Showalter v. Brubaker
| Decision Date | 27 April 1995 |
| Docket Number | No. 41A04-9309-CV-339,41A04-9309-CV-339 |
| Citation | 650 N.E.2d 693 |
| Parties | Susan Whitcomb SHOWALTER, Appellant-Petitioner, v. John W. BRUBAKER, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Petitioner-Appellant Susan Whitcomb Showalter (Susan) appeals the trial court's decree in the dissolution of her marriage to Respondent-Appellee John W. Brubaker (John).
We affirm in part and reverse in part.
The following issues are presented for our review:
1. Whether the trial court abused its discretion in its valuation of the family business.
2. Whether the trial court abused its discretion in denying Susan's post-decree motion for relief from judgment.
3. Whether the trial court abused its discretion in the distribution of the marital property.
4. Whether the trial court abused its discretion in denying maintenance to Susan.
5. Whether the trial court abused its discretion in finding Susan in contempt for violation of the visitation order.
Susan and John were married on May 28, 1972. Their only child, Laura, was born on July 30, 1984.
Susan filed a petition for dissolution of the marriage on April 25, 1989. The trial court entered an order on January 26, 1993. The order dissolved the marriage, divided the marital property, denied maintenance to Susan, and required Susan to pay attorney fees as a result of a finding of contempt.
Susan subsequently filed a "Motion to Correct Errors Or In The Alternative Relief From Judgment Or Order Pursuant To Trial Rule 59 And/Or Trial Rule 60." The trial court denied the motion.
Susan now appeals the trial court's decree and its subsequent denial of her post-decree motion.
Susan contends that the trial court erred in its valuation of the family business awarded to John. She argues that the valuation did not comport with the evidence submitted at the dissolution hearing.
The trial court has broad discretion in ascertaining the value of marital property and such valuation will not be disturbed absent an abuse of that discretion. Neffle v. Neffle (1985), Ind.App., 483 N.E.2d 767, 770, reh'g denied, trans. denied. No abuse of discretion in ascertaining the value of marital property will be found if the valuation is supported by sufficient evidence. Id.
In the present case, Susan and John worked together to establish Brubaker/Showalter Designs, a blacksmith business located in Nashville, Indiana. John was primarily involved in production; Susan was involved in marketing and management. The business produced a broad range of items, including decorative door hardware, fireplace tools, light fixtures and candleholders.
During the course of the operation of the business, it became increasingly successful, bringing in gross receipts of $222,662.00 in 1990. As of December 30, 1990, the business was appraised by Max Woodbury, who valued the business at $337,486.00.
In the spring of 1991, Susan and John determined that they were not able to work together, and Susan relinquished control of day-to-day management of the business. In 1991, the absence of Susan's leadership and a change in the market resulted in a substantial drop in gross revenue, down to $143,511.00. As of April 15, 1991, an incomplete appraisal, in the form of a financial statement valued the business at $252,335.82. As of December 31, 1991, the business was appraised by Larry Nunn at $104,285.00. 1
In determining the value of the business for purposes of dividing marital property, the trial court rejected Woodbury's appraisal because it did not reflect the 1991 decline in receipts, the change of market away from the style of items produced by Brubaker/Showalter Design, and the lack of continuity of management occasioned by Susan's absence from the business. The trial court further rejected Woodbury's determination that the company "goodwill," in the form of ten copyrights and the business's reputation and contacts, was worth $185,733.00. The trial court also rejected the appraisal of April 15, 1991, because it was incomplete and unreliable. The trial court determined that Nunn's appraisal was more accurate than the others. However, based on other evidence establishing that a vehicle and certain real estate were not assets of the business, the court subtracted their value from Nunn's appraisal to reach a value of $101,452.00.
The trial court did not abuse its discretion in determining that Nunn's appraisal was a more accurate valuation of the business than Woodbury's valuation. The record establishes that the effect of Susan's absence from the business was substantial. The hiring of another manager would not raise revenues because the market for John's designs had almost totally diminished. Furthermore, there was evidence in the record establishing that the copyrights were worth only about $10.00 apiece and that the business's reputation and contacts were useless in a market that no longer placed worth on the business's creations.
Susan further argues that the trial court erred in admitting Nunn's appraisal into evidence over her objection. She maintains that the fact that the valuation of production machinery was conducted by a third party who did not testify renders the Nunn valuation inadmissible hearsay.
The Nunn valuation of the business was based on general ledgers, a listing of accounts receivable, inventory, tax returns, and an appraisal of the equipment. The equipment appraisal was done by a third party who did not testify. Nunn's testimony was taken out of order, and his valuation was admitted on the premise that John would verify the appraisal of the equipment in later testimony. John did testify that his appraisal of the production equipment was the same, with one exception, as the third party's appraisal. John's testimony served to independently establish the value of the equipment. It provided verification of the accuracy of the appraisal contained in Nunn's valuation and provided a basis for admission of the valuation. Susan points to testimony in which John disagreed with the third party's appraisal of a phase converter as an indication that the appraisal was not verified. Susan places too much emphasis on John's testimony about the phase converter. His disagreement with the third party's appraisal of this recently damaged machine did not negate his agreement with the remainder of the appraisal. Any question arising from his disagreement goes to weight and credibility, and not to admissibility.
Susan contends that the trial court erred in not granting her post-decree "Motion To Correct Errors Or In The Alternative Relief From Judgment Or Order Pursuant To Trial Rule 59 And/Or Trial Rule 60." She argues that the evidence presented at the hearing on the motion surprised her. She further argues that the decree, as presently written, creates an unjustified unequal distribution of marital property.
Susan first contends that the trial court's decree is in error in valuing the Merrill Lynch CBA Account # 61323475 at $46,709.00. She argues that the account, which was awarded to her as marital property, should have been valued at $5,114.66, the balance as of April 20, 1989, listed in her Exhibit 22. In support of her argument, she points to her testimony at the post-decree hearing that any amount above the $5,114.66 balance represents non-marital funds "newly discovered" to have been deposited into the account after her dissolution petition was filed. She also claims that she was surprised by John's valuation of the account at $49,375.00 in his financial statement entered at trial. In the alternative, she argues that, at the most, the account should have been assigned the $34,516.04 value listed in her financial statement. This statement was entered into evidence to show the value of the account on January 31, 1992. 2
A review of the denial of a T.R. 60(B) motion is limited to a determination of whether the trial court abused its discretion. Freels v. Winston (1991), Ind.App., 579 N.E.2d 132, 135, reh'g denied, trans. denied. An abuse of discretion occurs when the trial court's denial is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id. A trial court must balance the alleged injustice suffered by the moving party against the interests of the party who prevailed and society's interest in the finality of judgment. Id.
In the present case, Susan failed to give the exact subsection under T.R. 60(B) which would allow relief from judgment. Exact categorization of the grounds for relief under T.R. 60(B) is not necessary, however, "except where the category is obvious or where exact choice is necessary to the decision." Greengard v. Indiana Lawrence Bank (1990), Ind.App., 556 N.E.2d 1373, 1375. Susan does argue for relief on the basis of newly discovered evidence (T.R. 60(B)(2), surprise (T.R. 60(B)(1)), or "any [other] reason justifying relief" (T.R. 60(B)(8)).
In considering whether the trial court abused its discretion in denying Susan's motion, we must consider the underlying facts. At the dissolution hearing, Susan placed into evidence three different exhibits listing three different balances for the CBA account. Her Exhibit 22 listed the balance at $5,114.66, her financial statement listed the balance at $34,516.04, and an exhibit attached to her child support worksheet listed the value at the $46,709 balance accepted by the trial court. John also placed into evidence the aforementioned financial statement listing a balance of $49,375.00. Further evidence also indicated that money was withdrawn from various accounts and deposited to other accounts. Susan did not attempt to make any systematic accounting for withdrawals or deposits. Accordingly, the trial...
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