McNevin v. McNevin

• Decision Date: 30 March 1983
• Docket Number: No. 2-1280A414,2-1280A414
• Citation: 447 N.E.2d 611
• Parties: Nancy J. McNEVIN, Appellant (Petitioner Below), v. Robert W. McNEVIN, Sr., Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 611

447 N.E.2d 611

Nancy J. McNEVIN, Appellant (Petitioner Below), v. Robert W. McNEVIN, Sr., Appellee (Respondent Below).

No. 2-1280A414.

Court of Appeals of Indiana Second District.

March 30, 1983.

Robert A. Burns, Condos & Burns, Indianapolis, for appellant.

Duge Butler, Jr., Indianapolis, for appellee.

ON PETITION FOR REHEARING

BUCHANAN, Chief Judge.

Petitioner-appellant Nancy J. McNevin (Nancy) petitions this court for rehearing of our January 24, 1983 opinion published at 444 N.E.2d 320, which opinion affirmed the trial court's judgment dismissing Nancy's personal injury claim against her husband Robert W. McNevin, Sr. (Robert). We grant rehearing, vacate our earlier opinion, and reverse the trial court's judgment.

FACTS

The record discloses that in May of 1978, after the parties had separated, Robert allegedly struck and injured Nancy. Robert filed a petition for dissolution of marriage in the Hendricks Circuit Court in November of 1978. A dissolution decree incorporating a previously negotiated settlement agreement was entered in September of 1979. The sections of the dissolution decree pertinent to this decision are set forth below:

6. Settlement Agreement. The settlement agreement of the parties, as set forth hereinafter in this decree, was duly executed by each of the parties freely and without duress and after consultation and advice from counsel, and the rights of the parties should be adjudged accordingly.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by this Honorable Court as follows:

A. Dissolution. The bonds of matrimony heretofore existing between the parties are hereby absolutely dissolved effective with the issuance of this decree.

B. Property Settlement Agreement.

1. Personal Property. The petitioner [Robert] shall be the owner of all household goods, furniture and furnishings now in his possession as well as his own personal effects, clothing and jewelry. In addition, the petitioner shall be the owner of the following property:

motorcycles presently in possession of respondent

Datsun 280Z 1979 automobile;

1 Aluminum houseboat with Chrysler engine;

1 fishing boat and trailer;

household goods in El Lago, Florida real estate;

certain savings account at Peoples Bank and Trust Company; and, business account at Peoples Bank and Trust Company;

a certain Honda automobile which will be titled to the son of the parties at the time of the final Decree except as otherwise provided in this agreement, all other tangible personal property heretofore reduced to his possession, or standing in his sole name.

Except as otherwise provided in this agreement, the respondent shall be the owner of all intangible and tangible personal property heretofore reduced to her possession or standing in her sole name, and the following property;

a certain Dodge wagon automobile;

a certain 1979 Oldsmobile;

a certain Chasta motor home;

a certain speed boat;

2 small Honda motorcycles;

all household goods located at 650 Arthur Drive, Indianapolis, Indiana.

As well as her personal effects, clothing and jewelry.

2. Real Property. That the wife be [sic] is hereby adjudged the individual owner of a [sic] certain pieces of real property commonly known as follows:

650 Arthur Drive, Indianapolis, Indiana

558 Arthur Drive, Indianapolis, Indiana

1 lot on John Johns River, Crescent City, Florida; (which said real estate has heretofore been deeded from the husband to the wife)

3. Obligations. The petitioner and respondent hereto each agree as to the separate obligations assumed hereunder to save the other party harmless from any further liability thereon.

The petitioner shall assume and pay until discharged in full, according with its terms, the existing indebtedness on the following:

(A) Master Charge in the approximate sum of $673.65

(B) L. Strauss & Co. in the approximate balance of $51.12

(C) Sears in the approximate balance of $2929.70

(D) Penny's account in the approximate sum of $705.20

(E) Ready Credit account in the approximate balance of $795.18

(F) Town & Country account in the approximate balance of $465.07

(G) VISA account in the approximate balance of $877.94

(H) Block's account in the approximate balance of $208.48

(I) Ayres account in the approximate balance of $639.71

(J) Lazarus account in the approximate balance of $95.13

(K) Woolco account in the approximate balance of $100.00

(L) Automobile insurance on wife's Oldsmobile for a period of one year from date of entry of this Decree.

4. Petitioner agrees to make arrangements for and to pay the cost of repair of damage to the den floor in the residence at 650 Arthur Drive, Indianapolis, Indiana within thirty (30) days from the date of entry of this Decree.

5. Petitioner agrees to waive that certain sum of One Thousand Dollars ($1,000.00) heretofore agreed to be paid by the wife to the husband for the purchase of a certain 1979 Oldsmobile.

6. Husband agrees to pay to the wife as alimony judgment the sum of Sixteen Thousand Eight Hundred Dollars ($16,800.00) payable in twenty-four (24) equal monthly installments of Seven Hundred Dollars ($700.00) per month beginning on October 1, 1979 and continuing month to month thereafter until paid in full or until the death of the wife whichever occurs first. It is understood by and between the parties that said sum agreed to be paid by petitioner is an alimony judgment, the intent of the parties being to provide the husband with a deductable [sic] expense for Federal and State income tax purposes.

7. Husband agrees to assume and pay schooling expenses for the children of the parties.

8. Life Insurance. That the petitioner shall have the sole possession of the policies of life insurance on his life and the respondent shall become the owner of the existing life insurance policies on her life, and each party assumes and agrees to pay the premiums on said policies after the entry of this Decree of Dissolution.

9. Petitioner agrees to assume and pay Income Tax liabilities for the year 1979 incurred on his behalf and to save the respondent harmless from any liability thereon.

10. Accounts. That the Respondent has a checking account at the Indiana National Bank in Indianapolis, Indiana, this said account shall become the property of the wife.

11. Disclosure. The respective parties to this cause of action state that they have made a full and complete disclosure to one another of all the assets that have been accumulated during the term of the marriage and have disclosed to each other all of the financial liabilities, either jointly or severally, which were incurred during the term of this marriage.

12. Attorney's Fees. Petitioner shall pay the respondent's attorney his reasonable attorney's fees in the total amount of One Thousand Five Hundred Dollars ($1,500.00) within thirty (30) days from the entry of this Decree.

13. Costs. Costs herein are taxed against the petitioner and have been paid as shown by the receipt of the Clerk, presented to the Court.

14. Modification or Waiver. No modification or waiver of any of the terms of this agreement shall be valid unless in writing and executed by both parties hereto. No waiver of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default.

15. Execution of Additional Instruments. Each party hereto shall, at the request and expense of the other, execute and deliver to the other any and all releases, deeds, bills of sale, instruments of assignment and other documents which the other may reasonably require for the purpose of giving full force and effect to this agreement.

Record at 28-32 (emphasis supplied). This agreement did not contain a general release clause.

In May of 1980, Nancy commenced this cause of action by filing a complaint in the Marion Superior Court. Alleging she had sustained injuries as a result of Robert's 1978 attack upon her, Nancy prayed for damages of $200,000.

Concluding that a personal injury claim is a chose in action and therefore property subject to distribution on dissolution, the trial court dismissed Nancy's complaint because a dissolution decree bars an independent action involving divisible marital property. The judgment of dismissal ¹ reads in pertinent part as follows:

Parties by counsel, oral argument heard on Defendant's Motion to Dismiss. The Court being duly advised in the premises finds as follows:

1. The incident on which this claim for injuries is based arises from an alleged assault and battery, which occurred on May 27, 1978, while the parties were husband and wife.

2. A dissolution decree dissolving this marriage was entered on September 19, 1979, by the Hendricks Circuit Court and the Decree incorporated the terms of a Property Settlement Agreement.

3. By the terms of the Property Settlement Agreement the parties finalized the disposition of their "property and property rights", "freely without duress and after consultation and advice from counsel."

4. The agreement included a money judgment to the wife in the amount of Sixteen Thousand, Eight Hundred Dollars ($16,800.00), as well as the real estate of the parties.

5. A tort claim is a chose in action which was or should have been considered in reaching the property settlement agreed to by the parties and incorporated into the Decree of Dissolution.

Record at 39 (emphasis supplied).

Subsequent to the filing of the motion to correct error in this case, the attorney representing Nancy in the dissolution action filed an affidavit stating that Nancy had asked him not to disclose during negotiations her intention to assert the battery claim in a separate action after the dissolution proceeding was concluded. There is nothing, however, in the record indicating that Robert was aware during the settlement negotiations, or that Robert or the trial court was aware during the dissolution action, that Nancy had this specific intention.

After the trial court denied her motion to correct error, Nancy perfected this appeal.

ISSUE

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