Wilcox v. Wilcox, 2-376A88
| Decision Date | 28 July 1977 |
| Docket Number | No. 2-376A88,2-376A88 |
| Citation | 173 Ind.App. 661,365 N.E.2d 792 |
| Parties | Gloria A. WILCOX, Respondent-Appellant, v. Gerald E. WILCOX, Petitioner-Appellee. |
| Court | Indiana Appellate Court |
William K. Bennett, Bennett, Boehnig & Poynter, Lafayette, for respondent-appellant.
Louis Pearlman, Jr., Lafayette, for petitioner-appellee.
This case was transferred to this office from the Second District in order to help alleviate the disparity in caseloads among the Districts.
Respondent-appellant, Gloria A. Wilcox, brings this appeal following the granting of petitioner-appellee, Gerald E. Wilcox's Petition for Dissolution of Marriage. Gloria specifically challenges the distribution of property which accompanied the dissolution decree. Gerald cross appeals and also challenges the propriety of the distribution of the marital assets.
The facts most favorable to the judgment indicate that Gloria and Gerald were married in 1949 during their final year as undergraduate college students. Both parties graduated. Gerald then continued his education, receiving a Ph.D. degree in 1952. Gloria worked during this time so Gerald could continue his education. Gloria subsequently ceased employment in order to raise the three children which were born of the marriage, all of whom are now emancipated. Gerald is a tenured full professor at Purdue University and has been continuously employed since he received his advanced degree. The marital assets distributed by the court totalled approximately $42,000. Gloria received approximately $39,000 in assets and Gerald was ordered to pay her $3,000 cash in exchange for the assets he received, the net effect being that Gloria received all the marital assets.
On the above facts Gloria presents the following issues for our review:
(1) Is the discounted future income of Gerald a marital asset which can be distributed in the property settlement?
(2) If the future income can be property, did the trial court abuse its discretion in distributing the property?
On the same facts Gerald requests review of the following issue:
(3) Did the trial court abuse its discretion by awarding Gloria the full value of the marital assets?
Gloria's first allegation of error contends that the trial court erroneously excluded Gerald's future income from the list of marital assets. She asserts that Gerald's salary, prior to retirement, when discounted to present value, is an asset attributable to the marriage and therefore divisible at the time of dissolution. Gloria alleges that Gerald's salary ($20,800 per year), when capitalized, represents property worth $195,501. She also states that Gerald's retirement plan through Purdue University has a value of $30,000 and should be included in the marital assets. (The trial court held that no evidence was presented on the retirement plan and this court could find none; therefore, we will not consider the retirement plan in this opinion). If these two alleged assets are included in the marital property the total assets are in excess of $250,000 and Gloria thus received almost 20% Of the assets, and therefore claims the trial court abused its discretion in dividing the property.
The appellant most strongly relies on two cases to support her contention; namely, Weiss v. Weiss (1974), Ind.App., 306 N.E.2d 120; and Hibbard v. Hibbard (1974), Ind.App., 315 N.E.2d 731. In both cases the property settlement consisted of a sum larger than the total marital assets and therefore must have included the discounted income as an asset to be divided between the parties. While these cases may lend credence to Gloria's argument, they are not controlling as to the construction of the law as it exists subsequent to Indiana's Dissolution of Marriage Act 1 which became effective prior to the initiation of this action.
We must first note that any award over and above the actual physical assets of the marital relationship must represent some form of support or maintenance. The confusion which existed in Indiana regarding "alimony, support or maintenance" was elucidated by Judge Sullivan of this court in Wellington v. Wellington (1973), Ind.App., 304 N.E.2d 347. That case spoke of "alimony" as either a property settlement or an order for maintenance and held that they were not mutually exclusive theories and either could be used to justify the decree of the trial court.
With that status in mind we must interpret the language contained in the Dissolution of Marriage Act 1. The legislature enacted the following as factors to be considered by the court in dividing the marital assets:
"31-1-11.5-11. 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...
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