Truman v. Truman

• Decision Date: 13 October 1994
• Docket Number: No. 48A04-9307-CV-260,48A04-9307-CV-260
• Citation: 642 N.E.2d 230
• Parties: In re the Marriage of Michael TRUMAN, Appellant (Respondent Below), v. Anita TRUMAN, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 230

642 N.E.2d 230

In re the Marriage of Michael TRUMAN, Appellant (Respondent Below), v. Anita TRUMAN, Appellee (Petitioner Below).

No. 48A04-9307-CV-260.

Court of Appeals of Indiana Fourth District.

Oct. 13, 1994.

David W. Stone, IV, Stone Law Office & Legal Research, Anderson, for appellant.

Arden W. Zobrosky, Marion, for appellee.

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Michael Truman appeals the trial court's judgment of property division, child support and attorney fees. We affirm in part, reverse in part, and remand.

ISSUES

1. Did the trial court abuse its discretion by awarding Anita a property settlement of $6,600.00 when she had requested $2,600.00 and the total value of the marital estate was approximately $100,000.00?

2. Was the trial court's child support order clearly erroneous because the trial court a) offset Michael's support obligation to his two children from a previous marriage by the social security death benefits which these children receive as a result of their mother's death; b) failed to deduct one-half of Michael's FICA tax payment from income earned in his sole proprietorship in determining his gross income from the sole proprietorship; and c) did not require Anita to spend a sum equal to 6% of the child support that she receives before Michael is required to contribute towards payment of the uninsured medical expenses?

3. Did the trial court abuse its discretion in ordering Michael to pay $1,000.00 of Anita's attorney fees when she did not request them at the final hearing?

FACTS

Michael and Anita Truman were married in June 1990. They separated in May 1991, their son was born in August 1991, and their marriage was dissolved in June 1992. Michael has two children, ages six and nine, from a previous marriage. His first wife is deceased.

Michael is a high school teacher, as well as a cross country coach and a class sponsor. In 1992, his salary as a school teacher plus extra compensation for coaching and sponsoring a class was $27,793.00. Michael also owns Truman Distributing, a sole proprietorship which, in 1992, had a gross income of $61,000, a depreciation allowance of $2,918.00, and a profit of $14,908.00. The trial court added back a portion of the depreciation, and found that Michael had an annual gross income of $16,000 from the sole proprietorship. His former father-in-law started the business and gave it to Michael in the mid-1970's. The trial court found that Michael had a gross weekly income of $842.00. Michael's two children from the previous marriage receive social security survivors' benefits of $1,066.00 per month.

During the marriage, Anita worked 10 hours per week at the distribution business. Her duties included writing checks for accounts payable and contacting displayers and distributors. She was paid $1,500.00 per month and the money was placed in the parties' joint account. Anita also performed homemaker tasks and cared for Michael's two children from his previous marriage while Michael worked. Anita is currently a receptionist for an insurance agency. She earns $6.50 per hour and works 40 hours per week--for a gross income of $260.00 per week.

The trial court's final decree and judgment, which was entered on April 12, 1993, included the following pertinent findings:

3. The petitioner-wife is a receptionist for an insurance agency with a gross income of $260.00 per week. The respondent-husband is a teacher whose current employment contract provides for an annual payment of $27,800.00. In addition, the respondent has a Home Interiors delivery business. His 1992 Schedule C shows net income of $14,908.00, plus a depreciation allowance of $2,000.00. Pursuant to the discretion available under the current Support Guidelines, only a portion of that depreciation will be added back, and the respondent's annual income from the delivery business for child support purposes is found to be $16,000.00. Based on the foregoing, the respondent is found to have weekly adjusted gross income of $842.00.

4. As previously noted, the respondent is the sole support of two minor children from his first marriage. However, as observed by the Court in its Memo of March 16, 1992, our State Support Guidelines suggest an average weekly need of $263.00 for the care and maintenance of those children. That sum represents a monthly need of $1,131.00. Fortunately, the respondent receives a monthly Social Security check of $1,106.00 to assist with the care and maintenance of the children. The Court has determined that the difference of $25.00 per month should be subtracted from the income Mr. Truman has available for other obligations, including Brandon's support.

5. Based upon the above data, the Court has calculated Brandon's basic support need, together with employment-related child care expenses, and from that sum has made an adjustment for regular visitation. Accordingly, the Court now finds that the respondent, Michael Truman, should pay the petitioner the sum of $150.00 per week for child support, effective April 2, 1993, and each week thereafter. Said sum shall be paid by Wage Assignment.

7. At the time of separation, the net marital estate was worth approximately $100,000.00 (It is impossible to be precise since evidence was not offered on the value of the business and much of the personal property.)

8. Although Indiana Law has a presumption favoring an equal division of the marital estate, such division is not reasonable given the duration of the marriage and the facts of acquisition.

9. Because almost all of the assets brought into the marriage, including the real estate and the business venture, had been Mr. Truman's for some time, equity would suggest to Mrs. Truman only her fair share of appreciation during the marriage and of assets accumulated during the marriage. In addition, Mr. Truman should be required to reimburse the petitioner for the value of personal property that he maliciously and intentionally destroyed.

10. Based on all the evidence, the Court concludes that the petitioner should be awarded the sum of 4,000.00 as her share of appreciation and of assets accumulated during the marriage and for contribution to the family business. In addition, to said sum, the petitioner should be awarded $2,600.00 for the value of her ring, lingerie, and other personal effects which the respondent destroyed or gave away. Accordingly, the Court finds that a JUDGEMENT [sic] for $6,600.00 should be entered against the respondent and in favor of the petitioner, that said debt should be paid in full, without interest, within (6) month's [sic] of today's date, and that the same should be a lien upon the marital residence until paid.

The court's order states in pertinent part as follows:

3. Respondent shall pay to the Clerk of Madison Superior Court, Madison County, Indiana, as trustee for remittance to Petitioner the sum of $150.00 per week, effective April 2, 1993, and each week thereafter. Said sum shall be paid by wage assignment.

4. The respondent-husband shall maintain health and hospitalization insurance for Brandon and shall provide an insurance card or properly coded claim forms for use by the petitioner. The petitioner shall pay the first $350.00 of uninsured medical expense for Brandon each calendar year. Thereafter, the respondent, Michael Truman, shall pay seventy-five per cent (75%) of all uninsured medical, dental, orthodontic and prescription expenses for the child arising during the calendar year.

5. In settlement of the property rights of the parties pursuant to I.C. 31-1-11.5-11, as set forth in the above findings, the Court does now divide the property of the parties as follows:

(a) The respondent-husband shall be awarded all right, title and interest in the marital residence located at R.R. 2, Box 139-A, Alexandria, Madison County, Indiana, subject to the debts and obligations thereon, and subject further to a lien in favor of the petitioner as set out below. The husband is also awarded all right, title and interest in the Home Interiors delivery business.

The respondent is awarded all right, title and interest in his teacher's retirement program, and he is awarded the 1990 Honda Accord, subject to the debt thereon which he shall assume and pay.

(b) Petitioner is awarded the sum of $4,000.00 as her share of appreciation and of assets accumulated during the marriage and for her contribution to the family business. In addition to said sum, the petitioner should be awarded $2,600.00 for the value of her ring, lingerie, and other personal effects which the respondent destroyed or gave away. The Court orders Judgement [sic] for $6,600.00 should be entered against the respondent and in favor of the petitioner, that said debt should be paid in full, without interest, within six (6) months of today's date, and that the same should be a lien upon the marital residence until paid.

(c) With respect to all other personal property, each party is awarded the property now in his or her possession, which had not otherwise been noted in this Order.

6. The Court orders that the respondent should pay the petitioner's attorney the additional sum of $1,000.00 within sixty (60) days of today's date, to be applied to his fees in this cause. (A preliminary order of $600.00 was issued July 12, 1991.)

Michael now appeals the trial court's order arguing that the trial court erred in dividing the marital property, determining child support, and awarding attorney fees.

DECISION

I. Property Division

A trial court's decision regarding the division of marital property is reviewable for an abuse of discretion. Finch v. Finch (1992), Ind.App., 592 N.E.2d 1260, 1261, reh'g denied. We consider only that evidence most favorable to the trial court's disposition of the property. Benda v. Benda (1990), Ind.App., 553 N.E.2d 159, 163, trans. denied. The trial court's disposition of marital property must be looked at as a whole, not item by item. Hoyle v. Hoyle (1985), Ind.App., ...