Marriage of Hirsch, In re

• Decision Date: 22 January 1979
• Docket Number: No. 3-677A140,3-677A140
• Citation: 179 Ind.App. 166,385 N.E.2d 193
• Parties: In re the MARRIAGE OF June R. HIRSCH, Appellant (Petitioner below), and Robert M. Hirsch, Appellee (Respondent below).
• Court: Indiana Appellate Court

Page 193

385 N.E.2d 193

179 Ind.App. 166

In re the MARRIAGE OF June R. HIRSCH, Appellant (Petitioner below),

and

Robert M. Hirsch, Appellee (Respondent below).

No. 3-677A140.

Court of Appeals of Indiana, Third District.

Jan. 22, 1979.

Albert C. Hand, Hand, Neunich & Rodovich, Hammond, for appellant.

Harold Abrahamson, Hammond, for appellee.

STATON, Judge.

The marriage of June R. Hirsch and Robert M. Hirsch was dissolved on December 15, 1976. June R. Hirsch appeals from the dissolution judgment of the trial court. She claims that the trial court erred in its disposition of the marital property. Additionally, she claims that the trial court ordered her husband to pay her attorney inadequate fees.

We affirm.

June and Robert were married on March 18, 1952. At that time June owned an automobile and had approximately $4,000 in a bank account. They separated on March 17, 1975. June filed a petition for dissolution of the marriage; Robert filed a counter-petition. They were 48 years of age. June was employed as a typist earning $7,500.00 per year. Robert was earning in excess of $35,000.00 per year plus substantial fringe benefits.

Upon dissolving the marriage, the court made the following disposition of their property:

"Petitioner is awarded all of parties furniture, household goods, effects and appliances and effects now in her possession. Respondent is awarded the personal property and effects now in his possession. Petitioner is further awarded as her own parties Lincoln Mark IV automobile; and parties Savings Account in the approximate sum of $8,100.00 in the 1st Federal Savings and Loan Association of East Chicago; and the Mutual Fund at Wadell and Reed, Inc., in the approximate sum of $4,600.00. Respondent is ordered to transfer his interest in the above in 10 days. Petitioner awarded all of respondent's right, title and interest in the parties residence located at 8124 Northcote Avenue, Munster, Indiana and respondent is ordered to convey his interest therein in 30 days. Petitioner is further awarded alimony in the sum of $20,000.00, payable $100.00 each Saturday, commencing on January 1, 1977 until paid. Respondent is awarded his interest in the Joe Hirsch Inc., evidenced by shares of stock, Pension Fund and Insurance in said corporation."

In addition, the court ordered Robert to pay June $50.00 per month for each of two sons (ages 21 and 19) during the time they remained in college; Robert was also required to pay all the college expenses of the sons, as well as reasonable medical and dental expenses. Finally, the court ordered Robert:

"to pay petitioner's attorney, Ablert (sic) C. Hand, the additional sum of $3,000.00 as attorney fees payable $1,000.00 on or before January 15, 1977, and balance on or before March 1st, 1977." ¹

I.

Disposition of the Property

Indiana statute prescribes the method by which the court shall divide the property of parties upon a dissolution of their marriage.

"In an action pursuant to section 3(a) (subsection (a) of 31-1-11.5-3), 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, 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 of such sale.

"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 their 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 (Burns Code Ed., Supp.1978).

June claims that the court erred in failing to award her a fair, equitable and adequate portion of the parties' property. Specifically, she claims that the court failed to value and consider certain property and refused to consider the value of Robert's superior earning capacity as well as his remainder interest in a trust.

In her brief, June sets out the assets awarded to each party as follows:

"Assets Awarded to Wife by Court:" ²

                ---------------------------------
                 "Furniture (Household)  $  3,000.00
                  Automobile                6,000.00
                  Savings                   8,100.00
                  Mutual Fund               4,600.00
                  Real Estate              47,000.00
                  Alimony (payable $100
                    per week)              20,000.00
                                         -----------
                          Total to Wife  $ 88,700.00
                "Assets Awarded to Husband by Court:" 3
                ------------------------------------
                 "Life Insurance (cash value)    $  9,600.00
                  Pension Fund                     43,000.00
                  Preferred stock                  40,000.00
                  20 shares common stock           58,000.00
                  Remainder in trust consisting
                    of Common Stock                37,508.00
                                                 -----------
                              "Total to Husband  $188,108.00"
                

June argues that such a property division constituted an abuse of discretion and was contrary to the evidence and the law.

When considering the propriety of a property division, this Court does not weigh the evidence, but examines the division only for an abuse of discretion. Wilcox v. Wilcox (1977), Ind.App., 365 N.E.2d 792; In re Marriage of Lewis (1977), Ind.App., 360 N.E.2d 855; Geberin v. Geberin (1977), Ind.App., 360 N.E.2d 41. The court has broad discretionary power in determining the disposition of property. Eppley v. Eppley (1976), Ind.App., 341 N.E.2d 212. IC 1971, 31-1-11.5-11 merely requires the court to divide the property "in a just and reasonable manner." The court is not required to divide the property equally between the parties. In re Marriage of Dougherty (1978), Ind.App., 371 N.E.2d 1328; Trimble v. Trimble (1976), Ind.App., 339 N.E.2d 614.

In the present case, the court awarded June the parties' home, furniture, automobile, savings and mutual fund, as well as a lump sum of money to be paid over approximately four years. All of these assets had an ascertainable value.

Robert, on the other hand, received assets more difficult of liquidation. His life insurance and pension fund would become valuable only in the future. The preferred stock and common stock were held in a family-owned business in which he was active. Although Robert's earning capacity was much superior to June's, he was required to pay his children's college and medical expenses, as well as the lump sum money to June over a four-year period. The award of the lump sum of money to June clearly takes Robert's salary into consideration. Stanford v. Stanford (1976), Ind.App., 352 N.E.2d 93.

Further, June's assessment of the value of the assets awarded to Robert was not accurate. At the time of the hearing, the cash value of Robert's life insurance policy was only $4,600.00. Robert introduced evidence at trial showing that his vested interest in his pension fund was significantly less than $43,000.00, a factor the trial court may have considered in determining the award. The value of the preferred stock and common stock was also disputed at trial. June's valuation of $58,000.00 for the common stock was arrived at by using the stock's book value. However, Robert presented evidence that the stock's fair market value was much lower. The trial court was able to exercise its discretion in valuing the stock anywhere between these two figures when dividing the property. Loeb v. Loeb (1973), 261 Ind. 193, 301 N.E.2d 349.

June's argument fails to consider the origin of the property Robert was awarded. In her brief, June...