Schueneman v. Schueneman

• Decision Date: 14 May 1992
• Docket Number: No. 20A04-9102-CV-42,20A04-9102-CV-42
• Citation: 591 N.E.2d 603
• Court: Indiana Appellate Court
• Parties: Richard A. SCHUENEMAN, Appellant (Respondent Below), v. Carol A. SCHUENEMAN, Appellee (Petitioner Below).

Page 603

591 N.E.2d 603

Richard A. SCHUENEMAN, Appellant (Respondent Below), v. Carol A. SCHUENEMAN, Appellee (Petitioner Below).

No. 20A04-9102-CV-42.

Court of Appeals of Indiana Fourth District.

May 14, 1992.

Richard L. Mehl, Mehl, Mehl & Beeson, Goshen, for appellant.

William J. Cohen, Rebecca F. Butler, Elkhart, for appellee.

MILLER, Judge.

Richard Schueneman appeals the trial court's disposition of marital property between him and his former wife of twenty-four years, Carol Schueneman. Richard argues the trial court abused its discretion in the way in which it divided the marital property and in the value it assigned to certain assets. We affirm the court's decision in part and reverse and remand for the following reasons: 1) the trial court erred in failing to dispose of all of the marital property; and 2) the court erred in failing to enter reasons why awarding Carol the entire interest in her pension plan was just and reasonable.

FACTS

Richard and Carol Schueneman divorced after twenty-four years of marriage. Five children were born to the couple: Mary, now age 26; Richard, 25; Therese, 23; Joann, 21; Janice, 19. Carol filed for divorce on September 23, 1988. On October 17, 1988, Richard and Carol entered into an agreement which was adopted by the trial court as a provisional order, and which provided, among other things, that Richard was to pay

"all truck expenses, his long distance phone charges, his medical and dental expenses, Visa and Mastercard bills, his car payment, all expenses of court-ordered counselling, income proportionate share of children's medical, dental, orthodontia, prescription expenses and insurance premiums on insurance in his name."

Appellant's Brief, 42-3. On August 31, 1989, the court dissolved the marriage. After a hearing, the court entered a final dissolution of marriage decree and an order distributing the parties' assets on October 3, 1990.

The trial court determined the parties' marital property, including a mobile home, cars, various small bank accounts, and personal property, was worth $31,752, and liabilities were $31,413. In addition, the parties held a substantial escrow account which was funded with the proceeds from a lawsuit (Day lawsuit). While the divorce was pending, both parties were each advanced $10,000 from the account. After mutual obligations were paid from the account and after the court set aside $15,000 for the children's education, about $27,000 was left in the account. The court divided these assets evenly. However, Carol, then 52, was awarded her vested interest in a pension plan at the Elkhart General Hospital and Richard was awarded all interest in RA Schueneman, Inc. Finally, both parties were ordered to pay for half of the medical and insurance expenses for their children while the children are in college.

DISCUSSION

Our standard of review is well settled. We may not reweigh the evidence or assess the credibility of witnesses. In re Marriage of Davidson (1989), Ind.App., 540 N.E.2d 641. We consider only the evidence most favorable to the trial court's disposition of the property. Id. The division of property is left to the discretion of the trial court and this determination will not be reversed on appeal unless the trial court abused its discretion. Clark v. Clark (1991), Ind.App., 578 N.E.2d 747. A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstance before it. Id.; Dahnke v. Dahnke (1989), Ind.App., 535 N.E.2d 172.

I. Assets and Liabilities

Richard argues the trial court abused its discretion 1) by not allowing him credits for liabilities he paid and 2) in the way in which it valued certain assets. First, he argues that a debt to First State Bank of Middlebury which the court ordered him to pay was $3,309.54 instead of the $2,287.00 the court found it to be. Therefore, Richard argues, he should be credited an additional $1,022.54. Richard testified he got a loan from First State Bank for $3,309.54; however, there is evidence--a letter from the bank--that the balance on the loan is $2,217.93. (R. 161). The trial court did not err in finding the debt to be $2,217.93.

Richard further contends he should be given credit for paying the following debts: 1) Dr. Thomas--$437.60; 2) GTE--$292.53; 3) Mastercard and Visa Accounts--$666.35 each; and 4) Sam's Tire--$300.00 ($2,363.13 total). Carol argues Richard agreed to pay these expenses by the court's provisional order dated October 17, 1988; therefore, the trial court did not err by not giving Richard credit for these payments.

We agree with Carol. According to the court's provisional order, Richard agreed to pay his long distance phone bills, doctor bills, truck expenses and the Mastercard and Visa bills. Further, Carol presented evidence that Dr. Thomas's bill and the Visa and Mastercard bills were Richard's obligations. Carol's exhibit 1--which was placed in evidence without objection--lists the parties' assets and liabilities and compares the values assigned to them by Carol to the values assigned by Richard. The exhibit also contains a column for "up to date information". Next to Dr. Thomas's name the notation "Hus. paid $410.00 his bill" appears. The notation "Hus. Obliga." appears next to the listings for both the Mastercard and Visa bills. Further, Richard testified he and Carol had agreed he would pay the telephone bill, and Carol would pay the rest of the utilities. Finally, it is undisputed that the bill from Sam's Tire was a corporate liability; therefore, the court could have determined it was a truck expense, which Richard agreed to pay. This evidence was before the court and considered by it in making its final disposition of the parties' property. We must decline Richard's invitation to reweigh the evidence.

Richard also argues the trial court abused its discretion in the value it assigned certain assets. Although the parties stipulated to the value of many of their assets, the evidence of the value of the remaining assets was conflicting. In each case, however, the value assigned by the trial court was supported by the evidence. ¹ Therefore, we find no abuse of discretion.

Finally, Richard argues the trial court erred by not providing for the disposition of a camera, photographs which Carol had agreed to give to Richard, three antique crocks Richard's mother had given him, and his brother's engine stand.

It is the trial court's duty to divide all the property of the parties. Ind.Code 31-1-11.5-11; Nill v. Nill (1992), Ind.App., 584 N.E.2d 602; Riddle v. Riddle (1991), Ind.App., 566 N.E.2d 78. Contrary to Richard's argument, the trial court's order did state Richard was to receive "fishing and camera equipment"; therefore, the camera was included in the final order. Carol agreed she would give Richard one-half of the photographs of their children. If Carol has not given Richard the photos, as Richard asserts in his brief, on remand, he should request the court to enter an order requiring Carol to do so. Further, it is undisputed that Carol had the three crocks Richard requested the court award to him. On remand, the court should order disposition of these crocks. Finally, the engine stand belonged to Richard's brother, not to Richard or Carol. The trial court's duty is to dispose of the marital property. The engine stand was not marital property and the court did not err in not mentioning it in the final order.

II--Carol's Pension Plan

Richard argues the court erred by awarding Carol the entire interest in her pension plan with Elkhart General Hospital, where she had worked about twenty-nine years, in which she was 100% vested, without a corresponding credit to him or without entering a qualified domestic relations order (QDRO) to balance the property distribution. Carol does not dispute that she was 100% vested in the plan as of September 23, 1988 (the day on which she filed the petition); rather, she argues that the pension plan is not a marital asset because she does not have a present right to receive any money from it. She cites In re Marriage of Delgado (1982), Ind.App., 429 N.E.2d 1124, in support of this argument.

Carol's reliance on Delgado is misplaced. There, this court was faced with the question of whether the trial court erred in determining that Husband's interest in a pension plan was vested. There, we followed the rule stated by this court in Wilson v. Wilson (1980), Ind.App., 409 N.E.2d 1169, 1178:

"[W]here the pension is not present or vested in that the retiree must survive in order to receive the next periodic payment and is not entitled to receive payment on demand, the pension is not marital property which can be divided or awarded to the other spouse under IC 31-1-11.5-11".

In 1985--after both Wilson and Delgado were decided--the legislature amended Ind.Code 31-1-11.5-2 to include the following definition of property:

"(d) The term 'property' means all the assets of either

party or both parties, including:

(1) a present right to withdraw pension or retirement benefits;

(2) the rights to receive pension or retirement benefits that are not forfeited upon termination of employment, or that are vested, as that term is defined in Section 411 of the Internal Revenue Code, but that are payable after the dissolution of marriage; and

(3) the right to receive disposable retired or retainer pay, as defined in 10 U.S.C. 1408(a) acquired during the marriage, that is or may be payable after the dissolution of marriage." (emphasis supplied).

After this amendment, our courts have held that vested retirement pensions which are not forfeited upon termination and are contingent upon the retiree's survival are part of the marital pot. Kirkman v. Kirkman (1990), Ind., 555 N.E.2d 1293; In re Marriage of Adams (1989), Ind., 535 N.E.2d 124; Staller v. Staller (1991), Ind.App., 570 N.E.2d 1328; Skirvin v. Skirvin (1990), Ind.App., 560 N.E.2d 1263. Thus, contrary to Carol's argument, her...