In Re the Marrage of Miles

Dissenting Opinion

Staton, P.J.

I dissent. A motion for specific findings of fact under Ind. Rules of Procedure, Trial Rule 52 (A) had been made. The parties were entitled to a specific finding on how their property would be divided between them. This finding was made. It was mislabeled as a “conclusion of law,” but it was actually Finding Eighteen. In the light of Finding Eighteen, the judgment is clearly erroneous as to the final division of property between the parties. Therefore, I would reverse the trial court’s judgment with instructions to vacate the judgment on the division of property and enter a judgment which would conform with Finding Eighteen and the dissenting opinion which follow.

Finding Eighteen is as follows:

“2. Because of the long-term marriage of the parties, the fact that their children are all emancipated, that they are both in reasonably good health and are gainfully employed, a division of their property should be made between them on an equal basis, with proper regard for the substantial contributions made by Wife from out of her inheritance, over and above what otherwise would be an equal division thereof, with further regard being given to Husband’s present support deficiency.”

The critical prepositional phrase in the above Finding is: “... with proper regard for the substantial contributions made by Wife from out of her inheritance. . . .” (Emphasis added). The clear, unequivocal import of this phrase is that the trial court considered the Wife’s inheritance separate from the property to be divided between the parties and that it intended to give her some credit for “. . . contributions made by Wife from out of her inheritance. . . .” This clear, unequivocal meaning is further reinforced by the conditions set forth by the trial court in its Finding: “. . . over and above what otherwise would be an equal division thereof. . . .” (Emphasis added). The Wife’s inheritance was obviously intended to be *14considered separate or “. . . over and above what otherwise would be an equal division . . .” of the joint property held by the Miles. But, this obvious guideline and criteria was not followed by the trial court; therefore, its judgment is clearly erroneous and should be reversed.

The majority opinion has completely disregarded Finding Eighteen. It refers only to the seventeen findings of the trial court and concludes that no objection was made as to these findings. Finding Eighteen which was objected to by the Wife is just as much a part of the judgment as the other labeled findings of the judgment. If every judgment was held to its labels instead of its substance, many injustices would be senselessly created. Blind allegiance to labels requires no reasonable rationale for the trial court’s actions.

The majority opinion’s “overplus” theory which is intended to justify the trial court’s division of the property in light of the seventeen findings fails the test of logic and TR. 52 (A). It fails the test of logic in that it starts with a false premise— that Finding Eighteen is not part of the. judgment. It does not attempt to reconcile the language used by the trial court in Finding Eighteen. Its “overplus” theory fails under TR. 52(A) for the simple reason that without Finding Eighteen, there is no specific finding of fact as to the actual division of the property to be divided between the parties.

. The majority opinion presumes that the use of discretion obviates the need for stating a specific finding of fact under TR. 52(A). It states: “If the reason given by the court is not a valid basis for a particular exercise of discretion, it can be no more than conjecture on our part that once the court recognized the invalidity of its original reason it will reach precisely the same exercise of discretion for other reasons.” The majority cites City of Elkhart v. Middleton (1976), 265 Ind. 514, 356 N.E.2d 207 in support of this proposition. City of Elkhart does not support this proposition. It supports a rationale quite different. It supports a rationale *15which limits discretion. Justice Prentice wrote in City of Elkhart:

“. . . Therefore, on an appeal which questions the exercise of judicial discretion it is necessary to evaluate the action of the trial court upon the reasons it specifically articulated, rather than to attribute to it some legitimate but unexpressed reason. What is usually referred to as an abuse of discretion, but which the writer prefers to call ‘clear error,’ results not only when an exercise of discretion is without reason, but also when it is based upon impermissible reasons or considerations. In other words, the question involved here is not whether a trial court may deny im-pleader in order to avoid trial confusion, and we do not decide whether impleader should or should not be denied under the circumstances of this case. Rather, the question in this case is whether the trial court went beyond the limits of its discretion by denying defendant’s motion for the reasons given, and we held that it did. . . .” (Original emphasis; footnote omitted.) Id. at 211.

The trial court set aside to the Wife, Edith Miles, the real property inherited from her father in a separate paragraph of the judgment. This separate treatment does not show an “overplus” division of joint property, but the clear, unequivocal intent of the trial court as expressed in its Finding Eighteen to set aside to the Wife her inheritance before continuing with the division of personal property. The trial court further acknowledged Finding Eighteen by giving the Wife $145.00 more personal property value than the Husband. (Finding Eighteen: “. . . with further regard being given to Husband’s present support deficiency.”) The $145.00 was the Husband’s present support deficiency. What the trial court ignored in its Finding Eighteen was any “. . . proper regard for the substantial contributions made by Wife from out of her inheritance, over and above what otherwise would be an equal division thereof. ...”

The substantial contributions made by the Wife from out of her inheritance included $4,500.00 on the mortgage of their home which was distributed to the Husband and Wife as tenants in common by the trial court without any proper *16regard. In addition to the mortgage payments, the Wife purchased a snowmobile out of her inheritance which cost $1,200.00, and a boat and trailer which cost $2,200.00. There was some money which was spent by the Wife out of her inheritance which could not be accounted for and was referred to by the trial court as “apparently frittered away in one manner or another.”1

The trial court’s judgment did not give any “. . . proper regard for the substantial contributions made by Wife from out of her inheritance, over and above what otherwise would be an equal division . . .” of their joint property. The trial court was bound by its Finding Eighteen to give some proper regard to the $15,752.00 paid out of the Wife’s inheritance.2 The separate parcel of real estate held by her father before his death was never contributed out of her inheritance to *17the joint property of the parties except for the contract payments of $4,500.00 which were applied to the mortgage on the home of the parties.

I would reverse the judgment of the trial court with instruction to vacate that part of the judgment which deals with the division of property consistent with the trial court’s original findings and this opinion.

Note. — Reported at 362 N.E.2d 171.

. The Wife received the following inheritance:

Land Contract (value at father’s death) $ 8,000.00

Cash received at father’s death and placed in joint bank account 8.500.00

Insurance proceeds at father’s death 3.352.00

19,852.00

Less:

Funeral expenses $1,350.00

Payment on mortgage 4,500.00

Snowmobile 1,200.00

Boat and trailer 2,200.00

Mink stole 450.00

9,700.00 9.700.00

10,152.00

Adjusted for equity retained in Land Contract — $8,000.00 less $5,700.00 2,300.00

Balance of inheritance not accounted for in distribution $ 7,852.00

. Mortgage $ 4,500.00

Snowmobile 1,200.00

Boat and trailer 2,200.00

Contributed but unaccounted for 7,852.00

$15,752.00