Marriage of Caddo v. Caddo

468 N.E.2d 593, 1984 Ind. App. LEXIS 2972

• Court: Indiana Court of Appeals
• Decided: September 27, 1984
• Docket: 3-284A33
• Status: Published

Opinions

GARRARD, Judge.

The trial court dissolved the marriage of Ronald (husband) and Patricia (wife) Caddo and awarded her custody of the parties' minor child.

In its division of property the court awarded the marital residence to the wife and awarded the husband $24,000, "[sjaid payment to be non-interest bearing until due and payable and to become due and payable upon the happening of the first of the following contingencies: Wife remarries; The marital home is sold; or, The youngest child becomes emancipated."

The husband appeals. He asserts that as a matter of law it was an abuse of discretion for the court (1) to fail to award interest on the deferred payment; and (2) to fail to establish a fixed or ascertainable date upon which the payment to him would fall due.

The first contention has already been decided adversely to the husband. While the court may in its discretion require that interest be paid on deferred payments of property settlement, it need not do so. We will presume the court is aware of the time value of money and will take it into account in making its award. Marriage of Merrill (1983), Ind.App., 455 N.E.2d 1176; Van Riper v. Keim (1982), Ind.App., 437 N.E.2d 130.¹

We are, however, constrained to agree with the husband's second assertion. It is the intent of the statute that property rights be settled with certainty at the time of the dissolution. Wilhelm v. Wilhelm (1979), Ind.App., 397 N.E.2d 1079. Accordingly, we have determined that where a deferred monetary award to one spouse is made contingent upon the other spouse's decision to sell the former marital residence,² the necessary certainty is not accomplished and the case must be remanded. Marriage of McDonald (1981), Ind.App., 415 N.E.2d 75; Henderson v. Henderson (1980), Ind.App., 401 N.E.2d 73.

In the case before us, the wife's choice to remarry or sell the home places the maturing of the debt in her discretion as in McDonald and Henderson. We, of course, understand the court's purpose to be that in the absence of those choices the debt should mature when the residence is no longer needed to provide a home for the parties' youngest daughter. We are constrained to agree, however, that expressing this contingency in terms of "emancipa tion" renders the judgment too uncertain to meet the statutory mandate as interpreted by Wilheim.

Emancipation frees a child from the care, custody and control of his parents. Stitle v. Stitle (1964), 245 Ind. 168, 197 N.E.2d 174. While what constitutes emancipation is a question of law, whether there has been emancipation is a question of fact. Brokaw v. Brokaw (1980), Ind.App., 398 N.E.2d 1385. The emancipation of a child is never presumed, but must be established by competent evidence. Brokaw, supra; Hayden v. Hite (1982), Ind.App., 437 N.E.2d 133.

Furthermore, while the decisions may not employ the term "emancipation," it is clear that no emancipation occurs where due to illness or injury a child becomes so physically or mentally disabled that he cannot provide for himself but must remain at home with a parent. Zakrocki v. Zakrocki (1945), 115 Ind.App. 556, 60 N.E.2d 745; IC 31-1-11.5-12(d)(2).

Upon this basis we cannot say that the judgment provides a sufficiently ascertainable date or event upon which the debt to the husband matures.

The judgment is affirmed except as to that part of the order fixing the maturity of the money judgment found due the husband which we reverse and remand for further proceedings consistent herewith.

Affirmed in part; reversed and remanded in part.

STATON, P.J., concurs. HOFFMAN, J., concurs in part and dissents in part and files separate opinion.

1 . While a party may then argue that considering the present value of the deferred distribution and the other evidence applicable to the factors enumerated by IC 31-1-11.5-i1 the property division fails to meet the "just and reasonable" mandate, no such argument is advanced in this case.

2 . These decisions, as do we here, assume there is no contractual agreement between the parties calling for such a result.