*1 the of opinion I the Court agree Kil- maintained counsel later Two weeks Waterman, (1969) 146 court allowed Appeals in The trial dead. Ware mer was N.E.2d and the dis Ind.App. the the defense to assert counsel Levinson, senting opinion Martin complaint was deceased party in the named N.E.2d that an Ind.App., 409 We be- was thus void. complaint and the meaning the within action is commenced estopped was error. Counsel lieve this was statute, complaint filed as a is when two death when asserting Kilmer's from the by Ind.R.Tr.P. 8. Here contemplated represented Kilmer had earlier he weeks filed within the two complaint was should The trial court alive. was though point, At that of limitation. statute action though the matter as the treated dead, was then named defendant he alive Kilmer while was against filed was extending the statute for requirement of Appellants subsequently died. he and that years for five for further actions the time complaint amend the free to then be would Appellants did then com was satisfied. § 34-1-2-8 pursuant 1978]. to I.C. [Burns against subsequent their action mence situation goes holding This five representative within that personal persons purporting actions of complaint a is filing year period. per- of a deceased the interests represent legal process. The beginning of the alive, lead the court son, he is by implying acquired a in the usual case plaintiff has accordingly. innocently act written com prepared has a lawyer who implying so happens, When gotten and has plaint, paid filing fees claiming benefit from later estopped rolling. This is the kind of demonstra ball misrepresentation. from his prosecute resolution to purpose tion the trial court case is remanded Legislature had which the a claim court holding with the consistent proceedings or extend statute in mind should toll in this case. limitation. PRENTICE, J., concurs. JJ., PIVARNIK, concur. HUNTER DeBRULER, J., in result with concurs PRENTICE, J., concurs.
opinion
PRENTICE, J., in result. concurs TO TRANSFER PETITION
ON HERRON, Appellant K. Justice, concurring in re- DeBRULER, (Petitioner Below), sult. their amended argue that Appellants HERRON, Appellee the limi- timely filed because L. Nicholas complaint Below). by Ind.Code (Respondent period extended
tation § provides: 34-1-2-8 which 4-582A126. No. of an ac- "If, commencement after the Indiana, Appeals of Court of therein, any tion, fails plaintiff District. Fourth prosecu- in the except negligence cause abate,
tion, or be defeated the action or 13, 1983. Dec. judgment be party, or by the death of a new appeal, reversed on arrested five brought within may be action determination, and be
years after first, a continuation
deemed contemplated." purposes herein *2 payment obliga- of marital
las credit for his proceedings; during tions the dissolution admitting 83. Whether the court erred considering Nicholas's tendered offer settlement; *3 support or- 4. Whether the court's child inadequate or on erroneous der was based fact; findings of requiring the court erred 5. Whether adjustment review and of child an annual solely support based on financial state- parties; submitted and ments failing erred in 6. Whether the court retirement account. dispose of Nicholas's affirm. L. in or first claims the court erred
dering that the marital residence be sold proceeds equally.1 She and the divided of discre claims this order was an abuse light of IND.CODE 81-1-11.5- tion 11(b)(8), requiring to consider desirability awarding family "the right therein for residence or the to dwell may just deem periods as the Court Rosenbaum, Dillon, T. J. William John custody any children spouse having Cohen, Dillon, Indianapolis, & Hardamon Susan, spouse, testi ..." the custodial appellant. ideal for the family's fied the house was Elmendorf, Meyer, Elmendorf & Ken A. schools, located near children since it was Brownsburg, appellee. stores, library. and a trial court's division of When CONOVER, Presiding Judge. challenged appeal, on marital assets is ap- Petitioner-Appellant Susan K. Herron will review is limited. We scope of our dissoly- decree peals from the trial court's clearly the division is so reverse where Herron, marriage to L. Nicholas ing her of the facts contrary logic and effect following raising the issues: as to be an abuse of before the court its discre- the court abused 1. Whether Swinney Swinney, discretion.2 ordering the marital home be tion in App., Ind. 419 N.E.2d 997-98. sold; properly trial court presume will we statutory Temple factors. court, dividing considered Whether (1982)Ind.App., 435 N.E.2d Temple, Nicho- erroneously gave property, marital before, statutory ap- the lack of 2. As we have noted 1. Susan also contends commissioner guidelines gives court almost limitless the trial given pointed "overbroad to sell the house power dividing and leaves us with- the assets illegal authority" Her in the court's decree. review the standards which to out concrete cogent argument devoid of brief, however, Thus, absent an error of trial court's decision. Any authority on this issue. error is citation to the evidence law, we review pronounce Procedure, accordingly waived. Ind.Rules conclusory that the court's decision was terms 8.3(A)(7). Appellate Rule Lord, discretion. Lord v. not an abuse of or was n. 4. 443 N.E.2d 850-51 Ind.App., procee dings.3 Susan contends this Cornett, Ind.App., Cornett presumption improper is not re amounted to an refund to N.E.2d 1232. Nicho did merely here because the court butted maintenance, of child paid las possession preliminary the house. under the court's give order. We required disagree. to con The court's final Although clearly the court was so, overriding duty give sup its was to did not Nicholas credit for doing sider just the assets "in a and reasonable divide port payments: 31-1-11.5-11(b) manner." IND.CODE The Court further finds that since the Cornett, supra. separation Respondent date of has $10,584.12 paid joint obligations on case, In this the most valuable sum, $3,450.00 marriage. house, Of to be divided was the Herrons' asset paid support. ordered Court $68,000 $24,000 subject valued at Respondent against is to receive as credit house, mortgage. from the there Aside *4 marriage the assets of the the sum of relatively property little marital to be was $3,567.06 given Respon- is to be Thus, the court could not have divided. dent as a set-off for the assets of the outright the house without awarded Susan marriage. Such sum was determined giving her the lion's share of the marital $2,450.00 $10,- by subtracting clearly property. The court did not abuse (Em- dividing by 584.12 refusing its in to do so. discretion See one-half. added.) phasis contends, Swinney, supra. Susan how ever, the court its in that abused discretion the amounts for which Nicholas re- house, refusing delay the sale of the so only payments credit ceived included house and the children could live in it until she preliminary under the court's order and eighteen. an the children reached Such voluntary payments joint of other marital order, out, points give Nicho Susan would obligations. authority, cites no Susan eventually property his share of the las none, proposition we have found for the disrupting the children's home life. without voluntary payment that a husband's Although might such an order have been marital debts constitutes maintenance or reasonable, just and we do not believe may give the that the court husband rejecting in court abused its discretion payments. pay- credit The house for First, delaying proposed disposition. pro- ments Nicholas made under court's give enjoyment, would Susan the sale order, hand, might visional on the other eight years, proper of most of the marital conceivably be viewed as maintenance. minimal in ty. due Susan's so, dividing improper, Even it is not in come, required Nicholas would been temporary property, marital to consider payments in making house to continue spouse under a paid maintenance one interim, support pay in addition to child governing provisional order. The section overriding light ments. In of the court's that, provides issuance such orders "[t]he property the marital "in a duty to divide prej- without provisional of a order shall be manner," just and reasonable IND.CODE rights or the udice 31-1-11.5-11(b), agree we cannot that hearing at the final adjudicated child as ordering in court abused its discretion 31-1-11.5-7(e). Apply- ..." IND.CODE immediately. marital residence sold here, ing that section we do not believe the provisional requiring order Nicholas
IL payments prejudiced his to make house pay- consider such right to have the court Susan further claims property. dividing in the marital giving pay in Nicholas credit for his ments erred paying joint mar- during Giving Nicholas credit obligations ment marital the dissolution allowing payments. for such Susan also claims the court erred in however, error, cogent argument. AR. waived for lack of Nicholas to ask her on cross-examination 8.3(A)(7). thought given credit whether she he should be IV. means appropriate an obligations was ital was property marital ensuring that Additionally, challenges manner." reasonable just "in a divided order. Susan the court's its discretion inadequate did not abuse and was The court claims the decree was finding marital Nicho payment of an erroneous considering Nicholas's based on monthly income was $800. net property. las's dividing the marital obligations of child is with The determination Morphew v. discretion. in the trial court's III. N.E.2d 770. Ind.App., 419 Morphew, court Next, argues that the trial, testimony and financial At Nicholas's considering a admitting erred as a sales that his income records showed on the filed Nicholas of Offer" "Tender $80,000 years for several man was over offer, trial. She contends morning of before dissolution. Six months prior to the terms Nicholas judgment setting forth however, dissolution, Nicholas went him, against willing to have entered straight commission. salary to a from a pro under TR. inadmissible slump that a sales Nicholas testified part: vides monthly period left him with a during this income, This testi expenses, after of $788. (10) days ten anyAt time more than supported by Nicholas's detailed mony was defend- begins, the trial before records, presented no and Susan business may upon ing against a claim serve testimony Nicholas's contrary evidence. judgment allow party an offer to adverse *5 claims, not, incredible. Susan money against him the or for to be taken Nor finding was not erroneous. specified his or to the effect property per week for the court's award of $105 offer, If within costs then acerued. support an abuse of discretion. child (10) of the days after the service ten equaled of Nicholas's net week award 57% party serves written the adverse offer required to Nicholas was also ly income. accepted, either the offer notice that covering chil insurance the pay for medical and notice may then file the offer lessons. Under these dren and for music proof of ser- acceptance together with of cireumstances, say the trial we cannot thereupon the clerk vice thereof Morphew, its discretion. su court abused not ac- judgment. An shall enter offer pra. withdrawn cepted shall be deemed ex- is not admissible evidence thereof v. costs. proceeding to determine cept in a provision the next contends decree Susan added.) (Emphasis support child was con- for modification of clearly rejected shows Susan The record support, the trary As to child to law. Nevertheless, has offer. Nicholas's pay for Nicholas was to provided Although any reversible error. not shown expenses, children's extra-curricular court, it was cov- filed with the present medical insurance this offer was maintain his record evidence. The admitted into provisions never erage, contained other counsel used provided that Nicholas's It also does show their health care. questioning Susan "guideline" in offer as a comply with parties are to 3. Both personal property, but the division of on dis- requires annual Indiana Law which placed in evi was not or Decem- document itself incomes on before closure of Further, year. that 31 of each Further, ber if even this at that time. dence writing. shall be disclosure evidence, into was admitted document timely never made shows Susan record in the amount of Support is fixed 4. Mal any error is waived. objection. per per or week per $35.00 week $105.00 emancipated child is until each such 492, State, (1976) 265 Ind. v. donado of the Court. further order or until N.E.2d 843. payment support paid is to be Such consequence natural neglect of his own through County, of Hendricks Clerk Modisett, (1971) Jolly misconduct. Indiana, January and is to commence on 780, 781-782; Ind. 275 N.E.2d Plan- Tec, 08, 1982 and continue each week there- (1983) Wiggins, Inc. v. Ind.App., 443 after until further Order. 1212, 1230; N.E.2d State Bd. Tax responsi- Respondent-Husband is to be Marina, (1981) Comm'rs. South Shore payment any ble for the docket fees Ind.App., However, 422 N.E.2d 730. County due the Clerk of Hendricks ground opinion we do not upon this maintenance of such docket. error, preferring doctrine of invited to ad support obligation That the shall aspect .be dress the clause" "escalator day reviewed and fixed on the 81st trial court's decision. December of each calendar until appeal, presume On we the trial sup- further Order of the Court. Such correctly court has decided the case and port obligation upon shall be based indulge presumptions all reasonable in fa by the their submission annual vor of its actions. Merchant's Nat'l. Bank disclosure incomes use of the (1982) Enterprises, Ind.App., v. H.L.C. Support divisibility and the Guidelines Support adopted by Guideline 509, 511; this N.E.2d Kuespert, State v. Court. Ind.App., 411 N.E.2d challenged has not guide the court's
That the Court finds on this date and
appeal.
presume nothing
line
time
Petitioner's
income is not
appellant;
favor of
it is her burden to show
regard
fixing
taken into account with
clearly the trial
court erred. Ross v. Re
order; however,
present
af-
date,
Board,
61, 65,
ter
the Petitioner's
view
243 Ind.
income
Respondent's
shall be added to the
in-
585, 586;
Bank,
N.E.2d
Merchant's Nat'l
support obligation
come to determine the
supra, 441 N.E.2d at
English Coal
guidelines
in accordance with the Court's
Durcholz,
Ind.App.,
Co.
utilized herein.
302, 307,
N.E.2d
trans. den'd.
For these
reasons,
presume
sup
we
the trial court's
Susan contends this decree violates IND.
*6
port guideline is reasonable.
31-1-11.5-17
it
CODE
because
allows
support
hearing
to be modified without a
Support guidelines give the inter
cross-examination)
{including
and without a
ested
advance notice of what the
showing
continuing
of a
and
substantial
general position
regarding
will
be
change
disagree.
in
circumstances.
support.
support
issue is more
Initially, we note
counsel asked
Susan's
hearing
in
or less resolved
advance of the
Nicholas on cross-examination
"judicial economy,"
in turn results in
which
Q.
you
willing
let the
Would
be
to
court
i.e.,
expenditure
less
of the court's time on
support
your
tie the
income
to
and
support
hearing
issues at the final
and
you report
yearly
court
to the
thereafter,
in most cases.
your
with
income tax return?
We do not believe the trial court's order
A. Sure.
or "intent" of either
violates the "letter"
Later,
counsel,
during
colloquy
a
with
31-1-11.5-12(a)
IND.CODE
judge
trial
indicated the annual review of
may
parent
... "the court
order either
or
support provision
in
would be included
parents
pay any
to
amount reasona-
both
objection
final decree. Susan made no
support
of a child ..."
ble
time,
complains
at the
now
of
comment
but
provision
specific
in the order.
31-1-11.5-17(a) providing a
or IND.CODE
may
modified
support order
be
provision
Even if such
were errone
changed
"only upon
showing
a
ous,
.
may
complain
she
not
of it. A
now
so substantial and continu-
may
advantage
circumstances
not take
of an error
ing
to make the terms unreasonable."
commits,
invites,
he
or which is the
marriage
Dissolution of
is
reasonableness.
31-1-11.5-17(a)
catastrophic
refers
IC
circumstance,
fluctu
proceeding
not annual
criminal
in
changes
statutory
a
index,
wage
living
local
cost of
ations
the constitutional fundamentals and
scales,
factors
trial
other economic
proof
substantially
are
differ-
burdens of
establishing or revis
consider when
courts
is,
course,
requirement
ent.
exact
Such
the kind here at
support guidelines of
ing
ly
support
orders
the same
cases where
issue.4
rigidly
are
structured.
such orders not
apparent
to us
It seems
J.,
Ratliff,
cogently discussed the bene-
violate, they
legislative
further
only do not
involved,
flowing to the children
fits
support,
As to child
in this area.
intent
litigants, and the courts from such orders
intended the best interests
legislature
following language:
in the
prime
were to be
the children involved
("escalator
clause"
or-
The
determine
trial courts
consideration when
(1) gives
regard
due
to the actual
der]
questions in dissolution
support payment
child, (2)
by or
readily
uses
obtain-
intent is
served
needs of
cases.
better
Such
information,
(8) requires
entered,
objective
than
able
kind here
rather
ders of the
calculation,
(4)
flexibility
such or
simple
because
results
those without
pow
realistically keep
purchasing
(5)
ders
judicial economy,
expenses
reduces
current
fees,
(6)
way in-
original
support order
attorney
in no
er of the
year,
consonance
fringes upon
rights
of either the cus-
economy. Bran
and flow of the
the ebb
parent
parent
todial
or the noneustodial
Branstad,
(1980) Ind.App., 400
stad v.
petition
for modification of
Petersen,
170;
167,
N.E.2d
Petersen
the decree due to a substantial and con-
1301,
428 A.2d
1303-
85 N.J.
change
tinuing
of cireumstances.
Iowa,
1304;
Stamp,
In re
Branstad,
N.E.2d at 171. The benefits
denied,
1981);
(Iowa
In re
reh.
N.W.2d
litigants
to the children and the
involved
Iowa,
455;
Meeker,
In
272 NW
They
are
need no further discus-
obvious.
G.M., (1979) Tex.Civ.
Interest
J.M.
economy"
"judicial
sion. The benefits
854, 856-57; In re Ma
App., 585 S.W.2d
and, consequently,
as to the courts
(1978) Wash.App.
halingam,
obvious, and
public
are not so
we serve
annot.,
(1977);
75 A.LR.2d
P.2d
need further discussion.
Note,
Support De
Child
Inflation-Proof
Polestar, 66 Towa
to a
Trajectory
crees:
ever-increasing
litigation
crush
(1980).
LR. 181
judiciary of this state is
with which the
is
expected
day-to-day
to deal on a
basis
an uncon-
do not believe
we
major
currently looming as a matter of
placed upon a dissatis-
scionable burden
cur-
the circumstances
order's
concern.5 Under
litigant
"disprove"
fied
*7
Furthermore,
staggering
with which the
nothing
order
increase in caseload
in the trial court's
preventing
currently
a
opinion
judiciary
as
confronted. The
or this
should be read
Indiana
is
accuracy
annually
party
objecting
by
Reports prepared
from
the Divi-
Indiana Judicial
any
adopt-
computation or to
new schedule
years
the
Administration for the
sion of State Court
ed
the trial court.
through
the Hendricks Circuit
1976
1982 as to
following:
Court reveal the
Circuit Court from which
5. The Hendricks
emanates,
typical example
appeal
a
is
No. cases filed
825
727
593
832
1,130
1,105
1,229
No. cases venued in
57
49
64
150
152
160
153
*
disposed
Cases
676
801
1,869
667
1,240
1,223
1,370
Jury trials
7
14
8
9
10
14
16
Bench trials
409
503
494
662
572
509
535
dispositions
Non-trial
251
284
165
1,198
*
provisions by reducing
judge
"Escalator
spend
support
clause"
the time a
must
on
matters
correspondingly
judge may
would
Thus,
litigants.
increase the time a
devote to other matters and
dispositions
correspondingly
case
provisions
should
increase if "escalator clause"
are
adopted generally.
state,
imperative
it is
existing in
rently
our
provided,
"each
further
shall retain
presents
every opportunity
we seize
care,
personal property in
custody
all
their
to
system's capacity
expand the
to
itself
hearing
the time of the final
and control at
proposed
the
where
this floodtide
process
"personal proper
The term
herein ...."
impair
quality
the
will not dilute
action
one,
ty"
applicable
intangible
is a
to
broad
In
involved.
judicial task
particular
property interests.
McNevin v.
See
adopt
words,
measures
we should
other
McNevin,
(1983) Ind.App.,
foreseeable YOUNG, J., opinion. dissents with with a here deal note we Lastly, we support prepared locally-researched YOUNG, Justice, dissenting. economic merely a national guideline, Living Index. the Cost such as indicator holding that majority's I from dissent words, considered trial court In other adjust annual may make the trial court as nation- as well conditions economic local only on the support based ments child modified it formulated when al indices parties' guidelines and the support time to time to guideline support its provi- I believe the financial statements. conditions economic current with keep it allowing trial court's sion That its environs. County and Hendricks 831-1- violates Ind.Code adjustments such us, consideration, removes it seems support child it allows because 11.5-17 to court objection vestige of reasonable last showing of a sub- a without modified be guidelines incorporating orders change in cireum- continuing stantial de- support in dissolution child measure child Nicholas' this decree stances. Under judicial laudible applaud such crees. may modified annual- obligation be advances. change in the any showing of ly on Thus, if Nicholas suffers parties' VL. income. his in December loss business Finally, argues the court automatically be re- obligation will dispose failing erred in of Nicholas's if his income even throughout duced that, IRA. It is true to divide marital year. in that to normal returns fairly, must all property consider this reduction to avoid will be unable spouses' property. Wireman in- drop in Nicholas' showing the even Wireman, Ind.App. majority's only temporary. come however, agree, do not N.E.2d 292. We is consistent such a result view that court to consider and dis that the failed *8 $1-1-11.5-17 completely seems Ind.Code IRA. The court's final pose of Nicholas's untenable. said, further that decree Court finds "[the Respondent plan IRA owns certain Indeed, majority hardly bothers to parties' with a at value the date of the explain upheld such a decree can be how $7,672.21 decree separation ...." statute, choosing justi instead under invoking concepts by
fy the result ENTERPRISES, INC., COURTESY the best interests of economy and judicial Ag Equip- Truck and CEI d/b/a public policy All of these ment, children. Defendant-Appellant, however, suggest merely arguments, revise the Assembly should the General LABORATORIES, RICHARDS self-adjusting sort of to allow this statutes Plaintiff-Appellee. that our noted It should be decree. judicial promotes present statutory scheme No. 3-982A236. removing from trial courts economy by Indiana, Appeals Court of continuously monitoring minor or duty Third District. parties' in the circum temporary changes peti discourages frivolous -Italso stances. 15, Dec. 1983. placing a modify child tions to petitioner prove heavy on the burden change in cir continuing
substantial The decree has occurred.
cumstances contrast,
here, likely give rise seems each litigation every prolonged accuracy of the oth
party challenges the very For these
er's financial statement.
reasons, split although there is a on this
issue, rejected in several states courts E.g., clauses.
automatic "escalator Stana 294, (1976) Mich.App. Stanaway,
way v. Breiner, 723; Breiner
245 N.W.2d 846; 143, 236 N.W.2d Pro 195 Neb. Provenzano, (1979) T1 A.D.2d
venzano v. 140; Falls, Falls 418 N.Y.S.2d 546; N.C.App. S.E.2d Vollenhover, (1956) 206 Or.
Picker v. Karim, P.2d Karim v. Annot., S.D., 19 AL. N.W.2d 479. See
R.4th portion of accordingly vacate the
I would requiring decree an annual
the trial court's affirm the
adjustment of respects. in all other
trial court's