Neffle v. Neffle
| Citation | 483 N.E.2d 767 |
| Decision Date | 08 October 1985 |
| Docket Number | No. 2-684-A-158,2-684-A-158 |
| Parties | Robert NEFFLE, Appellant (Respondent Below), v. Anna NEFFLE, Appellee (Petitioner Below). |
| Court | Court of Appeals of Indiana |
John J. Hudgins, Indianapolis, for appellant.
Evelyn Pitschke and Frank E. Spencer, Indianapolis, for appellee.
Respondent-Appellant, Robert Neffle (Husband), appeals from a marriage dissolution decree. Husband contends the trial court erred with respect to the distribution of the marital assets:
(1) Awarding the Wife a money judgment rather than dividing the marital property in kind;
(2) Including in the marital estate the present value of his pension; and
(3) Incorrectly valuing various real estate interests.
Husband, age 56, and the Wife, age 69, had been married twelve years. The marriage produced no children. Each spouse had brought property, including their former residences, into the marriage and the bulk of the marital assets consisted of rental properties, most of which were purchased and maintained after the marriage by the Husband.
Husband contends that the trial court erred in dividing the marital estate by setting over eight of nine rental properties to him and granting the Wife a money award. Specifically, Husband claims that the eight rental properties he acquired, although valued at $108,300, operated at a loss in 1981 and 1982 and will not provide him sufficient rental revenue to pay the money award. Husband submitted an affidavit with his motion to correct errors claiming that the rental properties also operated at a loss in 1983 and that he has "been trying to sell the properties but has not received an offer sufficient to cover the value set by the court." Record at 22. Thus Husband claims that he is left with only his employment income, which is insufficient to pay the $44,000 award.
It is well-settled that the trial court has broad discretionary powers in effecting a just and equitable distribution of marital property. Hoyle v. Hoyle (1985) 3d Dist.Ind.App., 473 N.E.2d 653.
I.C. 31-1-11.5-11(b) provides:
"[T]he 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 of the spouses and requiring either to pay such sum, either in gross or in installments, 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." (Burns Code Ed.Supp.1984). (Emphasis supplied).
This statute allows the trial court to divide the marital property by awarding one of the spouses the bulk of the physical assets and the other spouse a money award which represents a portion of those physical assets. In Re Marriage of Davis (1979) 1st Dist., 182 Ind.App. 342, 395 N.E.2d 1254. This is true even where the party receiving the non-cash property must liquidate a portion of that property in order to pay the monthly installments of the cash award to the former spouse. Burkhart v. Burkhart (1976) 1st Dist., 169 Ind.App. 588, 349 N.E.2d 707. Husband's protestations of inequity are particularly unavailing since at trial he testified that he was unwilling to have set over to the Wife any of the properties other than the one which she received on Spann Avenue. Moreover, Husband's contentions that he cannot raise sufficient funds to meet the monetary award ring hollow when the total real property awarded to him is valued at approximately $160,000 1 and is apparently unencumbered. The trial court's distribution of these assets did not constitute an abuse of discretion.
Husband contests the inclusion in the marital estate of the present cash value of his RCA Retirement Plan of $5,900. Wife contends that the $5,900 is marital property because the Husband had a vested interest in the retirement plan even though he could not withdraw that sum unless and until his employment with RCA was terminated.
The evidence disclosed that Husband had contributed $4,070 to the retirement plan and that his contributions had earned interest of $1,830 for a total of $5,900. Under the terms of the plan Husband could not withdraw or borrow any of his accrued contributions or interest, although he would be entitled to the whole of his contributions plus interest upon termination of employment. If Husband continued his employment and contributions until retirement at age 65, then the pension plan would pay him projected benefits of $320 per month until his death.
In a dissolution proceeding the court is to include in the marital estate the property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her right after the marriage and prior to final separation of the parties, or acquired by their joint efforts. I.C. 31-1-11.5-11. "Property" is defined as "all the assets of either party or both parties, including a present right to withdraw pension or retirement benefits." I.C. 31-1-11.5-2(d) (Burns Code Ed.1980).
Husband correctly argues that a trial court may not include in the marital estate an interest in a spouse's future income, whether the source of that income constitutes salary, pension or retirement benefits.
This is true whether the attempt is to award an actuarially computed present value of future payments of benefits being drawn at the time (Koenes v. Koenes (1985) 1st Dist.Ind.App., 478 N.E.2d 1241; Sadler v. Sadler (1981) 4th Dist.Ind.App., 428 N.E.2d 1305), actuarially computed present value of contemplated future salary (Wilcox v. Wilcox (1977) 1st Dist., 173 Ind.App. 661, 365 N.E.2d 792), or a fixed percentage of future payments from a pension or bonus plan presently being drawn (Savage v. Savage (1978) 1st Dist., 176 Ind.App. 89, 374 N.E.2d 536.
The rationale for such exclusion from the marital estate is that an award of this nature constitutes "alimony" or maintenance without a requisite determination of physical or mental incapacity. 2
Quite clearly, Husband here did not have a present vested right in any benefits of his pension plan. He had not yet retired or terminated his employment. The trial court, however, did not attempt to include any projected pension benefits in the award; nor did it even attempt to include a discounted present value of those future benefits. Rather, it included the amount of contributions Husband had made into the plan and the interest earned thereon. This amount is a marital asset subject to distribution. Stigall v. Stigall (1972) 1st Dist., 151 Ind.App. 26, 277 N.E.2d 802, 811; See H. Garfield, Survey-Domestic Relations, 14 Ind.L.Rev. 315, 347 (1981); In Re Marriage of McDonald (1981) 3d Dist.Ind.App., 415 N.E.2d 75 (); Cf. Metropolitan Life Ins. Co. v. Tallent (1983) Ind., 445 N.E.2d 990 (). Husband did have a vested right in this amount, in that his right to it was absolute, even though his enjoyment of these monies was to be postponed to a future time. Though Husband would have to terminate employment in order to receive the $5,900, this "cost" of liquidating the asset does not change the character of the asset as marital property any more than the financial cost of prematurely "cashing-in" or surrendering insurance policies or other investments. 3
The Husband contests the valuation placed upon certain properties awarded him. Wife argues that there was sufficient evidence to support the trial court's valuation. The burden of producing evidence as to the value of marital assets is upon the parties to the dissolution proceeding. In Re Marriage of Church (1981) 2d Dist.Ind.App., 424 N.E.2d 1078. The trial court has broad discretion in ascertaining the value of property in a dissolution action. Loeb v. Loeb (1973) 261 Ind. 193, 301 N.E.2d 349, 358. Its valuation will not be disturbed absent an abuse of that discretion. Whaley v. Whaley (1982) 4th Dist.Ind.App., 436 N.E.2d 816, 821. The trial court does not abuse that discretion if there is sufficient evidence and reasonable inferences therefrom, which supports the result.
Husband complains that the court's valuations were based largely upon the testimony of the...
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