Annа Marie SHOWLEY, Appellant (Petitioner Below), v. Eddie G. SHOWLEY, Appellee (Respondent Below).
No. 2-882A245
Court of Appeals of Indiana, Second District.
Oct. 3, 1983.
454 N.E.2d 1230
John O‘Neill, Logansport, for appellee.
SHIELDS, Judge.
Appellant Anna Marie Showley (Wife) appeals the judgment of the trial court pеrtaining to the division of the marital property in her dissolution action against Appellee Eddie G. Showley (Husband). She argues the trial court abused its discretion in its division of the marital рroperty in that the trial court:
- failed to apprise itself of (a) the contribution of the respective parties to the acquisition of the marital property, (b) the vаlue of the marital property and (c) the economic circumstances of the parties, and
- failed to report the evidence.
We affirm.
I.
Wife argues the trial court abused its discretion in dividing the marital propеrty because it did not follow the mandate of
In part, this argument is based upon her claim the trial cоurt failed to apprise itself of the value of the marital property and the contribution of the respective spouses to its acquisition. Wife contends the trial cоurt was required to sua sponte fill the evidentiary void when the parties failed to introduce evidence of value and contribution. We rejected this argument in In re Marriage of Church, (1981) Ind.App., 424 N.E.2d 1078.
B.
Wife further claims the trial court abused its discretion in dividing the marital property because it failed to consider the economic circumstances of the parties at the time the dispоsition of the property was to be effective because (1) there was no evidence of the economic circumstances and (2) the lapse of time between the trial on the merits and the judgment.
Wife‘s first contention is meritless. The settled record reveals evidence was submitted on the economic circumstances of the parties: assets, debts, employment, income and wife‘s desire to retain possession of the home.
Wife‘s second contention is also without merit. The dissolution hearing was held Deсember 3, 1980. However, pursuant to
Wife argues the evidence submitted to the trial court on economic circumstances at the December 3, 1980 hearing would not satisfy the trial court‘s obligation to consider the circumstances at the “time the disposition of the property is to become effective“,
Of necessity, evidеnce as to the parties’ economic circumstances must be submitted at the time of the final hearing even if the evidence is prospective in that a party reаsonably anticipates a change of economic circumstances. We realize evidence often will not be available or will be inadmissible because it is speculative in nature. In any event, if for any reason the entry of the decree is delayed, it is reasonable to impose the obligation upon the parties to seеk the opportunity to submit additional evidence on a change in circumstances occurring during the delay. Here, Wife did not in any manner advise the trial court of her desire tо submit additional evidence based upon an alleged change in economic circumstances that she may believe occurred during the pendency of the action after the date of the final hearing. She cannot now complain.2
II.
Wife asserts the trial court “abused its discretion” by failing to have the December 3, 1980 hearing reportеd. Again, we disagree. Unquestionably, any party has the absolute right to have any evidentiary proceeding reported. However, it is a right that at times may not be self-executing but may need to be invoked by request. Our combined experience is that there are certain matters which by custom are not reported as a matter of course in our trial courts. Dissolutions frequently fall within this category when only limited issues are in dispute.
Judgment affirmed.
SULLIVAN, J., concurs.
BUCHANAN, C.J., dissents, with separate opinion.
BUCHANAN, Chief Judge, dissenting.
I must respectfully dissent.
My views concerning a dissolution court‘s mandatory duty to ascertain the value of marital property are not transitory. They have nоt changed since my concurring opinion in In Re Marriage of Church, (1981) Ind.App., 424 N.E.2d 1078, trans. denied, wherein I recoiled from the concept that a trial court could divide marital property without evidence оf value of significant portions thereof:
“The effect of the majority opinion is to make it possible for a trial court to divide marital property in a dissolution action with little or no evidence as to its value, thereby overturning a long line of decisions, including the Indiana Supreme Court‘s decision in Shula v. Shula, (1956) 235 Ind. 210, 132 N.E.2d 612, and our own decisions in Howland v. Howland, (1975) 166 Ind.App. 572, 337 N.E.2d 555, and Hardiman v. Hardiman, (1972) 152 Ind. App. 675, 284 N.E.2d 820. The supreme court in Shula reversed an alimony judgment because the trial сourt had before it no evidence as to the value of property awarded, saying that ‘before the amount of alimony can be fixed, evidence must be introduced of facts and circumstances from which the court can determine the amount which is just and proper.’ 235 Ind. at 217, 132 N.E.2d at 615 (citations omitted). Shula and cases in its line of descent establish the rule that the trial court abuses its discretion when marital property is divided without sufficient evidence of value. See Howland v. Howland, supra; Hardiman v. Hardiman, supra; Snyder v. Snyder, (1964) 137 Ind. App. 72, 198 N.E.2d 8.
It may be expedient to adopt the majority‘s holding that the burden is on the parties to intrоduce evidence of property value, and any party who fails to shoulder that burden waives his right to appeal from the order dividing the marital estate on the grounds of lack of such evidence. But such a shifting of the burden does violence to the purpose behind the rule requiring the court to assign a value to marital assets: The trial court cannot fulfill its affirmative statutory duty to divide the parties’ property in a ‘just and reasonable manner’ unless the necessary steps are taken to determine the value of that рroperty.
IC § 31-1-11.5-11 . See also Wireman v. Wireman, (1976) 168 Ind.App. 295, 343 N.E.2d 292. In short, stare decisis and reason are best served by leaving the law as it is.”
Id. at 1083-84 (emphasis supplied).
In Church, I was forced to concur in the majority‘s result because the unvalued property constituted only an insignificant portion of the Church marital estate. Thus, I was able to follow the established rules that a trial court is entitled to: (1) rely upon its own knowledge in affixing a value tо common goods or (2) refrain from assigning a value to items which are of negligible worth. See In Re Marriage of Patus, (1978) 175 Ind.App. 459, 372 N.E.2d 493; Cross v. Cross, (1974) 159 Ind.App. 592, 308 N.E.2d 717.
In the present case, however, a far more serious error has been cоmmitted. The trial court disposed of the parties’ real estate;
To permit a trial court to divide marital property without evidence of value is like depriving the carpenter of his hammer and saw or the bricklayer of his trowel. If evidence of value has not been presented, this court should send the case bаck for further proceedings as has been done in the past. See Howland, supra; Hardiman, supra; Snyder, supra. I do not refer to the situation in which one side has waived the right to present evidence of value in thе face of evidence submitted by the other side.
Thus, I would reverse the trial court‘s decision and remand for a hearing to ascertain the value of the Showley marital prоperty.