Vadas v. Vadas, 45A04-9901-CV-18.
| Citation | 728 N.E.2d 250 |
| Decision Date | 19 May 2000 |
| Docket Number | No. 45A04-9901-CV-18.,45A04-9901-CV-18. |
| Parties | James Phillip VADAS and John Vadas, Appellants-Respondents, v. Rita VADAS, Appellee-Petitioner. |
| Court | Court of Appeals of Indiana |
P. Jeffrey Schlesinger, Crown Point, Indiana, Attorney for Appellants.
Lynn Hammond, Merrillville, Indiana, Attorney for Appellee.
Appellant-Respondent James Vadas ("James") challenges the trial court's Decree of Dissolution in this consolidated appeal. We affirm.
James raises three issues on appeal which we consolidate and restate as:
I. Whether the trial court lacked personal jurisdiction over John Vadas ("Father"), James's father, and therefore erred by joining Father as a party to the dissolution proceeding; and,
II. Whether the trial court abused its discretion in dividing the marital estate where it: (A) included certain real property titled solely to Father in the marital estate and (B) determined that a near equal division of personal property had been effectuated between the parties and awarded each party the personal property in his or her possession.
The facts most favorable to the judgment indicate that James and Rita Vadas ("Rita") were married on April 13, 1995. Both parties had been married previously. Before her marriage to James, Rita owned a home located in Dyer, Indiana. The parties lived in this home for a few months at the beginning of their marriage. The couple then moved into the marital home located at 11924 Cline Avenue in Crown Point, Indiana. In February of 1996, Rita sold her home in Dyer, Indiana, realizing net proceeds of twenty-five thousand one hundred fifty-eight dollars and fifty-five cents ($25,158.55). Rita deposited the proceeds from the sale of her house into the couple's joint checking account. James had not contributed any money to said account. James and Rita subsequently used a majority of the money in their joint account to remodel the marital home on Cline Avenue. The Cline Avenue residence was originally owned by James prior to his marriage to Rita. In 1993, two years before his marriage to Rita, James sold his home to Father in order to pay an outstanding money judgment James owed to his first wife as a result of their divorce. James thereafter continued to live at the Cline Avenue residence despite the fact it was titled to Father. Father admitted at trial that he had always intended for James to regain title to the Cline Avenue residence and that he had agreed to "re-sell" the house to James once he "got on his feet." (R. 144.) Moreover, James, Rita and Father all testified that the agreement between them was that James and Rita would buy back the Cline Avenue home from Father and that it would be jointly titled to James and Rita.
The trial court made the following pertinent findings and conclusions in its Decree of Dissolution regarding the parties' marital residence and personal property:
9. That [Rita] owned real estate located at 2637 South Lakewood Drive, Dyer, Indiana at the time the parties married in April, 1995.
10. That the parties resided in [Rita's] home while they began extensive remodeling work to [James's] real estate located at 11924 Cline Avenue, Crown Point, Indiana.
....
13. That [Rita] sold her real estate located in Dyer, Indiana on February 7, 1996 and realized net proceeds of Twenty-Five Thousand One Hundred Fifty-Eight and 55/100 Dollars ($25,158.55) from the sale.
14. That [Rita] deposited all of her net proceeds into the parties' joint checking account . . . on February 7, 1996.
15. That checks totaling Thirty-Two Thousand Forty-Four and 77/100 Dollars ($32,044.77) were written on the parties' joint checking account during the marriage for supplies, appliances, and materials for the real estate located in Crown Point, Indiana.
16. That [James] acknowledges ownership of the marital real estate located in Crown Point, Indiana as shared with John E. Vadas, his father.
....
19. That a second mortgage was taken out on the [Cline Avenue] property on September 28, 1997 with Household Finance Corporation. The second mortgage was executed by [James] and his father after this action for dissolution of marriage was filed and while a Restraining Order was in place prohibiting either party from encumbering any asset of the marriage. That the second mortgage lien is Eighteen Thousand Dollars ($18,000.00) and said second mortgage note is signed by [James] and his father. . . as co-borrowers.
....
24. That [Rita] and [James] at all times during the marriage paid all expenses for the marital estate including, but not limited to, the first mortgage, taxes, and insurance.
25. That due to the parties paying for the first mortgage and [Father's] release of claim to any interest in the marital real estate, [James] has taken the interest deduction for tax purposes on the first mortgage. That in 1994, [James] took Nine Thousand Two Hundred Four Dollars ($9,204.00) as the mortgage interest deduction on his federal tax return.
26. That the parties, due to their exclusive payment of the first mortgage, took the interest deduction on the first mortgage when they filed their only joint federal and state tax returns in 1995.
27. That [James] also took the interest deduction from the first mortgage on his individual tax returns filed in 1996 even though [Rita] resided in the marital real estate through May, 1997 and would be entitled to claim some portion of same for her taxes.
28. That the 1098 Form regarding the mortgage interest deduction was issued to [James].
29. That . . . [Father] testified that he was in complete agreement that [Rita] and [James] receive the interest deductions as he himself never paid any of the mortgage payments.
30. That . . . [Father] testified that [James] has always lived in the marital real estate.
31. That . . . [Father] testified that he did not invest any of his money into remodeling the marital real estate.
....
51. That [Rita] relied on [James's] and [Father's] representations that her contribution in excess of Twenty-Five Thousand Dollars ($25,000.00) to remodel the marital real estate would alleviate any tax burden as the property would be deeded to [Rita] and [James] before the tax was due.
....
67. That [Rita] removed items from the marital home, some of which belonged to [Rita] prior to the marriage and some of which were purchased during the marriage.
68. That [Rita] also has jewelry which is valued at Two Thousand Four Hundred Dollars ($2,400.00). The court finds that a near equal division of personal property has been effectuated by the parties and awards each party the personal property in their respective possession.
....
70. The Court finds that equal division of the marital assets is just and reasonable pursuant to Indiana Code [section] XX-XX-X-X and Indiana Code [section] XX-XX-X-X.
....
73. The Court finds that the gross marital estate is Ninety-Seven Thousand Five Hundred Seventy-Four and 76/100 Dollars ($97,574.76) and that the net marital estate is Eighty-Nine Thousand Forty-Four and 56/100 Dollars ($89,044.44). That an equal division would be Forty-Four Thousand Five Hundred Twenty-Two and 22/100 Dollars ($44,522.22) to each party.
74. The Court finds that to equalize an equal division of the marital estate, [James] and [Father] shall pay to [Rita] the sum of Thirty-Five Thousand Two Hundred Sixty-One and 54/100 Dollars ($35,261.54).
75. The Court orders that a Judgment shall be entered against [James] and [Father] in favor of [Rita] in the sum of Thirty-Five Thousand Two Hundred Sixty-One and 54/100 Dollars ($35,261.54). The Court orders that said Judgment shall attach to the real estate commonly known as 11924 Cline [Avenue], Crown Point, Indiana. . . .
(R. 99-106.)
Rita filed a verified petition for dissolution of the parties' marriage on May 30, 1997. On August 4, 1997, Rita filed a Motion to Join Father to the proceedings and served this motion on counsel for James. However, there is no evidence that Father was ever served with a copy of the Motion to Join and James never filed a response to Rita's Motion to Join Father. Additionally, neither James nor Father ever filed any pleadings objecting to Rita's Motion to Join. The trial court did not rule upon Rita's Motion to Join before the commencement of the final hearing.
The final hearing began on January 7, 1998, and was continued on March 2, 1998. Father voluntarily attended both days of trial, even though he was never subpoenaed to appear by either party, and was subsequently called to testify as a witness by Rita. Father did not object to being called as a witness at any time before or during the final hearing.
The trial court entered its Decree of Dissolution on August 5, 1998. Pursuant to James's petition requesting specific findings of fact and conclusions of law, the trial court set forth the following pertinent findings and conclusions regarding Rita's Motion to Join Father to the proceedings:
32. That on August 4, 1997, [Rita] filed her Motion to Join John E. Vadas, father of [James], in the dissolution proceeding.
33. That [Rita] joined [Father] pursuant to Indiana Trial Rule 20(A)(2) as [Father's] economic interest in the marital real estate was at issue in the dissolution proceeding.
34. That [Father] was served the Motion to Join by mailing same to [James's] counsel on or about July 31, 1997.
35. The final hearing herein was begun on January 7, 1998 and that [Father] appeared for the hearing on said date.
....
37. That counsel for [Rita] had not subpoenaed [Father] to appear at this hearing and that [Father] appeared voluntarily.
38. That [Rita's] counsel began presentation of evidence and called [Father] to testify herein.
39. That [Father] filed no objections to [Rita's] motion to join him.
40. That [Father] made no oral objection to his being joined in this cause of action prior to his testimony, during his testimony, and no objection has been...
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