Lord v. Lord
| Decision Date | 15 December 1982 |
| Docket Number | No. 4-682A157,4-682A157 |
| Citation | 443 N.E.2d 847 |
| Parties | Cecelia N. LORD, Appellant (Petitioner Below), v. Maurice P. LORD, II, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
John P. Price, D. William Moreau, Jr., Indianapolis, Courtney B. Justice, Delphi, for appellant.
Charles R. Vaughan, Charles Max Layden, Vaughan, Vaughan & Layden, Lafayette, for appellee.
Cecelia N. Lord appeals from the judgment of the Carroll Circuit Court dissolving her marriage with Maurice P. Lord, II. Cecelia contends that the trial judge erred in awarding joint custody of their children, in making a division of marital assets, and in fixing inadequate child support.
We reverse in part and affirm in part.
Cecelia and Maurice Lord were married August 24, 1968. Two children were born of the marriage, Maurice, III and Andrew. At the time of the decree the children were 11 years old and 7 1/2 years old, respectively. Cecelia petitioned for dissolution of their marriage on November 26, 1980, and the decree of dissolution was entered on December 4, 1981.
Cecelia first complains the dissolution statute makes no provision for "joint" custody 1 and, thus, the trial judge's award of custody to both parents was contrary to law. Maurice argues a trial judge, not specifically forbidden to award joint custody by statute, may do so in the best interests of the children. However, Maurice fails to point out any precedent for that position. Although the arrangement may have merit, we fail to find any statutory authority or case law construing the dissolution act which would permit it in this case. Cf. Cal.Civ.Code Sec. 4600.5(a) (Supp.1981); Iowa Code Ann. Sec. 598.21(1)(b); Mich.Comp. Laws Sec. 722.26a (Supp.1981); Or.Rev.Stat., Ch. 107, Sec. 105 (1981 Replacement); Wis.Stat.Ann. Sec. 767.24(1)(b) (1981). Ind.Code 31-1-11.5-1 et seq. speaks in terms of "custodial" and "non-custodial" parents. Ind.Code 31-1-11.5-21 provides in part:
(a) The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there shall be no presumption favoring either parent. The court shall consider all relevant factors including:
(1) the age and sex of the child;
(2) the wishes of the child's parent or parents;
(3) the wishes of the child;
(4) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(5) the child's adjustment to his home, school, community; and
(6) the mental and physical health of all individuals involved.
(b) Except as otherwise agreed by the parties in writing at the time of the custody order, the custodian may determine the child's upbringing, including his education, health care, and religious training, unless the court finds, after motion by a non-custodial parent, that in the absence of a specific limitation of the custodian's authority, the child's physical health would be endangered or his emotional development significantly impaired. (Emphasis added.)
Nothing in the statute suggests a joint custody alternative without a written agreement between the parties. Ind.Code 31-1-11.5-21(b).
Maurice contends that it is absurd to deprive the trial court of the joint custody option in view of the "best interests of the child" standard. We disagree. It is not this court's function to provide an alternative not implicitly or expressly provided by the legislature. See Taylor v. Taylor, (1982) Ind., 436 N.E.2d 56. Contrary to what Maurice argues, the fact that a court can award custody to a third party 2 does not suggest that the court may award custody jointly to two competing parties. The words used in the statute demonstrate that the legislature has determined that when a court is faced with two parents competing for custody, the court must appoint only one to be the custodial parent. The joint custody provision of the decree is contrary to law and must be reversed. The trial court must award custody of the children to either the father or the mother as it determines to be in the best interests of the children. 3
Cecelia next complains the trial judge failed to divide the marital assets in a just and reasonable manner. She initially asks us to find, as a matter of law, that the 77%-23% disproportionate division of marital property is an abuse of discretion.
The division of marital assets is a matter within the sound discretion of the trial court. Temple v. Temple, (1982) Ind.App., 435 N.E.2d 259. The statute directs the court to divide the property in a just and reasonable manner and provides certain factors to be considered. Ind.Code 31-1-11.5-11(b). It does not require an equal division of the property. In re Marriage of Church, (1981) Ind.App., 424 N.E.2d 1078. Thus, on appeal, we review the award only for an abuse of discretion to determine if the division is clearly against the logic and effect of the facts and circumstances before the court. Temple, supra (citing Irwin v. Irwin, (1980) Ind.App., 406 N.E.2d 317.) We do not substitute our judgment for that of the trial court's. To be set aside, there must be a showing that there is no rational basis for the court's action. Hasty v. Hasty (1981) Ind.App., 427 N.E.2d 1119. In this decision we do not weigh the evidence, but consider only the evidence in the light most favorable to the judgment. Morphew v. Morphew, (1981) Ind.App., 419 N.E.2d 770.
The trial court divided the marital assets as follows:
ASSETS TO CECELIA
Treasury note $10,000.00
Certificate of Deposit 10,000.00
Two Automobiles 10,747.00
Stocks and bonds 34,902.50
Farm 40,000.00
Jewelry 29,285.00
Residence (net value after
mortgage) 154,417.91
Household goods 61,795.00
Payment from Dr. Lord 54,000.00
----------
Net Assets $404,147.41
ASSETS OF MAURICE
Household goods $ 7,410.00
Farm grain 30,300.00
Farm Livestock 22,024.00
Cash 11,400.00
Cash value of life insurance 16,026.00
Automobile 10,700.00
Stocks and bonds of which
$63,801.36 was given him
prior to the marriage 76,344.26
160 acre farm of which 120
acres was acquired prior
to the marriage and 40
acres was acquired during
the marriage by a
$16,000.00 down payment
given him by his father
(Net value after
mortgage.) 371,702.00
Thirty percent interest in
116 acre farm acquired
by purchase in 1970 with
his father 63,240.00
315.8 acre farm inherited
from his mother in 1977
(net value after lien) 731,394.11
Dental practice and
equipment 17,480.00
----------
Gross Assets 1,358,020.37
LIABILITIES TO MAURICE:
Payment to Cecelia 54,000.00
Personal notes 26,000.00
----------
80,000.00
Net Assets 1,278,020.37
Cecelia does not cite authority from the statute or from cases that would permit us to find a specific percentage disparity to be per se unreasonable. Neither can we say, given our standard of review, that the division of marital assets here was so unfair and unreasonable or illogical as to be an abuse of discretion. 4 From the findings and evidence it is apparent the trial court did consider the entire statute 5 and undoubtedly gave varying weight to the multiple factors. The fact that the court did not give as much weight to her lack of employment and marketable skills as Cecelia felt was deserved is insufficient to establish an abuse of discretion. In our review of a division of property we pay deference to the trier of fact. The trial judge is vested with discretion. We do not weigh the evidence or substitute our judgment for that of the trial judge. Temple, supra. Because the division of property was not clearly against the logic and effect of the facts and circumstances before the court, we find no error.
Cecelia further argues that the court set aside all inherited and gift property to the respective beneficiary or donee and that such action was contrary to law. We do not find the problem found in Wilson v. Wilson, (1980) Ind.App., 409 N.E.2d 1169 to be present here. Unlike the court in Wilson, the trial court did not exclude gift and inherited property from the marital assets. The court recognized each party's contribution to the assets acquired during marriage and noted that the gifts and inheritances were not consumed or commingled during the marriage and that neither party had exercised any management over the other's gifts.
The trial judge divided the marital assets by distributing to the husband $1,358,020.37 worth of assets of which $1,162,897.11 was acquired by him through gifts or inheritance. The court gave the wife $351,137.91 in properties of which $97,422.50 had been acquired by her through gifts either prior to marriage or during marriage. An additional gift of $20,000 from Maurice's father for the couple's residence was awarded to her. In making this distribution the court found, in part, the following:
The court finds that the property 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 in November, 1980, or acquired by the joint efforts of the parties consists of the items listed below with the fair market value set out by each item... In determining what is just and reasonable concerning a division of this property acquired during this marriage, the court has considered the...
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