Marriage of Sloss, In re, 07A01-8710-CV-00245

• Decision Date: 11 August 1988
• Docket Number: No. 07A01-8710-CV-00245,07A01-8710-CV-00245
• Citation: 526 N.E.2d 1036
• Parties: In re the MARRIAGE OF Joel Preston SLOSS, Respondent-Appellant, and Shirley Smith Sloss, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 1036

526 N.E.2d 1036

In re the MARRIAGE OF Joel Preston SLOSS, Respondent-Appellant and Shirley Smith Sloss, Petitioner-Appellee.

No. 07A01-8710-CV-00245.

Court of Appeals of Indiana First District.

Aug. 11, 1988.

Thomas A. Fara, Fara & Palguta, Gale M. Phelps, Indianapolis, for respondent-appellant.

Patricia A. Douglass, Epstein & Farisch, Indianapolis, for petitioner-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Joel Sloss appeals from the Brown Circuit Court's judgment of dissolution and property division. We affirm and remand for a modification of the judgment.

FACTS

In 1980, Shirley Smith's first husband of a seventeen (17) year marriage died leaving a gross testamentary estate of $1.1 million. After taxes and debts, Shirley inherited a net amount of approximately $600,000. In late April of 1981, Shirley met Joel Sloss at a singles dance. One week later, on April 30, 1981, Joel and Shirley were married in Las Vegas. Joel, thereafter, managed and controlled all of Shirley's assets and financial affairs. In March of 1984, Shirley filed a petition for dissolution in the Brown Circuit Court. However, Joel and Shirley reconciled, and the petition was dismissed for lack of prosecution. The reconciliation failed to thrive and on August 1, 1986, Shirley and Joel separated. On September 24, 1986, Shirley reinstated successfully her petition for dissolution.

On May 7, 1987, the trial court held a dissolution hearing. Thereafter, all matters were taken under advisement, and on June 22, 1987, the trial court entered Findings of Fact, Conclusions of Law, and a Judgment of dissolution and property division. The trial court determined that over the course of the marriage Joel dissipated the marital assets such that $600,000 in assets was reduced to a net liability of $70,000. The trial court further determined that between the date of the final separation and the dissolution hearing Joel dissipated over $100,000 of marital assets. Based on these and other findings and conclusions the trial court entered a judgment of dissolution and property division, as follows:

"JUDGMENT

"Findings of Fact, having been made, and Conclusions of Law, having heretofore been entered, the Court now enters Judgment as follows:

1. That the marriage of the parties is now dissolved.

2. That the Petitioner shall take all right, title, and interest including equities, on all real properties listed on Exhibit 'B' attached to this entry.

3. That Petitioner shall take a judgment against Respondent in the amount of $103,509 which judgment shall be paid at the rate of $800.00 per month until paid in full.

4. That the Respondent is hereby Ordered to pay any tax liability on any unfiled returns and to indemnify and hold harmless Petitioner from and against any liability on any of said unfiled Federal or State tax returns.

5. That respondent is Ordered to pay attorney for Petitioner, Robert D. Epstein, the sum of $3,500.00 within ninety All of which is ORDERED this 22 day of June, 1987." Record at 245. Joel appeals from this judgment.

(90) days for and as additional attorney fees.

ISSUES

Sloss presents twelve (12) issues for review which we condense and rephrase into the following three (3) issues:

1. Whether the trial court abused its discretion by distributing to the Wife all real properties and a money judgment against the Husband, because the property division:

(a) exceeded the value of the marital estate;

(b) amounted to an award of maintenance;

(c) awarded property that was either consumed by both parties during the marriage or disposed of in real estate foreclosure proceedings;

(d) was unfair and unreasonable;

(e) was not supported by the evidence;

(f) awarded property obtained after the final separation;

(g) failed to indicate the net value of the distributed liabilities;

(h) compensated the wife for marital assets that were dissipated after the final separation;

(i) was based upon tort liability principles?

2. Whether the trial court erred by failing to divide the personal property in its judgment?

3. Whether the trial court abused its discretion by ordering the Husband to pay $3,500 of the Wife's attorney fees?

DISCUSSION AND DECISION

Issue One

Joel challenges the trial court's property division on several grounds. An appeal from a property division judgment is subject to a strict standard of review. Absent an abuse of discretion we will not reverse the trial court's decision. Thus, Joel must establish that the trial court's decision was clearly against the logic and effect of the facts and circumstances before the court. Lay v. Lay (1987), Ind.App., 512 N.E.2d 1120, 1122; Schnarr v. Schnarr (1986), Ind.App., 491 N.E.2d 561, 563. Furthermore, although the trial court must divide the marital property justly and reasonably after considering the statutory factors in Indiana Code section 31-1-11.5-11, absent a clear showing to the contrary, we presume the trial court properly considered and applied all applicable factors. Hunter v. Hunter (1986), Ind.App., 498 N.E.2d 1278, 1292-93. One of the factors the trial court may consider is the extent of dissipation of the marital estate. Ind.Code Sec. 31-1-11.5-11(c)(4); In re Marriage of McManama (1980), 272 Ind. 483, 486-87, 399 N.E.2d 371, 373; 24 Am.Jur.2d Divorce and Separation Sec. 929 (1983). In addition, as part of the property division order, the trial court has the discretion to require one spouse to pay the other a sum of money in gross or in cash installments. I.C. Sec. 31-1-11.5-11(b)(2); Wells v. Wells (1986), Ind.App., 489 N.E.2d 972, 975-76. However, a property division under this section cannot exceed the value of the marital assets without being considered an improper form of maintenance and an abuse of discretion. In re Marriage of Buntin (1986), Ind.App., 496 N.E.2d 1351, 1354, trans. denied; Wells, 489 N.E.2d at 976.

Joel first attempts to establish an abuse of discretion by arguing that the trial court distributed property in excess of the value of the marital estate. Joel bases this argument upon the assumption that the trial court valued the marital estate on the date of the final hearing. This assumption fails to provide the necessary foundational support for Joel's argument, but rather creates the lacuna which engulfs this argument and several others. No finding of fact or conclusion of law specifically indicated the property division valuation date. Also, the law does not require use of the dissolution date. The trial court may use any date between the final separation and the date of dissolution as the valuation date. Eyler v. Eyler (1986), Ind., 492 N.E.2d 1071, 1074. Although the trial court valued the marital estate on the date of dissolution, the trial court also valued the marital estate on several other dates. The findings which indicate these valuations merely indicate the extent to which Joel dissipated the marital assets. The trial court's findings indicate that the marital estate had at least $600,000 of assets at the beginning of the marriage, assets of approximately $125,000 at the time of the final separation, and assets of approximately $21,000 at the time of dissolution. The findings indicated also that the marital estate's value was reduced by Joel to a net liability of $70,000 by the date of dissolution. Since the trial court could have used any date between the date of final separation and the date of dissolution, and since on the date of separation the marital assets equalled or exceeded the amount distributed to Shirley, we find no abuse of discretion.

Joel's second contention argues that the trial court's money judgment amounted to an award of maintenance because the judgment exceeded the value of the marital estate. Our rejection of Joel's assumption that the trial court used the dissolution date as the property division valuation date also disposes of this argument. The amount of marital property distributed to Shirley did not exceed the value of the marital estate on the date of the final separation. Therefore, the judgment was not an award of maintenance.

Joel suggests next that the trial court erred by finding he dissipated the marital estate. Joel argues that the marital assets were consumed either by both parties during the marriage or in foreclosure proceedings. This argument requests us to reweigh the evidence. This task we will not undertake.

Joel argues also that the property division was unjust and unreasonable. Joel concedes that a trial court does not have to divide property equally and will be reversed only for an abuse of discretion. Luedke v. Luedke (1985), Ind., 487 N.E.2d 133, 134. ¹ However, Joel contends that the trial court's division of property which left Shirley with net assets of $32,575.96 and Joel with a net liability of $103,509 was unjust and unreasonable, because the trial court failed to consider all relevant factors. We disagree.

Our review of the trial court's findings of fact and conclusions of law, and the evidence in the record indicates that the trial court considered all relevant factors and ordered a just and reasonable property division. The findings and conclusions indicate that Shirley contributed over $600,000 to the beginning of the marriage, while Joel contributed only $600. The record and findings indicate also that Joel dissipated this marital estate to the detriment of Shirley such that at the time of the dissolution hearing a net liability of $70,000 resulted. The findings indicated also that at the time of the hearing Shirley had little present and future earning capacity, while Joel had a comparatively substantial current and future earning capacity based upon his military salary of $38,000 per year. Based upon these considerations and upon the trial court's clear determination that Joel dissipated the marital estate both before and after the date of separation, we cannot say that the trial court abused its discretion by awarding Shirley the assets...