*1 Id. at 846. injury. calculated to cause
Randall’s intent injury cause was sim-
ilarly established as a matter of law when
he knowing fired at a door someone was on
the other side. Considering that Randall
could have at the ceiling fired or in the
floor directly door, rather than at the
trial court’s conclusion that Randall intend-
ed to scare the clearly intruders was
erroneous.
Moreover, assuming even
did not err in that Randall did not
intend injury, to cause clearly in finding
erred expect he did not injury. Expected
cause injury means that although
the insured acted he was con-
sciously aware that the harm caused his
actions was practically certain to occur.
Graham at 512. Randall was aware that door,
someone was behind the and he fired shotgun at the per- door. Reasonable
sons certainly expect would injury to occur
in such a situation. I would reverse the
judgment of the trial court. Chapman, Cotner, Andrews,
Ronald L. Chapman, Mann Bloomington, & appel- lant. AXSOM, Appellant, McDonald, Thomas M. McDonald & Da- kich, Bloomington,,for appellee. AXSOM, Appellee. Harold MILLER, Presiding Judge. No. 53A04-8908-CV-378. thirty-five years After marriage, La- Appeals Indiana,
Court verne and Harold Axsom were divorced on Fourth District. 22,1988. Laverne, August disabled, who is appeals the judgment, claiming trial court’s Jan. (1) the court erred in failing to award her
spousal maintenance disability due to her (2) distributing the marital property, which included the value of Harold’s bar- ber
We affirm the trial court’s denial of spousal maintenance and the court’s award disability pension of Laverne’s to her as property. her sole we can find no basis court’s valuation of Ha- rold’s business and therefore reverse and *2 1098 fact, $10,000.00,which was allocated findings of which duction of
remand for further (representing of the marital the amount of may affect the distribution to Laverne marriage). An equity brought assets. she into $2,000 was deducted additional amount of ap- by Laverne her The issues raised presum- allocated to Laverne—which and peal are: ably represented the value of Harold’s in fail- the trial court erred I. Whether as her Laverne also received business.1 spousal maintenance to ing to award $10,000.00 certificate of property sole a Laverne; family one of the deposit. Each received trial court erred con- II. Whether the decree; per divorce there is still cars disability in- cluding that Laverne’s car, Harold’s is indebtedness on Laverne’s of the mar- come were assets benefits paid off. division; subject to riage and earning The court found that Harold’s trial court erred III. Whether the approximate amount of capacity was shop that Harold’s barber has per month and that Laverne had $1575.00 dollars two-thousand a value and additional income invested other assets ($2000.00); and The court— bearing in interest accounts. trial court erred Whether the IV. financial re- considering Laverne’s other inadequate monetary award making an sources, property and awarded to assets pursuant to Indiana Code to Laverne marginal her the decree and 31-1-11.5-11. for him- provide maintenance request spousal Laverne’s self—denied FACTS All other assets were divid- maintenance. mar- and Harold Axsom were Laverne parties’ and are not ed to the satisfaction 3, her April 1954. Laverne filed ried on appeal. to this relevant marriage on Au- Petition for dissolution granted and dissolution was gust 15, One child was born of May 1989. AND DECISION DISCUSSION emancipated. La- marriage who is now Spousal Issue Maintenance I— (61) age, sixty-one years of is verne is and without disability Because Laverne is disabled and receives
disabled
herself, she asserts that
means to
Security totalling four hundred
from Social
($432.00)
court committed reversible error
monthly.
the trial
thirty-two
dollars
awarding
spousal maintenance.
which
her
a barber
Harold owns
“However,
has been
barbering
even when evidence
chairs and other
includes four
showing
physical inca-
building
mental or
equipment. He leases the
admitted
affecting
spouse’s abili-
pacity materially
a
least
of his four chairs to
rents out at
two
ty
self-support,
grant
a
of maintenance
receiving
percentage
beauticians —
their
optional,
the discretion of
The court valued is still
within
earnings
as rent.
(1983), Ind.
trial court.”
v. Coster
two-thousand
Coster
the business
397,
(citing, Farthing
however,
App.,
403
($2000.00);
expert
witness tes-
336,
(1979),
Ind.App.
382
thirty
in excess
178
Farthing
that its value was
tified
($30,000).
court has
discretion
pro-
The net
N.E.2d
The
thousand dollars
maintenance when
power
grant
ary
from the sale of their residence—
ceeds
31-1-11.5-11(e)(1).2
IC
$54,983.60
equally,
after a de-
is disabled.
divided
—was
there-
have no claim or interest
shall
the Decree the court found
the barber
Petitioner
1. In
hereby awarded the additional
requiring
in. Petitioner
shop business was a marital asset
divi-
$2,000.00,
pro-
be deducted from the
(R. 15)
sum of
sion
the court.
The court further
(R.
parties'
residence.”
ceeds of the sale
Shop,
that the value of the Barber
includ-
found
17)
$2,000. (R. 16). Finally
ing equipment,
court ordered:
1—11.5—11(e)(1)provides
pertinent
IC 31—
part:
Respondent as the owner
"7. The business of
physically
Barbershop
finds a
to be
"...
if the court
operator
shall
of Crosstown
mentally incapacitated
to the extent
Respondent's
sole and individual
argues
that it
an abuse of
judgment
substitute our
deny
discretion for the
her
court’s.
court to
mainte
nance, citing
Dahnke
Dahnke v.
Melnik v. Melnik
Ind.App.,
wherein this court observed Helen, marriage. wife, years The then 64 making provi lature two reasons old, degenerative was to a disabled due sions for an educationally- maintenance for joint disease problems, and other medical impaired spouse: prevented which her from obtaining em- ployment. sought spousal
“(a) She as mainte- society general, to such policy nance, but the trial court denied her re- to pressures tends relieve the on our quest ex-husband, her George, because already overburdened social welfare and, age 68, also disabled at unable to and; agencies, (b) individual, to as the employment. affirming obtain In justice equity no require less. In decision, we observed that the sum, stat- justice is when that served statute merely provides ute3 may a court applied is trial enforced courts in provisions make for maintenance for a dis- appropriate cases.” However, spouse. abled we observed that Id. at 175. language permits such the court to consid- Laverne claims her situation “ability spouse the er from whom presents example, a “paradigm fitting sought maintenance is to meet his needs 31-1-11.5-11(e)(1).” squarely within IC meeting spouse while those the seeking of Brief, However, Appellant’s p. 13. as we 972, quoting maintenance.” Temple Id. Dahnke, below noted the court is vested (1975), Temple Ind.App. 215, 220, v. determining with broad discretion wheth 227, 328 N.E.2d 230. spousal er an of maintenance should case, Melnik, In present the as in made under the be the facts case before ignore the trial court did not the evidence. Id., (citing it. at 174 Marriage In re clearly The evidence shows that neither 86, Dillman Clearly, has income. substantial the 87). The trial court its abuses discretion if trial court's characterization of Harold’s is clearly against logic its decision the and ability provide to his own maintenance as effect of the facts and circumstances be- marginal supported by is substantial evi court, reasonable, or probable, fore recognized dence. The court Laverne’s and actual be deductions to drawn there- ability job greatly to obtain a ham may Id. An from. abuse of discretion It pered poor recog her health. further misinterprets found when the trial court security nized the small amount social disregards the law factors listed in the However, she receives. controlling statute. Id. also noted the additional resources avail Dahnke, we held trial court to because of the divorce able ignored its it abused discretion when com settlement. The evidence before the trial petent, support uncontradicted evidence relevant to court could conclusion either way. a determination the need rehabilita Given the additional resources avail maintenance. to to merit in the trial tive We remanded allow able we see trial court previously completely to balance court’s determination impoverish though ignored statutory factor with other Harold. Even we factors 31-1-11.5-11(e)(3). in IC We did have conclusion than listed reached a different incapacitated “may court order maintenance in final decrees affected, materially findings required court making himself ... after under” IC find sary during maintenance for that is neces- 31-1-11.5-11(e). added). (emphasis The period incapacity, subject change in have effect on the statute would no added). (emphasis order of the further court.” the decision. 1—11.5—9(c) amended since 3. IC has been 31 — provides Melnik decided. It now that a court, Harold, judg- regarding overrule a chair trial we cannot from also testified supported by Morgan
ment the evidence. Charles was Cooper placed witness who actual market value on Harold’s business. Charles testified that he had been with Disability Income as Treating Issue II — accounting firm for a half three and Property Marital years, but had been a licensed C.P.A. since Laverne next asserts that the trial at- 1982. He was contacted Laverne’s erroneously her own disabil awarded torney prepare an evaluation of the Bar- part ity income to her as Shop viewpoint. *4 ber from a conservative It is Laverne’s assertion that settlement. upon He he called testified that was often have con this income should not been purposes such as value businesses for property. in the of sidered at all division apprais- this that the conclusion his agree pres which cannot We benefits guidance al of his was within normal can ently withdrawn and are not vested be profession conducting appraisals. in such not for division in a dissolu be considered Charles estimated the business’s worth at 31-1-11.5-2(d). However, we tion. ICSee approximately thirty-thousand hun- four using agree do that the trial court was ($30,470.00) seventy dred and based in In the de these benefits this manner. fully-in- on the fair market value—what cree, parties the trial court found formed, willing buyer seller and would regarding agreed themselves between pay, acting agree to when neither ownership of certain of and distribution compulsion. testified that under Charles noted marital assets. One of those assets figure he arrived at this after he reviewed Security by Laverne’s Social the court was forward, portions tax of returns from 1980 month, Disability per Income of $432.00 deposition testimony and account- to her as her sole and which was awarded Taylor. ing figures provided Kathleen property. individual appropriate He determined that an evalua- it a While the court have labeled technique in be based tion this case would asset”, “marital it is clear that chair, on rental income from each rather purpose stating Laverne’s reten- court’s generated than to determine income decree tion of the benefits from Harold. He then used an income agreement already clarify an and reassert capitalization method to calculate the value parties rights all to these made an investment based on belong to Laverne. The court was percent. return of 20 based his Charles dividing a “marital” asset. We find no figures four renting on out three of the error. for his calcula- chairs. He used as values Issue III —Valuation Business paid in tions the amount of rental income argues that the trial court erred Taylor. He took the 1987 Kathleen shop busi- chair, that Harold’s barber multiplied that per rental income (including equipment) has a value ness times the of chairs and deducted number ($2000.00). two-thousand dollars expenses in Harold’s business as reflected findings are agree. We The record difference, yearly tax returns. The the net any by which the trial court devoid of basis $6,000, multiplied by income of about fig- at this could have valued the business multiple capitalization income of 5 to arrive ure. words, at the fair market value. In other opined willing buyer would antic- he that a Charles, Public Ac- David a Certified ipate percent a 20 return on investment accounting Indianapolis countant with here, and, receive net income annual- $6000 firm, expert witness for testified as an $30,000 ly purchase price. On cross- opinion to the value giving his as examination, Harold, Laverne, he did concede that such in- risky be rented a investment Taylor, Kathleen a beautician who —risk-free H01 vestments run 9 or percent.4 about 10 tions He on which he in making relied also (the testified that he had not been involved estimate number of chairs rented and in the valuation any shops barber before chair) the income from each could ques- be this one and any that he unaware of evidence, tioned. Based on the the court specific shops that barber have been sold. could have discounted the value of the busi- $30,000, ness as not being worth but the Harold testified that barber busi- discrepancy between valuation nesses in Indiana had declined in number testimony business and the is so far years. recent He testified he leased apart it appears to be an arbitrary his building expire and the lease was to determination. “When there is no evidence June 1st following the trial. he supporting assigned by the value anticipated there would another two- property, we year then must find an renewal of the On cross-exami- lease. nation, abuse of if discretion.” Harold was asked he was familiar Feitz Feitz Ind.App., shops Bloomington (citing, barber sold past. replied the recent He Marriage Sharp that he Re person knew of one tried to who sell her N.E.2d Because the trial court’s val shop, but went out of business. He added uation opinion, is so far from Charles’ *5 that shop she had tried to sell the the any record does not show other testi $5,000; however, point that at Laverne’s mony that would lead to such a low valua objected counsel testimony to the as “solici- tion, we trial remand to the court for fur hearsay (R. tation testimony.” of obvious findings ther on of fact based the evidence 176). objection. The court sustained the already before the and a court redetermina value, tion of any the business’s and for Taylor Kathleen in the worked barber property reconsideration of the settlement July April May from until or that have to be made. of 1988. She testified that there were four chairs in the that shop and the rent from
her chair alone was four-thousand two hun- Inadequate Monetary Issue Award IV— ($4,290.00) ninety dred and in Finally, Laverne the asserts trial However, she also that during testified a court inadequate monetary made an portion of the time worked in she to her. The reconsideration business shop, person only she was the who rented a adjustment may require valuation in the chair from him. monetary total We also award. note that
Thus, although only Harold did not cross-errors evidence of raise with specific respect a property; market value was Charles’ to the esti division mate, therefore, there is assump- evidence we remand the issue of on 4. We observe jected multiple Q: A: question, which could for the Q: The rental I know that Q: Mr. its valuation: 1988 rental income arrived at his [the Yes, Now the reason series and neither negate [*] shop, [******] Charles, was because sir. let me take care proceeded you weighted questions addressing indicate how [*] is that engaged that, although income figures] while necessity [*] you correct, you in to examine Charles with that is they mentioned it questioning chose five wanted to find [*] that— for other think of their next neither some of sir? average expenses utilized, court arrived at [*] how Charles times as on questions. party [*] mine; is that a Charles appeal, some- ob- it A: you that. witness parties ine and thoughts on that? percent. Q: A: tions is because I A: litigation that, one lease, I—are Q: ment thing We trust the court did businesses. Can Well, Right, No, Income key person The reason I’m in a it which would of 20 you here had testimony sir. impeach on it’s not an exact proprietary that is (R. 70-73) talking percent? Friday very capitalization Actually or there was no difficult right. in the about the have a where I asking opportunity you expert. on interest other That involved in a similar to share multiple— return on the science, some had a evaluate these a rely multiple expenses, represents short lease or no where there was case because the with me to cross-exam- on the C.P.A.tell me I these guarantee of five— all that invest- expert the 20 ques- types your CONOVER, concurring part Judge, and for ad- valuation of the dissenting part. award based on the busi- justment in the value, trial court in all ness and affirm the III. respectfully I dissent as to Issue respects. other valuing property in a dissolution of When marriage proceeding, the trial court has CONOVER, JJ., concur- CHEZEM discretion. broad Neffle Neffle dissenting part. ring part denied, reh. reweigh do not trans. denied. We CHEZEM, concurring part Judge, appeal in such cases. Our evidence dissenting part. determine if there is sufficient task is to however, III I Issue II and I concur as to the determination evidence I. Because respectfully as to Issue dissent Here, it heard by the trial court. reached means of and without Laverne is disabled Charles, testimony Mr. Laverne’s ex- from her, agree assertion support, I would witness, valuing pert Harold’s business reversible trial court committed $30,470.00. spousal mainte awarding her error showing the estimated presented an exhibit 31-1-11.5-11(e)(1)1 nance. Indiana Code equipment value of the business power discretionary gives the court the (R. 82). Further, $2,000. is dis grant maintenance when leased to Harold the I.U. Founda- been lead in this case abled. The circumstances (R. right renew it. 175- tion with no amount of to the conclusion that some presentation After the of all the evi- provided to La maintenance should be dence, the value the trial court determined large difference in Because of the verne. $2,000, an amount of the business inability to and Laverne’s their income *6 range by the evi- within the established gainful employment any type maintain Thus, the trial court’s determina- dence. disability, disagree I due to her clearly against logic is not tion it was an majority and would find of the facts and circumstances be- effect not to for the trial court abuse of discretion v. Porter fore the court. Porter Although the grant spousal maintenance. denied, reh. ease cited Dahnke Dahnke trans. denied. N.E.2d Ind.App., 535 Dahnke Porter, good included maintenance discusses rehabilitative in its valuation of Dr. Porter’s medical will maintenance, agree I incapacitative appeal, the first district of practice. On general proposition that with its good value of this court concluded the will spousal maintenance can court’s denial of practice could be included the medical the denial is of discretion when be an abuse estate, good did not hold the marital but circum- logic and facts of the against the I find no abuse of will must be included. Harold become stances of the case. Should uphold the trial discretion and would himself, opportunity he has disabled $2,000 valuation of Harold’s busi- petition the court for modification ness. according to spousal maintenance circumstances. respects, I with the In all other concur majority. IV, in that I concur
As to Issue the business valuation reconsideration of adjustment may require an
under Issue III award, but would monetary total figure adjust
instruct the trial court spousal mainte- appropriate
to include award as well.
nance affected, the mainte- 1—11.5—11(e)(1): find that ... if the court finds 1. I.C. 31— necessary during support mentally incapacitat- physically nance for to be subject incapacity, further order of incapaci- period ed to the extent materially the court. himself is tated