Hunter v. Hunter

• Decision Date: 27 October 1986
• Docket Number: No. 4-285A33,4-285A33
• Citation: 498 N.E.2d 1278
• Parties: William R. HUNTER, Appellant (Respondent Below), v. Penelope L. HUNTER, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 1278

498 N.E.2d 1278

William R. HUNTER, Appellant (Respondent Below), v. Penelope L. HUNTER, Appellee (Petitioner Below).

No. 4-285A33.

Court of Appeals of Indiana,

Fourth District.

Oct. 27, 1986.

James A. Federoff, Beckman Lawson Sandler Snyder & Federoff, Fort Wayne, for appellant.

Michael A. Aspy, Tourkow Crell Tosenblatt & Johnston, Fort Wayne, for appellee.

MILLER, Judge.

Penelope L. Hunter filed for dissolution of her twenty (20) year marriage to William R. Hunter and for custody of and support for the parties' then sixteen (16) year old daughter, Erin. After a trial, the court awarded custody of Erin to Wife, and, because of Husband's grossly fluctuating income, he was ordered to pay child support of no less than fifty dollars ($50.00) per week plus twenty-five percent (25%) of his net after-tax wages over two hundred five dollars ($205.00) per week, not to exceed a total of ninety-two dollars and fifty cents ($92.50) per week. Husband was also required to designate the parties' minor daughter as sole beneficiary of his $2,000 group term life insurance policy. The trial court divided the parties' marital estate between Wife and Husband, ordering approximately 55% of net assets paid to Wife and 45% paid to Husband, with Husband assuming liability for marital debts of approximately $4,600.00. Husband was ordered to pay all of Wife's attorney fees incurred in the dissolution action. Husband appeals the trial court's decree on multiple grounds.

We affirm in part and reverse in part. We reverse the child support self-adjusting escalation clause and find the amount insufficient and clearly erroneous. We remand for findings of fact and setting a fixed amount of child support. The judgment of the trial court is affirmed regarding naming child as beneficiary of Husband's insurance policy as child support marital property division, award of attorney fees, and date of separation of the parties.

FACTS

Wife filed her petition for dissolution on February 22, 1983. She continued to live in the marital residence with the parties' two children, Erin, a minor daughter then 16 years of age and Kevin, an emancipated son then 19 years of age.

Following a contested hearing on March 31, 1983, the trial court entered a provisional order for temporary maintenance of Wife and temporary support of the parties' minor daughter in the undivided amount of $175.00 per week. In addition, Husband was ordered to pay Wife's attorney $550.00 in fees. At the time of the support hearing, Wife was employed part-time for Northeast Three Rivers Central Labor Council, AFL-CIO, in a clerical job earning $20.00 to $40.00 per week. Husband's gross earnings as a self-employed insurance salesman from January 1983 through March 1983 were $9,969.00.

An unreported trial was held on June 21, 1983. The proceedings were limited to the issues of support and property division. Both Wife and Husband were high school graduates with no post-secondary educational degrees. Husband was self-employed as a health and safety consultant during 1982 and earned nearly $30,000. Husband changed jobs in December 1982 and began marketing group life insurance plans to labor unions for American Income Life Insurance Company in Indianapolis. His earnings were derived from commissions paid on a one time basis and were dependent upon the number of union members who elected to participate in those plans. Future commissions were not paid for continued participation of union members in the plans. Husband claims his relatively large commissions earned in the first quarter of 1983 were the result of the efforts of a few of his friends and these contacts were soon exhausted. Coincidentally, Husband's gross earnings decreased dramatically after the pendente lite support and maintenance order was issued and remained substantially reduced through the final hearing. ¹ Husband admits his current employment has been unsuccessful and testified he was seeking other employment.

Wife testified at trial that she had worked only part time throughout the marriage, but had obtained a full-time clerical position in April 1983 which paid her $5.00 per hour, and had continued her part-time clerical job. Wife received a total earned income in 1982 of $2,432.00 and from January 1, 1983 to June 21, 1983 of $2,167.50. In addition, Wife began receiving $20.00 per week from the parties' emancipated son, who became employed before trial and continued to live with Wife, to defray his room and board expenses.

Husband testified he received gross income in the amount of $11,399 from January 1 through June 21, 1983. His income had been subject to wild fluctuation, varying from a high of $5,600 per month (before separation) to a low of $319 per month (after separation). During the eleven weeks before trial, Husband's income had decreased to a total of $1,370.00; or $124.55 per week gross earnings, $81.09 per week net earnings after self-employment expense deductions.

Wife requested Husband pay $92.50 per week in child support for their 16 year old daughter. Husband testified as to his fluctuating income and claimed he was able to pay no more than $25.00 per week in child support.

The parties stipulated in the pre-trial order that the marital home and three automobiles should be sold, with the net proceeds to be distributed in accordance with the trial court's decree. Marital liabilities were also stipulated at approximately $4,600. The values of the household goods and furnishings located in the marital residence and the Husband's apartment were not disputed, although the parties disagreed as to who should be awarded certain items of property. The parties did not agree on the values of Wife's jewelry, Husband's jewelry, and a coin collection and 1979 Ford Thunderbird automobile in Husband's possession. Each party presented appraisals of these items which varied substantially.

Wife requested Husband pay her attorney fees of $1,475.00 remaining after Husband's pre-trial payment of $550.00. Husband testified his precarious financial situation precluded him from paying his own attorney fees, and claimed he was unable to pay any more of Wife's attorney fees.

On July 1, 1983, the trial court entered a decree of dissolution establishing support and related orders for the parties' minor daughter, dividing marital property including the marital residence, assigning payment of liabilities, and ordering Husband to pay Wife's remaining attorney fees. The decree awarded custody of Erin to Wife with reasonable visitation granted to Husband. Husband was ordered to keep Erin insured for medical and health purposes and to pay all uninsured medical and dental expenses exceeding $50.00 per year. Husband was granted the right to claim Erin as his dependent for federal and state income tax exemption purposes. Regarding Husband's obligation to support Erin, the decree stated:

"4. The Respondent is hereby ordered to pay to the Clerk of Allen County, Indiana, for the maintenance and support of said child, the sum of not less than Fifty Dollars ($50.00) per week, nor more than Ninety-Two Dollars and Fifty Cents ($92.50) per week; said sum above the aforesaid Fifty Dollars ($50.00) per week to be paid by the Respondent as follows:

Fifty Dollars ($50.00) per week plus twenty-five percent (25%) of Respondent's net, after tax wages, above $205.00 per week, but not to exceed $92.50 per week.

Respondent shall, at the end of each month, provide Petitioner with proof of Respondent's monthly income, including an itemization as to Respondent's gross, itemized deductions, and net income per month. Respondent is further ordered to pay the Clerk of this Court the annual support service fee, now $15.00 per year."

The trial court also required Husband to designate Erin as the sole and exclusive beneficiary of Husband's group term life insurance policy in the amount of $2,000 or to place the policy in trust for Erin's benefit in the event Husband dies before Erin is emancipated.

The trial court decree provided for division of marital assets by awarding all household goods and personal property in possession of Wife to her and all household goods and personal property in possession of Husband to him. Husband was awarded a 1979 Thunderbird, his life insurance policy, and his pension. Husband was ordered to pay marital unsecured liabilities of about $4,600 including $3,000 in previous Federal income taxes, $76 in previous state taxes, $200 in dental bills, and $1,300 in charge accounts. The marital home and three automobiles were ordered sold and profits to be divided 55% to Wife and 45% to Husband.

The trial court also ordered Husband to pay the balance of Wife's attorney fees in the sum of $1,475.00 as well as his own unpaid attorney fees.

Issues

Husband presents four issues for review:

I. Whether the trial court's child support order constituted an abuse of discretion?

A. Whether the trial court's self-adjusting child support order was an abuse of discretion, in that Husband's income was the only variable which resulted in adjustments of the amount of the order? ²

B. Whether the trial court abused its discretion in establishing the amount of the child support in light of the resources of the parties and the financial needs of Husband?

C. Whether the trial court's requirement for the mandatory and exclusive designation by Husband of the parties' minor child as the sole beneficiary of a term life insurance policy was an abuse of discretion?

II. Whether the trial court's division of the parties' net marital estate was an abuse of discretion because it was disproportionate and unequal?

III. Whether the trial court abused its discretion by ordering Husband to pay all of Wife's attorney fees incurred through the trial date in the dissolution action?

IV. Whether it was contrary to law and the evidence for the trial court to decree the date of separation of the parties, for the purpose of assigning liability for debts, as ...