illegal relationship precluding recovery in cases such as hers has come to be recognized as a common occurrence in our society and no longer precludes courts from responding realistically in such disputes.

We agree with Jane. Her complaint may not be a model upon which to assert a contract action, but she does not seek relief upon impermissible grounds. The granting of a motion to dismiss for failure to state a claim upon which relief can be granted is appropriate only where there is no possible set of facts upon which complainant could recover under the allegations stated. State v. Rankin, (1973) 260 Ind. 228, 294 N.E.2d 604, aff'd 160 Ind.App. 703, 313 N.E.2d 705 (1974); State Farm Mutual Auto. Insur. Co. v. Shuman, (1977) Ind.App., 370 N.E.2d 941, transfer denied; Cochran v. Hallagan, (1980) Ind.App., 409 N.E.2d 701. Jane's claim invoked both contractual and equitable grounds upon which the court could, and ultimately did, afford her relief. Jane did not seek social security benefits or recovery under the laws of intestate succession. Unlike the celebrated Marvin case, ² there are no support or maintenance payments ("palimony") involved here. Jane did not request, nor did the court grant her, relief based upon the dissolution of marriage statutes. Not all of the parties' property was divided by the court; only a division of specific jointly acquired property about which the parties could not agree is effected by the court's judgment and order. There is no contention by Laurel, and we do not find, that the award of $8,062.03 is outrageous or excessive where the court found the net equity estate attributable to the combined efforts of the parties to be $28,952.90.

Laurel bases his argument that the trial court's decision is contrary to law on the Illinois case of Hewitt v. Hewitt, (1979) 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204, which held that recognition of claims such as Jane's was contrary to the public policy of that state. In Hewitt the trial court had dismissed a woman's complaint for divorce, child support, and property division on the grounds that the parties lacked a valid marriage. The facts revealed that the parties had begun cohabiting more than fifteen years earlier while college students. When plaintiff became pregnant, defendant told her that they were husband and wife and that no formal ceremony was necessary. They announced their "marriage" to their respective parents and conducted themselves from that time as husband and wife, producing three children and living an outwardly conventional family life. In reliance upon defendant's promises to " 'share his life, his future, his earnings, and his property' with her," plaintiff devoted her efforts to his education and establishment in the profession of pedodontia, obtaining financial assistance from her parents for this purpose and assisting him in his practice. 31 Ill.Dec. at 828, 394 N.E.2d at 1205. The payroll checks which she earned were deposited in the common family fund. At the time of plaintiff's action defendant earned over $80,000 per year and had accumulated large amounts...