Goodyear v. Goodyear

• Decision Date: 28 October 1982
• Docket Number: No. 1-382A57,1-382A57
• Citation: 441 N.E.2d 498
• Parties: Martin O. GOODYEAR, Appellant (Plaintiff Below), v. Bonnie D. GOODYEAR, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 498

441 N.E.2d 498

Martin O. GOODYEAR, Appellant (Plaintiff Below), v. Bonnie D. GOODYEAR, Appellee (Defendant Below).

No. 1-382A57.

Court of Appeals of Indiana,

First District.

Oct. 28, 1982.

Richard L. Mattox, Barry N. Bitzegaio, Orbison, O'Connor, MacGreagor & Mattox, New Albany, for appellant.

Jerry L. Ulrich, Ulrich & Vidra, New Albany, for appellee.

ROBERTSON, Judge.

Martin O. Goodyear (Martin) appeals the granting of summary judgment in favor of his former wife, Bonnie D. Goodyear (Bonnie), on her counterclaim for part of a federal income tax refund which was issued jointly to them. Her counterclaim alleged the refund was a marital asset pursuant to Ind.Code 31-1-11.5-11. The trial court awarded Bonnie one half of the $11,059.00 refund plus one half the interest earned while the amount was held in escrow during litigation.

We reverse and remand.

Martin and Bonnie were married in 1946 and divorced on January 4, 1979. They operated a mobile home business for 25 years as a closed corporation. In their property settlement agreement, which was incorporated into their marriage dissolution decree, Martin was awarded all stock in this corporation.

The corporation was a "Sub-Chapter S" corporation pursuant to 26 U.S.C. Sec. 1371 et seq. In 1979, the corporation sustained a net operating loss. Martin claimed this loss as an income tax deduction. He filed an individual return for 1979 and amended joint returns for the three prior years in order to claim a net operating loss carryback pursuant to 26 U.S.C. Sec. 172. Martin and Bonnie had originally filed joint returns as husband and wife for the carryback years. Bonnie signed the amended returns. Martin received a tax refund of $11,059.00. The check was made payable to both Martin and Bonnie.

It is not clear from the record how Bonnie obtained possession of the refund check. In any case, after obtaining possession she refused to endorse and surrender the check. On September 30, 1980, Martin filed a complaint which alleged in relevant part that Bonnie was in wrongful possession of the check. He sought $11,059.00 in damages plus interest. In turn, Bonnie counterclaimed alleging the refund was a marital asset. The parties filed cross-motions for summary judgment and Bonnie's was granted.

Martin essentially argues the trial court erred by granting Bonnie's motion for summary judgment and by denying his counter motion.

There is no need for us to discuss whether the trial court erred by determining the refund was marital property. Bonnie's counsel has conceded that it was not marital property stating:

Counsel for the Husband has correctly pointed out that because the entitlement to the refund did not vest in the parties until after the dissolution of their marriage, the proceeds of the refund are not marital property. (Emphasis added.).

Appellee's Brief, p. 6.

Bonnie's counsel argues that she is nevertheless entitled to one half the refund because the trial court's decision is a determination of her interest as a "tenant in common" in the refund check. Counsel argues Bonnie "was entitled [under notice pleading] to avail herself of any theory of law which was adequately supported by the evidence." We first note that the authority presented for this position, State v. Thompson, (1979) Ind.App., 385 N.E.2d 198, deals with a motion to dismiss, Ind.Rules of Procedure, Trial Rule 12(B)(6), instead of a judgment entered on a theory not presented by the pleadings or a judgment affirmed on appeal on any theory applicable to the case.

In support of the theory that the trial court apportioned the parties interests in common, counsel argues the trial court could have awarded judgment on a theory of quasi-contract for services Bonnie rendered to the mobile home corporation. This argument fails for several reasons.

At trial, Bonnie introduced an affidavit in which she stated that during the last 25 years of her marriage to Martin, she worked without compensation for their corporation serving as "salesperson, secretary, bookkeeper, billing clerk, purchasing agent, and general office help."

Taken in context, this evidence does not reveal an issue of quasi-contract, but instead expresses Bonnie's dissatisfaction with the weight given to her contribution to the acquisition and maintenance of marital property in the property settlement agreement. If the settlement agreement was inequitable, she should not have agreed to it. In any case, a collateral attack on the dissolution decree is inappropriate. Anderson v. Anderson, (1979) Ind.App., 399 N.E.2d 391, Ind.Code 31-1-11.5-17(a).

Also, even if we accept the argument that there is truly an issue of quasi-contract, we may not affirm the trial court's decision on that basis. In this case, we have summary judgment entered on a specific issue and no indication Martin was aware of a quasi-contract claim; therefore, we will not sustain the trial court's judgment on that theory. Our rationale was expressed in Bahre v. Metropolitan Sch. Dist. Etc., (1980) Ind.App., 400 N.E.2d 197, where we stated:

[W]e will not affirm a decision based on a theory argued on appeal,...