Herron v. Herron

• Decision Date: 13 December 1983
• Docket Number: No. 4-582A126,4-582A126
• Citation: 457 N.E.2d 564
• Parties: Susan K. HERRON, Appellant (Petitioner Below), v. L. Nicholas HERRON, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 564

457 N.E.2d 564

Susan K. HERRON, Appellant (Petitioner Below), v. L. Nicholas HERRON, Appellee (Respondent Below).

No. 4-582A126.

Court of Appeals of Indiana,

Fourth District.

Dec. 13, 1983.

John J. Dillon, William T. Rosenbaum, Dillon, Hardamon & Cohen, Indianapolis, for appellant.

Ken A. Elmendorf, Elmendorf & Meyer, Brownsburg, for appellee.

CONOVER, Presiding Judge.

Petitioner-Appellant Susan K. Herron appeals from the trial court's decree dissolving her marriage to L. Nicholas Herron, raising the following issues:

1. Whether the court abused its discretion in ordering the marital home to be sold;

2. Whether the court, in dividing the marital property, erroneously gave Nicholas credit for his payment of marital obligations during the dissolution proceedings;

3. Whether the court erred in admitting and considering Nicholas's tendered offer of settlement;

4. Whether the court's child support order was inadequate or based on erroneous findings of fact;

5. Whether the court erred in requiring an annual review and adjustment of child support based solely on financial statements submitted by the parties; and

6. Whether the court erred in failing to dispose of Nicholas's retirement account.

We affirm.

I.

Susan first claims the court erred in ordering that the marital residence be sold and the proceeds divided equally. ¹ She claims this order was an abuse of discretion in light of IND.CODE 31-1-11.5-11(b)(3), requiring the court to consider "the desirability of awarding the family residence or the right to dwell therein for such periods as the Court may deem just to the spouse having custody of any children ...." Susan, the custodial spouse, testified the family's house was ideal for the children since it was located near schools, stores, and a library.

When a trial court's division of marital assets is challenged on appeal, the scope of our review is limited. We will reverse only where the division is so clearly contrary to the logic and effect of the facts before the court as to be an abuse of discretion. ² Swinney v. Swinney, (1981) Ind.App., 419 N.E.2d 996, 997-98. Further, we will presume the trial court properly considered the statutory factors. Temple v. Temple, (1982) Ind.App., 435 N.E.2d 259; Cornett v. Cornett, (1980) Ind.App., 412 N.E.2d 1232. This presumption is not rebutted here merely because the court did not give Susan possession of the house. Although the court was required to consider doing so, its overriding duty was to divide the assets "in a just and reasonable manner." IND.CODE 31-1-11.5-11(b); Cornett, supra.

In this case, the most valuable asset to be divided was the Herrons' house, valued at $68,000 and subject to a $24,000 mortgage. Aside from the house, there was relatively little marital property to be divided. Thus, the court could not have awarded Susan the house outright without giving her the lion's share of the marital property. The court clearly did not abuse its discretion in refusing to do so. See Swinney, supra. Susan contends, however, that the court abused its discretion in refusing to delay the sale of the house, so she and the children could live in it until the children reached eighteen. Such an order, Susan points out, would give Nicholas his share of the property eventually without disrupting the children's home life. Although such an order might have been just and reasonable, we do not believe the court abused its discretion in rejecting this proposed disposition. First, delaying the sale would give Susan the enjoyment, for eight years, of most of the marital property. Further, due to Susan's minimal income, Nicholas would have been required to continue making house payments in the interim, in addition to child support payments. In light of the court's overriding duty to divide the marital property "in a just and reasonable manner," IND.CODE 31-1-11.5-11(b), we cannot agree that the court abused its discretion in ordering the marital residence sold immediately.

II.

Susan further claims the court erred in giving Nicholas credit for his payment of marital obligations during the dissolution proceedings. ³ Susan contends this amounted to an improper refund to Nicholas of child support and maintenance, paid under the court's preliminary order. We disagree. The court's final decree clearly did not give Nicholas credit for child support payments:

The Court further finds that since the date of separation the Respondent has paid $10,584.12 on joint obligations of the marriage. Of which sum, $3,450.00 was paid as Court ordered support. The Respondent is to receive as credit against the assets of the marriage the sum of $3,567.06 which is to be given to Respondent as a set-off for the assets of the marriage. Such sum was determined by subtracting $3,450.00 from $10,584.12 and dividing by one-half. (Emphasis added.)

Thus, the amounts for which Nicholas received credit only included house payments under the court's preliminary order and voluntary payments of other joint marital obligations. Susan cites no authority, and we have found none, for the proposition that a husband's voluntary payment of marital debts constitutes maintenance or that the court may not give the husband credit for such payments. The house payments Nicholas made under the court's provisional order, on the other hand, might conceivably be viewed as maintenance. Even so, it is not improper, in dividing marital property, to consider temporary maintenance paid by one spouse under a provisional order. The section governing such orders provides that, "[t]he issuance of a provisional order shall be without prejudice to the rights of the parties or the child as adjudicated at the final hearing ...." IND.CODE 31-1-11.5-7(e). Applying that section here, we do not believe the court's provisional order requiring Nicholas to make house payments prejudiced his right to have the court consider such payments in dividing the marital property. Giving Nicholas credit for paying joint marital obligations was an appropriate means of ensuring that the marital property was divided "in a just and reasonable manner." The court did not abuse its discretion in considering Nicholas's payment of marital obligations in dividing the marital property.

III.

Next, Susan argues that the court erred in admitting and considering a "Tender of Offer" filed by Nicholas on the morning of trial. She contends this offer, setting forth the judgment terms Nicholas was willing to have entered against him, was inadmissible under T.R. 68, which provides in part:

At any time more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within ten (10) days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. (Emphasis added.)

The record clearly shows Susan rejected Nicholas's offer. Nevertheless, Susan has not shown any reversible error. Although this offer was filed with the court, it was never admitted into evidence. The record does show that Nicholas's counsel used the offer as a "guideline" in questioning Susan on the division of personal property, but the document itself was not placed in evidence at that time. Further, even if this document was admitted into evidence, the record shows Susan never made a timely objection. Thus, any error is waived. Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843.

IV.

Additionally, Susan challenges the court's child support order. Susan claims the decree was inadequate and was based on an erroneous finding that Nicholas's net monthly income was only $800. The determination of child support is within the trial court's discretion. Morphew v. Morphew, (1981) Ind.App., 419 N.E.2d 770. At trial, Nicholas's testimony and financial records showed that his income as a salesman was over $30,000 for several years prior to the dissolution. Six months before the dissolution, however, Nicholas went from a salary to a straight commission. Nicholas testified that a slump in sales during this period left him with a monthly income, after expenses, of $788. This testimony was supported by Nicholas's detailed business records, and Susan presented no contrary evidence. Nicholas's testimony was not, as Susan claims, incredible. The court's finding was not erroneous. Nor was the court's award of $105 per week for child support an abuse of discretion. This award equaled 57% of Nicholas's net weekly income. Nicholas was also required to pay for medical insurance covering the children and for music lessons. Under these circumstances, we cannot say the trial court abused its discretion. Morphew, supra.

V.

Susan next contends the decree provision for modification of child support was contrary to law. As to child support, the decree provided Nicholas was to pay for the children's extra-curricular expenses, maintain his present medical insurance coverage, and contained other provisions for their health care. It also provided

3. Both parties are to comply with Indiana Law which requires annual disclosure of incomes on or before December 31 of each year. Further, that such disclosure shall be in writing.

4. Support is fixed in the amount of $105.00 per week or $35.00 per week per child until each such child is emancipated or until further order of the Court.

Such payment of support is to be paid through the Clerk of Hendricks County, Indiana, and is to commence on January 08, 1982 and continue each week thereafter until further Order.

Respondent-Husband is to be responsible for the...