Jackman v. Jackman

• Decision Date: 10 April 1973
• Docket Number: No. 3--972A63,3--972A63
• Citation: 294 N.E.2d 620,156 Ind.App. 27
• Parties: Dale E. JACKMAN, Defendant-Appellant, v. Marjorie M. JACKMAN, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 620

294 N.E.2d 620

156 Ind.App. 27

Dale E. JACKMAN, Defendant-Appellant, v. Marjorie M. JACKMAN, Plaintiff-Appellee.

No. 3--972A63.

Court of Appeals of Indiana, First District.

April 10, 1973.

Rehearing Denied May 15, 1973.

Richard F. Benne, Hammond, for appellant.

William F. Kane, Jr., Merrillville, George Vann, Kentland, for appellee.

LOWDERMILK, Judge.

Plaintiff-appellee and defendant-appellant were duly married on January 15, 1949, and separated on November 28, 1970. They had born to the union two children, both boys, one eight years and one seven years of age at the time of the filing of the complaint for divorce on December 3, 1970.

Parties later appeared in open court and stipulated to an order whereby plaintiff-appellee was to have exclusive possession of the premises owned by the parties in Munster, Indiana, together with all furniture situated therein; defendant-appellant was to pay $50.00 per week support for the minor children and $400.00 for plaintiff-appellee's preliminary attorney fee.

Defendant-appellant filed his cross-complaint for divorce on the day the case was tried.

The trial court, after hearing the evidence, entered its decree awarding a divorce to each of the parties and thereafter, on February 18, 1972, the trial court changed its judgment which had been entered on January 6, 1972, wherein he said that pursuant to O'Connor v. O'Connor (1970), 253 Ind. 295, 253 N.E.2d 250, he vacated the judgment and he at that time entered a judgment for the plaintiff on her complaint and against the defendant on his cross-complaint; he awarded the care and custody of the two minor boys of the parties to the plaintiff-appellee, and ordered defendant-appellant to pay $360.00 per month support for said boys, together with the further sum of $700.00 attorney's fees for plaintiff's attorney, of which $525.00 had been paid, leaving a balance of $175.00.

The court further found that the parties in the action were the owners of the real estate at 8304 North Cote Street, Munster, Indiana, then owned by them as tenants by the entireties and described as follows, to-wit:

'Lot 1, Block 10, Wicker Park, in the town of Munster, Indiana, as shown in Plat Book 20, page 40, Lake County, Indiana,

together with all the household furniture and effects located at the above described property.

The court further found that plaintiff was entitled to the 1968 Ford Mustang automobile which was then in her possession and the defendant was entitled to the 1972 Buick automobile which was then in his possession, together with 200 shares of Gayle Industries stock which was of the value of $50.00.

Judgment was duly and timely entered on the findings of the court which gave the defendant-appellant reasonable visitation with said children and which ordered deeds made and the property placed in the name of the plaintiff-appellee within thirty days. Plaintiff-appellee was to assume and make payments on the balance of the existing mortgage on said real estate. All other aspects of the finding were incorporated in the judgment on said findings.

Defendant-appellant timely filed his Motion to Correct Errors which the court overruled and the praecipe for appeal was prayed and filed.

Defendant-appellant set forth six specifications he claims to be error in his Motion to Correct Errors, which are as follows:

'1. That the decision of the court was contrary to the evidence in that the cross-complainant was denied a divorce and contrary to law in that a divorce was singularly granted to plaintiff.

2. That the decision of the court was contrary to the evidence in that the court found that the residence of the parties valued at $38,500.00, subject to a mortgage of less than $3,000.00, household furniture, a 1968 Ford automobile, a 1972 Buick automobile, subject to a lien, and common stock valued at less than $200.00 but all granted to the plaintiff-appellee except the $200.00 worth of stock and the 1972 Buick automobile, subject to the lien thereon.

3. The Court's decision was contrary to law and set out the same specifications as No. 2 herein.

4. That the decision of the Court was contrary to the evidence and contrary to law for the reason that the judgment was entered without making a finding as to the joint debts of the parties and the liability therefor.

5. The defendant was denied a fair trial by irregularity in the proceedings in that the court changed its order after adopting the rule in O'Connor v. O'Connor and he was denied equity and the right to submit authorities on law concerning property settlement and attorney's fees as ordered by the court on January 6, 1972.

6. That the decision of the Court was contrary to the evidence in that there was no evidence presented at the trial to substantiate an award for attorney's fees to plaintiff's counsel.'

We shall now treat specifications 1 and 5 together. It appears to us that said specifications are correct as to the trial judge's having first granted each of the parties a divorce on the complaint and cross-complaint. This, he did do, but less than 90 days and before the Motion to Correct Errors was filed he changed his record and made a new record wherein he granted the plaintiff-appellee an absolute divorce from the defendant and denied his cross-complaint.

Rule TR. 52(B), IC 1971, 34--5--1--1 empowers the court to change its record on its own motion before a Motion to Correct Errors, (Rule 59) is required to be made, or where there is a Motion to Correct Errors by any party, the court, in the case of a claim tried without a jury '. . ., may open the judgment, if one has been entered, take additional testimony, amend to make new findings of fact and enter a new judgment or any combination thereof . . .'

This court in the case of Wadkins v. Thornton (1972), Ind.Ct. of App., 279 N.E.2d 849, at p. 851, stated:

'However, IC 1971 33--1--6--3, Ind.Ann.Stat. § 4--6312 (Burns 1968) has limited the power a court possesses over its judgments to a period of 90 days after the judgment is rendered. Therefore, courts now have the same power to act during the 90 day period following rendition of a judgment as they did during term time.

'Courts in Indiana have traditionally possessed broad powers in term time, on their own motion or upon that of any of the parties, to modify, set aside or vacate their judgments. (Cases cited omitted.)'

We now hold that the trial court did not commit error in changing the judgment in a period of less than 90 days from the rendition thereof and such was not contrary to law.

Specifications 2 and 3 of the Motion to Correct Errors are based on the premise that the court abused its discretion in the property settlement award to appellee and the action of the trial court was contrary to law. To bear out this argument appellant cites Plese v. Plese (1970), 146 Ind.App. 545, 257 N.E.2d 318, 323, which relates the court's statutory duty to adjust and adjudicate the property rights of the parties involved and, further:

'It is only the abuse of the power of discretion which is reviewable on appeal and the presumption in favor of the correct action of the trial court is one of the strongest presumptions applicable to the consideration of a case on appeal.'

When the parties were married plaintiff-appellee had $2,000.00 in cash and 30 savings bonds of undisclosed amounts. It was these funds on which the parties took their honeymoon and the remainder was used to help purchase the lot where the parties built their home. The parties constructed their home with their own labor.

Plaintiff-appellee worked nine years after the marriage and had an approximate income during that time totaling $38,000.00 which she claimed went in large part into the construction of the home.

The home, according to the evidence, was of the net valuation of $38,500.00. There was a mortgage with a balance due thereon in the sum of $2,348.81 which the court ordered the plaintiff-appellee to assume and pay at the time he awarded the real estate to her.

The evidence was that the house was furnished but the furniture was all as old as the house. This was awarded to plaintiff-appellee, who testified the furniture was of no value. The 1968 Mustang had no value placed on it, but it had no indebtedness thereon, so far as we can determine, and it was awarded to the plaintiff-appellee.

The evidence disclosed that in the year of 1971 the defendant-appellant had a net income of $17,231.00, of which part was a commission and the rest salary. He was a vice-president in charge of sales of the Fred C. Riley & Sons Corporation and over the past four years his income had on the average increased annually. The 1972 Buick did not have a value placed on the same by the court and there was a net balance due on the note given in part payment therefor. In addition thereto he got $50.00 in stocks.

The defendant-appellant had expressed a desire that the children remain in Munster, Indiana, because it was a good place in which to live and had a good school system available to them. Munster, of course, was where the home of the parties was located and in which the mother and sons could reside; they would need a home.

Defendant-appellant relies on the case of Snyder v. Snyder (1964), 137 Ind.App. 72, 198 N.E.2d 8. In that case the court did not pass on the value nor hear any evidence on the value of a truck used in business; value, if any, of a plumbing business, including equipment, tools, fixtures, et cetera, which business was owned by the appellee and which was given to the appellee by the court as his sole and separate property, subject to any liens thereon. Each party was declared to be the owner of their personal effects and no evidence of the value of such property was submitted to the court.

There was conflicting evidence as to value of the household goods. Nevertheless, an award was made against the appellant without the evidence establishing how the trial court arrived at this figure.

This...