Axsom v. Axsom

565 N.E.2d 1097, 1991 Ind. App. LEXIS 96, 1991 WL 9782
CourtIndiana Court of Appeals
DecidedJanuary 28, 1991
Docket53A04-8908-CV-378
StatusPublished
Cited by19 cases

This text of 565 N.E.2d 1097 (Axsom v. Axsom) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Axsom v. Axsom, 565 N.E.2d 1097, 1991 Ind. App. LEXIS 96, 1991 WL 9782 (Ind. Ct. App. 1991).

Opinions

MILLER, Presiding Judge.

After thirty-five years of marriage, Laverne and Harold Axsom were divorced on August 22,1988. Laverne, who is disabled, appeals the trial court’s judgment, claiming the court erred in (1) failing to award her spousal maintenance due to her disability and (2) distributing the marital property, which included the value of Harold’s barber shop business.

We affirm the trial court’s denial of spousal maintenance and the court’s award of Laverne’s disability pension to her as her sole property. However, we can find no basis for the court’s valuation of Harold’s business and therefore reverse and [1098]*1098remand for further findings of fact, which may affect the distribution of the marital assets.

The issues raised by Laverne in her appeal are:

I. Whether the trial court erred in failing to award spousal maintenance to Laverne;
II. Whether the trial court erred in concluding that Laverne’s disability income benefits were assets of the marriage and subject to division;
III. Whether the trial court erred in finding that Harold’s barber shop has a value of only two-thousand dollars ($2000.00); and
IV. Whether the trial court erred in making an inadequate monetary award to Laverne pursuant to Indiana Code 31-1-11.5-11.

FACTS

Laverne and Harold Axsom were married on April 3, 1954. Laverne filed her Petition for dissolution of marriage on August 22, 1988, and dissolution was granted on May 15, 1989. One child was born of the marriage who is now emancipated. Laverne is sixty-one (61) years of age, is disabled and receives disability benefits from Social Security totalling four hundred and thirty-two dollars ($432.00) monthly. Harold owns a barber shop business, which includes four chairs and other barbering equipment. He leases the building and rents out at least two of his four chairs to beauticians — receiving a percentage of their earnings as rent. The court valued the business at two-thousand dollars ($2000.00); however, an expert witness testified that its value was in excess of thirty thousand dollars ($30,000). The net proceeds from the sale of their residence— $54,983.60 — was divided equally, after a deduction of $10,000.00, which was allocated to Laverne (representing the amount of equity she brought into the marriage). An additional amount of $2,000 was deducted and allocated to Laverne — which presumably represented the value of Harold’s business.1 Laverne also received as her sole property a $10,000.00 certificate of deposit. Each received one of the family cars per the divorce decree; there is still indebtedness on Laverne’s car, Harold’s is paid off.

The court found that Harold’s earning capacity was in the approximate amount of $1575.00 per month and that Laverne had other assets and additional income invested in interest bearing accounts. The court— considering Laverne’s other financial resources, assets and property awarded to her by the decree and Harold’s marginal ability to provide maintenance for himself — denied Laverne’s request for spousal maintenance. All other assets were divided to the parties’ satisfaction and are not relevant to this appeal.

DISCUSSION AND DECISION

Issue I — Spousal Maintenance

Because Laverne is disabled and without means to support herself, she asserts that the trial court committed reversible error by not awarding her spousal maintenance. “However, even when evidence has been admitted showing mental or physical incapacity materially affecting a spouse’s ability of self-support, a grant of maintenance is still optional, within the discretion of the trial court.” Coster v. Coster (1983), Ind. App., 452 N.E.2d 397, 403 (citing, Farthing v. Farthing (1979), 178 Ind.App. 336, 382 N.E.2d 941). The court has the discretionary power to grant maintenance when a spouse is disabled. IC 31-1-11.5-11(e)(1).2

[1099]*1099Laverne argues that it was an abuse of discretion for the court to deny her maintenance, citing Dahnke v. Dahnke (1989), Ind.App., 535 N.E.2d 172—a recent case dealing with rehabilitative maintenance— wherein this court observed that the legislature had two reasons for making provisions for maintenance for an educationally-impaired spouse:

“(a) as to society in general, such policy tends to relieve the pressures on our already overburdened social welfare agencies, and; (b) as to the individual, justice and equity require no less. In sum, justice is served when that statute is applied and enforced by trial courts in appropriate cases.”

Id. at 175.

Laverne claims that her situation presents a “paradigm example, fitting squarely within IC 31-1-11.5-11(e)(1).” Appellant’s Brief, p. 13. However, as we noted in Dahnke, the court below is vested with broad discretion in determining whether an award of spousal maintenance should be made under the facts of the case before it. Id., at 174 (citing In re Marriage of Dillman (1985), Ind.App., 478 N.E.2d 86, 87). The trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. An abuse of discretion may also be found when the trial court misinterprets the law or disregards factors listed in the controlling statute. Id.

In Dahnke, we held the trial court abused its discretion when it ignored competent, uncontradicted evidence relevant to a determination of the need for rehabilitative maintenance. We remanded to allow the trial court to balance the previously ignored factor with other statutory factors listed in IC 31-1-11.5-11(e)(3). We did not substitute our judgment for the trial court’s.

In Melnik v. Melnik (1980), Ind.App., 413 N.E.2d 969, a case similar to the present one, the parties divorced after a 39 year marriage. The wife, Helen, then 64 years old, was disabled due to a degenerative joint disease and other medical problems, which prevented her from obtaining employment. She sought spousal maintenance, but the trial court denied her request because George, her ex-husband, was also disabled and, at age 68, unable to obtain employment. In affirming the trial court’s decision, we observed that the statute3 merely provides that a court may make provisions for maintenance for a disabled spouse. However, we observed that such language permits the court to consider the “ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Id. at 972, quoting Temple v. Temple (1975), 164 Ind.App. 215, 220, 328 N.E.2d 227, 230.

In the present case, as in Melnik, the trial court did not ignore the evidence.

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Axsom v. Axsom
565 N.E.2d 1097 (Indiana Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
565 N.E.2d 1097, 1991 Ind. App. LEXIS 96, 1991 WL 9782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/axsom-v-axsom-indctapp-1991.