Waitt v. Waitt

• Decision Date: 02 March 1977
• Docket Number: No. 2--375A52,2--375A52
• Parties: Mary Lou WAITT, Appellant (Petitioner below), v. Michael Warren WAITT, Appellee (Respondent below).
• Court: Indiana Appellate Court

Page 268

360 N.E.2d 268

172 Ind.App. 357

Mary Lou WAITT, Appellant (Petitioner below), v. Michael Warren WAITT, Appellee (Respondent below).

No. 2--375A52.

Court of Appeals of Indiana, First District.

March 2, 1977.

Molly P. Rucker, Max D. Rynearson of Rynearson & Rumple, Indianapolis, for appellant.

William E. Shields, Sheridan, for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE:

This case was transferred to this office from the Second District in order to lessen the disparity in caseloads among the districts.

Petitioner-appellant, Mary Lou Waitt (Mary), appeals from the judgment of the trial court dissolving her marriage with respondent-appellee, Michael Warren Waitt (Michael).

FACTS:

The facts necessary for our disposition of this appeal are as follows: On August 29, 1964, Mary and Michael were married. There were two children born of this marriage. On January 2, 1974, Mary filed a petition seeking to have her marriage with Michael dissolved. On June 13, 1974 the trial court adjudged the marriage of Mary and Michael dissolved. The pertinent portions of the judgment were as follows:

'IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT, as follows:

1. That the bonds of matrimony heretofore existing between the Wife and Husband be and the same are hereby dissolved.

2. That the Wife is the fit and proper person to have the care, custody, and control of the parties' minor children, heretofore named, and that the Husband shall have the right to have the temporary custody of said minor children on alternate weekends beginning June 21, 1974 from 6:00 p.m. Friday evening until 6:00 p.m. Saturday evening on alternate Saturdays beginning June 29, 1974 from the hours of 9:00 a.m. until 6:00 p.m.

4. That the Wife be and she is hereby adjudged the individual owner of a 1973 Pontiac Grand Prix automobile, the camper, the push lawnmower, and the furniture and household goods of the parties and that her title thereto is hereby quieted and forever laid at rest.

5. That the Husband be and is hereby adjudged the individual owner of all the rest and remainder of the property of the parties, both real and personal, and that his title thereto is hereby quieted and forever laid at rest.

7. That the Wife be and is hereby awarded an alimony judgment in the amount of Twelve Thousand Five Hundred Dollars ($12,500.00) payable as follows:

Two Thousand Five Hundred Dollars ($2,500.00) by July 1, 1974;

Two Thousand Five Hundred Dollars ($2,500.00) on or before December 1, 1974;

Two Thousand Five Hundred Dollars ($2,500.00) on or before December 1, 1975;

Two Thousand Five Hundred Dollars ($2,500.00) on or before December 1, 1976 and

Two Thousand Five Hundred Dollars ($2,500.00) on or before December 1, 1977.

* * *'

Thereafter, on July 23, 1974 the trial court entered a nunc pro tunc decree which modified its judgment of June 13, 1974, as follows:

'It appearing to the Court that the judgment heretofore entered in the above entitled cause of action on June 13, 1974, is not a correct memorial of the judgment as rendered and announced by this Court through inadvertence and clerical error Now, therefore, on motion of the Husband, by counsel,

It is hereby ordered that the judgment heretofore entered by the Court in the above-entitled cause of action on June 13, 1974, be, and it is hereby corrected, nunc pro tunc, to appear of record as of June 13, 1974, to conform to the actual judgment announced and rendered by the Court by making the judgment read as follows:

IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT, as follows:

2. That the Wife is the fit and proper person to have the care, custody, and control of the parties' minor children, heretofore named, and that the Husband shall have the right to have the temporary custody of said minor children on alternate weekends beginning June 21, 1974, from 6:00 p.m. Friday evening until 6:00 p.m. Saturday evening and on alternate Saturdays beginning June 29, 1974, from the hours of 9:00 a.m. until 6:00 p.m. That the Husband shall have the temporary custody of said minor children on alternate holidays from 9:00 a.m. until 6:00 p.m., said holidays being New Years Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas, beginning with Labor Day, 1974. That in the event Husband remarries, he shall have the right to temporary custody of said minor children for a continuous two-week period during the summer upon at least one week notice to Wife.

5. That the Husband be and is hereby adjudged the individual owner of all the rest and remainder of the property of the parties, both real and personal, and that his title thereto is hereby quieted and forever laid at rest, provided, however, that the Wife shall have the right to remain in the residence of the parties for sixty (60) days after which she shall vacate same.

7. That the Wife be and is hereby awarded property settlement judgment in the amount of Twelve Thousand Five Hundred Dollars ($12,500.00) payable as follows:

* * *'

Following the partial denial of Mary's motion to correct errors this appeal was perfected.

ISSUES:

1. Was a valid property settlement agreement approved by the trial court and incorporated into its decree of dissolution?

2. Did irregularities in the trial court proceedings result in Mary being denied a fair trial?

3. Did the trial court make an improper nunc pro tunc order?

4. Did the trial court improperly award Michael 'temporary custody' of his children?

5. Did the trial court err in denying Mary attorney fees with which to perfect her appeal?

6. Did the trial court err in overruling Mary's motion to strike Michael's response to her motion to correct errors?

7. Did the trial court improperly fail to dispose of all matters within its jurisdiction?

DISCUSSION AND DECISION:

ISSUE ONE:

Mary argues that the property settlement agreement which was negotiated between her and Michael, and which was approved by the trial court in its dissolution decree, was invalid because it was not in writing.

We are of the opinion that Mary is correct in her contention as far as it goes, but under the facts as they exist in the case at bar, reversible error has not been shown. IC 1971, 31--1--11.5--10 (Burns Supp.1976) provides as follows 'Agreements.--(a) To promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for the maintenance of either of them, the disposition of any property owned by either or both of them and the custody and support of their children.

(b) In an action for dissolution of the marriage the terms of the agreement if approved by the court shall be incorporated and merged into the decree and the parties ordered to perform them, or the court may make provisions for disposition of property, child support, maintenance, and custody as provided in this chapter (31--1--11.5--1--31--1--11.5--24).

(c) The disposition of property settled by such an agreement and incorporated and merged into the decree shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent . . ..' (Our emphasis.)

This statute authorizes the parties in a divorce proceeding to enter into an agreement in an effort to amicably dispose of such matters as maintenance, property division and child custody and support. However, the statute is clear that such agreements must be in writing. By requiring that property settlement agreements be in writing the trial court will have some assurance that the parties seeking to have their marriage dissolved have carefully considered the fairness of the provisions contained therein if it should elect to adopt the agreement and order it incorporated into the decree of dissolution as authorized by section (b) of IC 1971, 31--1--11.5--10, supra.

If the parties elect not to enter into a written property settlement agreement, or if the trial court elects not to adopt the written property settlement agreement of the parties as its own and incorporate it into its dissolution decree, then the court must dispose of the parties' property pursuant to IC 1971, 31--1--11.5--11 (Burns Supp.1976). This statute provides as follows:

'Disposition of property.--In an action pursuant to section 3(a) (subsection (a) of 31--1--11.5--3), the court shall divide the property of the parties, whether owned by either spouse prior to the marriage, acquired by either spouse in his or her own right after the marriage and prior to final separation of the parties, or acquired by their joint efforts, in a just and reasonable manner, either by division of the property in kind, or by setting the same or parts thereof over to one (1) of the spouses and requiring either to pay such sum as may be just and proper, or by ordering the sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.

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

(a) the contribution of each spouse to the acquisition of the property, including the contribution of a spouse as homemaker;

(b) the extent to which the property was acquired by each spouse prior to the marriage or through inheritance or gift;

(c) the economic circumstances of the 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 therein for such periods as the court may deem just to the spouse having custody of any children;

(d) the conduct of the parties during the marriage as related to the disposition or dissipation of their property;

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

It follows from...