Luedke v. Luedke

• Decision Date: 01 April 1985
• Docket Number: No. 4-383A76,4-383A76
• Citation: 476 N.E.2d 853
• Parties: Shari Lou LUEDKE, Appellant (Plaintiff Below), v. Robert Emil LUEDKE, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 853

476 N.E.2d 853

Shari Lou LUEDKE, Appellant (Plaintiff Below), v. Robert Emil LUEDKE, Appellee (Defendant Below).

No. 4-383A76.

Court of Appeals of Indiana,

Fourth District.

April 1, 1985.

John C. VanDivier, Jr., Raber & VanDivier, Danville, for appellant.

F. Robert Lively, Indianapolis, for appellee.

MILLER, Presiding Judge.

Shari Lou Luedke brings this appeal, involving the division of marital property, from the trial court's amended decree of dissolution, which ended her nineteen-year marriage to Robert Emil Luedke. Throughout the marriage, Shari was engaged solely as homemaker and mother to the couple's three children, while Robert performed the role of breadwinner for the family. Thus, virtually all the parties' marital property was acquired with funds earned by Robert in his employment. At the time the marriage was dissolved, Robert's economic circumstances and earning abilities were far superior to Shari's: Robert held a secure, high-paying (about $100,000 per year) executive position while Shari had been unemployed and without income for nineteen years as a result of foregoing her pre-marriage training and employment to perform the role of homemaker and mother. The trial court's amended decree of dissolution divided the marital property approximately 57% to Robert and 43% to Shari, representing a difference of over $23,000. Among the contentions Shari raises on appeal is the allegation that the trial court abused its discretion in its division of the marital property. Although some may consider our decision of this issue a departure from prior law, we have determined that, under the law of this state and the legislative policy expressed therein, the trial court indeed abused its discretion, under the facts of this case, in its division of the parties' marital property. See our discussion of Issue II, infra.

Shari raises five other issues for our consideration on appeal; however, we find it necessary to address but two of those issues. We have restated the three issues we decide today as follows:

I. Whether the trial court failed to divide all of the marital property between the parties?

II. Whether the trial court abused its discretion in its division of the parties' marital property?

III. Whether the trial court abused its discretion in ordering Robert to pay less than half of Shari's attorney's fees?

We find no error on the first issue, but reverse and remand for a new trial on the issues of property division and attorney fees.

FACTS

Shari and Robert were married in 1963. At that time, Robert held a degree in pharmacy and was employed as a sales representative for Eli Lilly and Company. Shari had completed one year of nurse's training and a year and a half of training as a medical laboratory assistant. She had been employed as a medical technician prior to the marriage but discontinued her employment upon marrying Robert and engaged herself solely as homemaker and mother. Shari and Robert had three children, who were age seventeen, thirteen and seven at the time this action for dissolution was filed. By then, Robert had advanced to the executive position of Director of International Sales for Lilly. His gross annual income was in excess of $95,000, which included a yearly compensation bonus and performance award. The bonus and award were based on the performance of Robert and the company during a given year but were not calculated and paid to Robert until early the following year. ¹ At the time she filed her petition for dissolution, Shari had been out of the work force for nineteen years. During the course of the divorce proceeding, in June, 1982, Shari enrolled in a two-year training program to become a respiratory therapist. Shari stated that, upon completion of her training in June, 1984, she could expect to find a job at a starting salary of approximately $12,000 per year. She also stated that, until she completed her training, she had no employment prospects.

Shari filed her petition for dissolution of marriage on January 6, 1982, and Robert counter-petitioned on January 18. The trial court entered a provisional order on February 26, 1982, which, among other things, ordered Robert to pay Shari's attorney $500 as preliminary suit money. The final hearing was held on eight dates between July 29 to September 27, 1982. On November 9, the trial court entered its judgment and decree of dissolution, which granted Shari's petition for divorce, awarded her custody of the children, ordered Robert to pay $85 per child per week in child support and all reasonable medical expenses of the children, divided the marital property, and ordered Robert to pay $4,500 to Shari's attorney, finding that $11,145 was a reasonable fee for his services.

On January 10, 1983, Shari filed a motion to correct errors. The trial court, in response, modified its original decree by deleting a paragraph, the terms of which are not relevant to this appeal, and entering an amended decree that was otherwise identical to the original decree. Shari now brings this appeal.

I.

Shari alleges the trial court erred in failing to divide all of the marital property between her and Robert. Specifically, Shari claims the trial court failed to include in the "marital pot" the payments Robert received from Lilly as his compensation bonus and performance award for 1981, paid to him in February, 1982. ² We observe at the outset, that the trial court was neither required nor requested to make special findings of fact, see Ind.Rules of Procedure, Trial Rule 52(A), and the court submitted no such findings on its own motion. Therefore, any theory supported by the evidence may be considered by this court in affirming the judgment of the trial court on this issue. Sadler v. Sadler (1981), Ind.App., 428 N.E.2d 1305.

Shari's petition for dissolution of marriage was filed on January 6, 1982, which therefore constitutes the date of "final separation" of the parties. See IND.CODE 31-1-11.5-11(a) (1982). Subsection 11(b) of the divorce statute orders the trial court to divide the property of the parties, including property "acquired by either spouse in his or her own right after the marriage and prior to final separation of the parties." Id. Sec. 11(b). Shari's Exhibit 53, dated February 12, 1982, is Lilly's calculation of Robert's "Performance Award for 1981," (R. 389). The exhibit states that Robert's award, paid in the form of shares of Lilly stock, was earned for the year 1981 and that a gross amount of $9,562.84 would be added to his earnings statement and included on his W-2 statement. The exhibit also shows a 20% federal income tax withholding, for a net value of the performance award shares of stock delivered to Robert of $7,638.61. Shari's Exhibit 54 (R. 390) includes a pay stub for Robert's compensation bonus. It shows that Robert was paid a gross amount of $10,768 ($7,634.51 net after withholding) on February 11, 1982 for the pay period ending December 31, 1981. Also included in the exhibit is a letter from Lilly's chairman of the board indicating the compensation bonus was a consequence of "the company's favorable results for 1981." (R. 390) Finally, page four of Robert's Exhibit B (R. 845) indicates that the net value of the performance award and compensation bonus after all 1982 taxes are considered--i.e. taxes beyond those withheld when the award and bonus were paid--was $10,367.

Together, Shari's Exhibits 53 and 54 and page four of Robert's Exhibit B indicate that Robert received a gross amount of $20,330.84 (net value after all taxes of $10,367) as his performance award and compensation bonus in February, 1982, and that these payments were earned by Robert in the year ending December 31, 1981. Robert argues that because these payments were not actually acquired by him until after the January 6 final separation date, they were not marital property subject to division by the trial court. See IC 31-1-11.5-11(b). Shari argues Robert had acquired rights to the payments by December 31, 1981--six days before the final separation of the parties--and, therefore, the payments were marital property the trial court was required to divide. See In re Marriage of Osborne (1977), 174 Ind.App. 599, 369 N.E.2d 653 (husband's interest in intestate estate of his mother, who died four months before final separation date but whose estate was still under probate at time of final hearing on dissolution petition, held sufficiently acquired to be considered marital property). Shari argues further that, because the trial court's decree of dissolution fails to mention specifically the distribution of these payments, and because they were made in Robert's name alone, the effect of the decree is that the performance award and compensation bonus remain Robert's sole property.

We are inclined to agree that the value of the bonus and award was subject to division as marital property, because it appears Robert's right to it was not contingent upon his survival or continued employment with Lilly until the time of actual calculation and payment. Thus, Robert had a present vested interest in the bonus and award as of December 31, 1981, six days before the final separation date. See Loeb v. Loeb (1973), 261 Ind. 193, 301 N.E.2d 349; Hiscox v. Hiscox (1979), 179 Ind.App. 378, 385 N.E.2d 1166; In re Marriage of Osborne, supra.

We need not decide the question, however, because despite Shari's argument to the contrary, we believe the trial court in fact did divide the bonus and award between the parties. In Paragraph 19 of the amended decree (R. 220), the trial court ordered Robert to pay Shari $10,000 cash in two installments. The trial court divided all the other marital property in kind, and the provisions of Paragraph 19 may be fairly construed as an award to Shari of some part of the value of the performance award and compensation bonus. This theory is supported by evidence at trial that the value of Robert's bonus and award was, at a minimum,...