Marriage of Coomer, In re

• Decision Date: 02 November 1993
• Docket Number: No. 03A04-9304-CV-149,03A04-9304-CV-149
• Parties: In re the MARRIAGE OF Roger Dale COOMER, Appellant-Respondent, and Priscilla Coomer, Appellee-Petitioner. 1 .
• Court: Indiana Appellate Court

Page 1315

622 N.E.2d 1315

In re the MARRIAGE OF Roger Dale COOMER, Appellant-Respondent and Priscilla Coomer, Appellee-Petitioner.

No. 03A04-9304-CV-149 ¹.

Court of Appeals of Indiana First District.

Nov. 2, 1993.

Julia Ann Caudill, Columbus, for appellant-respondent.

R. Kent Witte, Columbus, for appellee-petitioner.

ROBERTSON, Judge.

This is an appeal from a decree which dissolved the marriage of Roger D. Coomer, respondent-appellant, and Priscilla Coomer, petitioner-appellee. Upon appeal, the husband contends that the award of property in favor of the wife exceeds the value of the marital assets; that the trial court's findings, which were made to justify an unequal division of the marital property, do not support the division and erroneously take into account the husband's fault; and that the requirement that the husband continue to provide medical insurance for the wife through COBRA for a period of five years cannot be affirmed as an award of maintenance.

When reviewing a claim that the trial court improperly divided the marital property, we must decide whether the trial court's decision constitutes an abuse of discretion. Van Riper v. Keim (1982), Ind.App., 437 N.E.2d 130. We consider only that evidence most favorable to the trial court's disposition of the property. Benda v. Benda (1990), Ind.App., 553 N.E.2d 159, trans. denied. We presume the trial court followed the law and made all the proper considerations in reaching its decision. White v. White (1981), Ind.App., 425 N.E.2d 726. We will reverse only if there is no rational basis for the award, that is, if the result is clearly against the logic and effect of the facts and the reasonable inferences to be drawn therefrom. In re the Marriage of Salas (1983), Ind.App., 447 N.E.2d 1176.

The husband argues first that the division is an abuse of discretion because the trial court made an award to the wife in excess of the marital estate and failed to take into account the extent of the parties' debt. He cites Salas, id., and Wells v. Wells (1986), Ind.App., 489 N.E.2d 972.

At the provisional and final hearings, the husband offered little evidence of valuation. Indeed, we have derived the value of much of the parties' property from the documents which the wife introduced showing the values placed upon the various assets during bankruptcy proceedings a year earlier. Insofar as these values are the most favorable to the trial court's distribution, we have adopted them.

The Coomers owned a house, valued at $50,000.00; a 1987 Chevy van, valued at $9600.00; a 1983 Cadillac, valued at $2800.00; and, household and personal property, with a total value of $5440.00. In addition, through his employment, the husband had acquired a vested interest in two pension annuities and a defined contribution pension with present values of $6,525.31, $28,316.25 and $2,131.66 for a total of $36,973.22. Through her work at Wal-mart, the wife had acquired a profit sharing account with employer contributions totaling $1,054.23. The statement she introduced into evidence to value the account indicates that the account is "20% vested;" the wife cannot remove the money from the account unless she terminates her employment with Wal-mart. At that time, she would be entitled to 20% of the account's value or $210.85.

The trial court awarded the parties whatever household and personal property they possessed at the time of the decree. There is no evidence in the record from which to place a value upon the household and personal property in each party's possession. Consequently, we have not included the household and personal property distribution in our calculation of the percentage distribution.

The trial court did not award either party any portion of the wife's profit sharing account at Wal-mart. For purposes of analyzing the husband's contention that the award to the wife is in excess of the marital assets, the wife's profit sharing account would only serve to make the total amount of marital assets subject to division greater. Assuming that it has vested and is presently subject to division, a recognition that it was effectively awarded to the wife does not change the percentage distribution. The wife received nearly 72% of the marital assets, exclusive of the medical insurance coverage, while the husband received about 28% of the assets. The present value of the parties' assets for which evidence of value was offered totalled $99,584.07.

The evidence reflects that the parties had liabilities totalling $79,622.43 at or near the date of dissolution, December 21, 1992. The trial court awarded the house to the wife, subject to a principal mortgage balance of $37,695.19; however, in a provisional order, the husband had been ordered to pay a delinquency on the house of $12,644.76. He had not made any payment toward the first mortgage on the house by the date of the final hearing and the bank had threatened foreclosure. The trial court ordered the husband to pay this debt in the final decree. We recognize that some of this debt will be attributed to principal and that the amount of debt distributed to the wife is actually less than the principal balance on the loan. The husband, however, made no effort to prove how much.

The husband testified at the provisional hearing that the wife could have the house and he would continue to pay the bills he was already paying. The trial court ordered in the final decree that the husband pay these bills. They include a debt of $6,184.40 to Capital Finance representing a second mortgage on the real estate, and a garnishment of $92.41 per week as a consequence of the parties' bankruptcy. The amount garnished from the husband's pay each week represents a settlement of 5% of unsecured claims which include a judgment of $1200.00, the wife's student loan, and a debt of $5965.00.

The wife proved that in 1983, she suffered a broken jaw when the husband struck her in the face and propelled her into a refrigerator. As a consequence of this incident, the wife suffers from neck, head and back pain, and is being treated for "a rather advanced degenerative condition of the TMJ's" (Temporomandibular joints). She offered evidence of outstanding balances with a chiropractor and dentist of $179.20 and $1958.00 respectively and a pharmacy bill of $177.64. The wife also offered into evidence a letter from the dentist who was treating her for TMJ that she would need $2500.00 worth of treatments for her condition. The trial court did not specifically distribute these debts, although he did order the husband to maintain health insurance on the wife for a period of five years. There is no evidence in the record as to what the cost of insurance on the wife will be for the husband.

Lastly, the trial court ordered the husband to pay $768.00 of the wife's attorney's fees. Twelve hundred ten dollars remained to be paid to the wife's attorney on the date of the final hearing. The husband was represented by counsel during the provisional proceedings but was not represented at the final hearing. He did not offer any evidence of the amount if any he owed his former attorney.

When all of the parties' liabilities which were proven are added and apportioned pursuant to the final decree, the wife received 50.8% of the debt while the husband was ordered to pay 49.2% of the debt. The final decree crafted by the trial court establishes that the trial court considered all of the debt proven by the parties and, exclusive of the award of COBRA insurance coverage, which we have determined to be maintenance, did not make an award in excess of the value of the marital estate. See In re the Marriage of Buntin (1986), Ind.App., 496 N.E.2d 1351, 1354, trans. denied (Law is that award must not be in excess of the value of the marital estate, not the net worth); Armstrong v. Armstrong (1979), 181 Ind.App. 343, 391 N.E.2d 855, 857 (Any award over and above the actual physical assets of the marital relationship must represent some form of support or maintenance). When an unequal division of the marital property is properly accomplished, the law does not prevent an award in excess of the net marital estate. See e.g., In re the Marriage of Sloss (1988), Ind.App., 526 N.E.2d 1036 (Distribution of net assets of $32,575.96 and net liabilities of $103,509 not in excess of value of marital estate). Cf. Norton v. Norton (1991), Ind.App., 573 N.E.2d 941. The trial court is not required to calculate the net liability when making a property distribution. Sloss, 526 N.E.2d at 1040; Wells, 489 N.E.2d at 976. The only requirement of distribution of assets and liabilities is one of reasonableness. Sloss, 526 N.E.2d at 1040.

The husband argues that the unequal division of the marital assets fashioned by the trial court is an abuse of discretion because it was justified, at least in part, on the basis of fault, citing R.E.G. v. L.M.G. (1991), Ind.App., 571 N.E.2d 298. The trial court made two findings in support of the distribution to the wife, which the court characterized as 60% of the net assets: "Petitioner's earning power is greater than that of Respondent;" and, "Petitioner's health has been impaired due to years of abuse at the hand of Respondent."

The trial court found that an unequal division should be effected in favor of the wife in part because the wife's health had been impaired as a consequence of years of physical abuse from the husband. Indiana Code 31-1-11.5-11(c) provides that the presumption an equal division of marital property would be just and reasonable "may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable ..." Among the factors which may be considered is the "conduct...