Whaley v. Whaley

• Decision Date: 15 June 1982
• Docket Number: No. 1-381A79,1-381A79
• Citation: 436 N.E.2d 816
• Parties: Norma J. WHALEY, Appellant (Petitioner Below), v. Donald M. WHALEY, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 816

436 N.E.2d 816

Norma J. WHALEY, Appellant (Petitioner Below), v. Donald M. WHALEY, Appellee (Respondent Below).

No. 1-381A79.

Court of Appeals of Indiana, Fourth District.

June 15, 1982.

Barbara B. Benson, Thomas A. Berry, Berry & Bridges, Bloomington, for appellant.

Robert D. Mann, Cotner, Mann & Chapman, Bloomington, for appellee.

MILLER, Presiding Judge.

Norma J. Whaley is appealing the trial court's distribution of property in a dissolution action. Since we find the trial court's award was an unlawful award of maintenance, we reverse.

FACTS

On January 29, 1980 Norma filed a petition for dissolution of her marriage to Donald M. Whaley. After a hearing on November 10, 1980 the trial court entered a decree of dissolution, with findings of fact, distributing the marital property. The trial court first found the total value of the listed assets was $177,200. In dividing the property the court determined that the major assets, consisting of real estate and the business of Whaley Construction Company, should be retained by the husband. Since the total value of the property retained by Donald was $157,200 and the total retained by Norma was $20,000 the court found it necessary, in order to equalize the property distribution, to provide a cash payment to Norma. In accomplishing this, the court initially made the following finding:

"14. That pursuant to such division of marital property, the Wife is entitled to an adjustment of value in the amount of $137,200.00, and the Husband should pay the wife such sum in monthly installments over a period of 120 months, with the first monthly payment being due and payable on January 1, 1981. The Court further finds that the monthly installment payments should be non-interest bearing."

This portion of the court's findings were reflected in the judgment as follows:

"(5) IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that in order for an equal distribution of the marital property to be effected, a cash payment adjustment is required; and, that the Husband, Donald M. Whaley, should pay to the Wife, Norma Jean Whaley the sum of ONE HUNDRED THIRTY-SEVEN THOUSAND TWO HUNDRED DOLLARS ($137,200.00) to accomplish such adjustment. Commencing on January 1, 1981, the Husband is ordered to pay to the Wife the sum of $1,143.00; and the Husband shall continue to pay to the Wife the sum of $1,143.00 on the first day of each calendar month, up to and including the 1st day of November, 1990. On the first day of December, 1990, the Husband shall pay a final payment to the Wife in the sum of $1,183.00. All payments to be made pursuant to this Decree shall be made on a regular monthly basis, by cash or money order, through the office of the Clerk of Monroe County, Indiana. The Husband shall be required to pay the annual statutory docket fee as the same becomes due. The payments to be made pursuant to this decree shall not bear interest. No evidence was introduced as to the present value of monies to be received by the Wife in the future, periodically or otherwise; therefore, the Court has made no adjustment for present value of the future expectancy. In the event the Husband should die during the next 120 months, the unpaid payments due and owing at the time of his death shall be a lien against the Husband's estate. In the event the Wife should die during the next 120 months, the Husband's obligation to pay monthly payments pursuant to this decree shall cease upon the Wife's death." (Emphasis added.)

On November 18, 1980 Donald filed a motion to correct errors pointing out the trial court's obvious miscalculation when it attempted to equalize the distribution of $177,200 by awarding Norma $20,000 plus payments of $137,200, totaling $157,200. The trial court granted Donald's motion on December 5, 1980 and entered the following amendments:

"(1) Paragraph numbered fourteen (14) of the Court's Findings of Fact should be amended to read as follows:

'14. That pursuant to such division of marital property, the Wife is entitled to an adjustment of value in the amount of (2) Paragraph number five (5) of the Judgment entered in this cause under date of November 10, 1980, should be amended and corrected to read as follows:

$68,600.00, and the Husband should pay the Wife such sum in monthly installments over a period of 120 months, with the first monthly payment being due and payable on January 1, 1981. The Court further finds that the monthly installments should be non-interest bearing.'

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that in order for an equal distribution of the marital property to be effected, a cash payment adjustment is required; and, that the Husband, Donald M. Whaley, should pay to the Wife, Norma Jean Whaley, the sum of SIXTY-EIGHT THOUSAND SIX HUNDRED DOLLARS ($68,600.00) to accomplish such adjustment. Commencing on January 1, 1981, the Husband is ordered to pay to the Wife the sum of $570.00, and the Husband shall continue to pay to the Wife the sum of $570.00 on the first day of each calendar month, up to and including the first day of November, 1990. On the first day of December, 1990, the Husband shall pay a final payment to the Wife in the sum of $770.00. All payments to be made pursuant to the terms of this Decree shall be made on a regular monthly basis, by cash or money order, through the office of the Clerk of Monroe County, Indiana. The Husband shall pay the annual statutory docket fee as the same becomes due. The payments to be made pursuant to this decree shall not bear interest. In the event the Husband should die during the next 120 month period, the unpaid payments due and owing at the time of his death shall be a lien against his estate. In the event the Wife should die during the next 120-month period, the Husband's obligation to pay monthly installment payments under this Decree shall terminate upon the death of the Wife." (Emphasis added.)

Based on the trial court's calculations, the amendment effected a distribution of $88,600 to both Norma and Donald.

Norma filed a motion to correct errors on January 8, 1981 alleging, inter alia, that the italicized portion of the decree, supra, effected an award of maintenance. Norma's motion to correct errors was denied and she perfected this appeal.

DECISION

The trial court's judgment conditioned Norma's receipt of the full amount of the $68,600 cash award on her survivorship. Such a conditional award clearly constitutes an impermissible award of maintenance. A similar award was viewed as periodic alimony in Hicks v. Fielman, (1981) Ind.App., 421 N.E.2d 716 where a wife attempted to charge her husband's estate with the balance of a previous alimony award, payable in monthly installments of $600 arguing the award constituted alimony in gross (a sum certain payable in one or more monthly installments for property distribution purposes and thereby chargeable to the husband's estate) as opposed to periodic alimony (payable subject to some condition for support purposes and not chargeable to the husband's estate.) The award, however, was subject to reduction on the husband's retirement and termination on the wife's remarriage or demise. The Court rejected her characterization, finding the award was conditional and therefore periodic alimony or maintenance:

"(The award) would describe alimony in gross had it made the payment of the $72,600 unconditional. Instead, 'all payments ... shall cease upon the demise or remarriage of (the wife).' The imposition of conditions subsequent has made the amount to be paid uncertain indeed unascertainable. See Wilhelm (v. Wilhelm, (1979) Ind.App., 397 N.E.2d 1079.)"

Id. at 721. In Hicks, it is significant to note the award in question,...