James R. WARREN, Appellant (Petitioner Below), v. Caroline M. WARREN, Appellee (Respondent Below).
No. 27A02-8910-CV-553
Court of Appeals of Indiana, Second District
Dec. 6, 1990
564 N.E.2d 305
The evidence supporting Hooser‘s ownership of an interest in the relaxation center with knowledge of its prostitution activity depends upon the reasonableness of the inference he knew the nature of the business based upon its general reputation.
A presumption is “[a]n inference affirmative or disaffirmative of the existence of a disputed fact, drawn by a process of probable reasoning, from some one or more matters of fact, either admitted in the cause or otherwise satisfactorily established.” Deming Hotel Company v. Prox (1968), 142 Ind.App. 603, 613, 236 N.E.2d 613, 619. The due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of the legislature to make the proof of one fact or group of facts evidence of the ultimate fact upon which guilt or liability is predicated. Tot v. United States (1943), 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. A statutory presumption is sustainable only if there is a rational connection between the fact proved and the ultimate fact presumed; otherwise the presumption is impermissibly arbitrary. In the instant case, there is a rational connection between the fact proved, the general reputation of the relaxation center as a place of prostitution and the presumed fact, Hooser, as the owner of an interest in the place, knows of the acts of prostitution giving rise to its general reputation as a plaсe of prostitution.
Once admitted, the general reputation evidence shifted the burden of going forward with evidence he did not know the business of the relaxation center to Hooser. Had he offered such evidence, the presumption would have fallen. When the opponent of the presumption introduces evidence to the contrary, the presumption disappears. Berger v. Peterson (1986), Ind.App., 498 N.E.2d 1257; Lenard v. Adams (1981), Ind.App., 425 N.E.2d 211. However, Hooser did not offer any such evidence; therefore the presumption supports the trial court‘s determination Hooser owns an interest in the relaxation center with knowledge of the business conducted thereon.
Judgment affirmed.
BAKER and BUCHANAN, JJ., concur.
SHIELDS, Presiding Judge.
James Warren appeals the trial court‘s award of a portion of his military retirement pay to his wife, Caroline, upon the dissolution of their marriage.
We affirm.
ISSUE
Whether a spouse‘s military retired or retainer pay is a marital asset when the marriage еndured less than ten (10) years during which the retiree was performing service creditable in determining eligibility.
FACTS
James and Caroline Warren were married on September 5, 1980 and divorced on June 5, 1989. James retired from the United States Army with retirеment benefits on October 31, 1985. The trial court awarded Caroline twenty-five percent (25%) of James‘s retired pay, payable monthly.
DISCUSSION
James argues the trial court‘s award of a portion of his monthly retirement benefits to Caroline is specifically prohibited by
The enactment of the Uniformed Services Former Spouse‘s Protection Act,
James argues this authorization is restricted by the provision:
If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member‘s eligibility for retired or retainer pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsеction (c) of disposable retired or retainer pay of the member as property of the member or property of the member and his spouse.
Contrary to James‘s position, subsection (d)(2) does not take away a state‘s right under subsection (c)(1) to treat retired or retainer pay as marital property. In fact, subsection (d)(2) concerns payments to be made to a spouse or former spouse and, thereforе, assumes payments under subsection (c)(1) are ordered paid. The subsection does, however, prohibit direct payments to the spouse. This purpose becomes apparent when the subsection is read in conjunc
After effective service on the Secretary concerned of a court order with respect to the payment of a portion of the retired or retainer pay of a member to the spоuse or a former spouse of the member, the Secretary shall, subject to the limitations of this section, make payments to the spouse or former spouse in the amount of the disposable retired or retainer pay of the member specifically provided for in the court order.
Therefore, based upon
The majority of other state courts who have considered this issuе, after considering the legislative history of the federal legislation, also have determined subsection (d)(2) only precludes the portion awarded to a retiree‘s spouse from being paid directly to the spousе. See e.g. In re Marriage of Beltran (1986), 183 Cal.App.3d 292, 227 Cal.Rptr. 924, 927 (
James asserts Anderson v. Anderson (1984), 13 Ohio App.3d 194, 468 N.E.2d 784 supports his argument. In Anderson the Wife requеsted relief from a dissolution judgment nearly one year to the day after the parties’ marriage was dissolved and several months after she had remarried. The trial court granted Wife relief and Husband appealed. In reversing the judgment of the trial court the court of appeals held the trial court erred in granting relief because it did not have jurisdiction to modify an alimony or a property division agreement. “[I]t is the opinion of this court that a domestic relations court lacks jurisdiction to modify a property division in a separation agreement which has been incorporated into a decree of dissolution of marriage.” Anderson, 468 N.E.2d at 788. Though, the court commented that the Uniformed Services Former Spouses’ Protection Act “requires a former spouse to have been married for a period of ten years while the member spouse has performed the sаme number of years of creditable service,” Id. at 789, this gratuitous statement (there was no dispute but that the parties had been married for the ten years although the calculation required credit to periods of times the рarties were married to each other prior to a former divorce) does not dissuade us from our interpretation and that of numerous other courts of the appropriate statutes.
Judgment affirmed.
BUCHANAN, J., concurs.
CONOVER, J., dissents, with separate opinion.
CONOVER, Judge, dissenting.
I respectfully dissent.
The statutory authority of state courts to treat federal retired or retainer pay as either the payee‘s, or the payee‘s and his spouse or former spouse‘s, personal property as provided by state law is specifically qualified by
Under the majority‘s construction of this statute, the spouse of such a federal payee could be awarded any part or all of such payee‘s retirement or retainer pay, even though married to such payee for only a year or less, if the court order so provided and the state law authorized such an order. Also the majority‘s interpretation would result in the authorization of indirect payments of such funds to such sрouses when direct payments thereof are prohibited. Both federal and state law proscribe the doing of an act indirectly which cannot be done directly. I believe the majority‘s construction of
I believе the intent of Congress on this point is clear: it intended no payments of federal retirement or retainer pay were to be paid either directly or indirectly to a federal payee‘s spouse or former sрouse unless those parties have been married for the minimum period of 10 years provided in
For those reasons I would reverse and remand for further proceedings.
V. SUE SHIELDS
PRESIDING JUDGE