Marriage of Davidson, In re, 15A01-8807-CV-210

• Citation: 540 N.E.2d 641
• Case Date: July 06, 1989
• Court: Court of Appeals of Indiana

Page 641

540 N.E.2d 641 In re the MARRIAGE OF Carol Ann DAVIDSON, Respondent-Appellant,
and
Robert Alden Davidson, Petitioner-Appellee. No. 15A01-8807-CV-210. Court of Appeals of Indiana,
First District. July 6, 1989.
Rehearing Denied Aug. 9, 11, 1989.

Page 643

Russell T. Clarke, Jr., Emswiller, Williams, Noland & Clarke, Indianapolis, for respondent-appellant.

Harlan H. Hoffman, Lawrenceburg, for petitioner-appellee.

BAKER, Judge.

STATEMENT OF THE CASE

Respondent-appellant, Carol Ann Davidson (Carol), appeals the provisions of a Dearborn Circuit Court decree of dissolution dissolving her marriage to petitioner-appellee, Robert Alden Davidson (Robert), relating to the division of marital property and the determination of child support and visitation.

We affirm in part, reverse in part, and remand.

STATEMENT OF THE FACTS

Robert and Carol were married on July 23, 1966. The marriage produced one child, a daughter, Kim, nine years old at the time of the dissolution. Robert and Carol permanently separated in June of 1987, and

Page 644

Robert filed a petition for dissolution on September 30, 1987. A final hearing on the petition was conducted on March 2 and 3, 1988, following which the trial court took the matter under advisement. On March 25, 1988, the trial court entered an order dissolving the marriage and dividing the property of the parties as follows:

 CAROL ROBERT
                

Home (Fair Market $87,000 Home $65,000
                 Value--$152,000) Other Real Estate 7,500
                1980 Datsun 600 1986 Bronco 10,500
                1975 Grenada 600 Farm Equipment 4,000
                Savings Accounts 30,422 Teacher's
                 (5) Retirement
                Checking Account 5,000 Account 9,866
                Money Market 9,600 Checking Account 5,297
                 Accounts (2)
                IRA 1,568 IRA 1,568
                Union Central 1,574 IRA 13,485
                 Account
                Certificate of 14,454 Life Insurance 3,115
                 Deposit Policy
                 KEOGH Plan 23,524
                 Certificate of 11,736
                 Deposit
                 Other Personal 11,206
                 Prop.
                 ------------ -------------
                NET DISTRIBUTION $150,818 NET DISTRIBUTION $166,797(1)
                

1. Four months prior to their separation, on February 1, 1987, Robert's
                father died, leaving him sole heir to a $183,765 estate. In the final decree
                dividingng the parties' property, the trial court failed to formally award the
                inheritatance to either Robert or Carol. We note that in its special findings
                of fact, however, the trial court stated that it placed "minimum value upon
                it for purposes of consideration in this marital estate." Record at 50. From
                this statement, we perceive that the trial court awarded the entire
                inheritatance to Robert. Similarly, both parties concede that the inheritance
                was awarded to Robert in total. For purposes of this appeal, therefore, the
                inheritatance will be treated as having been awarded to Robert, which increases
                his share of the property division to $350,562.
                

The trial court ordered the marital residence to be sold within one year with the proceeds of the sale to be applied to satisfy Robert's interest in it. In the interim, Carol was permitted to continue to use the residence until such sale without paying rent. Similarly, the undistributed household furniture and furnishings with an estimated value of $12,700 were ordered to be sold within six months and the proceeds from such to be divided equally between Robert and Carol. Additionally, the trial court awarded custody of Kim to Carol, subject to Robert's reasonable visitation, and Robert was ordered to pay $90 per week in child support. The trial court also ordered Robert to pay all medical, dental, and hospitalization expenses incurred by Kim and covered by his insurance and to maintain hospitalization insurance on Carol. Finally, the trial court ordered a savings account in the sum of $2,000 and a life insurance annuity in the amount of $24,000 to be placed in the joint names of Robert, Carol, and Kim to be utilized solely for Kim's college education. Carol subsequently instituted this appeal.

ISSUES

On appeal Carol claims the trial court erred in:

I. Determining the division of the marital assets.

II. Awarding to Robert the right to claim the tax exemption for Kim on his income tax return.

III. Determining the amount of Robert's child support obligation.

IV. Determining the time period of Robert's visitation.

V. Failing to award Carol the full amount of attorney fees she requested.

VI. Failing to require Robert to take Kim to catechism classes and Sunday religious services.

Page 645

ISSUE I: Property Division.

Carol asserts the trial court erred in determining the division of the marital assets. The division of marital assets is governed by IND.CODE 31-1-11.5-11(c) which provides as follows:

(c) The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that the equal division would not be just and reasonable:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse prior to the marriage or through inheritance or gift.

(3) The economic circumstances of each 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 in that residence for such periods as the court may deem just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) 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.

Traditionally, the division of marital assets has been a matter within the sound discretion of the trial court. Schnarr v. Schnarr (1986), Ind.App., 491 N.E.2d 561. However, this has recently been modified by statute as set forth above. Euler v. Euler (1989), Ind.App., 537 N.E.2d 554. We may not reweigh the evidence or assess the credibility of witnesses; we consider only the evidence most favorable to the trial court's disposition. Olds v. Olds (1988), Ind.App., 531 N.E.2d 1219. Reversal is merited only where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the trial court. Chestnut v. Chestnut (1986), Ind.App., 499 N.E.2d 783.

Carol argues that the trial court deviated from a fifty-fifty split, and that such was not supported by the statutory factors. Specifically, she contends the trial court did not consider her contributions as a homemaker, her inability to earn a wage, and her poor state of health. In support of her claim, Carol directs us to various evidence which reveals that the parties had been married for 22 years. She had contributed to the acquisition of all marital assets as a teacher and real estate broker prior to the birth of their daughter but had not worked for the past nine years. She was currently unemployed and needed to renew her teaching and real estate license in order to become employed. Moreover, Carol claims she suffered significant health problems which greatly diminished her ability to work full-time in any capacity or obtain health insurance. Robert, on the other hand, was a capable wage earner collecting a net income of $400 per week. Furthermore, his father had recently died leaving him sole heir to a gross estate valued at $183,765. Carol complains that the trial court failed to utilize the inheritance as a set off against some portion of the marital property. She claims that she was entitled to full interest in the marital home in exchange for the waiver of her right to share in the inheritance. Further, in light of the significant assets Robert would receive through his inheritance, he had little need of his equity in the home. Thus, there was no reason to compel sale of the home to satisfy such.

IND.CODE 31-1-11.5-11(c) imposes a presumption that an equal division is just and reasonable. The trial court may deviate from an equal division only when the presumption is rebutted. We observe that the trial court awarded Carol $150,818 in marital assets. Absent the inheritance, the trial court awarded 53% of the property to Robert and 47% to Carol. While this division is close, it is not equal. The statutory presumption speaks not in terms of approximation, but rather in terms of exactitude. The inequality is magnified if

Page 646

Robert's inheritance is included, for the share of marital property distributed to Carol falls to 30%. We note that regardless of its source, property owned by the parties, including property acquired by inheritance, shall not be excluded from the marital assets, or placed beyond the trial court's authority for division. Wilson v. Wilson (1980), Ind.App., 409 N.E.2d 1169, trans. denied. However, the trial court need not divide the inheritance in any particular manner. Id. It is true that the fact that property was acquired by inheritance is a factor to be considered in deviating from the statutorily mandated presumption of an equal division. Although the trial court may divide the marital property unequally, the dissolution decree in this case indicates no reason for straying from the presumption of equality. If the trial court determines that a party opposing an equal divison has met his or her burden under the statute, the court must, in its findings and judgment, based on the evidence, state its reasons for deviating from the presumption of an equal division. While the evidence in this case may support an unequal division of property, we will not speculate as to the trial court's reasoning. We, therefore, remand this case to the trial court with directions either to follow the statutory presumption and effect an equal division of the marital property, or to set forth its rationale for not doing so.

Carol also complains that...