Leisure v. Leisure

• Decision Date: 30 March 1992
• Docket Number: No. 53A04-9012-CV-00589,53A04-9012-CV-00589
• Citation: 589 N.E.2d 1163
• Parties: Robert M. LEISURE, Appellant-Plaintiff, v. Debra Lynn LEISURE, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1163

589 N.E.2d 1163

Robert M. LEISURE, Appellant-Plaintiff, v. Debra Lynn LEISURE, Appellee-Defendant.

No. 53A04-9012-CV-00589.

Court of Appeals of Indiana Fifth District.

March 30, 1992.

Rehearing Denied May 8, 1992.

Douglas Norris, Cambridge City, for appellant-plaintiff.

James P. Sheldon, Lewellyn H. Pratt, Bloomington, for appellee-defendant.

SHARPNACK, Judge.

Robert Leisure (Husband) appeals from the trial court's dissolution decree and denial of his consolidated motion for change of venue from judge and recusal. We affirm in part, reverse in part and remand.

Husband raises eight issues for review which we restate as:

1. Whether the trial court erred in denying Husband's consolidated motion for change of venue from judge and recusal.

2. Whether Husband's federal workers' compensation benefits (OWCP) were a divisible marital asset under Indiana law.

3. Whether Husband's right to receive OWCP benefits had to vest prior to the date of final separation in order to be divisible, or whether the relevant date was the date of the dissolution decree.

4. Whether federal law preempted the application of Indiana domestic relations law to the extent that Indiana law allowed the division of Husband's OWCP benefits.

5. Whether, for the purpose of calculating child support, the trial court erred by declining to attribute an income to Wife from the kennel business awarded to her pursuant to the court's property division.

6. Whether, for purposes of calculating child support, the trial court erred by attributing to Husband's income the portion of OWCP benefits awarded to Wife under the property division.

7. Whether the trial court erred in denying Husband's petition to modify the provisional order.

8. Whether the trial court erred by dividing $20,000 representing the amount due Husband as the difference between the civil service disability (OPM) he originally received and the OWCP benefits for which he was subsequently approved.

Robert and Debra Lynn Leisure (Wife) were married on October 27, 1973. The marriage produced two children, a daughter (Daughter) age 15 at the time of the dissolution hearing, and a son age 13 at the time of the hearing. Husband began employment with the Federal Aviation Administration (FAA) in 1974, and he worked with the FAA as an air traffic controller throughout the marriage until applying for immediate medical retirement on March 29, 1989.

Husband went to a psychiatrist, Dr. Judith Klein, on August 8, 1988, complaining of constant headaches, lack of concentration and sleeplessness, as well as other symptoms. Dr. Klein diagnosed Husband as suffering from chemical depression, mixed migraine headaches and fibermyalgia, which is a muscular disorder resulting in spasms and swelling. Dr. Klein testified that Husband's problems were stress related. She initially prescribed Immepromine and Husband continued upon that medication until the time of the dissolution hearing. Dr. Klein testified that Husband's symptoms would probably return if he were to stop taking his medication.

Husband lost his medical qualification to work as an air traffic controller. His supervisor assigned him to administrative duties effective August 11, 1988. Husband applied for immediate medical retirement on March 29, 1989. Shortly thereafter, on May 9, 1989, Wife filed a petition for dissolution. On July 16, 1989, the United States Office of Personnel Management notified Husband that he was eligible to receive disability benefits (hereinafter "OPM" benefits) in the net amount of $1555.23 per month. The statute governing the eligibility of a civil service employee for such benefits is found at 5 U.S.C. Sec. 8337. The OPM benefits are payable to eligible employees who are found "to have become disabled" and are retired on their own application or that of the agency employing them. 5 U.S.C. Sec. 8337(a). At the same time he applied for OPM benefits, Husband also applied for federal workers' compensation benefits, administered by the Office for Workers' Compensation Programs (hereinafter OWCP benefits) administered under 5 U.S.C. Secs. 8101 through 8193. The OWCP benefits are payable for disability "resulting from personal injury sustained while in the performance of ... duty...." 5 U.S.C. Sec. 8102. On February 28, 1990, Husband was notified of his right to receive OWCP benefits in the net amount of $3270.68 every four weeks. Husband was eligible to receive those benefits retroactive to July 16, 1989, but the Office of Personnel Management was entitled to reimbursement for the amount of OPM benefits actually paid to Husband.

Wife filed a request for a provisional order with her petition for dissolution. The court entered a provisional order on June 9, 1989 following an evidentiary hearing. On July 18, Husband filed a motion to modify the provisional order, which the court denied following an evidentiary hearing. Husband based his motion upon a reduction in his income which occurred after the hearing on the provisional order.

The parties had operated a kennel during the marriage. The kennel was a marginally successful business. Pursuant to the terms of the provisional order, Wife operated the kennel for most of the year immediately prior to the final dissolution hearing. The kennel had a net operating profit of $2093.41 for that year.

At the final dissolution hearing, the parties testified about numerous problems Daughter had experienced. Some of the evidence indicated that Daughter had taken Wife's car against Wife's express wishes, had become intoxicated on several occasions, and had dated men five to ten years her seniors. Based on that evidence, the court, sua sponte, issued an order referring Daughter to the juvenile probation department for "whatever investigation and other proceedings officers of that department decide are appropriate under the circumstances...." (Record, 108). Seven days later, on June 1, 1990, the trial court entered an "Order of Wardship" stating:

"The Court is informed that the Husband intends to take the parties' minor daughter ... from Bloomington High School North and to immediately depart with her for the State of Florida (the Court being advised that [Daughter] told her mother that the Husband said he was), because he was very upset with the Court's referral of [Daughter] to the Juvenile Probation Department. The Court believes this both because of the Husband's conduct and the testimony at the final hearing in this cause, and because his attorney has expressed great displeasure with the said order to the Wife's attorney."

(Record, 109.)

In response to the above order, Husband filed a consolidated verified motion for change of venue from judge and for recusal. Husband claimed that the trial court had received an improper ex parte communication regarding custody issues and had relied upon that communication, thus rendering the court biased. At the hearing on Husband's motion, the trial court stated that it had received the information referred to in its order from the juvenile probation department and had called Wife's counsel to verify the information. The court denied Husband's motion.

On September 5, 1990, the court entered a decree of dissolution. The findings and conclusions accompanying the decree state, in relevant part:

"1. Pursuant to testimony of Husband's medical expert, Dr. Judith Klein, the court finds that Husband has been medically disabled since August 8, 1988, and that any monthly [OPM] payments or [OWCP] payments received and to be received are assets of the marriage to be divided by the Court....

Husband has been receiving the gross monthly sum of $1656 as a [OPM] payment commencing July 16, 1989 until the present time. Husband has been found to be entitled to presently receive the sum of $3270.68 each four weeks as [OWCP] retroactive from July 16, 1989 and a lump sum amount equal to the difference between the [OPM] payments and [OWCP] payment for the entire period for the approximate sum of $20,000. The Court finds that since certain contingencies may terminate the [OWCP] benefits and subsequently the [OPM] benefits, said benefits should be divided as they are received between Husband and Wife. Thus if Husband's benefits should expire so would Wife's.

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13. [T]he court finds that the present value of Husband's Disability Pension is the sum of $404,735.

14. [T]he Court finds [Husband's] compensation to have the present value of $769,633;

15. Wife has continued to work at Cove Kennel business and although she has managed to reduce the indebtedness of said business, she has not been able to generate a positive cash flow to date. Wife believes she will be able to make it a profitable business in approximately 2 years. That for the purposes of calculating support, Wife should not be imputed to have an income from said kennel for a period of two years."

(Record, 153-156.) Based upon its findings, the trial court entered the following order, in relevant part:

"5. That as support for the minor children of the parties Husband shall pay the sum of $185.00 per week....

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10. Husband is in indirect contempt of Court for failing to comply with the Provisional Order relative to the making of the monthly mortgage payment of the marital residence. Husband shall pay to Wife the sum of $8,420 within thirty (30) day from the date of this order, which sum represents the ten (10) monthly mortgage payments that Husband was ordered to pay in the Provisional order.

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17. As a division of marital assets, Husband shall cause to be paid to Wife one-half ( 1/2) of any and all monthly payments he receives for [OPM] or [OWCP] compensation....

18. Wife shall be entitled to one-half ( 1/2) ... of Husband's Civil Service Retirement pension which the Court has found to have a present value of $37,583. That this is to be accomplished by a "Qualified Domestic Relations Order" to be prepared in a form hopefully acceptable to the U.S. Government. That...