In Re the Marriage of Dreflak

Indiana Court of Appeals

In Re the Marriage of Dreflak

402 N.E.2d 1284, 75 Ind. Dec. 228, 181 Ind. App. 651, 1980 Ind. App. LEXIS 1403

CourtIndiana Court of Appeals

DecidedApril 7, 1980

Docket2-478A134

StatusPublished

Cited by9 cases

This text of 402 N.E.2d 1284 (In Re the Marriage of Dreflak) 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.

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In Re the Marriage of Dreflak, 402 N.E.2d 1284, 75 Ind. Dec. 228, 181 Ind. App. 651, 1980 Ind. App. LEXIS 1403 (Ind. Ct. App. 1980).

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Opinion

BUCHANAN, Chief Judge.

ON PETITION FOR REHEARING

On Petition for Rehearing appellant Wife claims the trial judge erred in excluding the liquor store business which the Husband inherited prior to their separation as part of the marital property subject to division, and therefore this case should be returned to the trial court for retrial.

In our decision, handed down August 8, 1979, we recited in the Facts that “the court determined that the liquor store interest was not subject to distribution between the parties but remained his sole and separate property.” We could also have stated that in her judgment the trial court recited that “[t]he court has considered the Husband’s liquor store interest.” (emphasis supplied). This language is followed by a finding in the judgment that “this property is not marital property subject to disposition”, all of which creates an ambiguity.

It is true the inherited property should be part of “one pot” subject to division as required by Ind.Code 31-1-11.5-11(a). It is not certain, however, whether the trial court did or did not take the Husband’s business interest acquired prior to separation into account in dividing the marital property. By the computation of both *1285 parties the Husband got considerably less of the other assets than the Wife, which supports the position that the trial judge did consider the inheritance as required by the statute.

We will not presume the trial court erred, but rather will engage in any reasonable presumption in favor of the trial court’s judgment. Atkinson v. Whipple (1972), 154 Ind.App. 449, 290 N.E.2d 131; Kuykendall v. County Commissioners of Marion County (1968), 142 Ind.App. 363, 234 N.E.2d 860.

Further, because of the ambiguity within the judgment we can find no abuse of discretion as found in City of Elkhart v. Middleton (1976), 265 Ind. 514, 356 N.E.2d 207.

Therefore, the Petition for Rehearing is denied.

SULLIVAN and STATON (sitting by designation), JJ., concur.

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BUCHANAN, Chief Judge.

ON PETITION FOR REHEARING

On Petition for Rehearing appellant Wife claims the trial judge erred in excluding the liquor store business which the Husband inherited prior to their separation as part of the marital property subject to division, and therefore this case should be returned to the trial court for retrial.

In our decision, handed down August 8, 1979, we recited in the Facts that “the court determined that the liquor store interest was not subject to distribution between the parties but remained his sole and separate property.” We could also have stated that in her judgment the trial court recited that “[t]he court has considered the Husband’s liquor store interest.” (emphasis supplied). This language is followed by a finding in the judgment that “this property is not marital property subject to disposition”, all of which creates an ambiguity.

It is true the inherited property should be part of “one pot” subject to division as required by Ind.Code 31-1-11.5-11(a). It is not certain, however, whether the trial court did or did not take the Husband’s business interest acquired prior to separation into account in dividing the marital property. By the computation of both *1285 parties the Husband got considerably less of the other assets than the Wife, which supports the position that the trial judge did consider the inheritance as required by the statute.

We will not presume the trial court erred, but rather will engage in any reasonable presumption in favor of the trial court’s judgment. Atkinson v. Whipple (1972), 154 Ind.App. 449, 290 N.E.2d 131; Kuykendall v. County Commissioners of Marion County (1968), 142 Ind.App. 363, 234 N.E.2d 860.

Further, because of the ambiguity within the judgment we can find no abuse of discretion as found in City of Elkhart v. Middleton (1976), 265 Ind. 514, 356 N.E.2d 207.

Therefore, the Petition for Rehearing is denied.

SULLIVAN and STATON (sitting by designation), JJ., concur.

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402 N.E.2d 1284, 75 Ind. Dec. 228, 181 Ind. App. 651, 1980 Ind. App. LEXIS 1403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-dreflak-indctapp-1980.

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