Zagajewski v. Zagajewski

Decision Date31 July 1974
Docket NumberNo. 2--173A8,2--173A8
Citation314 N.E.2d 843,161 Ind.App. 98
PartiesFrank J. ZAGAJEWSKI, Appellant, v. Frances Isabelle ZAGAJEWSKI, Appellee.
CourtIndiana Appellate Court

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

Herbert F. Small, Hanna, Small, Sabatini & Becker, 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 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' 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 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 of physical abuse or infidelity. As summarized by appellee, the husband's misconduct was that he

'. . . constantly bickered and frequently embarrassed the wife in public and refused to accept any responsibility toward his children. Furthermore, the Defendant even ordered his daughter out of their home on at least two occasions. Although the Plaintiff refused to have intercourse with the Defendant, during the past three years, the record cannot support the conclusion that this constituted misconduct on the part of the Plaintiff. The testimony is conflicting as to the reasons for their inability to engage in normal marital relations, however, it is clear that the Defendant ordered the Plaintiff out of the bedroom. The Defendant should not expect a warm and receptive wife after abusing her through bickering and profane language. In spite of this conduct by the Defendant, the Plaintiff took care of the Defendant during his illness and stayed with him.'

In Shula v. Shula (1956), 235 Ind. 210, 216, 132 N.E.2d 612, 615, the court rejected the proposition that an innocent and injured wife is entitled to be awarded all of the entireties property because she is entitled to be put into as good condition as she would be on her husband's death. That rule (see Glick v. Glick (1927), 86 Ind.App. 593, 596, 159 N.E. 33) the court said has no application to entireties property. While Shula did not expressly so hold, it strongly implied that, absent some reason for giving the wife more, a fair division of property would give each party the equivalent of one half the value of real estate they held by the entireties. In Shula the court reversed a decree in which the wife was awarded $25,000.00 in property and cash and the husband was given $14,000.00. (Of the total $39,000.00 in property and cash, approximately $20,500.00 was the net value of the entireties real estate.) That division was less disparate than at bar but the record on which it was based gave the court the same problem we face here:

'We are not able to determine upon what factual foundation or rule of law the above decree is based. Alimony is awarded in Indiana for the purpose of making a present and complete settlement of the property rights of the parties. It does not include future support for the wife, nor is it intended as a medium for providing financial compensation for injured sensitivities during marriage. The primary factor in fixing the alimony is the existing property of the parties. However, other facts which the court may consider are the source of the property, the income of the parties and the nature of the abuse inflicted upon the wife,--particularly if that abuse affected the earning capacity of the wife and would have been the basis for an action in damages except for the fact of the marriage.' (Id., 235 Ind. at 214, 132 N.E.2d at 614.)

Here, however, the appellee-wife does not attempt to justify her award on the contention that she would have...

To continue reading

Request your trial
6 cases
  • Olson v. Olson
    • United States
    • North Dakota Supreme Court
    • July 17, 1989
    ...are outdated, offering no contemporary support for his position. See Locke v. Locke, 246 N.W.2d 246 (Iowa 1976); Zagajewski v. Zagajewski, 161 Ind.App. 98, 314 N.E.2d 843 (1974); and Cleaver v. Cleaver, 10 Wash.App. 14, 516 P.2d 508 (1973). These decisions preceded Hisquierdo (1979) and McC......
  • Marriage of Swan, Matter of
    • United States
    • Oregon Supreme Court
    • June 3, 1986
    ...to [45 USC] § 231m and similar provisions in all other federal benefit plans." (Emphasis added.)3 But cf. Zagajewski v. Zagajewski, 161 Ind.App. 98, 103-04, 314 N.E.2d 843, 846 (1974) (social security benefits are to be considered in devising a property settlement and an award of alimony wh......
  • Elliott v. Elliott
    • United States
    • Minnesota Supreme Court
    • October 20, 1978
    ...on their status have held that social security benefits should be considered in the division of property. Zagajewski v. Zagajewski, 161 Ind.App. 98, 314 N.E.2d 843, 846 (1974); Locke v. Locke, 246 N.W.2d 246, 254 (Iowa 1976); Daniels v. Daniels, 490 S.W.2d 862, 863 (Tex.Civ.App.1973); Cleav......
  • Reed v. Reed
    • United States
    • Indiana Appellate Court
    • December 30, 1975
    ...each of them with their separate property . . . a most defensible division under these circumstances. Compare Zagajewski v. Zagajewski (1974), Ind.App., 314 N.E.2d 843, 847. Jack's detailed objections to the division of property between the parties are without merit. He merely invites us to......
  • Request a trial to view additional results
1 books & journal articles
  • § 12.02 Types of Benefits
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 12 Division of Federal Benefits
    • Invalid date
    ...(1987).[33] See In re Marriage of Cohen, 105 Cal. App.3d 836, 164 Cal. Rptr. 672, 675-676 (1980).[34] Indiana: Zagajewski v. Zagajewski, 314 N.E.2d 843 (Ind. App. 1974). Iowa: Locke v. Locke, 246 N.W.2d 246 (Iowa 1976). Michigan: Evans v. Evans, 98 Mich. App. 328, 296 N.W.2d 248 (1980) (ben......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT