Prenatt v. Stevens

In order to guilty find the Defendant DOUBLE JEOPARDY aiding crime, in the commission of a Finally, we address the double conduct, there must be some affirmative jeopardy pointed by issue out the State. words, from Weyls either in the form of acts or robbery was convicted for both which the reasonable inference of a com- robbery theft connection with the the com- Hritzkowin robbery and for both and theft design purpose mon to effect might mission of the crime be drawn. robbery connection with the Radeliffe. victim, each As to the theft was a lesser guilty, you order to find the Defendant robbery. included offense of the Winfrey by find that he intended his own (1989), Ind., Thus, v. State 547 N.E.2d 272. actions to cause or facilitate the commis- we must reverse the theft convictions for by sion of principal the crime offend- III and Count Count V and we remand for er. You consider the Defendant's vacation of those two convictions. oppose failure to the commission of a respects, judgment In all other only crime when the Defendant owes a trial court is affirmed. duty protect to the victim of the crime parent such as a owes to child. PART, AFFIRMED IN REVERSED IN PART AND REMANDED. added). (Emphasis gave The trial court this instruction after BUCHANAN, JJ., SHARPNACK and deleting portion. Weyls the underlined ar concur. gues that State's instruction 3 is mislead ing qualifying in the absence of the lan

guage deleted from instruction 5. We argue Weyls's

cannot premise oppose

failure to the commission of a

crime, alone, standing is not sufficient

impose liability criminal duty unless a

protect the victim exists. Pace v. State (Stevens), PRENATT 248 Ind. 224 N.E.2d 312. How Appellant-Respondent, ever, Indiana courts have not held v. time oppose may failure to be con STEVENS, Appellee- John Knox sidered is duty when there is a act. Petitioner. Indiana consistently courts have held that oppose may failure to be considered with No. 53A04-9107-CV-237. other circumstances and conduct Indiana, Appeals Court to determine whether the defen defendant Fourth District. approval" dant "lent his countenance to the commission Mobley crime. Sept. 227 Ind.

State

489, 492; Pace, supra, see also 313; Harris, supra, 425 N.E.2d at 155.

The record before does support us not qualifying language

inclusion of the ten- by Weyls

dered in his instruction 5. As we sufficiency issue,

discussed in there Weyls merely

was evidence that did not fail crimes; oppose commission he

took an active role in the events of that

night. Consequently, the trial court did striking

not err in the last sentence from

Weyls's instruction 5. Poer, Bloomington, appellant

D.L. respondent. Stevens, pro se.

John Knox CONOVER, Judge. Respondent-Appellant Diane Prenatt (Diane) appeals the Monroe Circuit Stevens marriage judgment dissolution Court's (Cross-Ap- Petitioner-Appellee in favor of (John). pellant) John Knox Stevens part. affirm in and reverse We presents Diane four restated issues for John filed for dissolution of the December of The trial court ruled review: John and should share court its abused dis- of their children. The court also divided entering cretion in an order of cus- provided disposi- their and for its tody; tion. degree 2. doctorate whether Diane's Diane maintains the trial court failed to property; constitutes marital statutory guidelines follow the for award- 3. whether the trial court erred when ing joint custody. She describes the evi- percentage any it awarded John a showing hostility dence as rancor and be- residence; appreciation on the marital parties points tween the and ex- John's and plosive personality profound animosity and 4. whether the trial court erred when parties' toward her as evidence of the ina- exemption it dependency awarded a bility cooperate with each In the other. John. parties' express agreement absence of the presents two restated issues for upon record, and based Diane contends cross-appeal: review on joint legal custody the award of is an abuse 1. whether the court erred when it of discretion. acquired included final 31-1-11.5-21(f) IND.CODE a authorizes separation distribution; and legal custody jointly trial court to award if 2. whether the court erred when it arrangement it finds such an in be university diplomas, awarded John's mili- the child's best interest. Walker v. Walk tary family photographs, family 509, Ind.App., er 539 N.E.2d 510. books to Diane. In determining joint whether an award of custody in would be the child's best inter John and Diane were married on June month, they est, 31-1-11.5-21(g) requires 1975. The next moved to IC the court primary, to "consider it a matter of but not Indiana, Bloomington, so Diane could earn importance, parties determinative that the a in English. During doctoral joint custody agreed awarded to such marriage, Indianapolis John worked at Uni- an award." Stutz v. Stutz Ind. versity-Purdue University Indianapolis App., Additionally, history professor, while Diane contin- given consideration must be to: pursue degree. Following ued to her (1) suitability the fitness and of each of during award of the the last persons joint custody; awarded years marriage, three of the Diane did not (2) employment persons joint take full time commensurate whether the awarded custody willing her communi- capacity. skills and are and able to cooperate advancing cate and daughters during Two were born welfare; child's marriage, ages eight twelve and at the time (8) of the child and whether the wishes separation. During marriage, a close and ben- the child has established purchased parties Bloomington, a home in relationship per- of the eficial with both Indiana. John doubled the size of the custody; joint awarded sons by constructing house various additions. (4) persons awarded approximately He contributed 92% proximity live in close to each family's during income the course of the so; plan other and to continue to do (5) the nature of the and emo- Continuing disputes between the tional environment in the home of each moving resulted in John from the persons joint custody. awarded apartment marital residence to an in India- 31-1-11.5-21(g)). (citing napolis, September on 1989. John visit- parents ed the children on weekends until October The trial court found both proper persons legal to have to be fit and argument when an led to his daughters, giv- of the minor assaulting Diane. ing impose an intolerable situation custody of ing primary physical relationship persons whose has two rights. both, visitation to John's any did not offer additional The trial court battleground. a become respect to the statu findings with factual 539 N.E.2d 509 at 31-1-11.5-21(g). tory considerations of IC the trial court Diane next contends only court to con- requires statute ' found her doctoral erred when it awarding custody. relevant factors sider asset. She also cites as was a marital findings specific request Id. Absent setting degree off error 52(A), Rule pursuant to Ind. Trial accumulated against her claim to John's upon this section will determination based $200,000. approximately pension rights of if reversed it is erroneously found her claims the court She facts and circum logic and effect of the future asset. The court to be a or the reasonable stances before stated: therefrom. Id. inferences to be drawn Walker,

1351; 539 N.E.2d at 510. see also that the Hus- 13. The court believes pension rights accumulated band's argues the court erred when (his college retire- through TIA-CREFF the facts joint because it awarded marriage plan) ment are an asset statutory the satisfy one of fail to "even part by the Court. subject to division award." supporting criteria ac- thorough also believes that Wife's A ex The Court Appellant at 15. Brief during support quisition not of a doctorate of the record does amination marriage an asset of the the is Diane's conclusion. court. The by the to division a fit psychologist A testified John was impacted by division is further issue of a con- provide parent whose home capacity) (and ages future quiet atmosphere. ventionally clean and educational achieve- parties. Wife's Further, thought the record shows Diane earning life potential ments and extended loving parent. kind Testi (more years) balance Husband's than 25 presented a mony from three witnesses on his accumulated imminent reliance relation- picture loving of a father whose years (approximately 5 tirement benefits normal, affec- ships his children were therefore, awards to hence). The tionate, healthy. entirety of his retirement Husband conclusion either supports The record entirety. to Wife and awards benefits emotionally beneficial home would be from her edu- she derives of the benefit presented that Evidence was the children. cation. disagreements and ar Diane and John had (R. 184). However, themselves. guments between suggests nothing in record fundamen Indiana cases which There are no rearing philosophy in child tal differences How at hand. directly the issue discussed lifestyles.1 analy ever, helpful in our cases are three (1977), 173 Ind. In v. Wilcox sis. Wilcox Judge As Miller stated Walker: the husband 661, N.E.2d both App. affirm a reluctant to Frankly, we are undergraduate de completed the wife joint custody when court's order of trial hus while the the wife worked grees, then objects thereto ... one of the After graduate work. completed his band hand, gives the statute the other On the cou ward, quit work to raise the wife to award court the discretion trial as worked while the husband ple's children as reluctant to just and we are later, years college professor. Several court's exercise reverse a trial and claimed filed for divorce the wife evidence does not when the discretion a marital earnings were by attempt- husband's clear thereof show a abuse judgment of discretion. an abuse Indianapolis court's trial distance between 1. We find the enough Bloomington render asset under IC 31-1-11.5-11. The legislature trial "prop intended the term court refused to treat the husband's future erty" broadly inclusive, to be as indicated earnings as On by 31-1-11.5-2(d). its definition in IC appeal, this court first noted any "that However, upon limits exist what award over and above the actual "property", considered and we do not find assets of the relationship rep marital the term to mean more than that which is resent some form support or maintenance."usually understood. The common defini 36 5 N.E.2d at 794. We then held tion of "everything is that has an present "'that a vested interest must exist exchangeable value or goes which to make for the item to come within the ambit of up wealth or estate." BLACKS LAW 'marital assets'." Id. at 795. We (rev. 1968). DICTIONARY 1382 4th ed. A determining concluded that in what is to be intangible is an which is nothing divided there is in the statute piece paper holder. It is a and has which lends itself to interpretation except no real value for what the holder future income is divisible "property". pursue chooses to with it. Potential worth dependent In re Marriage availability McManama choice and work, 179 Ind.App. good reh. de the holder is at what nied, panel a does, of this court was asked to she myriad or a potentiali of other decide whether the trial court erred in ties. awarding (the the wife $3600 amount degree Valuation fraught of a is paid help wife acquire the husband uncertainty personal because of the factors degree) as property of the described above. Even if valuation could settlement. The husband cited Wilcox as certain, be valuation, made such authority that the trial court was errone based on future capacity or ously making an award in excess of the cost acquisition, ultimately result value of the marital assets. majority The in an beyond award the actual noted the degree husband's proper was not assets of the As noted in Wil-

ty to be pot. included in the marital How McManama, cox and improp- such award is ever, the majority held although degree er. could not be valued as to be dis tributed, the spent in acquiring $3600 holding Our here is consistent with deci degree dissipation was marital sions jurisdictions. from other See In re constituting proper a basis for the trial Marriage (1978), 429, Graham 194 Colo. court to include the in calculating amount 574 75 (holding P.2d an M.B.A. parties. net worth of the 386 N.E.2d at not property even under a broad view of term); the meaning of the Kanta v. Kanta (S.D.1991), 479 N.W.2d 505 (quoting supreme Our in In Marriage re Wehrkamp (S.D.1984), Wehrkamp 357 483, McManama 272 Ind. N.W.2d proposition that "[the reversed this court's decision. factors and variables involved such a The court cited Wilcox and held the factors consideration [valuing a based on set out in IC 31-1-11.5-11 can only affect earnings] are simply speculative too the marital assets in which a vested and could act to turn the possibility of present interest exists at the time of dissolution. inequity on the one probability hand into a 39 9 N.E.2d at 373. The court not other"); of such on Petersen v. ed the Peter award actuality $3600 was in an (Utah 1987), paid award to be sen from the husband's future (holding 737 P.2d 237 a medical property subject income. is not Id. The court further held the only way an award of future income is division but may alimony); be a basis for proper byis way of either support or DeWitt v. main DeWitt 98 Wis.2d tenance, neither of which applied to the N.W.2d 761 (holding degree proper wife in that case. ty valued). and cannot be

G21 "just in and reasonable". 31-1- the trial court erred Diane contends following provision in its final 11.5-11(b). case, making the present In the the use court awarded Diane of the home order: long one of the as as at least children of regarding following The Court finds the custody. in her was The the marital residence: $14,850 her as court also awarded her finds the marital residence a. The court eighty percent share of the home and Thirty-Four equity to have a net value proceeds by appreciation the net occasioned ($34,- Thousand, Hundred Dollars Two upon the sale of the home. The trial 200.00) in the which is set over Wife court's decision is not Thousand, Hun- Fourteen Three sum of facts, and is not rendered effect ($14,850.00) dred, Fifty and to Dollars asserted, unsup- unjust because of the but in the sum of Nineteen Thou- Husband ported, possibility major improvements ($19, sand, Hundred, Eight Fifty Dollars to the home. 850.00). The Court finds that this divi- (50/50) trial court fifty-fifty division contends the sion effects a property. dependency ex and real erred when it awarded of marital John, parent.2 emption to the noneustodial marital resi- possession b. The court ordered: awarded to Wife dence is sepa- file long as she remains 18. The shall each mortgage for so year returns for the 1990. Wife single and maintains it as a home rate tax depend- At the shall be entitled to claim as either or both of the children. Alyson Stevens and Husband of sale of the marital residence ent Jane time depend- to claim as his happening shall be entitled whether before filing Federal proceeds the net ent Julia Ann Stevens one of the above events shall gross proceeds income tax returns. Wife of the sale after are State doe- execute whatever by expenses of sale and the from time to time duced pro- may required to make this respective par- to the ument amounts set over effective. vision ties, any, if preceding paragraph, in the (R.185). (80%) eight[y] percent divided shall be (20%) twenty percent to Hus- Wife and a de A trial court cannot allocate band. par exemption to a noneustodial pendency (R.185). argues twenty award (1990), Ind.App., Ritchey Ritchey v. ent. unjustly percent any appreciation enrich- However, may, it 1379. get twenty per- he es John because would case, order the custodial proper in the any appreciation result cent of If the a waiver. Id. spouse to execute to the possible improvements from execute the parent refuses to custodial home. waiver, custo may hold the the trial court adjust sup contempt or parent disposition dial par the non-custodial port trial order to afford sound discretion of the within the additional tax burden relief from the this court will reverse for ent and sign the waiver. Id. refusal to Hoyle from the an abuse that discretion. Here, pow had the although the trial court N.E.2d Ind.App., 473 Hoyle doc order, execute whatever order Diane to reviewing the trial court's er to necessary to enable John disposition whether the uments were we must determine dependent, it did not claim Julia assets is of the marital him. exemption to power and circum to allocate effect of the facts clarify remand, should Upon the trial court Disposition the court. stances before Digne parent parent who is not is the their custodial and John have Diane, however, children reside parent. Because the primary physical custodial has children. greater the calendar pur- purposes, with Diane for the For tax of the children. Accordingly, parent. 152(e), parent year, custodial she is the U.S.C. the custodial § suant to 26 only, purposes is the noncustodial John parent having physical for a for tax is the year. greater portion The non- of the calendar parent. 622

its order bring it into conformance with AFFIRMED in part, REVERSED in Ritchey. part, and REMANDED pro- further ceedings consistent with opinion. this charges John cross-appeal on court erred when it included the value of an acquired automobile separa- final GARRARD, J., separate concurs with

tion for Here, distribution. the date of opinion. separation final was December CHEZEM, J., concurs in date on which result petition filed his separate opinion. dissolution. 31-1-11.5-11(a) See IC How- ever, John does not pur- reveal the date of GARRARD, Judge, concurring. chase of the automobile. We have duty no to search the record to reverse a trial While I concur with the majority general- court's order. Glenn v. Thatcher Glass ly and its conclusion that gradu- the wife's Mfg. Co. Ind.App. 302, ate properly deemed a marital 904. Accordingly, the issue is asset, it pointed should be out waived. educational achievements potential earning life by referred to the court in its John also contends the court erred findings do constitute a valid consideration by awarding highly personal items of a and basis for determining appropriate intimate nature to Diane. He contends in disposition of assets, the marital including light of 31-1-11.5-11(c)(2), pension the husband's rights. could not have intended for Diane to own grandfather's books from his library, his CHEZEM, Judge, concurring in result. photos, ancestral his university diplomas, photo collection and mementos from I concur in result I agree because do not overseas service. that an advanced is not a marital asset. Further discussion is necessary The trial court ordered: garding the value of an Wife shall separate have as proper- other party's enhancements of a ty furniture, all furnishings equip- ability. case, however, This does not ne- ment, books, all clothing, photographs, cessitate that discussion. art, records, works of equip- electronic ment, cameras, vehicles, and all other merely Rather than finding the wife's goods movable presently chattels lo- to have been an asset of cated in the marital except home marriage, the trial court should have Husband's tools guns and cance compared the wife's ability to earn and placed which shall be possession his years of expectancy work life against the within thirty days. husband's as the rationale for awarding the husband his (R.184). pension.

We find Therefore, I do court erred when it not concur with the dis- cussion of the division of personal prop- awarded John's the marital property to Diane. The trial court's decision here erty. clearly was and effect of facts and circumstances before though it. Even

dissolution disposition court's of marital

property should whole, be considered as a by item,

and not item has no

right to John's effects such as: university

his diplomas, his photo- ancestral

graphs books, his military memorabilia photo collection, most of which

have little or monetary no value.

Case Details

Case Name: Prenatt v. Stevens

Court Name: Indiana Court of Appeals

Date Published: Sep 2, 1992

Citation: 598 N.E.2d 616

Docket Number: 53A04-9107-CV-237

Court Abbreviation: Ind. Ct. App.