In Re the Marriage of Osborne

369 N.E.2d 653, 174 Ind. App. 599, 1977 Ind. App. LEXIS 1018
CourtIndiana Court of Appeals
DecidedNovember 17, 1977
Docket3-1075A237
StatusPublished
Cited by46 cases

This text of 369 N.E.2d 653 (In Re the Marriage of Osborne) 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
In Re the Marriage of Osborne, 369 N.E.2d 653, 174 Ind. App. 599, 1977 Ind. App. LEXIS 1018 (Ind. Ct. App. 1977).

Opinions

[600]*600Garrard, J.

In a marriage dissolution action the husband appeals from that portion of the decree fixing the property rights of the parties and ordering support for their minor child.1 He asserts that under the facts and circumstances of this case the court’s orders are an abuse of discretion. We agree.

At the time of the dissolution the husband was 51 years of age and the wife was 46. They had been married nineteen years. There was one child, a seventeen year old daughter who was a senior in high school. At the time they were married the husband had some $5000 in assets. The wife had about $900 and a quantity of household utensils and furnishings. Both were employed throughout the marriage except for a three year period when the wife remained at home. The evidence established the husband’s total earnings over the years to be about $115,000 and the wife’s about $90,000. At the time of trial the husband earned approximately $18,000 per year. At that time the wife’s salary had been recently increased to $20,000 per year. She also had previously received discretionary bonuses which were dependent upon her employer’s profitability. She had a vested interest in a profit sharing retirement plan valued at approximately $9000. At retirement age the husband would be entitled to benefits under the Railroad Retirement Act.

While the evidence of values is somewhat in conflict, it was established that at the time of trial the parties owned a residence wrth a net value of $20,500, household goods and antiques valued at $3500, a boat and trailer valued at $3500, jewelry valued at $760, a 1973 Buick apparently worth $1000, a 1969 Pontiac apparently worth about $700, corporate stock worth $280 and cash in various banks and savings and loan companies in the sum of approximately $11,370. Some four months prior to the final separation, the husband’s mother died intestate. As a result he was the owner of two certificates of deposit totalling $12,000 which had been issued jointly with right of survivorship to him and his mother. Admittedly, the funds representated by these [601]*601certificates had come entirely from the mother. The wife was permitted to testify without objection that while her mother-in-law’s estate was still under probate, the husband valued his interest in the estate at between $27,000 and $28,000 apart from the certificates of deposit.

Upon these facts the court awarded the husband the certificates of deposit which had been held jointly with his mother and all other interest in her estate, including 50 shares of stock which had been distributed to him. In addition he was awarded the $3500 boat and trailer, and a checking account at Lincoln National Bank which, according to the testimony, contained $270. The rest of the property, valued at approximately $36,700, was awarded to the wife.2 To recapitulate, against the $36,700 awarded the wife, the husband was awarded $3770 apart from the assets derived through his mother’s death, or about $42,770 including those assets.

It is first asserted that the court erred in giving consideration to the husband’s interest in his mother’s estate in the property division order. In support of this contention the husband relies upon that portion of IC 1971, 31-1-11.5-11 which provides that in a dissolution action 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____” Review of the legislative history of the act discloses that the phrase “and prior to final separation of the parties” was added by the legislature to the final draft submitted by the Civil Code Study Commission Subcommittee on Juvenile Procedure and Dissolution of Marriage. It appears that the legislature intended that property acquired by either spouse in his or her own right after the final separation should not be considered a marital asset subject to division.3 It is the husband’s argument that although his mother [602]*602died and formal administration of her estate began some four months prior to the final separation of the parties, the undistributed assets of the estate cannot be considered as “acquired” prior to the final separation.4 We think this an unduly restrictive interpretation of that word in the context of the dissolution act.

The leading Indiana decision, albeit decided under prior law, is Loeb v. Loeb (1973), 261 Ind. 193, 301 N.E.2d 349, wherein the court concluded it was not error to exclude evidence of the husband’s expectancy in a trust created by his mother. If the husband did not survive his mother, who was living at the time of the divorce, his estate received nothing from the trust. The court held that the husband’s interest was a vested remainder subject to a condition subsequent, but that this was not the controlling question. Rather, it said,

“Under the terms of the trust agreement, it should be noted that the defendant has no present interest of possessory value. If he should predecease his mother, he takes nothing under the trust. Further, the trustees have no authority to invade the corpus during the settlor’s lifetime. The beneficiaries reap no income while their mother is living. Likewise, the defendant husband is not presently possessed of any pecuniary value which could have been before the trial court for disposition. The trial court correctly refused to include the remote interest in the property settlement award.” (emphasis added) 261 Ind. 193, 199-200, 301 N.E.2d 349, 353.

In the present instance the husband’s right of inheritance was fixed upon the intestate death of his mother prior to the final separation.5 Pursuant to the provisions of the probate code, right to the assets passed to the heirs at the mother’s death subject to the possessory rights of the personal representatives and the [603]*603statutory charge for the payment of the expenses of administration and other claims and allowances as provided by law. See IC 1971, 29-1-7-23, 29-1-13-1.6 Reserving then the questions of valuation of the estate and what dispositions may meet the standard of “just and reasonable,” we conclude that the husband’s interest was not so remote as to preclude the court from determining it to have been sufficiently “acquired” prior to the final separation for it to be considered in the distribution of assets. Loeb v. Loeb, supra. In addition, IC 1971, 31-l-11.5-ll(c) would permit the court to hear evidence regarding the inheritance and consider it in connection with its assessment of the economic circumstances of the parties at the time the disposition of the marital assets is to become effective.

Evidence was introduced at trial that the husband valued his interest in the estate (excluding the joint certificates of deposit) at between $27,000 and $28,000, and this value was not disputed. Furthermore, there was no dispute regarding the value of the other major assets.7 (Compare, In re Marriage of Miles (1977), 173 Ind. App. 5, 362 N.E.2d 171

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Bluebook (online)
369 N.E.2d 653, 174 Ind. App. 599, 1977 Ind. App. LEXIS 1018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-osborne-indctapp-1977.