Wagner v. Wagner

• Decision Date: 15 April 1986
• Docket Number: No. 3-185-A-11,3-185-A-11
• Citation: 491 N.E.2d 549
• Parties: Michael Joseph WAGNER, Appellant-Respondent, v. Barbara Lohr WAGNER, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 549

491 N.E.2d 549

Michael Joseph WAGNER, Appellant-Respondent, v. Barbara Lohr WAGNER, Appellee-Petitioner.

No. 3-185-A-11.

Court of Appeals of Indiana Third District.

April 15, 1986.

Thomas F. Wagner, Michigan City, for appellant-respondent.

Thomas C. Sopko, South Bend, for appellee-petitioner.

STATON, Presiding Judge.

Michael Joseph Wagner appeals from the trial court's decree dissolving his marriage to Barbara Lohr Wagner, raising five issues:

I. Whether the trial court abused its discretion in fixing the amount of child support;

II. Whether the trial court failed to make a final, just and reasonable distribution of the marital property;

III. Whether the dissolution decree, taken as a whole, so favors Barbara and is so oppressive to Michael as to be an abuse of discretion;

IV. Whether the trial court unreasonably restricted Michael's visitation rights without sufficient evidence and contrary to the stipulation of the parties; and

V. Whether the trial court abused its discretion in ordering Michael to pay Barbara's attorney's fees on appeal.

We affirm.

I. Child Support

The Wagners' marriage was dissolved on October 15, 1984. Custody of the couple's two daughters, Kelly, fourteen, and Shannon, nine, was granted to Barbara. Barbara's net weekly income is $176, and her weekly expenses for raising the two girls are approximately $223. Michael, a salesman who earns a straight commission, had an average net weekly income of $605.50 for the thirteen months prior to the dissolution. This amount includes the couple's $4,000 income tax refund for 1983.

The trial court ordered Michael to pay $222.00 per week for the support of the two girls. The court made additional provisions for certain types of expenses. Through her employment at St. Joseph's High School in South Bend, Indiana, Barbara is able to provide medical insurance for Kelly and Shannon, and the trial court required her to continue doing so. The court also ordered her to pay the ordinary medical, dental, and hospital expenses for the girls which are not covered by the insurance, and ordered Michael to pay extraordinary non-covered expenses. Also, by virtue of Barbara's employment, Kelly is able to attend St. Joseph High School with the annual $1,575 tuition fully waived. Michael was ordered to pay the necessary costs above tuition for Kelly to attend the school, approximately $140 per year. In addition, he was ordered to pay all necessary costs for Shannon to attend St. Anthony's School, including a $50 registration fee, $15 per week tuition, book fees of approximately $65, and $15 to $20 in additional expenses. The parents agreed that the girls should attend parochial school.

In setting the amount of child support, the trial court is guided by Ind.Code 31-1- 11.5-12, which requires the court to consider "all relevant factors including:

(1) the financial resources of the custodial parent;

(2) standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered;

(3) physical or mental condition of the child and his educational needs; and

(4) financial resources and needs of the non-custodial parent."

The precise determination of the amount is within the discretion of the trial court and will not be set aside absent an abuse of discretion. In re Marriage of Rupp (1983), Ind.App., 449 N.E.2d 1164, 1167. Such an abuse occurs only when the trial court's action is clearly against the logic and effect of the facts and circumstances before it, or the reasonable, probable, and actual deductions drawn therefrom. Inkoff v. Inkoff (1974), 159 Ind.App. 239, 306 N.E.2d 132, 134.

Michael first argues that the trial court erred in considering the $4,000 income tax refund in determining his income, in that the court presumed that he would receive the same refund in future years, and in that such future refunds were property in which Michael had no present interest. Neither ground is persuasive. The trial court merely determined what Michael's average weekly income was at the time of the dissolution, and the $4,000 was in fact a part of that income. Because the income of the parents is always subject to change, child support orders are subject to modification. IC 31-1-11.5-17. If Michael's income decreases in the future, he may petition the trial court for modification of the support order.

Michael further argues that ordering him to pay $222.00 per week when Barbara's expenses were found to be $223.00 per week places the entire burden of supporting the children on him, and that in fact such an award requires him to support Barbara as well as the girls, without the requisite findings set out at IC 31-1-11.5-11 for an award of maintenance.

We note first that when the trial court found Barbara's weekly expenses to be $223.00, it further stated that this amount did not represent her total expenses. (Record, at 33). Thus, Michael is not, as he argues, supporting Barbara.

With regard to child support, Michael correctly argues that each parent has an obligation to support their minor children. See In re Marriage of Osborne (1977), 174 Ind.App. 599, 369 N.E.2d 653, 658. This does not mean, however, that the financial contributions of both parents must be equal. IC 31-1-11.5-12, quoted above, sets out the factors which the trial court must consider in fixing the contribution of the non-custodial parent. The trial court properly considered and made findings as to the incomes of both Michael and Barbara, the standard of living the girls would have enjoyed had the marriage not been dissolved, their health and educational needs, and other relevant factors such as Barbara's provision of high school tuition and medical insurance through her employment. We find no abuse of discretion.

II. Property Division

Like child support, property division is within the discretion of the trial court, and will be overturned only when clearly against the logic and effect of the facts and circumstances. Van Riper v. Keim (1982), Ind.App., 437 N.E.2d 130, 132.

The trial court's property division is as follows:

                           MICHAEL                        BARBARA
                ------------------------------  ----------------------------
                $ 2,000  1/2 1983 Income Tax    $ 2,000  1/2 1983 Income Tax
                         Refund                          Refund
                    375  1/2 Sullair stock          375  1/2 Sullair stock
                  4,300  1/2 Certificate of       5,000  1/2 Certificate of
                         Deposit, Minus                  Deposit
                         Penalty
                  2,000  Furnishings inherited    5,000  Other furnishings
                         by Michael
                  5,000  Credit Union account     1,260  IRA
                -------                         -------
                $13,675                         $13,635
                -------                         -------
                

In addition, the parties own the marital residence as tenants in common under the dissolution decree, with Barbara and the girls allowed to live in it until either (a) both daughters are emancipated or the youngest reaches age 21, (b) Barbara remarries, or (c) Barbara abandons the house as the primary residence for herself and the girls. During this time Barbara and Michael share equally the mortgage payment of $530.00 per month, as well as the cost of insurance, repairs in excess of $100.00, and improvements. Before authorizing improvements or repairs over $100, Barbara is required to give Michael a reasonable opportunity to obtain estimates and inspect the house. Upon the happening of one of the contingencies listed above, the house is to be sold and Barbara and Michael are to divide the proceeds equally.

Michael argues first that this is not a final property division, as required by IC 31-1-11.5-11(b), because it does not "settle all property rights with certainty." Wilhelm v. Wilhelm (1979), Ind.App., 397 N.E.2d 1079, 1081. On the contrary, the decree provides a final, certain date on which the property must be liquidated and the proceeds distributed, the youngest daughter's 21st birthday. Michael suggests that possible changes in the insurance premium and possible confusion or disagreement as to the necessity and cost of repairs and improvements leave the property subject to modification. He correctly argues that a property division within a dissolution decree must not be subject to modification. Wilhelm, supra, 397 N.E.2d at 1082. His argument fails, however, because the trial court's decree requires him to pay half the insurance premium whatever the amount, and it specifies that he must share the cost of all improvements and all repairs over $100.00, with a reasonable opportunity to obtain estimates. The decree may be open to interpretation, but it is not open to modification.

Michael also argues that allowing Barbara to live in the house while he is required to share the mortgage and other costs renders the entire distribution unjust and unreasonable, contrary to IC 31-1-11.5-11. To find a property division unjust and unreasonable, we must find that it has no rational basis. Van Riper, supra, 437 N.E.2d at 132.

With regard to property division, IC 31-1-11.5-11(c) provides:

In determining what is just and reasonable, the court shall consider the following factors:

(1) The contribution of each spouse to the acquisition of the property, including the contribution of a spouse as homemaker.

(2) The extent to which the property was acquired by each spouse prior to the marriage or through inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in that residence for such periods as the court may deem just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to a final division of property and final determination of the property rights...