*1 “[р]ublie notice of executive sessions must subject by specific
state the matter reference Jay Myoung YOON, Appellant-Respondent, to the enumerated instance or instances for v which executive sessions be held under . (b).” § subsection IND.CODE 5-14-1.6- 6.1(d) (1991 YOON, Appellee-Petitioner. Supp). Sunsook No.
Here, 49A02-9611-CV-733. August hearings the notice for the read as follows: Court of of Indiana. hereby given public Notice is that a Oct. meeting Metropolitan will be held 8-8-92,
board of Police Commission on AM, Hall, 9:00 at the Merrillville Town Ave, W 73rd Merrillville Indiana. 5-14-1.5-5, Pursuant to I.C. and all re- lated sections. subject meeting of this will be a
hearing disposition of disciplinary
charges against filed Officer Peter Blanco
III.
Pursuant to I.C. 36-8-3-4 and all related section. meeting will continue until conclud-
ed. Demmon, Deposition Daniel Exhibit J. permissible Whereas it is for a board session, conduct its deliberations in executive County Marion Merit Bd. v. Peo Sheriff’s ples Broadcasting Corp., 547 N.E.2d (Ind.1989), according § to IND.CODE 5-14-
1.5-6.1(d), notice of the executive session Here, given. must be the Commission’s no tice public failed to inform the that an execu
tive purpose session would be held Thus,
deliberаting. the executive session Law, Open violation of the Door the trial court finding erred in that the exec
utive appropriate. session was judgment of the trial court is affirmed part. and reversed in DARDEN, JJ.,
GARRARD and concur.
52(A) regarding payment of child and division of property. Additional
provided facts will be where relevant.
The trial court pay ordered *3 per support week for of the minor $698.00 children college expenses. and 50% of their party challenges order, Neither the court’s however, Jay contends that the court com mitted an abuse of discretion suppоrt abate his obligation child to the ex Clase, Harper, David A. Clase & Grim- duplicates tent the contribution for the mett, P.C., Indianapolis, Wyle, Karen A. room, board, children’s living and other ex Bloomington, Appellant-Respondent. for penses college. while at Garrison, Kiefer, Gregory J. Michael A. Post-secondary expenses education in- Mondou, Kiefer, P.C., Martha J. Garrison & curred on behalf of children be added to Richardson, Indianapolis, Indianapolis, Scott support obligation. а basic child Ind.Child Appellee-Petitioner. 3(E). Support 3(b) Commentary Guideline that, guideline provides to this if college ex- OPINION penses provided separate are sup- from child FRIEDLANDER, Judge. port, “support paid parent to the custodial eliminated, should be reduced or at least Jay Myoung appeals judgment Yoon away while student is from the household by his marital dissolution action instituted Therefore, and at parent school.” when a Jay presents following Sunsook Yoon. pay supрort portion ordered to child restated issues for review: college expense, the child’s the trial court the trial court in computing Did err partial must full consider or abatement of the support payment? the child support obligation. basic child sys- Such a determining Did the trial court err in duplication payment tem avoids the for a Jay’s practice? the value of medical expense, single which would result in a wind- 3. Did in dividing court err Stover, parent. fall to the custodial Stover v. parties? marital assets of the (Ind.Ct.App.1995). 4. Did the trial court in prohibiting err Sunsook, parent, the custodial does not testifying expert from as an medi- argue, demonstrate, and the record fails to cal witness? support the trial court abated child denying Jay’s 5. Did the trial court err in obligation during for the time the mi- change judge? motion for nor children were at school. This was error. Sunsook, cross-appeal, presents on the fol- Thus, we this remand case to the trial court lowing restated issue for reviеw: recompute Jay’s and instruct the court to determining Did the trial court err in support obligation child peri- for those time dissipated had not the marital ods when actually the minor children are assets? away attending college campus, partial include either a full or abatement of affirm in We and reverse and remand support during child such times. part. parties’ twenty-three-year marriage Jay asserts that the trial court erred by August was dissolved 1996 decree in determining support obligation his child dissolution, of dissolution. At the time of the because the court failed to take into account there were two minor children of the mar- January evidence submitted after riage and one over age majority. child changes health difficulties and in the findings trial court entered industry, of fact and medical which all indicated a reduc pursuant conclusions of law Ind.Trial Rule tion his level of income. accepted findings of a valuation which failed to take
The trial court entеred
support.
deteriorating
spe-
issue of child
health and
relevant
account of
fact
,
Therefore,
industry
discussing
must first determine whether
we
cific
trends. Before
findings
supports
contention,
then
the evidence
we address Sunsook’s assertion
judgment.
findings
precludes Jay
whether
of waiver
the doctrine
be
findings and conclusions will
set aside
raising
from
this issue.
erroneous, i.e.,
they
clearly
are
if the
only if
R. James
During cross-examination of
Ald-
sup
facts or inferences
contains no
record
Jr.,1
ering,
wаs a
discussion
there
substantial
only
finding
of a
porting them. Reversal
parties’
counsel of
the court and
finding
clearly against
if the
appropriate
application
case
Porter
law from
facts, or
logic and effect of the
reasonable
Porter,
(Ind.Ct.App.1988),
the child
practice,
sional
but
to alter our valua-
refuse
system
such potential
tion
due to
difficulties.
accepted
Jay argues
the trial court erred
definition of
patron
prac
expectation
public
his
of continued
determining
value of medical
Porter,
age.
(citing
intangi
tion, not because of the condition of his The court determined that Sunsook should hеalth, refusing and to sub- receive 55.4% of the marital sup- assets. In decision, prompt timely port mit patients and bills to his of the the court found: hospitals. to and (105) present ... that the and future earn- Appellant’s ing ability Appendix parties of the disparate 15. is [Jay’s] present that ability and future abili- Jay’s earning substantially level declined ty through to earn his medical is According Jay, from 1994 to 1995. to the greater. decline resulted from his deteriorating health industry and certain trends which made it Appellant’s Appеndix at 19. The evidence at practitioners more difficult for solo and, to com- supports therefore, trial finding the the pete. presented Sunsook evidence that the trial court not err employing Jay’s did reduction Jay’s was attributable to failure present to earning ability and future as the appropriately bill for his services. The trial unequal basis for the of marital distribution weighed court presented the property. evidence and agreed Jay with Sunsook. has not demon- 4. stratеd that the trial court did not consider Instead, Jay the evidence he offered. asks Jay claims that the trial court com us, effect, reweigh to the evidence but this by mitted reversible error allowing not him ill-equipped perform. is a task we are to testify expert to as an regarding witness medical condition. supports and, finding The evidence the therefore, acceptance the trial court’s of the The trial court has broad discre figure valuation was not error. tion in ruling propriety expert on the testimony only and will be reversed for an
Jay contends that trial During the court abuse of discretion. direct examina tion, dividing erred in the marital of the if the trial court determines that a parties because it took into account testify, proponent his future witness of the earning capacity determining when testimony the value excluded must make an offer of Quillen, Jay Quillen offers v. porting expert, negative 659 N.E.2d valuation would have (Ind.App.1995), guidance argu- 572-73 Jay’s for his effect on the asset’s value.” reliance Quillen, misplaced ment. premise, stated that it court "has because his i.e. that the trial upheld never completely completely ignored an asset that valuation court the evidence of indus- which, ignores health, sup- try Jay's applicable. factors as admitted trends and is not ruling parties’ for that preserve appellate bank accounts and
proof to substance, must show should reduced review. offer distributive share have been purpose relevancy, materiality, and of the that by that amoünt. The trial court found order enable Jay dissipate during excluded evidence assets the mar- did not whether exclu reviewing Therefore, court to determine riage. the standard of review Indianapolis proper. 52(A) Donaldson sion was applicable. under T.R. (Ind.Ct. Transp. Corp., 632 N.E.2d Pub. trial, present- At substantial evidence was App.1994). over, concerning authority deposit ed and examination, his coun- During direct from, aсtivity parties’ and withdrawal Jay’s medical condi- sel raised the matter of Jay For example, bank accounts. testified ground objected on the that tion. Sunsook sixty approximately seventy percent provide expert testi- Jay qualified was not prac- gross receipts from the medical objec- mony and the trial court sustained tice, deposited a certain ac- which he into Although speculate Jay tion. wé can count, spent expenses was overhead thаt the condition of his have testified would practice. deteriorating and health was that such finding There was evidence was 'and material to the condition relevant dissipate Jay the marital assets did case, Jay providing bore the burden finding supports the conclusion Here, Jay failed make an information. Jay is the the distributive share awarded to Therefore, we proof. cannot deter- offer appropriate amount. prejudiced by the trial mine whether Thus, ruling. say cannоt that the Judgment court’s we affirmed reversed in ex- trial court committed reversible error part. remanded testimony. cluding Jay’s expert KIRSCH, J., concurs. court erred asserts'that BARTEAU, J., separate concurs with *6 change for of when it his motion denied opinion.
judge. BARTEAU, Judge, concurring opin- with 76(C) governs applications Ind.Trial Rule ion. imposes specific change for of and time judge However, filing motions. separately express my limits for I write dissatis- permits application a to file an party present rule faction with the state of Indiana law of the limits in subsequent expiration time concerning professional the valuation of requires of certain situations and verification goodwill proceedings. This is- in dissolution by party application “personally him- conflicting sue has resulted various and 76(C)(6). T.R. states, self....” approaches among the it is an and yet by the issue that has not been addressed trial, oral, day the first of made an On Supreme Indiana Court. change judge of unverified motion for based This upon prejudice.4 bias and motiоn did of Appeals The Indiana Court has held comply requirements with the of T.R. professional goodwill mari is a divisible 76(C)(6) and, therefore, the trial court’s deni See, e.g., Berger Berger, tal asset. 648 al not constitute reversible error.5 did (Ind.Ct.App.1995); Cleary v. Cleary, (Ind.Ct.App.1991); 851 582 N.E.2d Porter, (Ind.Ct.App. Porter v. 219 526 N.E.2d argues that the court Sunsook 1988). has been follows: Goodwill defined as dissipat had erred to find advantage acquired or parties after' benefit which is ed certain marital assets by beyond val- separated. Specifically, an establishment the mere Sunsook asserts stock, $1,177,000 funds, capital ue of or Jay expended approximately from invitation, pro- exception 5. We the affi- under decline to consider oral'motion falls 76(C)(6). davit was submitted time on for the first vided T.R. appeal.
207
skill,
therein,
reputation
consequence
in his new locale a
as to
employed
efficiency,
compris-
and the other
patronage
encourage-
elements
general public
ing goodwill.
frоm constant or
ment which
receives
customers on account of its local
habitual
Accordingly
disposi-
we do not think the
celebrity,
reputa-
or
position, or common
is whether Dr.
tive
Lukens can sell
factor
skill,
affluence,
punctuality,
or
or
tion for
goodwill.
goodwill
his
His
has
de-
value
or
other accidental circumstances
spite
unmarketability,
or from
long
its
and so
necessities,
partiality
or even from ancient
osteopathic practice
he maintains his
prejudiсes.
Tacoma
unll
or
he
continue to receive a re-
goodwill
turn on the
with
associated
853; Porter,
Cleary,
at
526
582 N.E.2d
name.
has been further
N.E.2d at
Goodwill
Porter,
public
(citing
It
regardless
professional practice,
professional’s
of whether
or an interest there-
However,
in,
distribution,
readily
marketable.
equitable
it should
concepts
opposition
these
are not without
any significant
make
difference whether
jurisdictions.
other
practice
corporation
is conducted as
association,
partnership,
or a
concept
Illinois courts have
divided the
proprietorship.
or a sole
categories, personal good
into two
N.E.2d at 223.
enterprise
goodwill.6
will and
In re
See
Marriage
Talty, 166 Ill.2d
209 Ill.Dec.
The Porter court also held that
(1995).
790, 794,
652 N.E.2d
Per
subject to division even if it is not
has value
sonal
is the
that is attribut
readily marketable. The court
illustrated
personal
able to one’s
efforts and characteris
concept as follows:
this
tics,
enterprise goodwill
is the
recently graduated young professional
business,
indepen
existing
that inheres
goes
who
into business for himself
personal
dently from one’s
efforts. See id.
reasonably expect
years of his
the initial
law, only enterprise goodwill,
Under Illinois
profitable,
expecta-
to be less
*7
personal goodwill,
and not
is a divisible mari
in
being
tion
attributed
to a lack of
id.;
Marriage
In re
tal asset. See
see also
of
goodwill
will
or “that the old customers
480,
Zells,
251,
572
143 Ill.2d
157 Ill.Dec.
place.” Similarly, if Dr.
resort to the old
(1991).
prac-
Lukens were to abandon his Tacoma
practitiоner
respect
profes-
a
tice and relocate as a sole
in With
to the
of
state,
anticipate
practice,
another
he
a
sional
Illinois has determined that
also should
nature,
business,
personal
shortage
though
prac-
goodwill is
and is
of
even
physical
not a
marital asset.
In re
tice consists of the same
assets
therefore
divisible
Zells,
482,
presumably possesses
Marriage
Although many businesses will, the owners. The or concept the is individual good as tangible known reputation such a accrues to business business. The professiоnal in a unique only through the of the owners benefit professional good will is the sole concept of salary. increased good If will is professional. the asset of which maintains that'aspect of the business Holbrook, 327, 309 Holbrook v. Wis.2d clientele, good profes- will in a then the (1981). 343, 350 The Wisconsin N.W.2d skill, expertise, sional business is also noted Court of that because professional. It reputation of the and the in the professional goodwill was reflected keep pa- would qualities these which is spouse’s salary spouse’s salary, and the returning to a doctor and which award, tients family support set a considered refer patients make others would those treating goodwill as marital as- divisible re- The line is this is him. bottom counting set constitute double of the would generating income in the doctor’s flected goodwill. Id. at 352. ability. analysis Building on the set forth Hol- _To good will both figure [valua- brook, Supreme of Kansas has also Court and as itself a factor tion business professional gоodwill held that is not a divisi- potential] examining income the husband’s Powell, ble marital asset. Powell count and be to double reach
would court stated: erroneous valuation. persuaded professional We not that a are law, Thus, professional practice good Dr. Illinois such as Powell’s has Id. under asset, practice to the personal marital will value. The is goodwill is not a divisible rather, practitioner. he or appropriately When or she dies re- it is more cоnsidered potential nothing professional’s tires spouse’s income remains. The facet impacts files and lists of clients are of no use maintenance and/or very professional others. The nature of a See id. awards. practice totally dependent that it is on is jurisdictions have also determined Other professional. adopt the We refuse to professional goodwill is a divisible theory good will in a Nail, See, Nail v. marital asset. e.g., subject practice an asset in a division (Tex.1972),(holding that the ac- S.W.2d merit. divorce action. The issue is without crued of a medical based (1982). 231 Kan. 648 P.2d 222-23 skill, personal experience, reputation, expectation the doctor as well as These cases illustrate the inher- difficulties practice, continue was not a divisi- would defining valuing of a ent asset). marital The Court of ble Wisconsin professional practice. personal nature Appeals has stated: professional goodwill especially оbvious practitioner. concept that the the context of a sole persuaded We are Supreme yet as a Indiana Court has not ad- divisible adopted in Wisconsin.... the issues of whether Indiana will asset should be dressed concept professional goodwill recognize personal/pro- eva- distinction between *8 attempts enterprise/business it distinguish nesces when one fessional and, capacity. Although goodwill, in the context of the earning from future valuation practitioner, good reputation, business of a sole whether business’s any essentially practitioner’s possesses it’s the sole what con- business is of, value, subject certainly thing is we do value that is as sists division asset; supreme who marital nor has court bestows those believe business, whether, in the if such ownership an interest considered a distinction is have actual, recognized, personal/professional goodwill is separate an interest. The considered, firm or more an as- reputation appropriately of a law some other as set, potential but an of income is valuable to its indi- indication business unequal making that it which can be a factor in vidual owners to the extent assures making earning in marital assets continued the future. division of substantial § maintenance award. See Ind.Code 31-1-
11.5-11..
Thus, although reasoning previously Appeals Indiana set forth Court recognize profes- will indicates that Indiana goodwill as a sional divisible asset any without distinction between personal in nature and itself, business/praetiee attributable to a I approach disagree with such an for the rea- sons set out above. I therefore concur with majority’s application of Indiana case-
law, Supreme urge the Indiana Court to
refine the definition of and the cir- cumstances under which it will be considered
as a marital asset. In all other divisible respects majority opinion. I concur with the REED, Appellant-Defendant,
Deborah Indiana, Appellee. STATE of No. 49A02-9603-CR-151. Court of of Indiana. Oct. Rehearing Denied Nov.