Swinney v. Swinney

419 N.E.2d 996, 1981 Ind. App. LEXIS 1393
CourtIndiana Court of Appeals
DecidedApril 30, 1981
Docket2-880-A-279
StatusPublished
Cited by23 cases

This text of 419 N.E.2d 996 (Swinney v. Swinney) 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
Swinney v. Swinney, 419 N.E.2d 996, 1981 Ind. App. LEXIS 1393 (Ind. Ct. App. 1981).

Opinion

SHIELDS, Judge.

Appellant Marvin E. Swinney (Husband) appeals the division of property made in a dissolution decree. Husband raises three issues for review. However, we find it necessary to address only the following issue: Was the marital property distributed in a just and reasonable manner?

We reverse.

Mr. and Mrs. Swinney were married on February 24, 1960. Husband, a college graduate, is employed by the State of Indiana. His net pay at the time of the final dissolution hearing was $412 every two weeks. 1 Wife has not graduated from either college or business school, but since 1962 she has been employed by an accounting firm in a full or part-time capacity. Wife currently earns $165 net per week.

During their marriage, wife’s father gave three parcels of real property to both parties. This real estate was sold during the marriage and the net profit, totalling approximately $30,000, was invested in their present residence or used to pay living expenses and purchase furniture. In 1976, wife’s father cancelled the $26,000 mortgage he held on their newly-built residence after they had made interest payments for three years.

At best the trial court awarded Husband approximately 3% of the total marital assets, consisting of a 1980 Pontiac with a net value of $1,300 2 and some paintings having only sentimental value. Wife was given 97% of the marital assets having a total value of $43,970 and consisting of the following assets:

(1) 1975 Pinto.$ 900
(2) Savings Account. 1,010
(3) Checking Account. 60
(4) Household goods. 2,000
(5) House . 40,000 3
$ 43,970

Husband complains that the trial court’s division of the property was an abuse of discretion in that the property was not divided in a just and equitable manner. Husband contends that, when one considers the end result of the trial court’s property distribution, there is an inference that the trial court did not utilize the “one pot theory” or that the trial court considered the gifts from wife’s father to have been made only to wife.

The issue then is whether the trial court abused its discretion in dividing the property. The standard of review for this court is whether the result reached is clear *998 ly against the logic and effect of the facts and circumstances before the trial court, including any reasonable inferences that might be drawn therefrom. In re Marriage of Osborne, (1977) Ind.App., 369 N.E.2d 653; In re Marriage of Miles, (1977) 173 Ind.App. 5, 362 N.E.2d 171; Geberin v. Geberin, (1977) 172 Ind.App. 255, 360 N.E.2d 41. We will not reweigh the evidence and we will consider only that evidence and the reasonable inferences drawn therefrom which are most favorable to appellee wife. Jackman v. Jackman, (1973) 156 Ind.App. 27, 294 N.E.2d 620.

IC 31-l-11.5-ll(a) (Burns Code Ed., Repl.1980) provides marital property shall be divided “in a just and reasonable manner.” The statute then continues to set forth the factors the trial court shall consider in determining what is just and reasonable. 4

The term “just” invokes a concept of fairness and of not doing wrong to either party; however, “just and reasonable” does not necessarily mean equal or relatively equal. In re Marriage of Osborne, (1977) Ind.App., 369 N.E.2d 653, 656. Because a substantial contribution by one spouse under one subparagraph may be offset by the contribution by the other spouse under another subparagraph, the trial court must look to the total circumstances when determining what is just and reasonable and have a rational basis for its action to avoid error. Id. at 657.

The evidence presented to the trial court does not justify an award of 97% of the marital property to wife. A close examination of the statutory factors fails to reveal a rational basis for a distribution so totally favoring wife.

IC 31-l-11.5-ll(a)(l) permits the trial court to consider “the contribution of each spouse to the acquisition of the property, including the contribution of a spouse as a homemaker.” We conclude that the “contribution” envisioned under this subsection refers to assets acquired through the efforts of the parties as opposed to those acquired through the existence of a blood or other relationship or status. In this case, neither spouse actually contributed toward the “acquisition” of the marital property. Although both husband and wife were employed during the marriage, the property over which the parties now quarrel was primarily acquired by gift. The trial court at best could find wife contributed more than husband via her employment and homemaker status, but not to such an extent as to provide a rational basis for a 97% award.

IC 31-l-11.5-ll(a)(2) allows the trial court to consider “the extent to which the property was acquired by each spouse prior to marriage or through inheritance or gift.” In this case both husband and wife acquired the gifts from wife’s father, so the parties stand in parity under this consideration. Nowhere within IC 31-1-11.5-11(a) is the trial court permitted to consider the source of gifts acquired during the marriage. Hence, the trial court’s distribution cannot be justified on the basis that the gifts were given to the parties by wife’s father.

IC 31-l-11.5-ll(a)(3) provides that the trial court shall consider “the economic circumstances of the spouse at the time the distribution of the property is to become effective, including the desirability of awarding the family residence, or the right *999 to dwell therein for such periods as the court may deem just, to the spouse having custody of any children.” The evidence reveals the parties are in virtually the same economic circumstances. How good or bad the circumstances are depends upon the trial court’s division of the marital assets, the only assets of the parties. Thus, on this consideration the parties are in parity. The decree does give wife custody of the children of the marriage, for whom husband is ordered to pay weekly support. While we feel custody may well be enough by itself to support the custodial parent’s use of the family residence for a period of time, we feel that fact alone will not support an award of the residence to the wife when the residence is, in essence, the sole marital asset. Without some other offsetting factor, such an award is not just and reasonable.

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Bluebook (online)
419 N.E.2d 996, 1981 Ind. App. LEXIS 1393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swinney-v-swinney-indctapp-1981.