Rose v. Rose

• Citation: 526 N.E.2d 231
• Decision Date: 28 July 1988
• Docket Number: No. 53A01-8712-CV-00302,53A01-8712-CV-00302
• Parties: Cheryl L. ROSE, Petitioner-Appellant, v. David ROSE, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 231

526 N.E.2d 231

Cheryl L. ROSE, Petitioner-Appellant, v. David ROSE, Respondent-Appellee.

No. 53A01-8712-CV-00302.

Court of Appeals of Indiana First District.

July 28, 1988.

Thomas A. Berry, Berry, Benson, Brown, Mills & Shapiro, Bloomington, for petitioner-appellant.

Edward F. McCrea, McCrea & McCrea, Bloomington, for respondent-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Cheryl L. Rose appeals the dissolution of marriage entered August 24, 1987, in which she was awarded all property held in her name and all jointly held assets, consisting of the contents of the marital residence. Her husband, David Rose, was awarded all property held solely in his name. The division of property was based on an antenuptial agreement entered into by the parties prior to marriage. We affirm.

FACTS

David and Cheryl Rose were married on Sunday, March 9, 1980. Prior to their marriage, they had lived together for approximately one year. Both parties had been married and divorced previously. On Friday When David and Cheryl were married in 1980, David Rose owned a drywall business with his partner, John Walker. Cheryl had visited this business on occasion. David also owned the real estate upon which the marital residence was built and he owned a farm in partnership with his brother. In addition, David owned a Corvette and a trailer. Cheryl Rose owned an automobile and miscellaneous furniture. She is a licensed beautician although she had never used this training for gainful employment.

March 7, 1980, David Rose presented an antenuptial agreement to Cheryl. He told Cheryl that if she did not sign the document, he would not marry her. David testified that he had discussed the necessity of an antenuptial agreement with Cheryl several times throughout the months prior to their marriage. Cheryl testified that she had no recollection of having discussed an antenuptial agreement until the document was presented to her. Before Cheryl signed the document David told her that she was giving up "a lot". Cheryl told David that she was marrying for love, not money, and she signed the document. She did not seek legal advice prior to signing the antenuptial agreement. Cheryl later testified that she signed a one page document on March 8, 1980. The antenuptial agreement presented by David to the court was a four page document signed March 7, 1980.

At the time of the dissolution, David retained the above named property and also had acquired an interest in Rose and Walker, Inc., Rose and Walker Supply, Inc., Country Club Auto Sales, ERW Corporation, and other assets. At this time Cheryl owned a 1974 Honda automobile which she had given to her daughter. She also had a checking account in her name.

On December 30, 1986, Cheryl Rose filed a petition for dissolution of marriage. On January 29, 1987, a preliminary hearing was held at which time David Rose's attorney introduced into evidence a document titled "Prenuptial Agreement". A hearing was held on April 13, 1987, in order to determine the legal efficacy of the document. Cheryl Rose testified that she had signed a one page antenuptial agreement, but stated that she had never seen the four page document prior to its presentation into evidence. A handwriting expert testified that the signature on the four page document was not that of Cheryl Rose. David Rose maintained that Cheryl did sign the four page antenuptial agreement. On April 22, 1987, the trial court issued its finding that the four page antenuptial agreement was valid and legally enforceable.

On May 15, 1987, Cheryl Rose filed a notice of voluntary dismissal. On May 18, 1987, David Rose filed a motion to strike notice of dismissal and filed a cross petition for dissolution of marriage. The hearing on these motions was held on June 29, 1987, at which time both parties indicated that no reconciliation or movement in that direction had taken place. On July 7, 1987, the trial court granted David Rose's motion to strike notice of dismissal. Cheryl filed a motion to reconsider based on newly discovered evidence on July 29, 1987. She had obtained evidence which she claimed supported her testimony that she had not signed the four page antenuptial agreement. Cheryl tendered an affidavit by Beverly J. Hays, an employee at David's drywall business, which stated that another employee at the business had told Beverly Hays that she had typed a one page antenuptial agreement for David Rose. Cheryl Rose offered no reason as to why this evidence was not presented at an earlier date. On July 30, 1987, the motion was denied.

The trial court issued its final entry of dissolution of marriage on August 3, 1987. According to the terms of the antenuptial agreement, David Rose was awarded all property held in his name. Cheryl Rose was awarded all property held in her name and all jointly held property consisting of the marital household furnishings. Cheryl Rose filed a motion to correct errors on October 20, 1987, which was denied on November 16, 1986.

ISSUES

1. Was the trial court correct in striking Cheryl's notice of voluntary dismissal?

2. Did the trial court properly enforce the Antenuptial Agreement entered into by the parties?

3. Was the trial court correct in determining that the Antenuptial Agreement was unambiguous and in distributing assets according to its terms?

4. Was the trial court correct in denying Cheryl Rose's motion to reconsider based on newly discovered evidence?

DISCUSSION AND DECISION

A reviewing court must determine whether evidence presented below can serve as a rational basis for the trial court's decision. However, the reviewing court will neither reweigh the evidence nor reassess the credibility of witnesses in making this determination. Eyler v. Eyler (1986), Ind., 492 N.E.2d 1071, 1075; Taylor v. Taylor (1982), Ind., 436 N.E.2d 56, 58. In applying this strict standard of review, the court of appeals will consider only the evidence most favorable to the trial court's disposition and reasonable inferences which can be drawn therefrom. To obtain reversal, it must be shown that the trial court abused its discretion in arriving at its decision. Schnarr v. Schnarr (1986), Ind. App., 491 N.E.2d 561, 563.

Issue One

Cheryl Rose first contends that the trial court abused its discretion in striking her motion for voluntary dismissal. Indiana Rules of Procedure, Trial Rule 41(A) states in pertinent part:

"(1) By Plaintiff--By Stipulation. Subject to contrary provisions of these rules or of any statute, an action may be dismissed by the plaintiff without order of court:

(a) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs."

T.R. 41(A) also is modified by T.R. 41(C) which provides:

"Dismissal of Counterclaim, Cross-Claim, or Third-party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to subsection (1) of subdivision (A) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing."

Generally, dismissals should be allowed unless the defendant will suffer some legal prejudice other than the mere prospect of a second lawsuit. Levin and Sons, Inc. v. Mathys (1980), Ind.App., 409 N.E.2d 1195, 1198. The purpose of the rule pertaining to the voluntary dismissal of an action was to eliminate evils resulting from the absolute right of a plaintiff to take a voluntary nonsuit at any stage in the proceedings before the pronouncement of judgment and after the defendant had incurred substantial expense or acquired substantial rights. See Harvey Aluminum, Inc. v. American Cyanamid Co. (2nd Cir.1953), 203 F.2d 105, 107, cert. denied 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383; Stevenson v. United States (D.Tenn.1961), 197 F.Supp. 355, 357; Toulmin v. Industrial Metal Protectives, Inc. (D.Del.1955), 135 F.Supp. 925, 927. ¹

Clearly, allowing a voluntary dismissal in the present case would frustrate the purpose cited above. Two (2) preliminary hearings were conducted prior to Cheryl's filing her notice of voluntary dismissal. The initial preliminary hearing held January 29, 1987, resulted in 81 pages of testimony and a court order requiring David to pay $2,750.00 to Cheryl for support and suit money. On April 13, 1987, a second hearing was held to determine the legal efficacy of the antenuptial agreement. The decision on the validity of this agreement had a determinative effect on the dissolution proceeding since both parties agreed that no reconciliation nor movement in that direction had occurred. Written briefs were prepared for this hearing by both parties, and the testimony of six (6) witnesses resulted in an 88 page transcript. Subsequently, the agreement was found to be valid and enforceable. Only after this adverse finding did Cheryl file a notice of voluntary dismissal. At this advanced stage in the proceeding both parties had invested considerable time and expense on this litigation.

Where a hearing has been conducted on an issue which goes to the merits of the controversy, voluntary dismissal is inappropriate. Harvey, 203 F.2d at 107. In Harvey, a hearing on the plaintiff's motion for a preliminary injunction prohibiting the sale of assets pending determination of the plaintiff's suit for specific performance squarely raised the merits of the controversies. This hearing required several days of testimony and produced a 420 page record. Id. The court held that under these circumstances, allowing a voluntary dismissal, though attempted prior to any answer or motion for summary judgment was filed, would not be in accord with the essential purpose of rule 41(a). Id. at 108. Therefore, despite the fact that no responsive pleading was filed in the present case, ² the trial court was free to determine that the...