Bingley v. Bingley

he blackjack because him from not exclude card count concerning rule particularized counts cards.5 free, notice has assuming the casino ing, Commission, to take given been part. in part; in reversed Affirmed than using more as such countermeasures one deck.4 KIRSCH, J., NAJAM, J., concur. take ref- may simply

Grand Victoria exelusion, right of law in the common uge of this policy public it is the as inasmuch subject to "strict gambling State 4-33-1-2(2), Ind.Codе regulation," exclusive given has been the Commission riverboat casino set rules authority to § 4-83-4-2. Com- games. BINGLEY, Appellant- Anne M. against prohibition enact a did not mission Respondent, did not Victoria counting and Grand ecard rule amendment. prohibition seek a duly promulgated law, or regulation, No BINGLEY, Appellee- B. of card that the skill Donovan

rule advised Petitioner. counting prohibited. was 02A03-0904-CV-187. No. comprehen implemented Indiana has of Indiana. Appeals Court gam riverboat regulating sive scheme abrogated the partially bling thus has Oct. Donovan of exelusion. common law conduct his mental ejected solely for was blackjack, a Com casino the course of ejec and thus his

mission-regulated game, as the common law tion is not protected Uston, Here, inas expressed in Wilkoite. to exclude has no Grand Victoria plays that he grounds Donovan on the Uston, 89 existing rules. See game under 169-70, 445 A.2d N.J. at summary judg entitled to Donovan is declaratory judg request ment on his may ment to the effect that Grand Victoria 10-2-3(b) deposition, a lack of mutu- reveal a riverboat Donovan's provides that 4. 68 IAC eight required cards ality obligation, decks of for contract use one to licensee 10-2-2(a) blackjack. IAC game Acquisition Corp. See OVRS formation. blackjack offering rеquires a riverboat Services, Inc., Community Health covering game "submit rules (observing "unless blackjack." legal has assumed a each to the contract other, lacking obligation the contract is to the granted 5. Summary judgment properly mutuality"), denied. trans. Donovan's contract Victoria on for Grand materials, including designated claim. The IN, P.

Stephen Rothberg, Wayne, Fort Attorney Appellant.

Lindsey Grossnickle, A. Bloom Gates ‍​‌​​‌‌‌​‌‌‌‌​​​‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​‌‌‌‌‌​​​​‌​‌‍Si- Whiteleather, LLP, gler & Columbia City, IN, Attorney Appellee.

OPINION

BROWN, Judge. Anne Bingley appeals the trial cоurt's order as to division of assets the dissolu- marriage tion her Bingley. issue, single raises a which we revise and restate as whether the trial court erred in concluding employ- that Charles's er-paid post-retirement health insurance were not a marital asset to division. We affirm.

The relevant facts follow1 Charles was a seventy-five year old man and was re from Corporation tired Navistar filing. time of a participant Charles wаs pension, a defined benefit and in addition monthly stipend, to a Charles received "an Appellate 1. Pursuant to Ind. par- submitting transcript Rule lieu of of the dissolu- Agreed ties filed an Statement proceedings of Record in tion exhibits. request for reflect a does not the record benefit [sic] addition/supplemental party. Where findings such in the form retiree Navistar fact findings of specific enters trial court premi health of [his] Navistar apply we by sponte, Navistar sua payments and conclusions said which ums first, we [his] the of review: for balance standard two-tiered shall continue The at 17. Appendix Appellant's supports life2 the evidence whether determine second, benefit deriv the "a non-elective whether find findings, are and payments the and retiree as a Navistar v. judgment. to Fowler ing [Charles] the ings support 97, division, (Ind.Ct.App. divestiture, 102 or 830 N.E.2d Perry, to not [arе] not have could Id. Charles transfer." Helm, 2005); v. 873 N.E.2d also Helm see monthly pension larger receive a elected to "The trial 83, (Ind.Ct.App.2007). 87 payments. premium in lieu of the conclusions will be set findings and court's erroneous, clearly are only if aside his mar- dissolution of filed for no facts or ie., record contains when the 9, the May 2006. At on riage from Anne Fowler, 830 them." supporting inferences disputed it was proceeding, dissolution clearly еr A judgment at 102. N.E.2d the include whether to support not the findings "if the do roneous in premiums health insurance Charles's conclusions of law of law or the conclusions Anne offered an assets. pot of marital the Bizik v. support judgment." the do not that, to pursuant exhibit to demonstrate 762, Bizik, (Ind.Ct.App. 766 758 N.E.2d pay- premium the principles, actuarial 2001), general judgment "A trans. denied. $101,556. value present ments had a affirmed if it findings with will be entered 15, court 2008 the trial Septеmber On legal theory sup any on can be sustained of Mar Decree of Dissolution entered its Mullin v. Mul by the evidence." ported court, citing Metro. The trial riage. Life 1340, lin, (Ind.Ct.App. 1341 NE.2d 634 (Ind. Tallent, 990 445 N.E.2d Ins. v. Co. Mitchell, 1994); v. also Mitchell see 1983), is not that the "benefit determined (Ind.1998) 920, that (holding N.E.2d Appellant's Appendix property." any legal on "may judgment affirm the we a motion to correct at 25. Anne filed by findings"). the "We theory supported 6, March error, hearing was held оn and a law, howev to conclusions of do not defer 26, 2009, the trial court March 2009. On er, them de novo." Freese and evaluate on the motion entered an order Burns, (Ind.Ct.App. the health insurance declared again 2002). trans. denied. by Navistar should premium payments a marital asset. be counted as interpret to requires This ease us in step "The first 31-9-2-98. Ind.Code whether the The sole issue is is to de any Indiana statute concluding interpreting in trial court erred spo has termine whether employer-paid post-retirement on the clearly unambiguously and ken not a were Action question." Citizens Coal. point In this subject to division. marital asset Inc., Ind., Energy, v. PSI Inc. case, findings of trial court entered (quot N.E.2d However, thereon. fact and conclusions both list the correct per provided Anne $845.74 payments amounted to 2. These in- Agreed of Record Statement month. amount which was basis $845.74 $101,556 correctly arriving lists as the benefit's Anne's Order $874.74. The trial court's amount at present value. data and the actuarial on March parts or Ctr., setting property ... ner & Health Care Hosp. ing St. Vincent (1) spouses to over 703-704 Steele, Inc. amount, to an either requiring If a statute is (Ind.2002)), denied. reh'g installments, that is gross its or give the statute we must unambiguous, ..." 31-15-7- A meaning. just proper. Id. statute plain clear 4(b)(2). to susceptible if it is not unambiguous Id. Howev interpretation. than one

more that the health argue to appears multiple er, susceptible if a statute is fall under premium ‍​‌​​‌‌‌​‌‌‌‌​​​‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​‌‌‌‌‌​​​​‌​‌‍payments try ascertain we must interpretations, (2) benefit not as a retirement subsection interpret the intent and legislature's the employ- termination of upon the forfeited that intent. Id. effectuate so as to statute rights have been pension ment. "Vested logi intended the presume We spouse assеts of a 'intangible described in the used language of the application cal mar- during earned the which have been absurd statute, unjust or as to avoid so of through the contributions riage, either Id. results. would have which otherwise the addressed previously have not We the during as assets mar- been available health insurance post-retirement whether contributions of the em- riage, through or a former paid compen- defеrred which constitute ployer "proper- marital asset qualify as employer Preston, 704 Marriage In re sation.'" § Howev- 31-9-2-98. under Ind.Code ty" (quot- N.E.2d relevant er, us with provides law Jr., our case Cuarx, THs Law or ing 2 Homer H. Unitsp the in- apply to that we shall principles in tur Stars Rerarions Domestic purposes disso- question. For stant ed.1987)). (2d 16.6, § at 208 "prop- defines Indiana proceedings, lution to several Indiana cases Anne cites erty" as: be pеnsion benefits to which have found both or the assets of [A]ll Hill, In v. at issue marital assets. Hill including: parties, $2,600 per pension month husband's was (1) pen- to withdraw present right (Ind. N.E.2d 459-460 payments. benefits; or retirement sion summarily held that We Ct.App.2007). (2) or re- pension to receive currently receiving pay Husband is "als that are not tirement for- benefits plan, clearly he pension ments from his employ- wpon termination of pension Jeited or right to withdraw has 'a (аs vested defined ment or that are under [Ind.Code retirement benefits Internal Reve- 411 of the in Section 31-9-2-98(b)(1) ]," and that therefore Code) are af- payable but that nue a marital asset. pension constituted marriage; ter the dissolution Marriage in In Similarly, at re Id. (8) disposable re- to receive Nickels, which pension, we that wife's held (as defined tired or retainer month, subject was per valued at $544 1408(a)) acquired during 1091, 1097 10 U.S.C. to distribution. pay- or bе marriage also cites Hen (Ind.Ct.App.2005). of mar- after the dissolution able Hendricks, subjected dricks riage. payments which had portion marriage to marital 31-9-2-98(b) during the add- accrued {emphasis (Ind. distribution. ed). are not divisi- assets that For marital Wyzard, Wyzard also Ct.App.2003). See court to "divide ble, for a trial proper it is (Ind.Ct.App. N. E.2d reasonable man- just in a 2002) (husband's benefits, vested monthly because he made contributions $340,897.49 . $518,174, through a disability plan betweеn retirement totaling through employer...." offered his Id. distribution); at subject to marital were In re 286. We affirmed the trial court's inclu Preston, 704 N.E.2d at 1097- Marriage of estate, sion of the benefit the marital (husband's benefits, retirement in holding value of "[the William's dis life, cluding monthly annuity awas ability pension readily ascertainable and asset).3 susceptible to division." at Id. The trial court determined that More recently again we looked dis employer-paid ability benefits in Antonacopulos v. Anto premiums were not a marital nacopulos, 753 N.E.2d 759 (Ind.Ct.App. agree. division. We The cases cited 2001). Antonacopulos, we examined Anne are all similar in that they involve Leisure, (Ind. Leisure v. 605 N.E.2d 755 monthly monetary payments directly made 1993), in which the Indiana Supreme Court Here, to the pension-holding spouse. ... "included a discussion of Gnerlich and payable Charles's benefit was not to him. thereby implicitly our holding limited Further, Charles could not elect to have Antonacopulos, Gnerlich." 758 N.E.2d at his stipend increased in lieu of the premi 761. We noted that "the benefits in Gner rather, payments; um the benefit was non- lich were a marital subject to distri divestiture, elective not subject to divi because, bution ‍​‌​​‌‌‌​‌‌‌‌​​​‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​‌‌‌‌‌​​​​‌​‌‍in order to obtain the in sion or transfer. policy surance coverage, the husband used marital assets to make monthly pay We find two cases read in tandem to be ments, thus depriving family of the use particularly instructive on this issue. of those funds." Id. First, parties both discuss Gnerlich v. 538 N.E.2d 285 (Ind.Ct.App. Gnerlich The underlying principle applied in 1989), Gnerlich, trans. denied. In hus Gnerlich and Antonacopulos is that insur disability band received benefits from his ance policy coverage part as a of an em employer former which he contended were ployee's retirement package may be in erroneously in included the marital estate. in cluded the marital only estate when (inerlich 538 N.E.2d at 285-286. Hus marital assets were used to obtain the band "became entitled to these benefits benefits.4 Benefits which purely are sup is, therefore, authority Anne juris also cites from other fit at part least in a marital dictions which support asset," she contends the in to the extent that marital funds were employer-paid clusion of the health insurance acquire used to the benefit. Id. at 1015. premium payments pot. in the marital Anne, The other two cases cited Walek v. pair first cites a Supreme cases from the Walek, 193 Misc.2d 749 N.Y.S.2d 383 Alaska, Hansen, Court of Hansen v. 119 P.3d (2002), Weller, and Weller v. 2005 WL (Alaska 2005), Kinnard, 1005 and Kinnard v. (Ohio Ct.App.2005), both involved (Alaska 2002). 43 P.3d 150 These cases are spouses using readily distinguishable, however. Kinnard in who were marital assets in or- der to obtain their health coveragе. insurance spouse cancelling volved one the health insur Walek, 385; Weller, coverage ance for the other from a 749 N.Y.S.2d at WL * joint plan, distinguish- We find using rather than these cases actuarial data employer to value an able because involved the contribu health insur- coverage ance premium Kinnard, itself in which marital assets tion payments. to 43 P.3d at 156. Hansen concerned retivement bene- being spent were coverage. for the prior fits that were marriage earned to the which were subsequently cashed out and re- Supreme 4. The Indiana recenily Court ana- purchased Hansen, Severs, with lyzed marital assets. these same cases in v. Severs P.3d at 1014. The court held that "the bene- (Ind.2005). Severs, N.E.2d 498 In the Court pension withdraw or re- right to present us ie., purchased/obtained not plemental, 991; Id. at Ind.Code assets, not tirement non-eleсtive and marital ing benefits." (Burns 1980) 31-1-11.5-2(d) division, (emphasis divestiture, § or transfer added). the marital of the emphasized portion from The excluded properly are estate.5 as sub- definition is now codified property (b)(1) definition. current section trial in its order the finally that noteWe 31-9-2-98(b)(1). ap- Tallent Ins. Metro. Co. upon relied court Life Wilson, plied Wilson care the health deciding that Tallent held: (Ind.Ct.App.1980), "[Where which not a marital as were or vested present is not found The trial court set. in order to the retiree must survive pre (payment benefit insurance "health and is periodic payment the next receive miums) life in nature to a term is similar on de- entitled to receive employer an provided policy insurance mand, property is not marital Such a value. no cash surrender with can be divided or awarded to the Appel property." is not benefit Tallеnt, spouse under I.C. 31-1-11.5-11." other (citing at 25 Appendix lant's Wilson, 1178. In applying 409 N.E.2d at added). 990) (emphasis that: the court held Tallent, Supreme Court the Indiana in the group policy term insurance [The definition of now-superseded applied a bar is excluded from the statuto- ease at employer-pro- that an holding property. policy ry definition policy term life group vided no value. in In Re had While Tallent, N.E.2d 445 a marital asset. not (1980) McDonald, Marriage Ind.App., prior to stat- Tallent was decided at 993. of policy a life insurance 415 in 1985 which enacted utory amendments an and was awarded to was termed Indiana dissolu- landscape of changed the policy had a cash parties, one of the when division. property tion bar, decided, the definition value. In the case at was surrender Tallent as policy no value. The policy had such "all the assets in Indiana was: "property" employment, was undoubt- a benefit of parties, including a or both party of either Appeal recently ruled Court of 5. A California authorities, a future that "under these held involving facts. In Ellis on a case similar may to the be a marital asset stream income Ellis, Cal.App.Ath Cal.Rptr.2d 101 124 were used to either marital assets extent that (2002), post- was entitled to a 719 husband the income is acquire income or the future subsidy employer from his former retirement services, op- past compensation future premiums. help pay health to his insurance earning capaci- replacement for lost posed to court, relying on In re Id. at 722-724. disability." N.E.2d at 500. ty due to Havins, Cal.App.4th Marriage may be considered if benefit at issue Even the (1996), subsidy Cal.Rptr.2d 763 held that services," past how- compensation for "future Ellis, part estate. was not of the maritаl ever, directly that Severs we do not believe noted that Cal.Rptr.2d at 725. The court case because speaks asset in the instant to the possible for the were several rationales there a "future in- properly classified as it Havins, right including: to holding in "[The Here, in the the asset comes come stream." health insurance is not convertible subsidized form of cash; fringe undisputed benefits of to some directly em- from the former simply are made employee or retiree are value to the upon provider; insurance ployer for the benefit of the the health not divisible to actually a "fu- never obtains (e.g., ‍​‌​​‌‌‌​‌‌‌‌​​​‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​‌‌‌‌‌​​​​‌​‌‍right at an em- therefore a to a discount divorce store)...." employ- Id. at ployer-owned his former cafeteria or stream"" from ture income er. edly contingent CRONE, on employ- continued Judge, concurring in result. Payment pоlicy proceeds ment. was agree I with majority's conclusion contingent on insured's death. Be- that Charles's employer-paid post-retire- there was no cause to ment health are not a benefits, any or to receive withdraw marital asset subject to I division. write policy property was not under the stat- however, separately, because I reach that ute. conclusion a different route. Tallent, N.E.2d at 991. Thus, rеasoning in Tallent reiterate, To Indiana Code Section 31-9- 2-98(b) policy based on the fact that the had "no defines "property" purposes it present value" because did not contain a dissolution proceedings as follows: "cash surrender value." "Cash surrender the assets of [Am or both value" is defined as amount of "[the mon parties, including: ey payable when an insurance policy hav (1) present right to withdraw value, ing сash such as whole-life policy, benefits; maturity redeemed before or retirement or death." Dictionary (8th ed.2004). Buack's Law (2) receive or re- However, nowhere does our current statu tirement benefits that are not forfeited tory require pension framework or retire upon termination employment or that ment to have a assets cash surrender value (as are vested defined in Section 411 of in order to be сounted as a marital asset. Code) the Internal Revenue but that are We that the holding find of Tallent was payable after the dissolution of mar- now-superseded based on a definition of riage; and "property." case, In the instant we are (8) the right disposable receive re- (b)(2) with concerned subsection of the (as tired or retainer defined current definition which does not 1408(a)) require possess the asset to U.S.C. acquirеd during the mar- a cash surren riage that is or payable der be value order for it after the to be included the dissolution of pot. marriage. marital We therefore do not find Tallent instructive. See Schueneman v. Initially, I note that the Internal Reve- 591 N.E.2d Schueneman, 607-608 nue Code differentiates between "retire- that, (holding after the (such ment benefits" as monthly Charles's amendments, seope the pensions (such stipend) and "medical benefits" as considered expanded assets was the health premiums). insurance See 26 beyond those which "have a 41l1(a)(9) (stating U.S.C. that a "normal it"). any money to receive from retirement benefit shall be determined reasons, For foregoing the we affirm the without regard benefits"); to ... medical trial court's determination that Charles's 401(h) see also 26 U.S.C. (stating that "a employer-paid health premiums pension or annuity plan may provide for were not a marital to divi- sickness, of benefits for acci- sion. dent, hospitalization, and expenses medical Affirmed. employees, retired spouses their dependents, their only but if ... such ben-

MAY, J., concurs. efits are subordinate to the retirement CRONE, J., concurs in result with provided by benefits plan"). "Retire- may separate opinion. ment benefits" qualify as un- vested ately treated the trial court in the same but "medical benefits" der Section earnings ability. manner as future It is may not. well settled that "a trial court whether the question This raises the earnings divide future of a Assembly to de Indiana General intended anticipation that will be earned." benefits" and "vested" in fine "retirement Shannon, Shannon v. it terms of the Internal Revenue Code. As (2007).8 (Ind.Ct.App.2006), trans. denied written, currently is Indiana Section Code foregoing, Based on the I concur result 31-9-2-98(b) ques does not answer this majority's with the affirmance of the trial fact, drafting tion. In its inartful raises court's dissolution order. questions easy additional that have no an If legislature swers. did intend to

define "retirement benefits" and "vested" Code, in terms of the Internal Revenue then the health insurance issue would not be considered "retirement

benefits" and therefore would not be con marital property subject

sidered to divi INDIANAPOLIS CITY MARKET true, If opposite sion. then we are CORPORATION, Appellant left with the majоri case law on which the Defendant, ty relies guidance determining whether the premiums are "retirement that are benefits" "vested" under Indiana MAV, INC., Garden, Grecian d/b/a/ short, ‍​‌​​‌‌‌​‌‌‌‌​​​‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​‌‌‌‌‌​​​​‌​‌‍law. I believe that Indiana Code Appellee-Plaintiff. 31-9-2-98(b) ambiguous Section No. should address this 49A02-0905-CV-399. ambiguity.6 Appeals Court of Indiana. clear, however, What does seem is the Oct. legislature's overarching only intent durable and definable "benefits" be consid property subject

ered marital to division. The health insurance premiums paid by

Navistar are purely contractual

are contingent upon both Navistar's and such, viability.7 premi As income, ums are more akin to future and I think that be more appropri would insolvent, 6. If the did intend to define "re- Should Navistar become tirement benefits" and "vested" in terms of Charles's defined benefit would be Code, might the Internal Revenue then one protected Employee under the federal Retire- аrgue that Indiana Code Section 31-9-2- ("ERISA"). Security ment Income Act 98(b)(2) should be worded as follows: "the premiums pro- would not be to receive or retirement benefits tected, however. upon that are not forfeited termination of (as employment and that are vested defined in noting It is also worth that the Code) Section 411 of the Internal Revenue qualified are not to division do- payable but that are after the dissolution ("QDRO"). mestic relations order added.) marriage[.]" (Emphasis

Case Details

Case Name: Bingley v. Bingley

Court Name: Indiana Court of Appeals

Date Published: Oct 30, 2009

Citation: 915 N.E.2d 1006

Docket Number: 02A03-0904-CV-187

Court Abbreviation: Ind. Ct. App.