Temple v. Temple
| Citation | 435 N.E.2d 259 |
| Decision Date | 13 May 1982 |
| Docket Number | No. 2-881A265,2-881A265 |
| Parties | Antoinette TEMPLE, Appellant (Respondent below), v. Byron TEMPLE, Appellee (Petitioner below). |
| Court | Indiana Appellate Court |
Stephen L. Lucas, Donovan & Lucas, Greenwood, for appellant.
Frank J. Pope, Indianapolis, for appellee.
Antoinette Temple appeals the trial court's division of the marital property in the parties' decree of dissolution. She claims the division is erroneous because it is not a just and reasonable division and because the dissolution proceeding was heard and determined by a judge pro tempore.
Husband claims the trial court erred in ordering him to pay attorney fees for Wife's appeal.
We affirm.
Wife claims the division of property is erroneous because it is not a just and reasonable distribution under I.C. 31-1-11.5-11 (Burns Code Ed., Repl. 1980). She states the division of property was "roughly equal" and therefore not facially unfair. Nevertheless, she argues it was unjust and unreasonable because a consideration of all the factors in I.C. 31-1-11.5-11 must result in a division weighted significantly in her favor.
Specifically, Wife contends the division of property does not reflect the disparity in the earning ability of the parties, the husband's disposition or dissipation of marital assets, the property she brought to the marriage, as well as gifts to her, and her contribution as a homemaker to the acquisition of marital assets.
The division of marital assets is a matter within the sound discretion of the trial court. Therefore, on appeal, we review only for an abuse of discretion, which is a division clearly against the logic and effect of the facts and circumstances before the court. Irwin v. Irwin, (1980) Ind.App., 406 N.E.2d 317.
Further, in presenting her argument, Wife must overcome the presumption the trial court considered the statutory factors. In re Marriage of Patus, (1978) Ind.App., 372 N.E.2d 493. This she has not done, nor indeed could she. Instead, it is evident the trial court did consider the factors because the distribution is in fact unequal and weighted in Wife's favor.
The primary assets of the marriage consisted of a residence, furniture, monies, and a life insurance policy. The liabilities were substantial. The trial court's division is as follows:
WIFE
Assets
Residence $ 60,000
Automobile 4,500
Certificate of Deposit 7,000
Furniture 5,000 1
--------
Gross Assets $76,500
Liabilities: 2
Obligations related to the
residence (Mortgage) $ 46,675
(SBA) 4,900
(Furnace) 700
(Husband's judgment) 6,000
Mastercharge 100 3
Ayres 40
Catholic Social Services 125
--------
Gross Liabilities $ 58,540
--------
Net Assets $17,960
HUSBAND
Assets: 4
Judgment $ 6,000
Furniture
Certificate of Deposit 3,500
Insurance 400
--------
Gross Assets $ 9,900
Liabilities: 5
Mastercharge 1,700
--------
Net Assets $ 8,200
Contrary to Wife's assertion that the distribution of marital assets was "roughly equal," our calculations reveal she received approximately 69% of the assets and Husband received about 31% of the assets.
The evidence is essentially undisputed Wife's earning capacity as reflected by her earnings is substantially less than Husband's; that she brought $3,500, a two-year-old automobile, and some furniture into the marriage; that she also received funds as wedding gifts which were used to purchase three end tables; that during the marriage she worked full-time or part-time as the family situation permitted, and at all times was the primary homemaker.
Furthermore, throughout the marriage, with the possible exception of its last two (2) years, the funds earned by the parties were treated as joint funds and used indiscriminately to pay the family expenses and obligations, including the obligations Husband brought to the marriage.
The evidence of dissipation consisted of Wife's testimony that during the last two years of the marriage Husband withheld substantial funds from a joint checking account which were used by Husband, in part, to purchase three and four new suits at a time, for a tennis club membership, and to pay court fees. Husband denied the withheld funds were used for any purpose other than personal and family maintenance. 6
There is evidence which would support the trial court's consideration of each factor of I.C. 31-1-11.5-11(b) in determining a just and reasonable division of the property, including I.C. 31-1-11.5-11(b)(1). Wife made a contribution to the acquisition of the property as a wage earner and homemaker. Thus, contrary to Patus, we find the statutory mandate to consider the contribution of each spouse to the acquisition of the marital property, including the contribution of a homemaker, is a recognition by the legislature that the homemaking endeavors of both spouses in a marriage have a marital value which contributes to the acquisition of marital property. There is no justification for limiting this factor exclusively to a non-wage earner, primary homemaking spouse. Rather, both functions, homemaking and wage earning, are considerations.
However, it is apparent the trial court did consider the entire statute and undoubtedly gave varying weight to the multiple factors. Wife received 69% of the assets, which can only reflect the trial court's consideration of the very factors she claims were not considered.
In summary, in our review of a division of property we pay deference to the trier of fact. The trial judge is vested with discretion in this Herculean task. We do not weigh the evidence or substitute our discretion for that of the trial judge. We find no error.
Wife asserts the trial court erred in permitting this action to be heard and determined by a judge pro tempore. However, her argument is...
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