Zagajewski v. Zagajewski, No. 2--173A8

• Docket Nº: No. 2--173A8
• Citation: 314 N.E.2d 843, 161 Ind.App. 98
• Case Date: July 31, 1974
• Court: Court of Appeals of Indiana

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314 N.E.2d 843 161 Ind.App. 98 Frank J. ZAGAJEWSKI, Appellant,
v.
Frances Isabelle ZAGAJEWSKI, Appellee. No. 2--173A8. Court of Appeals of Indiana, Second District. July 31, 1974.
Rehearing Denied Sept, 5, 1974.

Richard M. Rhodes, Rhodes & Fern, Peru, for appellant.

Herbert F. Small, Hanna, Small, Sabatini & Becker, [161 Ind.App. 99] Logansport, Alan H. Lobley, Charles J. Todd, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.

WHITE, Judge.

Defendant-husband appeals from that part of a decree of divorce which awards nearly all of the property of the parties to the plaintiff-appellee-wife; orders her to pay him $1,626,55 concurrently with the execution of a commissioner's deed conveying his interest in the entireties real estate to her; and orders him to pay her attorney attorney's fees of $850,00 and the court costs.

Although the trial court somehow found it possible to be exact to the fraction of a dollar in determining what the wife should pay the husband, we find it impossible to discover in the transcript of the trial evidence the basis for any finding of fact as to net values which could produce that result, or anything approximating it. The evidence is simply not that exact, certain

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and precise. In fact it is quite the opposite: so vague, ambiguous, and incomplete that we cannot determine with any substantial degree of certainty whether appellant is correct in asserting that he was given only seven percent of the moneys and properties of the parties while the appellee-wife is given the remaining ninety-three per cent. However, the appellee has not directly disputed the accuracy of those percentages and we find them substantially correct. We also find that the evidence most favorable to the appellee discloses that all of the property and money involved was acquired during the twenty-five year marriage during which both husband and wife were employed substantially all of the time and earned over the whole time substantially the same total amount. The only significant exceptions to that statement being (1) that during the year 1952 (when the first child was born and when the wife went to California to be with the husband who had been recalled to active military duty during the Korean War), the wife had no income and (2) that since the husband became ill and disabled his income has shrunk to disability benefits paid by the Veterans' [161 Ind.App. 100] Administration, the Social Security Administration, and possibly some employment related private insurance benefits.

The bulk of the mutual estate is the family residence in rural Cass County valued at 25,000.00, subject to a mortgage of $2,746.96, leaving a net value of $22,253.04. That property was acquired in 1948, and title is in the name of both husband and wife as tenants by the entireties. While the wife's testimony is that she made all the mortgage payments from her income as a school teacher, there is no evidence that appellant squandered or secreted his income during that time or that he spent it on anything except normal family expense. (The evidence as to family savings accumulated in an account in the husband's name and substantially depleted by withdrawals by the wife since he became ill is so vague, incomplete, and indefinite as to furnish no basis for any conclusion.) In short, it appears from the evidence most favorable to the wife that this entireties property, and the parties' equity in it, were acquired by substantially equal efforts and contributions of the parties.

The parties have two children, a daughter nineteen years old at trial date, and a son then fourteen years of age. The daughter was then living in Indianapolis where she had a part time job while attending Patricia Stevens finishing school. She owned and had possession of an automobile purchased with the proceeds of her own bank loan on which her mother was co-signer. The daughter was making the car-bank-loan payments but the mother testified that she anticipated that she (the mother) would have to pay the balance of the daughter's tuition, $1,490.00, and $392.00 board and room ($98.00 per month for four months). The court found that the daughter was not emancipated but that no order for her support should be made, nor was any order for her custody made.

Custody of the fourteen year old son was awarded to the appellee-wife and appellant-husband was ordered to pay or [161 Ind.App. 101] cause to be paid to her the full Social Security Administration allowance for his support.

The appellee-wife, at time of trial, is in good health (except for taking tranquilizers for her nerves), fifty-three years of age, is an employed school teacher who earned over ten thousand dollars in the year proceding the trial. The appellant-husband, fifty-six years of age, is totally disabled (as to gainful employment), but is ambulatory, able to drive his automobile, and apparently able to care for himself. After the divorce he will draw two hundred sixty dollars per month in social security and veterans benefits, plus full medical and hospital expenses and $98.00 monthly for the son's support.

The divorce was granted on the ground that appellant-husband was guilty of cruel and inhuman treatment. There was no evidence

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of physical abuse or infidelity. As...