holding that although wife received more marital assets than husband, vast disparity in income of the wife, $90 per week, and husband, $1700 per week, justified award of attorney fees to wife
How later courts described this case
- holding that although wife received more marital assets than husband, vast disparity in income of the wife, $90 per week, and husband, $1700 per week, justified award of attorney fees to wife
- “A court or an administrative agency does not find something to be a fact by merely reciting that a witness testified to X, Y, or Z.”
- “[d]ivision of property should not be considered in a vacuum, and the trial court is free to consider other awards…when determining the proper division”
- “[w]hile the trial court’s findings of fact in the Decree could support deviation from the presumed equal division of the marital estate, we conclude that such deviation is not mandated”
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
concurring in result.
I respectfully concur in result as to Part 3 concerning the award of spousal maintenance to Wife. In this regard, at the outset, it is necessary to examine the majority's conclusion that the so-called findings of fact "are sufficient to support the trial court's conclusion that Wife is entitled to spousal maintenance. ..." Op. at 510.
First and foremost, the so-called findings are not findings at all. They are mere recitations of testimony, witness opinion and medical diagnosis. At no point does the trial court find such testimony, opinion and diagnosis to be the fact. Moore v. Indiana Family and Social Services Admin., 682 N.E.2d 545 (Ind.Ct.App.1997). Such pronouncements are inadequate as a basis for reviewing the judgment of the court and may be considered surplusage. Perez v. United States Steel Corp., 426 N.E.2d 29, 33 (Ind.1981).
Although neither party on appeal has challenged the specificity of the purported findings, it is nevertheless inappropriate for this court to cloak the trial court recitations in the garb of true factual determinations and specific findings as to those facts. Van-Scyoc v. Mid-State Paving, 787 N.E.2d 499, 508-09 (Ind.Ct.App.2003). Accordingly, as directed by our Supreme *516 Court in Perez, we should consider the evidentiary recitations as mere surplusage.
The case is thus left in the posture of a general judgment without supporting specific findings of fact as to the issue in question. In other words, the trial court has failed to make findings upon some issues, and therefore the general judgment controls as to those issues. D.A.X., Inc. v. Employers Ins. of Wausau, 659 N.E.2d 1150 (Ind.Ct.App.1996), trans. denied. If our appellate review were conducted in this posture we would look to the evidence of record which would support the general judgment as to spousal maintenance. As noted, the trial court has set forth that evidence and therefore permits a meaningful review by this court. Accordingly, I conclude that the evidence does support the award of spousal maintenance and for that reason concur in result as to Part 3.
As to whether the maintenance award was improper because it included future medical treatment by Dr. Shealy, I agree with the majority that the award was not improper. I would merely add a parenthetical observation that the award of $6000.00 was for a brief two-week period of treatment. It would appear that Wife received such treatment.
Subject to the above comments and observations, I concur.