*1 Court, having This found misconduct as
сharged under all counts of the Verified Jay Coy In re MARRIAGE OF TAY cause, Complaint filed in this must now LOR, Appellant (Respondent Below), It appropriate determine an sanction. question Respondent engaged without totally in a course of conduct devoid of Marilyn Taylor, Appellee professional Respondent misrep- standard. Below). (Petitioner сlients, resented matters to his misused funds, neglected professional obliga- client’s No. 2-780A224. tions, engaged illegal conduct. Pro- Indiana, Appeals Court of totally fessionalism was abandoned and the purpose representation Second District. was lost amid the Respondent. obscure self-interests of the Aug. repeatedly This Court has noted that the Rehearing Denied Oct. fudiciary relationship attorney between and' lawyer client is based in trust. A cannot
effectively represent any individual unless person willing place his or her professional judgment
trust in the offered. profession,
As a the Bar of this state must
continuously safeguard strive to build and historically faith and trust and neces-
sarily placed legal profession by in the all Acts, society. members of our such as
prеsent case, seriously in this weaken the overwhelming majority
efforts of the
attorneys throughout generation who a
legal service expect- have met and exceeded professional
ed standards of ethics. This
Court must echo the total abhorrence to the
conduct in this case felt hard-work-
ing majority attorneys striving to im-
prove legal profession.
Under the Constitution of the State
Indiana, given responsibili- this Court is safeguarding integrity legal
profession. We intend to do so. Accord-
ingly, that, by this Court now concludes
reason of the serious nature of the miscon-
duct found in this case and in order to
preserve integrity profession,
strongest sanction available must be im-
posed. It is therefore ordered that the Re- be, is,
spondent hereby and he disbarred as attorney
an of Indiana. State Respon-
Costs are assessed
dent. Hankey, Indianapolis, ap-
Charles D. for pellant. Choate, Indianapolis, appel-
Belle T. lee.
SHIELDS, 31-l-11.5-ll(a) Judge. property. the marital IC (Burns Ed., Supp.1979)speaks only Code Coy (Jay) appeals proper- the Jay Taylor property subject to division the and there- in a dissolution decree dis- distribution valuation, fore but not to the date of valua- solving mаrriage Marilyn with Juanita his 1) tion. Therefore we must determine: (Juanita). Jay raises a number of a whether date certain for valuation is re- review; however, issues for because we re- quired, 2) required if such a date is verse, only following we shall address the what that date should be. issue: marriage possi- In a duration the Did the trial court abuse its discretion ble valuation dаtes are limitless. valuing the in the marital at Hence, necessity the for a date certain is separation? time of Meaningful obvious. settlement discussions Taylors separated October at virtually impossible; would be trials would they personal as- which time divided lengthened; experts sky- be fees for would belongings. Subsequently, sets and Juanita necessary rocket аs assimilate the data Jay financially independent. became opinion to have an on the fair market value in the house owned as Juanita remained of the numerous items of marital entireties, tenants the maintained the dates, including, on number of for ex- house, paid mortgage payments, the ample, separation, the date of first the date supported raised and their son. left the separation, filing of final the date of the residence, presepa- off certain petition, filing the cross-peti- date of the debts, joint pay- ration and made some cash tion, Therefore, and the date of trial. 5, 1979 ments to Juanita. On June statutory just mandate of a and reasonable petition marriаge. filed for dissolution of a requires division the division of marital The decree of dissolution awarded the property be based on values determined as provided but marital residence to Juanita of a date certain. $2,000 pay that Juanita should as his The dissent would leave date of valu- equity share of in the marital residence. “equities ation to the of the case.” We special findings fact reveal the trial certainly agree valuation of the equity court calculated the in the marital indispensable part necessary compo- an using residence October 1974 values as fol- However, nent of the to divide. we lows: opinion fail to understand the basis for the $34,450 Value of house statutory requirement just of a 26,500 mortgage Less: necessarily and reasonable division leads to 7,950 Equity: $ the conclusion that hearing, As of the date of the final choose the date of valuation based on the $56,000 house was valued at and the mort- equities evidence that best suits gage balance was reduced. case. The factors which the dissent would parties agree weigh determining Both distribution of have trial court equi- is a matter within the what date of valuation best suits the sound discretion of the trial court. Geberin ties of the case are factors which the trial Geberin, (1977) However, 360 court should indeed consider. However, argues properly factors are considered under the using 31-l-11.5-ll(a) (Burns court abused its the 1974 mandate of discrеtion IC Code $2,000 Ed., value of Supp.1979) determining the house as a basis for his what a equity using agree just award. and hold in We and reasonable division of the the value of the entireties-owned real estate step The next is to determine the date on the date of October Unquestionably, certain. the selection of trial court erred as a matter of law and legislative prerogative the date is a which hence abused its discretion. unfortunately explicitly has not been exer- court, then, marriage
The dissolution of act and case cised. The must fill the void legislature speaks. law is silent as to the date of valuation of until the
«51 selected, might required.” Several dates valuation is Slip opinion at added). оne is the most reasonable —the date the (emphasis Like the majority, By dissolution action is commenced. setting I believe that such a date at the 31-l-11.5-ll(a) (Burns terms of IC Code filing time of for dissolu- Ed., Supp.1979), acquire possible tion would be the policy. soundest separate properties after the date of final majority, Like the I have been unable to *3 While there have been any authority, binding persuasive, find or to ambiguity some as to what the of date final suggest requires that the law such rule. is, separation uncertainty such has been Unlike majority, the I would confine our put by legislative to rest clarification. The construing efforts to the statutes as enact- Assembly 1980 General amended IC 31-1- legislature. by ed the specifically 11.5-11 to define the date of The courts of this State do have the in- separation final as the the date power, courts, herent as common law to 1—11.5—11(a)(Burns Ed., filed. IC Code 31— regulate proof the and trial of actions at Thus, Repl.1980) significance the date has common law. courts But of common law determining in the within the empowered grant have never been to di- pot. puts If that date a lid on the vorces. That rested in medieval pot, logical simultaneously it is to deter courts, times with the ecclesiastical which mine the value of its If contents. the value codes, relied on civil the not common law. of pot items in the marital increases or Separation See 24 Am.Jur.2d Divorce and separаtion decreases after the date of final 6, p. § 180. parties, due to the conduct of the the trial may, course, court take this into account In country, regulating the task of under IC 31-1—11.5-11. Valuation of mari courts, by divorce was taken over not separation tal on the date of final by legislatures. but regulation “The will also assist the marshalling marriage fully recog- and divorce has been appraisals evidence and prov- nized as a matter within the exclusive preparation hearing for the final date. Legislatures ince of the States.” weigh State,
Were this court Sweigart (1938) 157, 165, entitled to v. 213 Ind. evidence, might we hold that 12 right N.E.2d “The to divorce is court did not abuse its discretion in the right, depends upon not a common law but dividing instant case in proper the marital legislative C.J.S., Divorce, enactments. 27 However, ty. we do §69, 242; not have that alterna 274, p.629; 17 Am.Jur. Hether § tive. Because the trial court exercised its ington Hetherington, (1928) 56, v. 200 Ind. misconception law, discretion under a N.E. 345.” Quear State ex rel. v. Madi pure conjecture it is Court, (1951) 503, 507, son Circuit 229 Ind. would exercise its discretion in the same right apрly 99 N.E.2d 256. “The using manner proper valuation date. one, or obtain a divorce is not a natural Only the trial court can make that determi statute, only by accorded reason of given nation and it opportunity must be right the state has the to determine who to do so. are entitled to use pur- its courts for that pose upon what conditions do
Reversed аnd remanded. Berghean Berghean, (1943) so.” 113 Ind. SULLIVAN, J., App. concurs. 48 N.E.2d BUCHANAN, J., dissents, short, opin- prescription C. with regulations In ion. proven for the issues to be in dissolution proceedings legislature. is a function of the
BUCHANAN, dissenting. Judge, Chief jurisdiction This court lacks to exercise that function. Ind.Const. Art. 3 1.§ I. agree majority
I with the “we Legislature must The Indiana has chosen to determine .... whether a date certain for leave matters which have not been resolved bar,
by the Dissolution Act to the discretion of In the case at the court unques- Johnson, (1976) rights trial courts. Johnson v. 168 tionably within its to note that for legisla- 875. Our years, Jay Taylor away more than five lived ture has commanded that trial courts make a fair and estate: proper, ing may prescribe samе under such conditions as the court marriage either over or parties, spouse prior 3(a)[31 1—11.5—3(a)] or in efforts, court shall divide the In an action either to parties, to one to the — installments, by setting in his or her own in a or whether owned division of the by ordering [1] marriage, just pay or prior the same and of the acquired by such and reasonable division of the marital pursuant dividing as of this sum, spouses final acquired may property by or the sale of the right either in parts either separation chapter, be and after the just proceeds manner, thereof requir- section spouse either gross kind, joint and appreciation. evaluated both in 1974 and in gesture Juanita, from the sion with the basis for reversal. But once it is рains, that the trial court to demand that the trial court make the idle ation after 1974to it, I value. ble for the court to conclude as to that had lived in the appreciation maintained Had the trial court arrived at that conclu- take it that the he should take no It was neither the house finding it, under the sole that since *4 equity house, Juanita, the exact vаlue of that may majority greatly appreciated unjust raised her son in for it. award the gains. and that Juanita I see no reason stewardship would find no nor suffered no During inequita- appreci- granted before it,
for such sale. Consequently I see no abuse of discretion in the trial court’s division of all the 1—11.5—11(b)(Burns Repl.) I.C. 1980 31— property, taking certain factors into cоnsid- fair, “First and most elemental in eration, including spouse’s contributions distribution of is a acquiring maintaining to the property, knowledge totality of the circumstances, their economic and their con- which the to the divorce hold an respect with property. Jay duct to the has Hardiman, (1972) interest.” Hardiman v. not shown us that the trial court 284 N.E.2d 824. did not matters; proper In оrder to divide the marital estate objects only consider these he to ly, the apprise trial court must itself of the the result of that consideration. value of the marital Id. This
general principle apposite is most when the II. property “by setting trial court divides the presented issues, has four additional (1)
the same . ..
spouses
over to one
present any
which do not
reversible error.
requiring
pay
either to
such sum ... as
affirm,
Because I would
and cannot concur
just
proper....”
or
I.C. 31-1—11.-
result,
briefly
I
discuss these issues.
5-11(b).
ISSUE TWO—Did the trial court abuse
repeated
just,
proper,
call for
its discretion by making a retroac-
reasonable
divisions and the re-
tive
support
award of child
when it
quirement that the trial court’s decision in
set Jay’s payment of
Taylors’
dividing property be an informed one con-
pre-separation
debts off
evaluating
proper-
vince me that in
Jay’s obligation
support
to
his son?
ty,
choose
method
During
PARTIES
CONTENTIONS—
of evaluation based on the evidence before
separation,
$16,000
had
some
to-
equities
it that best suits the
of the case.
retiring
Taylors’
wаrd
marital debts
indispens-
Evaluation therefore becomes an
other
mortgage.
than their
As to these
part
power
able
of division. The
to evalu-
payments, the trial court found:
reasonably
ate can
be inferred from the
divide;
Respondent
to
That
necessary
indeed it is a
has made certain con-
component.
payments
tributions in the form of
direct-
Respondent
ly
pay-
[Jay]
pay
to Petitioner and in the form of
That
should
joint obligations, and
ment of
said monies
attorney
Petitioner’s
[Juanita’s]
are to be considered in satisfaction of his
($500.00)
sum of Five Hundred Dollars
as
obligation
support
the minor son from
attorney’s
reasonable
fees.
present
to the
date.
October
The court then ordered:
finding
Jay calls this
an order for retro-
Respondent
pay
N. That
is to
to Peti-
support, which he
active child
avers is con-
attorney
tioner’s
the sum of Five Hun-
Further,
trary
payments
to law.
if his
($500.00)
sixty (60)
dred Dollars
within
regarded
discharge
obliga-
were
as a
of his
days from the date of this Order.
father,
tions as a
and not as a contribution
estate,
to the marital
then
would be a
unemployed,
reminds us that he is
contemplated by
consideration not
our di-
up during
that the debts he had run
law,
vorce
which would tend
decrease his
together
proper-
taken
with the
share in the
settlement. For both
settlement,
insolvent;
leave him
whereas
reasons, Jay urges reversal.
job,
steady
prospered
Juanita has a
and has
court
CONCLUSION—The trial
did not
by comрarison.
argues
He
that as Juanita
abuse its discretion.
has
pay
resources from which she could
her
fees,
Jay mistakenly interprets
para-
attorney
none,
the above
and he has almost
it
graph
award,”
support
as a “child
I do not was an abuse of discretion for the trial
understand the trial court to have made an
pay
court to order him tо
to Juanita’s
$500
Instead,
“award” at all.
the court was ad-
*5
attorney.
Jay
The record shows that
did
dressing
problem
of how to characterize
pay the
attorney.
$500 to Juanita’s
money Jay paid
during
Juanita
CONCLUSION—There was no abuse
dis-
of
Jay’s
It
duty
took notice of
charging attorney
against
cretion in
fees
support
son,
his
and set the two off
Jay.
each other.
a wife has assets from which
“[T]hat
Jay
prej-
has not shown that he has been
not,
payment
standing
could be made does
finding.
udiced
In order for an
alone, make an award for her benefit im-
assignment of
appeal,
error to succeed on
proper.”
(1977),
Wendorf v. Wendorf
Ind.
prejudice must be shown. Ind.Rules of Pro-
App., 366 N.E.2d
706. Nor does it
61;
cedure, Trial Rule
Trimble v. Trimble
show
sрouse
an abuse of discretion that the
(1976),
This incident two occasioned for against Jay, Jay part residence be sold as contempt that citations of settlement, contempt. behav- error for the held in Such it was was in fact specific findings of undoubtedly aggravated Juanita’s ex- trial court not to make ior question selling the pense pursuing her for dissolu- fact addressed to the tion, not an abuse of discretion house. and it was order that bear
for the trial court to issued suf- CONCLUSION —The trial court expense. that conclusions; findings ficient T.R. 52 was satisfied. IV. its the trial court abuse FOUR —Did ISSUE restrictively. reads T.R. 52 too It declining Jay’s re- discretion in explicit true that the trial court made no marital residence quest that the finding question selling on the the house. sold, divided proceeds and the findings But the court did make extensive Taylors? between which, earlier, as discussed lead to the con- reiter- PARTIES’ keep was entitled to clusion CONTENTIONS — circumstances ates his straitened financial the house as her own. The trial court hav- dissolution, urges after the error ing its discretion shown that it was within refusing
trial
to order the mаrital
court’s
house,
keep
to order that Juanita
it is
proceeds
divided be-
residence sold and
hardly necessary
it make the useless
tween him and Juanita.
gesture
saying
only
that not
should Jua-
keep
nita
she should also
was no abuse of dis-
CONCLUSION —There
not have to sell it.
cretion here.
required
Trial courts are not
to divide
ought
The decision of the trial cоurt
to be
property evenly
par
between the
affirmed.
(1979),
Marriage
ties.
In Re
of Hirsch
Ind.
case,
App.,
Taylors’ respective financial conditions are entirely separate
almost the result of their
dealings during and fortunes the time of *6 years
their For five relied
upon their individual luck and skill in man
aging their finances. had but little to solvency, do with Juanita’s and Juanita had CRAVEN, (Plaintiff Appellant Lewis Jay’s insolvency. little to do with Jua Below), say dealings Jay nita had no had during nor in the risks hе took; it was not an abuse discretion for AND NIAGARA MACHINE TOOL WORKS, INC., Appellee court to decide that she should not dealings. (Defendant Below). bear the costs of those No. 2-280A48. V. light Jay’s written re- FIVE —In
ISSUE Indiana, Appeals Court of . findings of fact and quest Fourth District. made, of law be conclusions to make the trial court’s Sept. failure specific findings and conclusions as Rehearing Denied Oct. Taylors’ house to the sale contrary to law? Finally, Jay
PARTIES’ CONTENTIONS —
says requested general that because he
findings of fact and conclusions of law un- 52(A), urged
der T.R. court to order