Marriage of Miles, In re

• Decision Date: 26 April 1977
• Docket Number: No. 3--875A177,3--875A177
• Citation: 173 Ind.App. 5,362 N.E.2d 171
• Parties: In re The MARRIAGE OF Edith MILES, Respondent-Appellant, and Frank D. Miles, Jr., Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 171

362 N.E.2d 171

173 Ind.App. 5

In re The MARRIAGE OF Edith MILES, Respondent-Appellant and Frank D. Miles, Jr., Petitioner-Appellee.

No. 3--875A177.

Court of Appeals of Indiana, Third District.

April 26, 1977.

Rehearing Denied June 2, 1977.

Leonard V. Campanale, Mishawaka, for respondent-appellant.

Thomas P. Loughlin, William T. Means, Mishawaka, for petitioner-appellee.

GARRARD, Judge.

This was an action for dissolution of marriage. The wife appeals from the court's decision as to division of property alleging that the judgment does not conform to the findings and conclusions entered by the court pursuant to Indiana Rules of Procedure, Trial Rule 52(A), and that under the evidence the division made was an abuse of discretion. We affirm.

Following trial and pursuant to a proper request under TR 52(A), the court under the caption 'Findings of Fact' entered seventeen (17) separately numbered findings relating to the evidence heard at trial. None of these findings have been expressly attacked on appeal, and the transcript discloses evidence to support each of them.

Following these seventeen paragraphs under the caption 'Conclusions of Law' the court entered the following:

'1. The marriage of the parties is irretrievably broken and ought to be dissolved.

2. Because of the long-term marriage of the parties, the fact that their children are all emancipated, that they are both in reasonably good health and are gainfully employed, a division of their property should be made between them on an equal basis, with proper regard for the substantial contributions made by the wife from out of her inheritance, over and above what otherwise would be an equal division thereof, with further regard being given to Husband's present support delinquency.'

The court then entered judgment dissolving the marriage and distributing the specific assets of the parties. Personal assets valued at $3410 were distributed to the wife, and the husband was awarded personal assets valued at $3275. The residence which the parties had owned as tenants by the entireties was awarded to them equally as tenants in common. It was subject to a mortgage with an unpaid balance of approximately $15,000, but there existed prepayment on the account of approximately $1800. In addition the court awarded to the wife all interest in a parcel of real estate inherited from her father which had been sold under a conditional sale contract. The outstanding balance of the purchase price under this contract was approximately $5700.

In findings numbered 7, 8, 9 and 13 the court determined that when the wife's father died the balance owed on the land contract had been approximately $8000 and that $4500 of the principal and interest subsequently received by the wife had been applied to the mortgage payments on the residence. In these findings the court determined that the wife had also received an additional $11,852 from this estate and life insurance. Of this, $1350 had been paid for the father's funeral expense, and $3850 had been used to purchase a snowmobile, a boat and trailer, and a mink stole. The balance was 'apparently frittered away in one manner or another.' ¹

In turning to the wife's first contention we note that our rules of civil procedure no longer require the court to enter 'conclusions of law' as was the former practice. ² TR 52(A) does, however, provide that when special findings are required,

'the court . . . shall find the facts specially and state its conclusions thereon.' (emphasis added)

It is the stated purpose of our trial rules to secure the just, speedy and inexpensive determination of every action. To that end TR 52 must be construed as abolishing the old highly technical distinctions and treacherous consequences which attended the consideration of whether a 'finding' was an evidentiary fact, an ultimate fact, a conclusion of fact or a conclusion of law. ³

On the other hand, the purpose of special findings is to provide the parties and reviewing courts with the theory on which the judge decided the case in order that the right of review for error may be effectively preserved. Miller v. Ortman (1956), 235 Ind. 641, 136 N.E.2d 17. (See, also, the numerous decisions dealing with the necessity of findings in judicial review of administrative proceedings.) Thus, whether the findings are adequate depends upon whether they are sufficient to disclose a valid basis under the issues for the legal result reached in the judgment. In making this determination a reviewing court will accept the findings made by the trial court if they are supported by evidence of probative value. Miller v. Ortman, supra; First Nat'l. Bank of Mishawaka v. Kamm (1972), 152 Ind.App. 353, 283 N.E.2d 563. Furthermore, on appeal the findings will be construed together and will be liberally construed in support of the judgment. Scott v. Kell (1956), 127 Ind.App. 472, 134 N.E.2d 828, Trf. den. 141 N.E.2d 106; TR 52(A). ⁴

Yet where, as here, the outcome is not mandated by an established rule of law but, instead, the decision rests within the discretion of the court, we must reverse if the decision is not consistent with the findings and conclusions or if the reasons given are insufficient as a matter of law to justify the manner in which the court exercised its discretion. The reason arises from the fact that the court does have discretion. If the reason given by the court is not a valid basis for a particular exercise of discretion, it can be no more than conjecture on our part that once the court recognizes the invalidity of its original reason it will reach precisely the same exercise of discretion for other reasons. Our Supreme Court recently so held in City of Elkhart v. Middleton (1976), Ind., 356 N.E.2d 207. Similarly, if the findings and conclusions entered by the court, when construed most favorably toward the judgment, are nevertheless clearly inconsistent with it, the decision must be set aside regardless of whether there was evidence adduced at trial which would have been sufficient to sustain the decision. To hold otherwise would negate the primary purpose of special findings.

The statute governing distribution of property upon a marriage dissolution, IC 1971, 31--1--11.5--11 provides that '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 . . ..'

'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.

We turn now to the wife's assertions of error. Her first contention is that the judgment is not consistent with the second conclusion entered by the court. ⁵ The question is whether the division made is compatible with the conclusion that the property should be divided,

'. . . on an equal basis, with proper regard for the substantial contributions made by Wife from out of her inheritance, over and above what otherwise would be an equal division thereof, with further regard being given to Husband's present support deficiency.'

Upon the unchallenged values assigned to the personal property, the distribution order granted the wife an amount over the husband's share which approximately equalled the $145 support deficiency.

The other overplus received by the wife was the remaining interest in the conditional sale contract which was valued at $5700. Of this value she would have been entitled to one half ($2850) simply on the basis of equal division. Since the burden to establish error is on the wife and the judgment may not be reversed unless 'clearly erroneous' the question becomes whether the award of the additional $2850 is clearly not consistent with the conclusion that the wife receive 'proper regard for the substantial contributions made.' It must first be noted that the conclusion is stated in terms of her contribution from the inheritance and not the inheritance itself. Clearly the court determined that the payment of $4500 toward the mortgage was such a contribution. However, wife received the benefit of one half that sum through the equal division portion of the order. The court found that from the inheritance, money was expended to purchase a snowmobile; a boat, motor and trailer; and a mink stole. The stole is not listed in the property order. The snowmobile, boat, motor and trailer had a total value of $1500 at the time of the dissolution. Presumably, both parties enjoyed the benefit of these items during the marriage and while the items were depreciating. They do, however, represent an additional $750 value created by the wife from her inheritance over what she would receive through an order of equal distribution. When thus analyzed, and applying the established rules of law, the issue presented by the assigned error is this: Applying all intendments in favor of the judgment, does it clearly appear that awarding the wife an overplus of $2850 is inconsistent with the conclusion to give 'proper regard' for her separate contributions which...