*1 paid Indiana Insurance has the sole alone. Gas,
obligee, Indiana almost the entire
amount due on the bond. There exist no
issuеs of material fact and we find that the correctly applied the law de-
nying summary judg- motion for Garco's granting Indiana Insurance's mo-
ment summary judgment.
tion for
We therefore affirm the
trial court.
ROBERTSON, J., YOUNG, (by J.
designation), concur.
In re the K. EY (Petitioner LER, Below), Appellant
v. EYLER, Appellee Below).
(Respondent
No. 1-385A74. Indiana, Appeals
Court of
First District.
Nov. 9, 1986.
Rehearing Denied Jan. *2 Tamulonis,
Peter G. Kightlinger, Young, DeTrude, Gray & Indianapolis, appel- for (petitioner below). lant Gregory Hahn, F. William T. Rosen- baum, Cohen, Dillon & Indianapolis, appellee (respondent below).
ROBERTSON, Judge. Petitioner-appellant (Can- Eyler Candace dace) apрeals from the decree of the Boone Circuit Court dissolving her marriage with respondent-appellee Gary Eyler (Gary), di- viding property their and determining cus- tody of their two children.
We affirm. were married on De- cember 1971. Two children were born of the marriage. On June petitioned for dissolution of the marriage.
The trial court entered its decree of dissolu- tion, which Candace challenges now on five grounds:
1) Whether the award of custody to erroneous; 2) Whether the trial court improperly re- upon lied evaluation conducted by Tri-County Center; Mental Health
83) personal Whether the division prop- еrty error; constituted reversible 4) erroneously Whether the trial court tody to Husband contingent to be applied minority usage of that word in Finding of Fact 25 discount in its valuation business; of stock in was unintentional and mistaken. 5) Whether the trial should have 22. The hereby corrects, Court clarifies disqualified himself. amends of Fact 25 аs fol- *3 ISSUE ONE: lows: "25. pursuant That testimony to given granted
The trial Gary court to and Can- court, before the Mr. Eyler joint children, going dace is custody of the with marry Peggy Smith, Patterson. having primary custody. Mary an Candace as- employee Husband, of the who works on custody serts that the award was errone- daily a home, ous, bаsis in the Husband's contingent upon has because it was a change in support circumstances. To her a close daily and relationship with the assertion, emphasizes that the children." original language Finding of of Fact No. 25 explained The trial court that was conditional: primary award of custody to Gary was not pursuant 25. That testimony given contingent upon change a present cir court, Eyler before the Mr. going is discretion, cumstances. In its the trial marry Peggy Smith, Mary Patterson. an may grant court custody parent, to either employee Husband, who works on both, deny or it to according to their fitness daily a basis the Husband's home has ability and at the time of the decision. a daily relationship close and with the Stone, (1902) Stone v. 158 Ind. 64 N.E. children. The awarding Court's Order 86. Finding Amended of Fact Number 25 physical the Husband custody of the chil- manifests no error in the award of custody. contingent dren upon is Miss Patterson becoming knowledgeable more аbout argues that even if the cus rearing through child attending parent- tody contingent upon award was not ing classes, literature and continued in- change cireumstances, it constituted an
volvement in the children's activities. abuse of discretion. To constitute an contingent upon Order is also discretion, abuse of the court's decision Smith, Mary fact that or someone who is clearly against must be one which is logic of the same demeanor temperament and effect of the facts and circumstances employed by as Mrs. Smith be Eyler Mr. reviewing before the court. The so provide individual can the chil- must detеrmine whether the evidence ad dren the necessary discipline needed [sic] duced at trial can serve as a rational basis addition, and structure. In the Court However, the court's decision. Eyler also instructs Mr. to be more ac- appeals reweigh court of will neither by cessible to the children working closer credibility evidence nor assess the of wit to home. Julien, nesses. In re Both and Candace filed motions to App., Ind. 397 N.E.2d 653. challenged correct error which the lan- guage Finding of Fact Number 25. The making custody, In the determination of trial court ruled on the motions to correct the trial court in the instant case had a error: contradictory substantial amount of evi- Although
20. dence it. Respon- Both the Petitioner and the before evidence might supported have conclusion differ- Finding dent have contended that this Fact ambiguous court, is erroneous or ent from the one reached we portions Cоurt finds that of this will not our substitute for that of will lead to further if controversy the trial court. id. Candace has failed See amended. to show a manifest of discretion abuse war- ranting The Court did not intend reversal of the trial court's deci- joint award custody primary with cus- sion.
ISSUE TWO: striking basis for the custody evaluation report.
Candace contends that undue cere-
given
dence
ISSUE THREE:
was
to the
evaluation
report prepared by Tri-County Mental
In its
personal prop-
distribution of
Center,
Health
because the trial
urty, the trial court
appraisal
referred to an
served on the Board of Directors of Tri
parties'
assets introduced into evi
County.
August
Tri-County
On
by Gary.
dence
The trial court awarded to
appointed
to conduct an evaluation Gary the items
byyellow pen
marked
pursuant
381-1-11.5-22(a)
to IND.CODE §
to Candace the remaining items. When
(1982).
object
ap
Candace did not
to the
ruling
parties'
on the
motions to correct
pointmеnt
Tri-County
at that
time or
error,
the trial court
stated that
it had
report
later when the
was introduced into
reversed the intended distribution of as
preserve
evidence. Candace failed to
sets. The
gave
amended distribution
*4
alleged
Winkler,
error. See
v.
Winkler
by yellow
the items marked
pen
(1969)
136,
252 Ind.
separation" means the
filing
date of
ISSUE FOUR:
petition
marriage
dissolution of
(b)
under
chapter.
section 3 of this
In an
major
marital asset
the instant
pursuant
8(a)
action
to section
of this
outstanding
case was
of the
90.2%
сhapter, the court
proper-
shall divide the
business,
Superior Training Service-
ty
parties,
of the
whether owned
ei-
es, Inc. The trial court determined that
spouse
ther
prior
marriage,
to the
ac-
Gary would retain the stock and that Can-
quired by
spouse
either
in his or her own
dace would receive a
right
marriage
after the
prior
equal
jointly
to the value of one-half the
separation
parties,
or ac-
final
objects
owned stock. Candace
because
quired by
efforts,
joint
their
in just
applied minority
discount when
reasonable manner....
determining the value of one-half of the
added).
(Emphаsis
stock.
Gary and
stipulated
that at the
To determine the fair market value
separation,
time of
they owned
stock,
may
a court
such
consider
factors
*5
outstanding
in Superior Training
stock
Ser-
value,
value,
liquidating
as book
stock mar
correctly
vices. The trial court
determined
value,
market,
ket
еvidence of sales in the
that the stock to be divided between Can-
type
the
of market
and all other
available
dace and
the
acquired pri-
90.2%
elements which tend to affect fair market
separation.
or to final
Grain,
Goodrich,
value. General
Inc. v.
ISSUE FIVE:
(1966)
100,
Ind.App.
140
NEAL, J., concurs. est. All of this stock was awarded to Therefore, Gary. minority no interest RATLIFF, P.J., dissents sеparate with question is involved. The issue was the opinion. of all the value stock which was a near RATLIFF, Presiding Judge, dissenting. ownership corporation. total Redue- my opinion, In it was error for the trial ing the value of the arbitrarily minority court to apply a discount in valu- unreagon- applying minority discount was ing the shаres of stock the husband's adversely able and affected the valuation corporation. business For I this reason of the total marital estate. For the court although must I dissent concur in the ma- to use such an unreasonable valuation jority's resolution of the other issues. determining proper- Candaсe's share of the majority's The statement ty distribution was an trial abuse discretion. "[the court determined that retain would Therefore, I would reverse and remand the stock and Candace would receive a proper- for correction of the valuations and money judgment equal to the value of one- ty distribution. stock," jointly half the Slip Opinion owned is inaccurate. The final decree award- ed Gary. all the stock to also decree $850,000
awarded a
Candace, say but nowhere does decree
this award is for one-half of the stock. In
fact, stock, one-half of value