ON PETITION TO TRANSFER
PIVARNIK, Justice.
This cause comes to us on a petition to transfer from the Third District Court of Appeals by Respondent-Appellant, Patrick J. McManama.
Petitioner Patrick J.. McManama was respondent in the trial court in a cause of action for dissolution of marriage brought by Gertrude Figura McManama. The sole issue raised in the appeal was whether the trial court erred in awarding Gertrude thirty-six hundred dollars ($3600) in furtherance of the property settlement. The facts showed, without dispute, that both of the parties pursued higher education during their marriage, as well as contributing to the income in the home. Appellee wife performed the homemaking duties as well as contributing a larger share of the income, particularly in the last year of the marriage when the parties moved from Connecticut to South Bend, Indiana. At that time they had six thousand dollars ($6,000) in savings. During that last year, appellee-wife earned fourteen thousand seven-hundred and eighty-five dollars ($14,-785) and appellant-husband went to law [372]*372school full time, contributing only twelve-hundred and fifty dollars ($1,250) of income. At the time of the separation on August 12, 1976, the only remaining amount in the six-thousand dollar savings account was ninety-six dollars ($96) which was retained by appellant-husband, Patrick. Payments for tuition and books for law school for Patrick amounted to thirty-two hundred dollars ($3,200) and a past due bill for Patrick’s tuition while in Connecticut was also paid after they came to South Bend.
The trial court distributed the property of the parties by granting sole ownership, possession and use of the real estate owned by them to appellee-wife, together with any equity and ordering her to hold the husband harmless as to the presently existing mortgage obligation. All personal property was divided between the parties and the husband was held to be responsible for certain remaining financial liabilities of the parties which totalled one-thousand and eighty dollars ($1,080).
The court then made the following entry in its judgment: “In furtherance of this property disposition, and in recognition of the Wife’s contribution as a homemaker, as well as her contribution, by way of employment, to the satisfaction of liabilities during the course of the marriage, and contributions toward the legal education of the Husband, the Wife is awarded a judgment against the Husband, in the amount of Three Thousand Six Hundred ($3,600.00) Dollars, to be paid in installments of One Hundred ($100.00) Dollars per month, first payment September 1,1978, and subsequent payments to be made on the first of each month thereafter until paid in full.”
The Court of Appeals, Third District, in an opinion by Hoffman, J., with Chipman, P. J., concurring, affirmed the decision of the trial court. In Re Marriage of McManama, (1979) Ind.App., 386 N.E.2d 953.
Appellant-petitioner contends in his petition to transfer that the trial court erred in awarding Gertrude thirty-six hundred ($3,600) as part of the property settlement. Relying on Wilcox v. Wilcox, (1977) Ind. App., 365 N.E.2d 792, he claims that any award over the value of the marital assets must represent some form of maintenance and since there was no showing of physical or mental incapacitation of appellee-wife pursuant to Ind.Code § 31-l-11.5-9(c) (1977 Burns Supp.) the court had no power or authority to make the award. We agree with petitioner-appellant’s contention and accordingly vacate the opinion of the Court of Appeals.
The statute providing for disposition of marital assets by the trial court in effect at that time was Ind.Code § 31-1-11.5-11 (Burns Supp.1977) (amended 1979) which read as follows:
“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 [373]*373court 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 earnings or earning ability of the parties as related to a final division of property and final extermination of the property rights of the parties.”
In 1979, Ind.Code § 31-1-11.5-11 was amended and subsection (b) was added which reads as follows:
(b) When the court finds there is little or no marital property, it may award either spouse a money judgment not limited to the existing property. However, this award may be made only for the financial contribution of one [1] spouse toward tuition, books, and laboratory fees for the higher education of the other spouse.
However, this subsection was not in effect at the time of this order of August 5, 1977, and cannot apply here.
The trial court and the Court of Appeals apparently interpreted section (d) of Ind.Code § 31-1-11.5-11 (Burns Supp. 1977) quoted above to authorize the trial court to repay an aggrieved party in a dissolution judgment for property that had been dissipated by the other partner. This is a misinterpretation of that section. The statute clearly sets out factors the court is to use in determining what is a just and reasonable distribution of the property owned by the parties at the time of dissolution. Section (d) was one of the factors the court was to use in making a distribution of the parties’ property. In interpreting this statute, the First District Court of Appeals in Wilcox v. Wilcox, supra,
Free access — add to your briefcase to read the full text and ask questions with AI
ON PETITION TO TRANSFER
PIVARNIK, Justice.
This cause comes to us on a petition to transfer from the Third District Court of Appeals by Respondent-Appellant, Patrick J. McManama.
Petitioner Patrick J.. McManama was respondent in the trial court in a cause of action for dissolution of marriage brought by Gertrude Figura McManama. The sole issue raised in the appeal was whether the trial court erred in awarding Gertrude thirty-six hundred dollars ($3600) in furtherance of the property settlement. The facts showed, without dispute, that both of the parties pursued higher education during their marriage, as well as contributing to the income in the home. Appellee wife performed the homemaking duties as well as contributing a larger share of the income, particularly in the last year of the marriage when the parties moved from Connecticut to South Bend, Indiana. At that time they had six thousand dollars ($6,000) in savings. During that last year, appellee-wife earned fourteen thousand seven-hundred and eighty-five dollars ($14,-785) and appellant-husband went to law [372]*372school full time, contributing only twelve-hundred and fifty dollars ($1,250) of income. At the time of the separation on August 12, 1976, the only remaining amount in the six-thousand dollar savings account was ninety-six dollars ($96) which was retained by appellant-husband, Patrick. Payments for tuition and books for law school for Patrick amounted to thirty-two hundred dollars ($3,200) and a past due bill for Patrick’s tuition while in Connecticut was also paid after they came to South Bend.
The trial court distributed the property of the parties by granting sole ownership, possession and use of the real estate owned by them to appellee-wife, together with any equity and ordering her to hold the husband harmless as to the presently existing mortgage obligation. All personal property was divided between the parties and the husband was held to be responsible for certain remaining financial liabilities of the parties which totalled one-thousand and eighty dollars ($1,080).
The court then made the following entry in its judgment: “In furtherance of this property disposition, and in recognition of the Wife’s contribution as a homemaker, as well as her contribution, by way of employment, to the satisfaction of liabilities during the course of the marriage, and contributions toward the legal education of the Husband, the Wife is awarded a judgment against the Husband, in the amount of Three Thousand Six Hundred ($3,600.00) Dollars, to be paid in installments of One Hundred ($100.00) Dollars per month, first payment September 1,1978, and subsequent payments to be made on the first of each month thereafter until paid in full.”
The Court of Appeals, Third District, in an opinion by Hoffman, J., with Chipman, P. J., concurring, affirmed the decision of the trial court. In Re Marriage of McManama, (1979) Ind.App., 386 N.E.2d 953.
Appellant-petitioner contends in his petition to transfer that the trial court erred in awarding Gertrude thirty-six hundred ($3,600) as part of the property settlement. Relying on Wilcox v. Wilcox, (1977) Ind. App., 365 N.E.2d 792, he claims that any award over the value of the marital assets must represent some form of maintenance and since there was no showing of physical or mental incapacitation of appellee-wife pursuant to Ind.Code § 31-l-11.5-9(c) (1977 Burns Supp.) the court had no power or authority to make the award. We agree with petitioner-appellant’s contention and accordingly vacate the opinion of the Court of Appeals.
The statute providing for disposition of marital assets by the trial court in effect at that time was Ind.Code § 31-1-11.5-11 (Burns Supp.1977) (amended 1979) which read as follows:
“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 [373]*373court 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 earnings or earning ability of the parties as related to a final division of property and final extermination of the property rights of the parties.”
In 1979, Ind.Code § 31-1-11.5-11 was amended and subsection (b) was added which reads as follows:
(b) When the court finds there is little or no marital property, it may award either spouse a money judgment not limited to the existing property. However, this award may be made only for the financial contribution of one [1] spouse toward tuition, books, and laboratory fees for the higher education of the other spouse.
However, this subsection was not in effect at the time of this order of August 5, 1977, and cannot apply here.
The trial court and the Court of Appeals apparently interpreted section (d) of Ind.Code § 31-1-11.5-11 (Burns Supp. 1977) quoted above to authorize the trial court to repay an aggrieved party in a dissolution judgment for property that had been dissipated by the other partner. This is a misinterpretation of that section. The statute clearly sets out factors the court is to use in determining what is a just and reasonable distribution of the property owned by the parties at the time of dissolution. Section (d) was one of the factors the court was to use in making a distribution of the parties’ property. In interpreting this statute, the First District Court of Appeals in Wilcox v. Wilcox, supra, held that the factors set out in the statute can only affect the marital assets in which a vested present interest exists at the time of the dissolution, and do not lend themselves to the interpretation that future income, is property and therefore divisible. The thirty-six hundred dollar ($3,600) award to the wife is above the total value of the marital assets as shown by the evidence at trial. It is apparent in the judgment of the trial court that this amount would be paid as an award of the husband’s future income. The only way the trial court could have given any additional amounts to the wife at that time, would have been by way of an award of either support or maintenance pursuant to other sections of the statute which authorize the court to do so when there is evidence that the wife is physically or mentally incapacitated. There is no evidence in this cause, nor any finding by the trial court in its judgment, that the wife was physically or mentally incapacitated to the extent that her ability to support herself was materially affected. In fact, the evidence was to the contrary.
Therefore, transfer is granted and the opinions of the Court of Appeals are vacated. The judgment of the trial court is reversed to the extent that it awarded the appellee-wife judgment for thirty-six hundred dollars ($3,600) from the appellant-husband’s future income and above the total value of the marital assets. The judgment is ordered amended accordingly.
GIVAN, C. J., DeBRULER and PRENTICE, JJ., concur.
HUNTER, J., dissents with separate opinion.