Liszkai v. Liszkai, 2--275A44
| Decision Date | 22 March 1976 |
| Docket Number | No. 2--275A44,2--275A44 |
| Citation | 343 N.E.2d 799,168 Ind.App. 532 |
| Parties | Anna LISZKAI, Appellant (Respondent below), v. Stephen LISZKAI, Appellee (Petitioner below). |
| Court | Indiana Appellate Court |
Richard Kammen, Bowman & Kammen, Indianapolis, for appellant.
Gordon B. Dempsey, Gordon R. Smith, Smith & Jones, Indianapolis, for appellee.
Review is sought by Appellant-Wife Anna Liszkai (Anna) of a Dissolution Decree entered by the trial court awarding We affirm.
her a $5,000.00 'alimony' judgment to be paid at the rate of $250.00 per month for a period of twenty (20) months, claiming that the trial court abused its discretion by the manner in which it made the property disposition and in failing to grant her maintenance.
The evidence and facts most favorable to the trial court's judgment are:
Appellee-Husband Stephen Liszkai (Stephen) filed a Petition for Dissolution of Marriage in the Marion County Superior Court on April 17, 1974. Anna filed a Cross-Petition for Dissolution on August 16, 1974, requesting maintenance in addition to a division of the couple's property.
The record reflects that Stephen and Anna were married in Hungary in 1950 had immigrated to the United States in 1956.
Four children were born to Stephen and Anna. Two of these children were emancipated at the time Stephen filed for dissolution; however, Stephen permitted one of them--an eighteen-year-old son--to continue to reside in the family residence. The other two children were minors living in the Liszkai home.
Stephen was employed as a janitor, with a weekly take-home pay of $185.00. He spent his spare hours as an upholsterer and received some income from this 'hobby.' The income thus received was never established as significant.
During the marriage, Anna was primarily a homemaker. She was, however, employed intermittently outside the home . . . at the Methodist Hospital laundry for a period of three years, in an x-ray office at one time, and in homes as a housekeeper over a nine-year period. Also, she was employed as a maid in a hotel for about ten days shortly before the Dissolution, a job she voluntarily quit claiming that the work was too difficult.
The Liszkais acquired during their years of marriage a home with an equity value of $6,500.00 to $7,000.00, a 1967 Oldsmobile valued at $100.00, household goods worth about $400.00 or $500.00, and a savings account with a balance of $360.00, giving them total assets of $7,360.00 to $7,960.00.
On August 29, 1974, the trial court ordered the marriage dissolved and awarded Stephen custody and control of the two minor children, Anna to have visitation rights. The trial court also awarded Stephen the mortgaged home and the majority of the household furnishings, along with the 1967 Oldsmobile. (Presumably he also received the $360.00 savings account under the grant of 'all other property.')
For Anna, the court ordered a $5,000.00 'alimony' judgment to be paid at the rate of $250.00 per month for a period of twenty months, or until her death, whichever occurred first; a sum of $250.00 as an additional attorney's fee; relief from all outstanding indebtedness incurred by the parties during their mariage; and hospitalization insurance if Stephen were allowed to keep her on his policy at work.
The dual issue 1 for our disposition is:
Did the trial court abuse its discretion by the manner in which it made the property disposition and by its failure to grant maintenance to Anna?
CONTENTIONS--Anna contends that the trial court abused its discretion in the disposition of property by awarding Stephen virtually all of the couple's assets and failing to consider properly the parties' earning abilities, in violation of Indiana Code section 31--1--11.5--11 2 (section 11), especially subsection (e). She further claims that there was an abuse of discretion in the trial court's refusal to grant her maintenance in light of Indiana Code section 31--1--11.5--9(c) 3 (section 9(c)).
Stephen counters that even if the trial court were to give additional special consideration to any of the factors listed under section 11, the final disposition of property was reasonable considering the fact that Stephen has a continuing responsibility for the home and children and that Anna received the greater percentage of the couple's equity. He additionally argues that the evidence was such that the trial court was not compelled to make a grant of maintenance under section 9(c).
CONCLUSION--It is our opinion that the trial court did not abuse its discretion in dividing the property and in denying maintenance to Anna.
Because dissolution of the marriage contract has been daily grist of the judicial mill, it is appropriate for us to recognize this case arose after September 1, 1973, the effective date of the new Indiana Dissolution of Marriage Act. 4 Since that time the Indiana Bench and Bar have been in a period of transition in the field of domestic relations. Familiar concepts have changed.
The now repealed divorce statutes 5 long contained a basic provision for alimony:
The court shall make such decree for alimony in all cases contemplated by this act, as the circumstances of the case shall render just and proper . . ..
Ch. 43, § 20, (1873) Ind.Acts 107 (repealed 1973). 6
Alimony could be paid in various ways:
* * * In determining the character of the payments of the alimony the court may require it to be paid in money, other property, or both, and may order the transfer of property as between the parties, whether real, personal or mixed and whether title at the time of trial is held by the parties jointly or by one of them individually. In determining the method of the payment of the alimony the court may require that it be paid in gross or in periodic payments, either equal or unequal, and if to be paid in periodic payments the court may further provide for their discontinuance or reduction upon the death or remarriage of the wife . . ..
Ch. 43, § 22, (1873) Ind.Acts 107, as amended, ch. 120, § 3, (1949) Ind.Acts 310 (repealed 1973). 7
A landmark case, Bahre v. Bahre (1962), 133 Ind.App. 567, 571, 181 N.E.2d 639, 641, analyzed prior case law and set out the factors to be considered by the trial court in determining how much alimony should be awarded:
(1) the existing property rights of the parties;
(2) the amount of property owned and held by the husband and the source from which it came (3) the financial condition and income of the parties and the ability of the husband to each money;
(4) whether or not the wife by her industry and economy has contributed to the accumulation of the husband's property;
(5) the separate estate of the wife.
(citations omitted)
When the alimony statutes 8 were repealed by the Indiana General Assembly they were replaced by a property division statute which defines the property available for division upon dissolution of the marriage:
In an action (for dissolution of marriage), 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 . . ..
IC 1971, 31--1--11.5--11 (Burns Code Ed., Supp.1975).
This section 11 goes on to establish the mechanics or method division:
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 as may be just and proper, or by ordering the sale of the same under such conditions as the court may prescribe and dividing the proceeds one (1) of the spouses and requiring either
IC 1971, 31--1--11.5--11, supra.
and then closes with guidelines for the trial court to utilize in determining a just and reasonable division of the property:
In determining what is just and reasonable the court shall consider the following factors:
(a) the contribution of each spouse to the acquisition of the property, including the contribution of a spouse as homemaker;
(b) the extent to which the property was acquired by each spouse prior to the marriage or through inheritance or gift;
(c) the economic circumstances of the spouse at the time the disposition of the property is to become effective, including 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;
(d) the conduct of the parties during the marriage as related to the disposition or dissipation of the property;
(e) the earnings or earning ability of the parties as related to a final division of property and final determination of the property rights of the parties.
IC 1971, 31--1--11.5--11, supra.
Although much of the Dissolution Act, including section 11, was patterned after the Uniform Marriage and Divorce Act, 9 there is similarity between some of the factors previously considered by prior case law in arriving at a property division and those set out in section 11. The Dissolution Act now provides a more structured and detailed basis for the trial court's disposition of the property upon dissolution of marriage.
In deciding this case, the trial court utilized section 11 to divide the property of Stephen and Anna so as to avoid sale of the principal asset, the family home. Payments equaling $5,000.00 were required of Stephen in accordance with one of the ways of dividing the property allowed by section 11:
(T)he court shall divide the property of the parties . . . by setting the same or parts thereof over to one (1) of the spouses and requiring either to pay such sum as may be just and proper . . ..
IC 1971, 31--1--11.5--11, supra (emphasis added).
The trial court's use of the term 'alimony' in connection with payment of this sum is no longer technically...
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