In Re the Marriage of Pond

676 N.E.2d 401, 1997 WL 74062
CourtIndiana Court of Appeals
DecidedJuly 17, 1997
Docket02A03-9512-CV-442
StatusPublished
Cited by8 cases

This text of 676 N.E.2d 401 (In Re the Marriage of Pond) 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 Pond, 676 N.E.2d 401, 1997 WL 74062 (Ind. Ct. App. 1997).

Opinion

OPINION

HOFFMAN, Judge.

Appellant-petitioner William W. -Pond appeals from the dissolution of his marriage to appellee-respondent Brenda A. Pond. William and Brenda were married on June 23, 1979. Their marriage produced two children: Gregory Clifford, born February 8, 1985, and Scott Everett, bom March 2,1988. William is a physician specializing in anesthesiology and is associated with Associated Anesthesiologists, Inc. as a practicing partner. During the marriage, Brenda, a licensed pharmacist, was not employed outside the home. However, in the spring of 1993, she began part-time employment with Keltsch Pharmacy.

On March 31,1993, William filed a verified petition for legal separation. In an attempt to reconcile their differences, Brenda and William entered into a post-nuptial agreement relating to their property and the parties’ respective rights and obligations in the event of a subsequent divorce.

The attempted reconciliation was unsuccessful. Thus, on November 15, 1993, Brenda filed her verified petition for dissolution of marriage. On April 15, 1994, William filed a petition for a declaratory judgment, pursuant to the parties’ post-nuptial agreement, asking the trial court to rule on the validity of the agreement. The trial court heard evidence on September 2 and November 16 and 17, 1994. On January 13, 1995, the trial court issued its order upholding the validity of the post-nuptial agreement.

On January 23, 1995, Brenda filed a verified motion to reconsider. One week later, William filed a motion to compel compliance with the post-nuptial agreement. On Febru *404 ary 10,1995, Brenda filed a motion to correct error regarding the sale of the marital home. 1 The trial court did not rule on Brenda’s motion to reconsider until it issued its final dissolution decree on September 8, 1995.

The final hearing on the remaining issues, the outstanding motions and the custody and child related issues, was held on March 7,10, 16, and June 14, 1995. On September 8, 1995, the trial court entered its findings of fact and conclusions of law and judgment. In part, the findings provide:

7. Respondent, Brenda A. Pond, is employed as a licensed pharmacist with Keltsch Pharmacy in Fort Wayne, Allen County, Indiana, and the Petitioner, William W. Pond, is a physician specializing in anesthesiology and is associated with Associated Anesthesiologists, Inc. as a participating partner. Petitioner Husband’s earnings are determined to be approximately $463,000.00, that being the average of his income for 1992, 1993 and 1994, respectively in the sums of $464,938.00; $506,436.00; and $417,276.00. That some evidence was presented respecting some circumstances which may impact upon his income, but which at the time of trial were so speculative as to provide no specific instance or circumstance from which the Court could conclude that his income would be so drastically affected that the average earnings of the Petitioner Husband should be diminished to the extent of the request made by him at trial.
$ $ *1* *1*
11. The Respondent Wife’s approximate weekly earnings are $678.00.
12. ... The custody of the minor children is, therefore, ordered as entered to Respondent Wife with liberal visitation of the parties’ minor children to the Petitioner Husband ... [.]
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21. Applying the relative earnings of the parties to the Indiana Support Guidelines, Petitioner Husband is ordered to pay the sum of $685.00 per week for the support of the minor children, retroactive to July 21, 1994. Inasmuch as Petitioner Husband provided support voluntarily at the rate of $500.00 per week during said period, he shall be given credit for the same but that with this order there is created an arrear-age in the sum of $10,915.00, which he is ordered to pay to Respondent Wife within sixty (60) days from the date hereof. #****#
26. This Court has had under advisement the petition of Respondent Wife to reconsider the ruling dated January 13, 1995, wherein the Court upheld a Postnuptial Agreement between the parties dated August 14, 1993. The Motion to Reconsider was directed at rhetorical paragraph 25 of the Postnuptial Agreement requiring a party attacking the validity of the agreement to pay the attorney fees and costs incurred in the event the challenge was unsuccessful. The Court reconsiders its former ruling and in determining that the Motion to Reconsider should he granted in part finds that in this instance, the clause requiring the Respondent to pay for the attorney fees incurred by herself as well as those incurred by Petitioner Husband in defending the Postnuptial Agreement is unconscionable. Inasmuch as the Court has broad discretion in the determination of the apportionment of attorney fees, the Court has determined that paragraph 25 of the Postnuptial Agreement as written would cause an economic impossibility to anyone but Petitioner Husband to challenge the agreement, but that the agreement as written was decidedly in favor of Petitioner Husband even though the Court has found that the agreement was valid. The division of marital assets as provided in the agreement, for instance, would most decidedly not be the division if the division of assets was presented to the Court ab *405 sent such an agreement. There is no attempt in this order to rewrite the contract between the parties, but to give them a parity in determining the validity of an agreement which required many hours of preparation and in the presentation of evidence by both parties. Principally, the Court is concerned with the huge disparity of income between the parties and that by a ruling of this Court to require Respondent Wife to pay for the challenge which she made against the agreement would otherwise act as a deterrent only to her.
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30. Paragraph 7 of the Postnuptial Agreement provides that in the event of a filing of petition for divorce, the Abbey Hill real estate would be sold privately at a price agreeable to both parties or listed with an agreed real estate broker and offered for sale to the general public. The property was to be sold to the first qualified buyer who offered the listing price and if no buyer offer the listing price, then the property would be sold to the highest bidder during the listing period. The parties further agreed that the listing agreement would be for a period of not to exceed 180 days beginning when Petitioner Husband vacated the premises.
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34. The Court finds that the listing of 180 days was an incomplete listing within the spirit of the agreement provided by the parties and the Court, therefore, orders that the marital residence should be listed for a period of 180 days from the date hereof.
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36.

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Related

Lisa A. Birkhimer v. Neil S. Birkhimer
981 N.E.2d 111 (Indiana Court of Appeals, 2012)
Pond v. McNellis
845 N.E.2d 1043 (Indiana Court of Appeals, 2006)
Price v. Freeland
832 N.E.2d 1036 (Indiana Court of Appeals, 2005)
Claypool v. Claypool
712 N.E.2d 1104 (Indiana Court of Appeals, 1999)
Marriage of Pond v. Pond
700 N.E.2d 1130 (Indiana Supreme Court, 1998)
Hubbard v. Hubbard
690 N.E.2d 1219 (Indiana Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
676 N.E.2d 401, 1997 WL 74062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-pond-indctapp-1997.