White v. White

• Decision Date: 30 December 1975
• Docket Number: No. 1--875A146,1--875A146
• Citation: 167 Ind.App. 459,338 N.E.2d 749
• Parties: Willsidee WHITE, Personal Representative of the Estate of Jack White, Deceased, Defendant-Appellant, v. Bette J. WHITE, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 749

338 N.E.2d 749

167 Ind.App. 459

Willsidee WHITE, Personal Representative of the Estate of Jack White, Deceased, Defendant-Appellant, v. Bette J. WHITE, Plaintiff-Appellee.

No. 1--875A146.

Court of Appeals of Indiana, First District.

Dec. 30, 1975.

Rehearing Denied Feb. 17, 1976.

D. Bailey Merrill, R. Eugene Johnson, Michael J. Hayden, Evansville, for defendant-appellant.

Charles C. Griffith, Evansville, for plaintiff-appellee.

LOWDERMILK, Judge.

This appeal arises from the trial court's determination that appellant (White), as the personal representative of the estate of Jack M. White, (Jack) should pay appellee Bette J. White (Bette) the sum of $37,283.34 as the unpaid balance of a prior alimony judgment.

FACTS

In 1971, Jack, as plaintiff, obtained a divorce from Bette. In settling the property rights of the parties to the divorce, the court awarded Bette certain real and personal property, including the former home of the parties, which was in Jack's name.

In addition, the court decreed that plaintiff pay to the defendant as 'alimony in lieu of property settlement the sum of One Hundred Thousand Dollars ($100,000.00), as follows: Thirty-four Thousand Dollars ($34,000.00) cash, and the sum of Sixty-six Thousand Dollars ($66,000.00), payable at the rate of Six Thousand Dollars ($6,000.00), beginning January 15, 1972, and the sum of Six Thousand Dollars ($6,000.00) each January thereafter, to and including January 15, 1982.'

No appeal was taken from the above judgment and Jack paid the amounts stipulated until his death in 1974. Following Jack's death Bette filed a claim against her former husband's estate, alleging the following:

'1. That she obtained a judgment against Jack M. White, now deceased, in the Gibson Circuit Court in Cause No. C--70 341, in the amount of Sixty-six Thousand Dollars ($66,000.00) which judgment was payable at the rate of Six Thousand Dollars ($6,000.00) per year, commencing January 15, 1972, a copy of which judgment is marked Exhibit 'A', attached hereto and made a part of this claim.

'2. That Jack M. White has paid to claimant the sum of Eighteen Thousand Dollars ($18,000.00) and that there remains wholly due, owing and unpaid on the principal of said judgment the sum of Forty-eight Thousand Dollars ($48,000.00), together with interest thereon at the legal rate.'

This claim was disallowed by White, and the matter was then brought before the Vanderburth Superior Court for determination. After finding that White admitted the fact that $48,000 was not paid on the prior judgment, by reason of White failing to object to or deny Bette's request for such an admission, the court held, in pertinent part, that

'. . . Bette J. White is hereby given judgment against the estate in the amount of Thirty Seven Thousand Two Hundred Eighty Three Dollars and Thirty Four Cents ($37,283.34), together with interest thereon at the rate of eight percent (8%) per annum from and after date hereof and the Administratrix and Personal Representative of the within estate is directed to pay said claim from the assets of this estate.'

It is the above judgment that White presently appeals.

ISSUES.

White presents essentially two arguments for our consideration.

(1) Whether the unpaid balance of the prior judgment is a valid claim against Jack's estate.

(2) Whether Bette was entitled to summary judgment on her claim.

I.

It is White's initial contention that the trial court exceeded its statutory authority in awarding alimony as it did. White asserts that the alimony awarded was in fact a series of 'periodic' payments, and that the trial court could not properly make sich an award.

In the alternative, White also contends that even if the court made a proper award, any future payments would not be a charge upon Jack's estate in the absence of an express declaration by the trial court. Thus, inasmuch as the court did not state that the future payments were a lien upon Jack's estate, or otherwise require security for their payment, White contends that the payments, which she alleges were not due or payable at the time of Jack's death, could not be a valid claim against Jack's estate.

Necessarily drawn into contention by White's arguments are the alimony statutes which were in force when the alimony award was given.

IC 1971, 31--1--12--14 (Burns Code Ed.), being prior Ind.Ann.Stat. Sec. 3--1217, provides:

'Alimony.--The court shall make such decree for alimony, in all cases contemplated by this act, as the circumstances of the case shall render just and proper, and such decree for alimony, heretofore made or hereafter made, shall be valid against the husband, whether asked for in the petition or given by the judge on default.'

In addition, IC 1971, 31--1--12--17 (Burns Code Ed.) being prior Ind.Ann.Stat. Sec. 3--1218, ¹ states, in part, that

'The courts shall fix the amount of alimony and shall enter a judgment for such sum, and specify the character and method of payment, which in his discretion he deems to be just and proper under all of the evidence, including any valid separation agreement which may have been introduced into evidence. In determining the character of the payments of the alimony the court may require it to be paid in money, other property, or both, and may order the transfer of property as between the parties, whether real, personal or mixed and whether title at the time of trial is held by the parties jointly or by one of them individually. In determining the method of the payment of the alimony the court may require that it be paid in gross or in periodic payments, either equal or unequal, and if to be paid in periodic payments the court may further provide for their discontinuance or reduction upon the death or remarriage of the wife, and in his discretion, the court may further provide for such security, bond, or other guarantee as shall be satisfactory to the court for the purpose of securing the obligation to make such periodic payments. Said judgment shall be a lien upon the real estate and chattels real of the spouse liable therefor to the extent that it is payable immediately but shall not be such a lien to the extent that it is payable in the future unless and to the extent such decree so provides expressly. Such amount as shall be awarded, regardless of the character or method of its payment shall be in complete discharge of all the husband's obligation to the wife, but not to his minor children, arising out of the marital or family relationship. * * *'

We note for purposes of comparison that the second statute quoted above replaced one which provided that the decree for alimony had to be in a gross sum, and not for periodic payments, although the court could allow the gross sum to be paid in installments, if proper security was given.

We believe that a resolution of the first question in this appeal must rest on a determination of the effect of the above 1949 amendments to the alimony statutes.

Several law review articles and recent opinions have considered the statute here involved, and the case law which developed both before and after its enactment. The consensus of the above writings is that both the statutes and the case law are inconclusive, confusing and contradictory. See, Note, Alimony in Indiana: Traditional Concepts v. Benefit to Society, 29 Ind.L.J. 461 (1953--54); Note, Indiana's Alimony Confusion, 45 Ind.L.J. 595 (1969--70); Wellington v. Wellington, Ind.App., 304 N.E.2d 347.

At the root of all of the confusion is judicial indecision as to the reasons for the award of alimony. Cases may be cited in support of at least two major ideas: first, that alimony is a property settlement; and, second, that alimony is an award for the future support of the wife. In Wellington v. Wellington, supra, the court eventually concluded

'. . . in the final analysis that alimony serves a dual purpose--a method to aid in the equitable distribution of property and a method to provide continued maintenance or support if deemed appropriate. It is not necessary as many Indiana cases have done, to theorize the concept into an either/or situation. The concepts are not mutually exclusive.' 304 N.E.2d at 353.

We are of the opinion that the above analysis is correct. The statute set out above allows the trial court to require payment in money or property (both real and personal), and permits the court to order a transfer of jointly or individually held property to satisfy the award. In addition, the court may award 'alimony' in any amount, to be paid in a manner selected by the court. We think it is clear that the statute contemplates more than a mere division of property. We are supported in our conclusion by several cases which specifically considered the alimony statute involved.

In Gray v. Miller (1952), 122 Ind.App. 531, 106 N.E.2d 709, the court stated

'While the foregoing statute is primarily an alimony statute, the legislative intent is apparent to adopt the policy of recognizing the case law which grants broad powers to a divorce court to fully adjudicate the rights of the parties and order the transfer of real estate between the parties in proper cases.' 122 Ind.App. at 538, 106 N.E.2d at 712.

Similarly, in Dieterle v. Dieterle (1961), 132 Ind.App. 213, 173 N.E.2d 665, the court quoted from Gray in holding that

'. . . Since the enactment of said amendment of 1949, it has been consistently held that said Act, although primarily an alimony statute, recognizes the case law 'which grants broad powers to a divorce court to fully adjudicate the rights of the parties and order the transfer of real estate between the parties in proper cases.' Gray v. Miller, 1952, 122 Ind.App. 531, 538, 106 N.E.2d 709, 712; Baker v. Baker 1952, 123 Ind.App. 152, 108 N.E.2d 70; Wallace v. Wallace, 1953, 123 Ind.App. 454, 110 N.E.2d 514, 111 N.E.2d 90; Proctor v. Proctor, 1955, 125 Ind.App. 692, 125 N.E.2d 443; Seward v. Seward, 1956, 126 Ind.App. 607, 134 N.E.2d 560.'

While we...