Snyder v. Snyder, 137 Ind. App. 72

Pfaff, J. This is an appeal from a judgment of the Superior Court of Marion County, Room 2, in an actioh for divorce filed by the appellee husband, in which cause the appellant wife had also filed a cross-complaint for divorce. The finding and judgment wefe entered for the appellant and against appellee, and the appellant was granted a divorce, together with, certain real and personal property.

However, the trial, court also granted judgment against the appellant and in favor of appellee for and in the amount of $5,200.00 supported by a lien on. the real estate awarded the wife, in addition to certain personal- and real property. Errors relied upon by appellant for reversal are as follows: . 1. The court erred in overruling and denying apr pellant’s motion for new trial inasmuch as (

a) the decision of the court was not sustained by sufficient evidence and was contrary to law; (

b) the finding of the court was incon-. sistent with the evidence submitted; and (

c) the court’s decision concerning the money judgment ordered to be paid by appellant to appellee, and the. attorney fees ordered to be paid by appellant for her prosecution of said cause were in error. ' 2. The court erred in overruling appellant’s motion to modify the judgment. Appellant in this action is not contending that the granting to her of the divorce is in error. She does; contend, however, that the trial court abused its dis-j cretion by making settlement of property rights be-’ tween the parties without ascertaining the value of all the property in question.

It is well established that the trial court has the! right and duty to settle and determine the property rights of the parties in an action for divorce. Furthermore, the trial court under our statutes I has broad powers in adjusting property rights.; Its action in such matters will not be disturbed on appeal unless it is apparent that there has been an abuse of discretion. Seward v. Seward (1956), 126 Ind. App. 607, 134 N. E. 2d 560; Rosenberg v. Rosenberg (1961), 131 Ind. App. 437, 171 N. E. 2d 829.

Therefore, in the case before us the issue is narrowed to whether or not a trial court is guilty of an abuse of discretion, as a matter of law, if such court orders a property settlement. without having full knowledge of the value of all the property. In reviewing the proceedings of the trial court we find that evidence was admitted concerning the value of some of the property. However, no evidence whatsoever was introduced concerning a major part of the physical-assets acquired by the parties during their marriage. No evidence can be found establishing the value of a truck used in appellee’s business.

There was no. evidence concerning the value, if any, of the plumbing business, including equipment, tools, fixtures, etc., which business was owned by the appellee. This .property was given to the appellee by the court as his sole and separate property subject to any liens and encumbrances thereon. Each party was declared to be' entitled to have and retain their personal effects.

Again no evidence was submitted establishing the valúe of such property: The testimony establishing the value of the household goods was conflicting, the appellee stating the value to be $2,000.00 and the appellant stating the value to be $400.00 to $500.00. A judgment, for $5,200.00 was entered against the appellant by the trial court. The, evidence fails to establish how the trial court arrived at this figure. Therefore, we conclude'the trial court Tacked khowledge concerning the valuation of a considerable amount of property owned by the parties in determining the property rights of the parties.

Our attention has been directed to the case of Shula v. Shula (1956), 235 Ind. 210, 132 N. E. 2d 612, which we considér as a controlling precedent in the present controversy. The language of the Shula case indicates that it is necessary to have evidence in the record relative to the total valuation of all property of the parties before this court can affirm the trial court’s decision. In this case the trial court awarded a judgment for alimony when there was no evidence in the record as to the value of some of the property awarded.

Judge Achor, speaking for our Supreme Court, stated: “. _. . before the amount of alimony can be fixed, evidence must be introducted of facts and circumstances from which the court can determine "the amount which is just and proper.” Here the court held that under a judgment so eiitéred an abuse of discretion is shown. In the case of Seward v. Seward, supra, it was inferentially held that the trial court should have entered either a money judgment or in the alternative awarded him a part of the physical assets.

The court stated at page 613 of said opinion: "In adjusting the property rights of the parties, the court, under the circumstances, had the authority to enter a money judgment in appellee’s favor or to set off and award to him a part of the physical assets....” (Emphasis supplied) The only basis this court might have for reversal of the trial, court’s judgment would be upon a determination that it abused its judicial discretion, and .conversely we may only affirm if there was no abuse of judicial discretion.

For a determination of this ques-. tion we must have a record of the evidence of the valuation of all the property. This record of the evidence of valuation was not presented to this court. In view of the cases of Shula v. Shula, supra, and Seward v. Seward, supra, we are of the opinion that the trial court, so far as we can determine from the record, abused its judicial discretion.

Therefore, for the reasons set forth above, the judgment of the trial court insofar as it relates to an adjudication of the property rights of the parties is hereby reversed and the cause remanded to the trial court to receive evidence on the valuation of the property herein questioned, and thereupon either award to the appellee a certain designated sum of money or in the alternative set off to him a fair and equitable share of the physical assets. Carson, C. J., Hunter, P. J., Cooper and Ryan, JJ., concur. Mote, J., dissents with opinion in which Fauleoner, X, concurs. Kelley, J., not participating.