Savage v. Savage, 1-777A148

Decision Date05 April 1978
Docket NumberNo. 1-777A148,1-777A148
Citation374 N.E.2d 536,176 Ind.App. 89
PartiesJames SAVAGE, Appellant (Petitioner below), v. Jean SAVAGE, Appellee (Respondent below).
CourtIndiana Appellate Court

Kimmell, Funk & Cummings, Vincennes, for appellant.

Ramsey & Black, Vincennes, for appellee.

LYBROOK, Presiding Judge.

Petitioner-appellant James Savage (James) brings this appeal from the denial of his motion to correct errors filed in proceedings for dissolution of his marriage with respondent-appellee, Jean Savage (Jean). The sole issue raised on appeal is whether the trial court erred by awarding Jean a portion of James' monthly pension payments as part of the property settlement.

In November, 1976, James' Petition for Dissolution of Marriage was granted. The trial court apportioned to James as his part of the property settlement a car, his personal belongings and his personal checking and savings accounts. He was further ordered to assume and pay all the debts of the marriage. Jean was granted her personal belongings, her own checking and savings accounts, and her profit sharing account with her employer. James was also ordered to pay support in the sum of $150 per month for each month that their son Jeffrey was a full-time student until he graduated or until June, 1978, whichever first occurred. Although Jean introduced evidence to show that she was in poor health and was incapacitated to such an extent as to materially affect her ability to support herself, the trial court made no finding that she was, in fact, so incapacitated and made no provision for her support as allowed under IC 1971, 31-1-11.5-9(c).

The evidence adduced at the final hearing showed that James had taken early retirement and was receiving a payment from a pension plan of $350 per month. Further, he was receiving an additional $600 per month as a bonus for taking early retirement. This latter bonus was to be paid only until some time in 1978. As a part of the property settlement, the trial court ordered that Jean was to receive the sum of $350 per month from the pension and bonus until the bonus payments expired, and one-third of the pension payments thereafter.

James argues that the trial court should not have ordered him to make monthly payments to Jean out of his monthly pension checks because such an order constitutes an award of maintenance and support despite the fact that no finding was made that Jean was incapacitated. He further argues that if the pension is divided as a marital asset, the pension must be computed at its present value with the award being in a lump sum based on that figure.

A problem arises in this case as a result of the repeal of our old divorce laws in 1973 and the enactment of the present Dissolution of Marriage Act. Because alimony is no longer a part of our divorce law, cases under old law which divided marital property by use of an alimony judgment often will not be applicable to property settlements under the new Dissolution Act. This is particularly true in light of the fact that some cases have held that alimony includes both property settlement and maintenance or support, Stanford v. Stanford (1976), Ind.App., 352 N.E.2d 93, while other cases have held that alimony embraces only a property settlement. Eppley v. Eppley (1976), Ind.App., 341 N.E.2d 212.

The present statute governing disposition of the marital assets, IC 1971, 31-1-11.5-11, states that:

"(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 other 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 (1) of the spouses and requiring either to pay such sum 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."

Following the above quotation, the statute lists five factors which the trial court must consider when dividing marital property. However, no guidance is given as to precisely what constitutes "property" within the meaning of the statute. This court was faced with just such a problem in the recent case of Wilcox v. Wilcox (1977), Ind.App., 365 N.E.2d 792. In Wilcox, the wife argued that in dividing the marital assets, the trial court should have included, as one of the marital assets subject to division, the future income of the husband discounted to present value. She argued that her husband's future income as a college professor was attributable to the marriage and was therefore divisible as a marital asset. Her argument was answered by this court as follows:

"When determining what is to be divided, there is nothing in the statute which lends itself to the interpretation that future income is 'property' and therefore divisible. It appears that a vested present interest must exist for the item to come within the ambit of 'marital assets'. We cannot say that Gerald has a vested present interest in his future earnings and the legislature cannot be said to have considered it as such.

The legislature was apparently aware of this possible problem and enacted IC 1971, 31-1-11.5-9(c) (Burns Supp.1976) which reads in pertinent part:

'(c) The court may make no provision for maintenance except that when the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of such incapacitated spouse to support himself or herself is materially affected, the court may make provision for the maintenance of said spouse during any such incapacity, subject to further order of the court.'

To allow the discounting of a future stream of income to be called 'property' runs contra to the statutory provisions...

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36 cases
  • Marriage of Grubb, In re, 86SC93
    • United States
    • Colorado Supreme Court
    • November 9, 1987
    ...be received. Other jurisdictions have recognized the merits of this approach and employ similar methodologies. See Savage v. Savage, 176 Ind.App. 89, 374 N.E.2d 536 (1978); Grant v. Grant, 9 Kan.App.2d 671, 685 P.2d 327 (1984); Marriage of Faulkner, 582 S.W.2d 292 In this case, the policies......
  • Lentz v. Lentz
    • United States
    • New York Supreme Court
    • December 20, 1982
    ...asset); In re Miller, 609 P.2d 1185 (Mont.Supr., 1980); Copeland v. Copeland, 91 N.M. 409, 575 P.2d 99 (1978); Savage v. Savage, 374 N.E.2d 536 (Ct.App.Ind., 1st Dist., 1978); Wilcox v. Wilcox, 173 Ind.App. 661, 365 N.E.2d 792 (1st Dist., 1977), and those states which hold that a non-vested......
  • Ohm v. Ohm
    • United States
    • Court of Special Appeals of Maryland
    • July 15, 1981
    ...Wisconsin statute, vested and nonvested pension benefits are to be considered in dividing property). But see, Savage v. Savage, 374 N.E.2d 536, 538-40 (Ind.App.1978); Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788, 793 (1980); Baker v. Baker, 546 P.2d 1325, 1326 (Okl.1975). See generally, L......
  • Marriage of Evans, In re
    • United States
    • United States Appellate Court of Illinois
    • June 20, 1980
    ...Pieper and Donley results were reached because of the non-vested contingent nature of pension benefits in the cases of Savage v. Savage (Ind.App., 1978), 374 N.E.2d 536; Wilcox v. Wilcox (Ind.App., 1977), 365 N.E.2d 792; and White v. White (1975), 136 N.J.Super. 552, 374 A.2d 360. In the in......
  • Request a trial to view additional results
1 books & journal articles
  • § 7.10 Pensions
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 7 Property Acquired or Improved with Both Separate and Marital Property
    • Invalid date
    ...486 A.2d 928 (N.J. App. 1985). [380] See, e.g.: Arkansas: Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). Indiana: Savage v. Savage, 374 N.E.2d 536 (Ind. 1978); Sable v. Sable, 506 N.E.2d 495 (Ind. App. 1987); Ind. Code § 31-1-11.5-2. Kentucky: Foster v. Foster, 589 S.W.2d 223 (Ky. App. 19......

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