Cox v. Cox

580 N.E.2d 344, 1991 Ind. App. LEXIS 1779, 1991 WL 225609
CourtIndiana Court of Appeals
DecidedOctober 31, 1991
Docket18A02-9001-CV-52
StatusPublished
Cited by22 cases

This text of 580 N.E.2d 344 (Cox v. Cox) 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
Cox v. Cox, 580 N.E.2d 344, 1991 Ind. App. LEXIS 1779, 1991 WL 225609 (Ind. Ct. App. 1991).

Opinions

HOFFMAN, Presiding Judge.

This appeal arises out of a final decree, entered by the Delaware Superior Court No. 2, dissolving the marriage of appellant-petitioner Gregory Allen Cox (Greg) and appellee-respondent Sandra L. Cox (Sandy). After a hearing, the trial court entered an order dissolving the marriage of the parties and awarding custody of the children to Sandy. The trial court later entered a final order, with findings of fact and conclusions of law, which distributed and divided the marital property, and created child support obligations for Greg. The final order was subsequently amended, in response to Greg's Motion to Correct Errors.

[346]*346Greg then filed a Petition for Modification of the support order. Shortly thereafter, he commenced an appeal of the court's amended final order, in which he attacked both the property distribution and the original child support order.

After a hearing on the Petition for Modification, the special judge entered an order modifying the support order. Greg then commenced an appeal of the modification order, under the same appellate cause number as the first appeal.

Pursuant to Ind. Appellate Rule 2(C)(2), a conference with the parties was held on October 18, 1990. On October 19, 1990, an order was entered which consolidated by stipulation the issues of both appeals under a single cause number. That order limited the issues of this case to those that follow:

1. The propriety of the award for spousal maintenance vis-a-vis distribution and division of property;
2. Whether the trial court abused its discretion with respect to the division and distribution of property; and
8. Whether the order modifying child support was erroneous.

Evidence relevant to the appeal discloses that Greg and Sandy were married on September 20, 1980. There were two children born to the marriage. The parties are self-employed farmers. Greg filed his Petition for Dissolution on January 12, 1989.

Prior to the marriage, Greg had purchased farming equipment and a certain farm, which the parties refer to as the "Greenhouse Farm." The only asset which Sandy brought to the marriage was an automobile. However, before their marriage, Sandy assisted Greg in the farming of the Greenhouse Farm and other acreage that Greg had rented.

After the marriage, the parties acquired the "Cox Farm" and the "Johnson Farm," as well as a great deal of farm equipment and personal property. During this period, the farming operation expanded from 400 acres under cultivation to over 1,900 acres. The resulting gross income of the parties rose in a generally steady fashion throughout the marriage.

Both parties worked in the farming operation during the marriage. In the early years of the marriage, Sandy worked with Greg in the fields. Later, after the arrival of the children, Sandy assumed the primary role of child care and therefore her direct participation in the farming chores declined, though she maintained bookkeeping responsibilities.

The total net value of the marital property to be divided was $409,710.91. The net value of the trial court's award to Sandy was $179,080.00. Her award included the Johnson Farm, an automobile, and other items of personal property. Greg's award, the remainder of the marital estate, included the Cox Farm, the Greenhouse Farm, and all of the farm equipment. The net value of Greg's award, $280,680.91, reflected all of the debts of the parties, including the mortgage on the Johnson Farm. Additional facts appear as needed.

The first issue turns on Greg's contention that the trial court made an award of maintenance to Sandy. Greg points to the following paragraph of the trial court's final order, as indicating an award of maintenance:

"a. The Respondent Sandra L. Cox should have set over to her the Johnson Farm (appraised at $150,000.00, but bearing a mortgage of $80,186.87), and the Petitioner Gregory Allen Cox shall pay said mortgage and hold respondent Sandra L. Cox harmless therefrom; respondent's, Sandra L. Cox's right to reliabila-tive (sic) maintenance is calculated into this award of realty[.]"

Greg argues that the court's award of maintenance is reversible error, as it is completely unsupported by any findings of fact or conclusions of law consistent with the requirements of IND.CODE § 81-1-11.5-11(e) (1988 Ed.)

IND.CODE § 31-1-11.5-11(e) clearly specifies a limited set of circumstances in which a trial court may appropriately make an award of maintenance. If the foregoing language constituted an award of maintenance, a remand for further findings consistent with the statute would be appropriate. However, the award of the Johnson [347]*347Farm to Sandy was not one of maintenance.

Greg's arguments are premised on the assumption that the court's use of the term "maintenance" is determinative of the issue. That is, because the court's order described the award of the Johnson Farm to Sandy as including the right to maintenance, the award is, ipso facto, one of maintenance. Such is not the case. In making a determination as to whether an award is one of maintenance, the "use of the label 'maintenance' is but one factor to be considered" by the reviewing court. In re Marriage of Buntin (1986), Ind.App., 496 N.E.2d 1351, 1354, trans. den.

In Buntin, the issue was whether certain payments awarded to the wife in a dissolution property settlement were "maintenance" and subject to modification, or part of the property settlement and not subject to modification. The section of the property settlement containing the husband's obligation to make the payments to the wife was entitled "Maintenance, Education and Counseling." Relying on the section heading, the trial court in Buntin determined that the payments were maintenance and modified the amount of the payments, based on the changed cireumstances of the wife. The Court of Appeals reversed, determining that the payments were part of the property settlement and not maintenance. A similar conclusion is warranted here.

The factors specified by Buntin as indicating an award of maintenance are:

"'the designation as maintenance; provisions terminating the payments upon the death of either party; payments made from future income; ... provisions for termination upon remarriage; ... provisions calling for modification based upon future events; and payments for an indefinite period of time. [Citations omitted.]"

Id. at 1354. A property settlement is indicated when:

"the payments are for a sum certain payable over a definite period of time; ... there are no provisions for modification based on future events; the obligation to make payments survives the death of the parties; ... the provisions call for interest; and the award does not exceed the value of the marital assets at the time of dissolution. [Citations omitted.]"

Id.

Similar to the trial court's approach in Buntin, Greg's argument overly focuses on the use of the word "maintenance." None of the Buntin factors apply to the award of the Johnson Farm to Sandy, except the language indicating that her right to maintenance was calculated into the award.

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Cox v. Cox
580 N.E.2d 344 (Indiana Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
580 N.E.2d 344, 1991 Ind. App. LEXIS 1779, 1991 WL 225609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-cox-indctapp-1991.