Marriage of Church v. Church

BUCHANAN, Chief Judge,

concurring.

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 court 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 introduce 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 *1084purpose 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 property. 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.

Decisions of this court have carved out two exceptions from the general rule requiring evidence in the record of the value of marital property. Neither exception is an obstacle to the trial court’s fulfilling its affirmative duty to make an equitable distribution of marital property. First, the record need not contain evidence concerning property which is “not unique in nature and does not require great expertise to establish its value[;]” the court is entitled to rely upon its own knowledge in affixing a value to such property. Cross v. Cross, (1974) 159 Ind.App. 592, 596, 308 N.E.2d 717, 719. See also Jackman v. Jackman, (1973) 156 Ind.App. 27, 294 N.E.2d 620. Second, a trial court need not assign a value to items which are of negligible worth in the context of the entire marital estate. In re Marriage of Patus, (1978) Ind.App., 372 N.E.2d 493. See also Geberin v. Geberin, (1977) 172 Ind. App. 255, 360 N.E.2d 41.

Here, the unvalued property was not unique and comprised only a small portion 1 of the Churches’ marital estate. Thus, I concur in result on the basis of the above-discussed exceptions to the general rule. The trial court committed at most harmless error by awarding the property in question without having heard evidence establishing its value.

. Probably less than 5%.