Hardiman v. Hardiman

• Decision Date: 25 July 1972
• Docket Number: No. 1271A276,1271A276
• Citation: 284 N.E.2d 820,152 Ind.App. 675
• Parties: Juanita HARDIMAN, Plaintiff-Appellant, v. David A. HARDIMAN, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 820

284 N.E.2d 820

152 Ind.App. 675

Juanita HARDIMAN, Plaintiff-Appellant, v. David A. HARDIMAN, Defendant-Appellee.

No. 1271A276.

Court of Appeals of Indiana, Second District.

July 25, 1972.

Rehearing Denied Aug. 31, 1972.

Frank E. Spencer, Indianapolis, for appellant.

George M. Ober, Palmer K. Ward, Indianapolis, for appellee.

SULLIVAN, Judge.

The appellant obtained a divorce decree severing the marital relationship between herself and appellee. She does not appeal from the award of divorce but only from the distribution of property as made by the court below (Alderson v. Alderson (1972), Ind., 281 N.E.2d 82) and from the refusal of the trial judge to hear evidence concerning the value of the services of her attorney in connection with a request for allowance of final attorney fees.

Specifically, she attacks the decree by specifications of error which insofar as deemed pertinent are as follows:

'1. The decision of this Court is not supported by sufficient evidence in this: There is no evidence to support the award of the eighteen specified items of personal property set out in the Final Decree of Divorce, and each of them, to the defendant, David A. Hardiman, to-wit: (Enumerated items omitted) There was no competent evidence as to the value of these items of personal property, and no evidence in the record relative to the total valuation of all property of the parties. Without such evidence the Court cannot make a fair and equitable division of the physical assets of the parties, and the attempt to do so, including the above award of many items of personal property to the Defendant constituted an abuse of discretion.'

'2. The decision of this Court is not supported by sufficient evidence in this: There is no evidence to support the award of fifty percent (50%) of the value of the real estate--equal division of the proceeds of sale of said real estate, after payment of expenses of the sale ordered by this Court in said Decree--to the Defendant. * * *' '3. Uncorrected error of law occurring and properly raised in the proceedings at the trial of this cause, to-wit: The Court erred in admitting into evidence over the objection of this Plaintiff and Defendant's Exhibit 'A', which was a document listing the items of personal property being designated as those which he wished to receive by the findings and judgment of this Court, as stated by Defendant's counsel at the trial. * * *'

'4. Inadequate amount of recovery and relief to Plaintiff, abuse of discretion, and uncorrected error of law occurring and properly raised in the proceedings at the trial of this cause, in this: The Court erred and abused its discretion in preventing counsel for the Plaintiff from presenting evidence as to the value of his services as attorney for the Plaintiff in the prosecution of this cause of action for divorce, and in holding, as the interpretation by the Court of the prior agreed order for preliminary attorney fee, that the same was an agreed order for both preliminary and final fees for Plaintiff's attorney. * * *' (Emphasis supplied.) ¹

TECHNICAL DEFECT OF SPECIFICATION OF ERROR NOT DETERMINATIVE

Although defendant-appellee has not raised the question, as to plaintiff-appellant here the property disposition is a negative judgment, and a 'sufficiency of evidence' specification does not technically bring error, if any, before us. Flynn v. Reberger (1971), Ind., 270 N.E.2d 331.

A more correct assertion would be that such property distribution is 'contrary to law'. We do not, however, stand upon mere formality in this instance, for the entire thrust and tenor of appellant's argument is to the effect that the decision of the trial court was wholly outside the law in attempting to order a distribution of the property when in fact of record, the court not only did not know the total value of the property sought to be distributed, but did not even know the extent of the property owned by either or both of the parties. The presentation of alleged error is unmistakeably clear, and, in the spirit of the Rules of Appellate Procedure, is deemed properly before us.

Those portions of the decree here contested are as follows:

'The Court further finds that the parties have accumulated certain household goods and that the defendant is entitled to the following personal property:

1. Riding lawnmower, being the property of defendant's brother.

2. New lawnmower recently purchased by defendant.

3. All his garden tools and shop tools.

4. All paint and repair equipment.

5. Musicians plaque (wall) and paintings in the family room.

6. Chandelier in dining room.

7. Combination console stereo and TV.

8. All bar stools.

9. Table and chairs in family room.

10. Sofa in family room.

11. Dining room set.

12. Window fan.

13. Washer and dryer.

14. 3 sump pumps.

15. Bedroom furniture.

16. Blond mahagony desk.

17. All school books and papers and music.

18. Typewriter.

19. Black vinyl reclining chair in family room.

as described in defendant's Exhibit 'A', a copy of which is attached hereto and made a part of this Decree.

The Court further finds that the parties own as husband and wife the family real estate at 1953 West 66th Street, Indianapolis, Marion County, Indiana, and that the defendant has paid approximately 90% of the payments on said property and that said real estate is impossible of division and that in accordance with the evidence and the equities, that the said real estate is to be sold and the proceeds of said sale, after the payment of the expenses of said sale, is to be divided equally between the plaintiff and defendant and the Court now appoints William T. Ray, a competent, disinterested Indianapolis realtor, as Commissioner, to sell said real estate and to accept the proceeds of said sale and report to the Court.

4. Costs versus plaintiff.

ALL OF WHICH IS HEREBY ORDERED, ADJUDGED AND DECREED by the Court this 2 day of July, 1971.'

UNSWORN SELF-SERVING STATEMENT CONCERNING PROPERTY DESIRED BY HUSBAND INADMISSIBLE

At the outset we must allude to defendant's unsworn Exhibit 'A', admitted into evidence over objection and specifically and totally incorporated by reference into the trial court's decree. Of the nineteen numbered categories or items set forth in said Exhibit, at least ten and a portion of three others are nowhere else mentioned, referred to, or acknowledged of record.

It therefore clearly appears that the record here contains a vacuum concerning most of the property awarded to the appellee unless the self-serving list of items prepared by appellee solely for trial purposes and admitted as Defendant's Exhibit 'A' is considered. Even were such list to be properly of record, its value as evidence is restricted to the equivalent of a mere prayer for relief. Without supportive testimony concerning the existence, value and ownership of such items as placed within the framework of the total property available for distribution between the parties, the list is nothing more than a request or prayer by appellee. A prayer for relief or a request for certain property has never in the law been countenanced as evidence that the requestor is entitled to such relief or property, nor that such relief is available or appropriate or that such property even exists.

As stated in Wabash Smelting, Inc. v. Murphy (1962), 134 Ind.App. 198, 206, 186 N.E.2d 586, 590 (overruled on other grounds in McKinley v. Rev. Bd. (1972), Ind.App., 283 N.E.2d 395):

'In either event, they cannot be considered as evidence of a failure to give notice. As unsworn statements, they are of no avail at all. As unverified pleadings, they constitute no proof of the facts they allege. (citation omitted) Likewise, the unsworn declaration of appellant's attorney at the hearing must be rejected as evidence. The reason for all of this is that such statements fall within the hearsay rule. A party cannot manufacture evidence for himself. Self-serving statements or declarations by the party or his attorney not under oath cannot constitute any evidence of the facts they allege.'

We are not unaware that tedium predominates in most divorce trial calendars, and that such occupy much of a trial judge's time. Any efforts therefore by trial counsel to expedite matters by stipulating property holdings and values or even more desirably to offer into evidence a property settlement agreement are to be encouraged. The trial court below clearly indicated his appreciation of such efforts made by appellee's counsel. However, we cannot condone expeditious disposition of the issues involved in each individual divorce action merely because the successive hearing of many such actions may be less than exciting or professionally challenging. The parties to the litigation, and to be sure, our very system of justice are entitled to a full and complete airing of the material issues. It is not the prerogative of the court to short-cut the judicial process and in the stated of evidence make use of speculation in the form of self-serving, unsworn declarations.

FAILURE OF COURT TO APPRISE ITSELF OF EXTENT AND VALUE OF ALL PROPERTY TO BE DISTRIBUTED BETWEEN PARTIES IS FATAL TO PURPORTED FINAL PROPERTY SETTLEMENT DECREE

With reference to appellant's primary argument, it is essential that we recognize the precise issue before us. Appellant makes it quite clear that she does not argue upon this record, that the husband has been awarded a disproportionate share of the real and personal property for one cannot determine disproportion or disparity without reference to the whole. It is appellant's principal point that this record lacks evidence concerning the extent and value of all of the property subject to distribution.

Thus, at least in part, as stated in Snyder v. Snyder (1964), 137 Ind.App. 72, 198 N.E.2d 8:

'* * * the issue is narrowed to whether or not a trial court is guilty of an abuse...