*1 Marrage Miles, re The Edith Frank Jr. Miles and D. 2, Rehearing April Filed denied [No. 3-875A177. June 1977. 31, 1977.] Transfer denied October *2 Mishawaka, appellant. Campanale, V. Leonard Means, Mishawaka, Loughlin, T. Thomas P. William ' appellee. dissolution of mar- was an action for J. This Garrard, di- riage. appeals from the court’s decision as to wife The alleging con- property does not vision of findings entered and conclusions form to 52(A), Procedure, pursuant Trial Rule Indiana Rules to made was an abuse the division and that under the evidence We affirm. discretion. request Following proper under pursuant a and “Findings caption 52(A), under the of Fact” court findings relating separately (17) numbered seventeen entered at None of these have heard trial. to the evidence appeal, transcript expressly discloses attacked and been them. each of evidence Following paragraphs caption under the these seventeen following: of Law” entered “Conclusions (cid:127) irretrievably marriage parties the- broken “1. ought to be dissolved. long-term marriage parties, 2. Because of the emancipated, the fact that their are all children they reasonably good both in are and' health are gainfully employed, division their should equal proper be made between them basis, on an with . for the contribution substantial made inheritance, out of wife from otherwise her over and what above thereof, would be an with regard being given sup- present further to Husband’s port delinquency.” marriage judgment dissolving The court entered then distributing specific assets of the Personal wife, assets valued at were distributed and the $3410 personal husband awarded assets valued at $3275. parties
residence which the had owned as' tenants equally entireties was awarded to them as tenants in common. mortgage subject unpaid It was ap- balance of proximately $15,000, prepayment but existed there ac- approximately count of In addition court awarded $1800. parcel in a to the wife all interest of real estate inherited from *3 had her father which been sold under a conditional sale outstanding purchase contract. The the price balance under approximately contract was this $5700. findings 7, 8,
In 13 numbered 9 and the court determined when wife’s father the died the balance owed on the approximately been contract had land and that $8000 $4500 principal subsequently the and interest :by' received the applied mortgage payments wife had been the on the findings In these residence. determined that the $11,852 also received an additional wife had from this estate this, life insurance. Of paid and had been $1350 the expense, father’s funeral had pur been used to $3850 snowmobile, trailer, chase a a boat and and a mink stole. “apparently away balance was in frittered one manner' or another.”1 1. It was one of the husband’s contentions at- trial the wife was improvident spender.
an
8 that our turning first we note the wife’s contention
íh longer require to enter court procedure no the of civil rules 52(A) practice.2 TR. law” “conclusions of as was former findings provide special are re- does, however, that when quired, specially state facts . . . shall find the “the court added) (emphasis
its conclusions thereon.’’ purpose of trial to secure the our rules It is stated every just, speedy inexpensive action. and- determination of abolishing the old 52 must be construed To that end consequences highly and treacherous distinctions technical “finding” whether the consideration of a which attended fact, fact, evidentiary a conclusion of fact an ultimate of law.3 a conclusion special findings purpose hand, is to On other reviewing theory parties and with provide the courts judge case in which the decided the order that may effectively right pre- of review error be (1956), Miller v. Ortman 235 Ind. 136 served. dealing (See, also, the numerous decisions N.E.2d 17. findings judicial necessity review of administrative findings Thus, adequate proceedings.) whether de are they upon pends whether are sufficient disclose valid legal result the issues for under reached basis making reviewing judgment. this determination findings they made court if accept will are probative Ortman, supported evidence of value. Miller v. supra; (1972), Nat’l Bank Mishawaka v. First Kamm App. 353, Furthermore, appeal Ind. N.E.2d together liberally construed and will will be con- *4 Study 52(A) Code comment 2. As the Civil Commission to Rule TR. “Notoriously, requirement notes, it always formality this has been a and prior requirement only eliminated.” been Under it was not has simply plaintiff sufficient if concluded the law was with the might be, defendant, generally as the case but such a or conclusion may which surplusage. have been rendered all other conclusions See, e.g., entered (1956), 641, 235 136 Miller v. Ortman Ind. N.E.2d 17.. Pleading Practice, See, Gavit, pp. 2365, 432, Indiana & 3. 2 § 2366.
9 judgment. (1956), strued In v. Kell Scott the. 406; App. 472, 828, 127 Ind. 134 den. N.E.2d 141 N.E.2d trf. (A). TR. 52 where, here,
Yet as the outcome is not mandated but, instead, established rule of law the decision rests within court, discretion of the if the we must reverse findings, decision is not con- consistent with the given clusions or if the reasons are insufficient justify matter of law to the court the manner exercised its from the fact discretion. reason arises given by the court does have If reason discretion. particular is not a valid basis for a exercise discretion, conjecture part it can be no more than on our recognizes invalidity original once the court of its reason it precisely will reach exercise of same discretion Supreme recently other reasons. Our Court so held City Elkhart (1976), v. Middleton 514, 265 Ind. findings Similarly, N.E.2d if and conclusions entered court, favorably when construed most toward the judgment, clearly it, are nevertheless inconsistent regardless decision must set aside of whether there evidence at adduced trial'which would have been sufficient negate sustain the To hold decision. otherwise would (cid:127) - primary purpose special findings. governing property statute upon distribution of a mar-
riage dissolution, provides IC 31-1-11.5-11 that “the parties, court shall divide of the whether owned spouse prior marriage, acquired either to the by either spouse right in his or marriage her own after the prior separation acquired to final parties, or joint their efforts, just in a and reasonable manner. . . determining just “In- what and reasonable the court ’ following
shall consider factors: 4.- 52(A) part, appeal states in “the court on shall not set aside (emphasis unless added) .” erroneous.-... *5 acquisition spouse the
(a) the contribution each spouse including of a contribution property, the the homemaker; as acquired (bj property was the the extent which through marriage in- or spouse prior each to the gift; heritance or (c) spouse the time the circumstances of the at economic effective, disposition property is to become the including residence of the awarding family desirability of the the right for or the to dwell therein such may periods just spouse to the as the deem any children; having custody of marriage during (d) parties as the the conduct of the dissipation disposition of their or related the property; ability parties (e) earnings earning of the the final property deter- related to a final division rights parties.” property mination of the 1971, IC 31-1-11.5-11. first turn of error. Her
We now to the wife’s assertions the is not with contention is that consistent question is second conclusion entered court.5 , , compatible made is with the conclusion whether the division divided, that the should be regard equal basis, proper “. . . on an with from out of her Wife contributions made substantial above, .otherwise would be inheritance, over what given regard being thereof, equal further with deficiency.” present support to Husband’s assigned unchallenged personal Upon values granted an amount the wife the distribution order property, equalled approximately which he share husband’s oyer deficiency. $145 remaining overplus the wife was the received
The other at conditional sale contract was valued in thé interest stating provides previously noted, 52(A) conclusions 5. As upon findings, state the conclusion in and the court did court’s disregard question; the fact that-the conclusions were therefore must We caption presented Law.” erroneously “Conclusions of State under Cf. (1960), 241 Ind. 170 N.E.2d v. rel. Morvilius State ex Of this would have value she entitled been. $5700. , ($2850). simply to one half basis of .the division. Since burden to establish error is may. the wife and not be reversed unless “clearly question erroneous” the becomes whether the award additional not consistent con $2850 “proper clusion that the wife receive sub for the stantial contributions made.” It must first be noted is stated terms of her contribution conclusion from the *6 and Clearly inheritance not the inheritance itself. the court payment mortgage that the determined toward the $4500 However, was such a wife contribution. received the benefit through equal portion of one half that sum the inheritance, money the order. The court that from found the purchase expended snowmobile; boat, was a a motor and trailer; a mink and stole. The stole is not in listed the snowmobile, boat, The order. motor and trailer had value of at the time of total the dissolution. Presum $1500 ably, enjoyed parties during both the benefit of these items marriage and while depreciating. They the the items were do, represent however, additional value created $750 n the from her inheritance over what wife she would receive through an order of analyzed, distribution. When thus law, applying and presented the established rules the issue assigned Applying the error is this: all intendments- in judgment, it appear the does favor awarding overplus of the wife an is inconsistent $2850 with the con regard” give “proper separate clusion to for her contributions an additional value which created to the marital estate of Considering impreciseness the phrase of the $3000? and assets, character of the we are unable to find the clearly erroneous.6 that, any. wife’s second contention is
The event, finding unpaid principal 6. The on the land contract was the balance. finding considering No was made of the actual value the interest rate a, attending ownership finding and other factors thereof. Nor is there appreciated depreciated to whether had residence in value. logic clearly against the facts and effect was there- court and was before circumstances contrary discretion. Two as an abuse of to law
fore specifications claimed are made considering joint contributions is that The first abuse. throughout marriage, an abuse is demonstrated made grant of her more to the wife because failure the court’s give urges that the failed to second inheritance. separation weight proper since the to the fact that husband gone had about while the wife able save had been $2350 Again, since none of the court’s in debt about $2900. go challenged, purposes we will not them for behind were of our review. years. twenty-two parties married for had been While through several thousand dollars the death wife received applied mortgage father, all but the her $4500
simply spent addition the court found year parties supported wife’s mother that for death, after the mother’s and that father father wife’s parties and lived with the until his death. Also returned during the father’s found lifetime the wife Germany trips back to *7 to solo visit made three relatives. She parents trip such after her died. At time the made another parties employed. both were The husband .dissolution of. per hour, the wife earned $5.38. $5.97 say under these circumstances cannot that the court We failing greater in its discretion award wife a abused an the assets. Nor do we find abuse of share of discretion apart excep- which, order distribution from the the court’s already property equally discussed, divided the even tions though gone had in debt and the
the wife husband had been earnings portion separation. of his save a after the able to See, 31-1-11.5-11. 1C affirm.
We therefore Hoffman, concurs; J., Staton, P.J., sep- dissents and files opinion. arate
Dissenting Opinion specific P.J. I A for dissent. motion Staton, Procedure, fact (A) under Ind. Rules Trial Rule 52 had finding parties specific been made. were entitled property how their would be divided This between them. finding law,” It was made. was mislabeled a “conclusion of actually Finding Eighteen. light Finding but it was judgment Eighteen, erroneous as to final property Therefore, division between the I would judgment trial court’s reverse the with instructions to vacate property division and enter Finding Eighteen conform with would and the dissent- ing opinion which follow. Eighteen
Finding is as follows: long-term marriage “2. Because of the parties, emancipated, fact both in a their children they are all are reasonably good gainfully employed, health and are property of their division should be made between them basis, equal proper regard on an for the substantial by inheritance, made Wife from contributions out of her equal over above what would otherwise division thereof, present support deficiency.” being given with further to Husband’s prepositional phrase in Finding The critical is: above proper regard “... with the substantial contributions made added). out her (Emphasis inheritance. . . .” Wife from unequivocal import phrase clear, of this is that separate court considered the Wife’s inheritance from parties be divided between and that it intended give her some credit “. . . contributions made Wife clear, unequivocal from her .” out of . inheritance. . This meaning is further reinforced set conditions forth Finding: the trial court its “. . . over and above what be an (Emphasis otherwise would .” . . thereof. *8 added). The inheritance obviously Wife’s was be to intended
14 otherwise separate “. . over and above what .
considered joint property held of division . . .” would be guideline was But, and criteria by this obvious the Miles. court; therefore, is its followed not and should be reversed. erroneous Finding disregarded completely opinion has The majority findings only of the Eighteen. to the seventeen It refers objection as concludes that no was made trial court and Finding Eighteen objected findings. was these just part a other as much of the as the is the Wife findings judgment. every judgment If held labeled substance, many injustices its to its labels instead of would allegiance requires senselessly Blind no created. to labels be for the trial court’s reasonable rationale actions. theory majority opinion’s “overplus” which is intended
The light trial court’s division of justify the in logic (A). fails the test of of the seventeen TR. 52 logic premise— of in that it a the test starts with false It fails Eighteen Finding part judgment. is not It does the. language attempt to reconcile the not used the trial court Finding Eighteen. “overplus” theory Its fails TR. under simple Finding Eighteen, reason that 52(A) without finding specific fact is no the actual there property to divided between majority opinion presumes that use discretion . stating specific finding need for a of fact under obviates given 52(A). “If reason It states: particular discretion, basis for exercise of it not a valid conjecture part than no more our can be once invalidity original recognized the of its reason it will precisely the same exercise of discretion reach other majority City cites Elkhart Middleton reasons.” v. support 356 (1976), Ind. N.E.2d 207 of this City proposition. not proposition. Elkhart does this quite supports supports a rationale It It different. rationale *9 City which limits discretion. Prentice wrote in Justice of Elkhart: “. Therefore, appeal questions . . on an exercise which judicial of necessary to discretion it evaluate the action is articulated, of upon specifically trial court the reasons it legitimate rather than to to it unex- attribute some but
pressed usually reason. to as an What is referred abuse discretion, of prefers but to call which writer ‘clear error,’ only results not when an exercise discretion reason, upon impermissible without reasons or but it is also when based question words, considerations. In other deny may involved here is not a trial court im- whether pleader confusion, in order to trial do not avoid we impleader decide whether not denied should or should be question under in Rather, of this circumstances case. beyond this case is whether the trial went court denying limits of by its discretion motion defendant’s given, (Original reasons held and we that it did. . . .” emphasis; omitted.) footnote Id. at 211. The trial Wife, Miles, court set real aside Edith separate paragraph inherited from father in a her judgment. separate This not show treatment does “overplus” joint clear, an property, un- division of but the equivocal expressed Finding intent the trial court as in its Eighteen to set aside to the Wife her con- inheritance before tinuing personal property. the division The trial acknowledged Finding Eighteen by giving further personal property Wife more value than the Husband. $145.00 (Finding Eighteen: regard given being “. .. with further present support deficiency.”) Husband’s was $145.00 present support deficiency. the Husband’s What the trial court ignored Finding Eighteen any proper regard its was “. . . by for the substantial contributions made Wife from out of inheritance, over above her what otherwise would be an equal division thereof. ...” by
The substantial contributions made the Wife from $4,500.00 mortgage included out her inheritance on the their was home which distributed to the Husband and Wife by proper tenants in common the trial any court without mortgage payments, the Wife regard. to the addition cost which of her inheritance purchased out snowmobile $2,200.00. There $1,200.00, cost trailer which and a boat and her spent out of money Wife was some which was accounted for and not be referred inheritance could away in one “apparently frittered the trial court as manner another.”1 give any proper “. .
The trial court’s did not . from made the substantial contributions Wife inheritance, out her what otherwise would over and above joint property. division . . .” of their Finding Eighteen give proper its some court was bound *10 $15,752.00 paid out of the Wife’s inheritance.2 to the separate parcel of real estate held her father before out his was never contributed of her inheritance death following 1. The Wife received the inheritance: (value death) at 8,000.00 Land father’s Contract $ placed in death and Cash received at father’s joint bank account 8.500.00 proceeds at father’s death Insurance 3.352.00
19,852.00 Less: expenses $1,350.00 Funeral Payment mortgage 4,500.00 1,200.00 Snowmobile 2,200.00 Boat and trailer Mink stole 450.00
9,700.00 9.700.00 10,152.00 Adjusted equity for retained in Land $8,000.00 $5,700.00 2,300.00 less Contract — of Balance inheritance not accounted 7,852.00 in distribution $ Mortgage 4,500.00 2. $ 1,200.00 Snowmobile 2,200.00 Boat trailer 7,852.00 but unaccounted Contributed
$15,752.00 parties except for the contract joint property of the mortgage applied to the
payments
$4,500.00
were
the home of
in-
trial court with
I would reverse
part
which deals
struction to vacate
origi-
trial court’s
with the
consistent
the division
opinion.
nal
and this
Reported at
Note. — Superintendent Public Instruction Negley, Harold H. Community School Lebanon Indiana v. State Elementary Building Corporation School and Lebanon Corporation. May April 27, Rehearing denied 1977. Filed 1-1176A225.
[No. July 20, 1977.] Transfer denied