Henderson v. Henderson
| Decision Date | 10 March 1980 |
| Docket Number | No. 1-277-A-35,1-277-A-35 |
| Citation | 401 N.E.2d 73 |
| Parties | Robert T. HENDERSON, Appellant (Respondent Below), v. Frances Irene HENDERSON, Appellee (Petitioner Below). |
| Court | Indiana Appellate Court |
McCrea & McCrea by David S. McCrea, Bloomington, for appellant.
Applegate & Pratt by Lewellyn H. Pratt, Bloomington, for appellee.
This appeal comes to us from the Indiana Supreme Court which vacated our earlier opinion and remanded the cause to us to determine on its merits. Henderson v. Henderson (1978), Ind., 381 N.E.2d 451. We reverse and remand.
The appellant Robert T. Henderson (Husband) raises one issue concerning the property settlement in the dissolution of marriage action below. This issue is whether it is an abuse of discretion for the trial court, upon awarding the real estate to Frances I. Henderson (Wife), to create a lien of $5,500 in favor of the Husband on the real estate "to be retired or paid to Robert T. Henderson at such time as Frances Irene Henderson decides to sell said real estate" and to further award up to $4,000 to the Husband upon a split of the equity of the real estate when the Wife sells. No provision for interest was made.
The Husband objects to the contingent nature of his award, noting that there is no indication that the Wife wishes to sell, no economic motivation to sell and no manner in which the Husband can compel her to sell it. In short, the Husband characterizes the award as "illusory".
Ind.Code 31-1-11.5-11 provides in pertinent part:
Disposition of Property (a). In an action pursuant to section 3(a) of this chapter, 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 final separation of the parties, or, acquired by their joint efforts, in a just and reasonable manner, either by division of the property in kind, or by setting the same or parts thereof over to one (1) of the spouses and requiring either to pay such sum, either in gross or in installments, as may be just and proper, or by ordering the sale of the same under such conditions as the court may prescribe and divide the proceeds of such sale. (Emphasis added)
It is well-recognized that the trial court has broad discretionary power to dispose of the marriage property. In re Marriage of Hirsch, (1979) Ind.App., 385 N.E.2d 193. A trial court has the power to transfer real property between the parties to meet the statutory requirement of reasonable and just. Plese v. Plese, (1970) 146 Ind.App. 545, 257 N.E.2d 318. On review, we will not weigh the evidence, but will examine the division only for an abuse of discretion. In re Marriage of Hirsch, supra.
This appears to be a case of first impression in Indiana.
We are impressed by two Colorado cases in which the trial court gave one...
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Luedke v. Luedke
...reasonable. The trial court, of course, retains its broad, discretionary power to dispose of the marital property, Henderson v. Henderson (1980), Ind.App., 401 N.E.2d 73, and our review of the trial court's disposition continued to be circumscribed by the abuse of discretion standard. Swinn......
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Marriage of Dall, In re
...property and may not delegate to one of the parties the power to decide when, if ever, to divide the property. Henderson v. Henderson, 401 N.E.2d 73, 74 (Ind.Ct.App.1980). Likewise, the dissolution court cannot delegate or leave to a nonparty the power to decide whether the parties to the m......
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Crider v. Crider
...incomplete and erroneously delegated to Christina “the power to decide when, if ever, to divide the property.” See Henderson v. Henderson, 401 N.E.2d 73, 74 (Ind.Ct.App.1980). The trial court divided the marital property, not the businesses, and ordered Jeff to make an equalization payment,......
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Franklin Bank and Trust Co. v. Reed
...property in contemplation of a financial parting of the ways. Johnson v. Johnson (1984), Ind.App., 460 N.E.2d 978; Henderson v. Henderson (1980), Ind.App., 401 N.E.2d 73. To accomplish this task, the trial court has the power to transfer real property between the parties. Henderson, supra; ......