Indiana Law Review 1979] SURVEY-DOMESTIC RELATIONS 157 This provision has now been made even more flexible by the inclu- sion of the following language: "In addition, the court may also authorize the guardian to apply or dispose of the excess principal or income for any other purpose the court decides is in the best in- terest of the ward, his estate, his spouse, or his family."87 IX. Domestic Relations Helen Garfield* A. Adoption 1. Abandonment. — When a child with living parents is to be adopted, the consent of the child's natural parents is normally re- quired. 1 Certain specific instances where consent is not required are enumerated in the adoption statutes;2 the first of these is abandon- ment.3 Three decisions interpreting the abandonment section were handed down by the Indiana Court of Appeals during the survey period. 4 None of these cases was concerned with the traditional com- mon law concept of abandonment, which involves an intentional relinquishment of all parental rights and duties to the child.5 They dealt, rather, with the less stringent statutory grounds for dispens- ing with the consent of a non-custodial parent.6 These provisions permit a court to make what is, in effect, a finding of abandonment without the stringent proof of intent to abandon which would other- wise be required.7 87 Ind. Code § 29-l-18-33(c) (Supp. 1978), as amended by Act of Mar. 7, 1978, Pub. L. No. 132, § 11, 1978 Ind. Acts 1167. *Associate Professor of Law, Indiana University School of Law— Indianapolis. J.D., University of Colorado, 1967. 'Ind. Code § 31-3-l-6(a)(l) (1976). 2 Id. § 31-3-l-6(g). These include abandonment, voluntary relinquishment of the right to consent, and prior involuntary termination of parental rights. Id. 3/d § 31-3-l-6(g)(l). 4 Rosell v. Dausman, 373 N.E.2d 185 (Ind. Ct. App. 1978); In re Adoption of Dove, 368 N.E.2d 6 (Ind. Ct. App. 1977); Young v. Young, 366 N.E.2d 216 (Ind. Ct. App. 1977). Rosell and Young deal with the statute as it existed prior to the 1975 amendments, Act of Apr. 14, 1971, Pub. L. No. 421, § 1, 1971 Ind. Acts 1962, 1963 (amended 1975, 1978). 5See Murphy v. Vanderver, 349 N.E.2d 202, 203 (Ind. Ct. App. 1976). 6 Ind. Code § 31-3-l-6(g)(l) (1976). 7The version of the statute in effect from 1975 until 1978 made it fairly clear that the legislature intended to establish a lesser category of abandonment. This intent is less clear under the 1978 amendments. The earlier version, Ind. Code § 31-3-l-6(g)(l) (1976) (amended 1978), provided: 158 INDIANA LAW REVIEW [Vol. 12:157 Section 31-3-l-6(g)(l) permits a court to dispense with the con- sent of a non-custodial parent who has unjustifiably failed to "com- municate significantly" with the child for one year, or has failed to support the child for one year, when able to do so.8 Either of those circumstances might be evidence of abandonment,9 but neither could suffice in itself to establish the all-encompassing intent to relinquish parental rights traditionally required for abandonment. It is un- doubtedly necessary to broaden the courts' power to terminate inac- tive parent-child relationships so that the child will be able to make more lasting and productive ties with adoptive parents. This is especially true where, as the statute requires, the child has been in the actual custody of someone other than the parent for a period of one year or more. Abandonment is a concept derived from property law and should not be treated as controlling the disposition of children. Nevertheless, it would be well to keep in mind that the statute allows parents to be permanently severed from all connec- tion with their children for conduct which, in some instances at (g) Consent to adoption is not required of: (1) a parent or parents if the child is adjudged to have been abandoned or deserted for six (6) months or more immediately preceding the date of the fil- ing of the petition; or a parent of a child in the custody of another person, if for a period of at least one (1) year he fails without justifiable cause to com- municate significantly with the child when able to do so or he wilfully fails to provide for the care and support of the child when able to do so as re- quired by law or judicial decree, or if the parent or parents have made only token efforts to support or to communicate with the child, the court may declare the child abandoned by the parent or parents. . . . (Emphasis added). Although this section is unclear, it can be read as authorizing a find- ing of abandonment if a parent fails to communicate with the child, or if he fails to support the child, or if he makes only token efforts to support or communicate. It can also be read as authorizing a finding of abandonment if the parent has made "only token efforts to support or to communicate," but not if the parent has totally failed to support the child or to communicate with it. This obviously makes little sense, yet the 1978 version appears to adopt this reading. The relevant portion of Ind. Code § 31-3-l-6(g)(l) (Supp. 1978) now reads: (g) Consent to adoption is not required of: (1) ... a parent of a child in the custody of another person, if for a period of at least one (1) year he fails without justifiable cause to communicate significantly with the child when able to do so or knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree (when the parent or parents have made only token efforts to support or to communicate with the child, the court may declare the child abandoned by the parent or parents). . . . (Emphasis added). 8The statute might also be described as creating a conclusive presumption of abandonment, based on proof of either non-support or failure to communicate. 9But see In re Adoption of Anonymous, 158 Ind. App. 238, 302 N.E.2d 507 (1973). 1979] SURVEY-DOMESTIC RELATIONS 159 least, may be unintentional, or at most negligent. 10 The courts should be wary of allowing the standards of proof to become too lax. Two cases dealt with the portion of section 6(g)(1) dispensing with the necessity for consent of "a parent of a child in the custody of another person, if for a period of at least one (1) year he fails without justifiable cause to communicate significantly with the child when able to do so." 11 In Rosell v. Dausman, 12 the father's second wife petitioned the court for adoption of his two sons. The first wife, the children's natural mother, refused to consent, but the trial court granted the stepmother's petition based upon its finding that the natural mother had unjustifiably failed to communicate significantly with the children for at least one year. The court of appeals af- firmed.13 The mother in Rosell contended that the statutory one-year period of non-communication had to be the year immediately preceding the filing of the petition. Here, she had visited the children three times, seven or eight months before the petition was filed, 14 but prior to these visits, there had been no communication at all for a period of more than eighteen months.15 The court of appeals rejected the mother's proposed interpretation of the statute, holding instead that proof of failure to communicate for any one-year period would be sufficient under the statute.16 Therefore, even assuming that the three visits within the year preceding the filing of the peti- tion constituted the "significant" communication envisioned by the statute, the eighteen-month period of total non-communication preceding these visits satisfied the statutory requirements. Nothing in the statute required that the failure to communicate occur in the year immediately preceding the filing of the petition. To so inter- pret the statute would encourage non-custodial parents to visit their children just often enough to frustrate any attempted adoption.17 10The non-support ground did require wilful failure to support when able to do so, but the word "wilfully" was changed to "knowingly" in the 1978 amendments, which seems to decrease the quantum of intent required to prove this ground. Ind. Code § 31-3-l-6(g)(l) (Supp. 1978). See note 7 supra. "Ind. Code § 31-3-l-6(g)(l) (1976). Rosell v. Dausman, 373 N.E.2d 185 (Ind. Ct. App. 1978) dealt with the statute as it existed prior to the 1975 amendments. In re Adoption of Dove, 368 N.E.2d 6 (Ind. Ct. App. 1977) dealt with the statute after the 1975 amend- ments. The differences between the two versions of the statute were not significant to the issues involved in these cases. 12373 N.E.2d 185 (Ind. Ct. App. 1978). n Id. The case was heard by the court of appeals en banc, and the opinion was written by Presiding Judge Staton. 14The visits occurred on August 28, 1974, September 8, 1974, and September 15, 1974. The stepmother's petition was filed April 21, 1975. Id. at 188. "Id. at 187. 16 Id. at 188. ll Ia\ The words of the statute support the court's interpretation. In order for the parent's consent to be dispensed with on the traditional ground of "abandonment or 160 INDIANA LAW REVIEW [Vol. 12:157 The principal issue decided in In re Adoption of Dove 18 con- cerned the applicability of certain provisions of section 31-3-1-7 of the adoption statutes, 19 which was repealed in 1978. These aspects of the case have little current relevance. In Dove, the court of appeals affirmed the trial court's order granting the petition for adoption filed by the child's paternal grandparents. The trial court found that the mother had abandoned the child by unjustifiably failing to com- municate with him for more than one year, and that her consent to the adoption was, therefore, unnecessary.20 The value of Young v. Young21 as precedent is also questionable because of the 1978 amendments to the adoption statutes. Young held that the failure of a mother to make support payments ordered by the court in her divorce was not the wilful nonsupport required by section 6(g)(1) 22 before the mother's consent to adoption could be dispensed with. The trial court, therefore, erred in granting the stepmother's petition to adopt the children, when the mother had refused to consent to the adoption.23 In the 1978 amendments to sec- tion 6(g)(1), the word "wilfully" was changed to "knowingly." 24 Whether this difference in wording will change the result in factual situations similar to Young remains to be decided in future cases. It would have been difficult to argue, under the facts of Young, that the mother had not "knowingly" failed to make the support payments ordered by the divorce court, simply because no one had desertion," the abandonment must be found to have taken place "for six (6) months or more immediately preceding the date of the filing of the petition." Ind. Code § 31-3-l-6(g)(l) (1976) (amended 1978) (emphasis added). For the statutory grounds (or lesser categories of abandonment), it is required only that the non-support or failure to communicate continue "for a period of at least one year." Id. (emphasis added). No par- ticular one-year period is specified. 18368 N.E.2d 6 (Ind. Ct. App. 1977). 19 Ind. Code § 31-3-1-7 (1976) (repealed effective October 1, 1979). Act of Mar. 10, 1978, Pub. L. No. 136, §§ 57, 59, 1978 Ind. Acts 1196, 1286-87. 20368 N.E.2d at 8. The grandparents had taken custody of the child in 1969, at the mother's request, when she had "personal, emotional and economic problems" following her divorce from the child's father. Id. at 7-8. Although the evidence on communication was in conflict, the grandparents testified there was no communication between the mother and her son from November 1974 to June 1976, when they filed their adoption petition. Id. at 8. 21366 N.E.2d 216 (Ind. Ct. App. 1977). ^Ind. Code § 31-3-l-6(g)(l) (1976). The provision is reproduced in note 7 supra. 23366 N.E.2d at 216, 217. The children had been living with the father and step- mother although the divorce decree had awarded custody to the paternal grandmother. Both parents had been ordered to make weekly support payments to the grandmother. Although it was undisputed that the mother had never made the payments ordered, there was no evidence that anyone had ever asked for them. The court of appeals, therefore, held that the mother's failure to support her children was not "wilful." Id. 24 Ind. Code § 31-3-l-6(g)(l) (Supp. 1978). See note 7 supra. 1979] SURVEY-DOMESTIC RELATIONS 161 ever requested that she make them, so the result might well have been different under the amended statute. 2. Termination of Parental Rights.—The legislature has made substantial changes in the procedures for terminating parental rights. Beginning October 1, 1979, when the newly enacted juvenile code becomes effective, juvenile courts will handle both voluntary and involuntary termination proceedings.25 Although the juvenile courts have been ordering involuntary termination of parental rights under the present statutes, the statutory authority for such proceedings is less than clear.26 The only provision expressly authorizing proceedings for permanent involuntary termination of parental rights is in section 7 of the adoption statutes,27 which ap- plies only to adoption proceedings and not to juvenile proceedings. Section 7 has now been repealed, effective October 1, 1979,28 when the new juvenile code becomes effective. After that date, the only power courts handling adoptions will have over termination of parental rights will be that given by section 6(g) of the adoption statutes, 29 which specifies the grounds on which a court can dispense with a parent's consent to the adoption of his or her child.30 Any separate proceedings for termination of parental rights, not brought in connection with an adoption, apparently, will have to be brought in juvenile court after October 1, 1979. B. Child Abuse The new child abuse statute becomes effective January 1, 1979.31 It broadens the definition of abused children to include victims of sex offenses as well as victims of physical injury.32 The duty to report child abuse is expanded to include a duty to report child neglect as well. Now "any individual who has reason to believe that a child is the victim of child abuse or neglect" is required to make 25 Ind. Code §§ 31-6-5-1 to 6 (Supp. 1978). "See In re Perkins, 352 N.E.2d 502 (Ind. Ct. App. 1976); Garfield, Domestic Rela- tions, 1977 Survey of Recent Developments in Indiana Law, 11 Ind. L. Rev. 149, 149-53 (1978). Perkins held that the juvenile courts did have jurisdiction to order permanent involuntary termination of parental rights, despite the ambiguity of the statutes. 352 N.E.2d at 505-06 (citing In re Collar, 155 Ind. App. 668, 294 N.E.2d 179 (1973)). 27 Ind. Code § 31-3-1-7 (1976). 28Act of Mar. 10, 1978, Pub. L. No. 136, §§ 57, 59, 1978 Ind. Acts 1196, 1286-87. "Ind. Code § 31-3-l-6(g) (Supp. 1978). 30There has been some modification of § 6(g), to conform it to the changes in ter- mination procedure under the new juvenile code. Subsections (7) and (8) have been deleted and subsection (4) has been modified. Ind. Code § 31-3-l-6(g)(l) (Supp. 1978). 31 Ind. Code §§ 31-5.5-1-1 to 3-20 (Supp. 1978). The present statute, Ind. Code §§ 12-3-4.1-1 to 6 (1976), has been repealed, effective January 1, 1979, by Act of Mar. 10, 1978, Pub. L. No. 135, § 4, 1978 Ind. Acts 1181, 1196. 32/d § 31-5.5-1-1 (Supp. 1978). 162 INDIANA LAW REVIEW [Vol. 12:157 an oral report to the "child protection service" established by the statute, or to a law enforcement agency.33 Failure to report is a class B misdemeanor.34 The person making such a report is granted im- munity from civil or criminal liability, unless he acted maliciously or in bad faith.35 In every child abuse case, an investigation must be in- itiated by the child protection service within twenty-four hours of the time a report is received.36 All reports and information obtained in the course of an investigation are to remain confidential.37 Ap- propriate "social services" are to be offered to the child and its family, or they may be ordered by the juvenile court;38 where good cause is shown, the court can order temporary removal of the child from the family.39 The statute sets up machinery for investigating child abuse and neglect, and for providing protective and rehabilitative services to the child and its family. Whether the machinery proves to be effective will depend upon how well it is funded and implemented.40 C. Child Custody and Support 1. Parental Rights Presumption. —In a custody dispute be- tween a parent and a non-parent, it is presumed that the best in- terests of the child will be served by awarding custody of the child to the parent. 41 In two cases decided during the survey period, the court of appeals was called upon to determine whether the same presumption would apply in favor of an adoptive parent42 or the father of an illegitimate child.43 In both cases, the answer was in the affirmative. In Stevenson v. Stevenson" the adoptive mother, the child's maternal grandmother, sought custody of the child in her divorce 33 Id. §§ 31-5.5-3-3, 4. Establishment of child protective services within each county department of public welfare is required by id. § 31-5-.5-3-10. "Id. § 31-5.5-3-3(a). 35 Id. § 31-5.5-3-7. Immunity is also provided in the repealed statute. Id. § 12-3-4.1-4 (1976) (repealed 1978). 36 Id. § 31-5.5-3-ll(b) (Supp. 1978). 31 Id. § 31-5.5-3-18. 33 Id. § "31-5.5-3-lKf) to (i). 39 Id. § 31-5.5-3-1 1(e). 40For a discussion of some of the problems encountered when the law attempts to deal with the social problem of child abuse, see Dickens, Legal Responses to Child Abuse, 12 Fam. L.Q. 1 (1978). "Hendrickson v. Binkley, 161 Ind. App. 388, 393, 316 N.E.2d 376, 380 (1974), cert, denied, 423 U.S. 868 (1975). 42Stevenson v. Stevenson, 364 N.E.2d 161 (Ind. Ct. App. 1977). 43Hyatte v. Lopez, 366 N.E.2d 676 (Ind. Ct. App. 1977). 44364 N.E.2d 161 (Ind. Ct. App. 1977). 1979] SURVEY-DOMESTIC RELATIONS 163 proceedings. The adoptive father, the child's grandfather, also sought custody. The adoptive parents' son and daughter-in-law, the child's uncle and aunt, intervened, asking that custody be awarded to them. The trial court awarded custody to the intervenors, and the court of appeals affirmed. 45 The court of appeals held that the paren- tal preference presumptions did apply in favor of the adoptive mother, but that the presumption had been rebutted.46 The evidence indicated that the adoption by the grandparents was effected after the child's mother learned she had a brain tumor, and that its pur- pose was to prevent the child's father from obtaining custody when the mother died. The child continued to live with the mother after the adoption, until the mother's death in 1975. The child apparently never lived with the adoptive parents or adopted their surname.47 The court of appeals held the evidence sufficient to support a find- ing that the grandmother either acquiesced in allowing the child's custody to remain with another (the mother), or that she voluntarily relinquished custody to another. Either finding would be sufficient to rebut the presumption in favor of the adoptive mother, without a finding that she was "unfit" for custody.48 In Hyatte v. Lopez,49 the court of appeals affirmed the trial court's award of custody to the father of an illegitimate child, over the objections of the maternal grandparents. The court held that the parental preference presumption operated in favor of the natural father, and that the trial court's implicit finding that the presump- tion had not been rebutted, based on conflicting evidence, was not an abuse of discretion.50 Here, the child had been living with the grandparents since 1974, but the father had made repeated attempts i5 Id. at 163. "Id. at 165. i7 Id. at 163. The child's surname was not changed in the adoption proceedings. In 1974, it was changed to "Ghuman," her stepfather's name. The Stevenson opinion does not indicate where the child lived after her mother died in 1975 (nearly eight months elapsed between the mother's death and the trial court's award of custody to the child's uncle and aunt). Id. i8 Id. at 165. The court held the presumption could be rebutted by a third party seeking custody, even though the third party was not the party to whom custody had been relinquished. Id. The court determined that the parental preference presumption can be rebutted by proof of (1) unfitness of the parent, (2) long acquiescence to custody in another, or (3) voluntary relinquishment of custody to a third party "such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child." Id. (citing Hen- drickson v. Binkley, 161 Ind. App. at 393, 316 N.E.2d at 380). There would seem to be little substantive difference between "long acquiescence" and "voluntary relinquish- ment," acquiescence being merely a passive form of relinquishment. Relinquishment by inaction (acquiescence) would nonetheless be "voluntary." 49 366 N.E.2d 676 (Ind. Ct. App. 1977). 50 Id. at 681. 164 INDIANA LAW REVIEW [Vol. 12:157 to regain custody. Hence, there was no acquiescence or voluntary relinquishment by the father, and there was no finding that he was unfit for custody.51 2. Visitation Rights. — Section 31-1-11.524(b) provides that a court "shall not restrict a parent's visitation rights unless it finds that the visitation might endanger the child's physical health or significantly impair his emotional development."52 Because the courts are authorized to modify visitation rights whenever the "best interests of the child" require it,53 the question arises: When does a modification of visitation rights constitute a restriction, which can be justified only be danger to the child's physical or emotional health? The answer given by the Indiana Court of Appeals in Milligan v. Milligan54 seems to be "almost always." In Milligan, the original dissolution decree gave the father the right to one overnight visitation per month, two hours per week of visitation in the mother's home, and all-day visitation outside her home on alternate holidays.55 The trial court later found both parties in contempt for violations of the existing decree, then entered its order modifying visitation to allow the father only daytime visita- tion, one day per month.56 The court of appeals held that this con- stituted a "restriction" of the father's visitation rights, which re- quired a finding under section 24(b) that "the visitation might en- danger the child's physical health or significantly impair his emo- tional development." 57 Since no such finding was made, the order was reversed.58 In his concurring opinion, Judge Garrard agreed that the majori- ty's interpretation was required by the words of section 24(b). However, he felt the legislature's attention should be drawn to the possibly unintended effects of the language of the statute. Modifica- 51The court of appeals held that the evidence would not support a ruling that the father was unfit as a matter of law. Id. at 679. The father had lived with the child's mother for 10 or 11 years, before and after the child's birth. The mother had left the child with the grandparents {her mother and stepfather) in 1974 when she entered the hospital for the birth of a second child. Thereafter* she disappeared. The grandparents retained custody of the child and the father filed a petition for a writ of habeas corpus to regain custody. Id. at 678. 52 Ind. Code § 31-l-11.5-24(b) (1976) (emphasis added). 54365 N.E.2d 1244 (Ind. Ct. App. 1977). 55The decree incorporated a settlement agreement between the parties. A prior modification, also by agreement of the parties, had made "minor changes" in the original order. Id. at 1246. 56The modification order allowed the father visitation "on the first Sunday of every month from 8:00 a.m. until 8:00 p.m." 365 N.E.2d at 1245. 51 Id. at 1246. (quoting Ind. Code § 31-l-11.5-24(b) (1976)). 58365 N.E.2d at 1246. 1979] SURVEY-DOMESTIC RELATIONS 165 tion orders are usually entered to redefine visitation rights after more general and flexible orders have proved unworkable in prac- tice. Such orders would invariably constitute "restrictions" on visita- tion rights under the literal words of section 24(b). So, although the best interests of the child might clearly require modification, a court would be powerless to order it unless the court could find that the child's physical or emotional health was endangered. Judge Garrard did not believe that the legislature intended this result. 59 In McCurdy v. McCurdy,™ the trial court had made a finding that the children's physical or emotional health would be en- dangered if it granted the father's request to have the children visit him in prison.61 The father had been sentenced to the Indiana State Prison on his plea of guilty to one count of kidnapping and four counts of rape. The court of appeals held that the trial court had abused its discretion, and directed it to "compel" the mother to allow the children to "occasionally visit" the father in prison. 62 Judge Hoffman dissented on the ground that there was ample evidence in 59/d at 1246-47 (Garrard, J., concurring). The opinion stated: The common, and perhaps the best, practice adopted by many courts . . . is simply to award to the non-custodial parent the right of visitation at all reasonable times and places. The flexibility allowed thereby promotes a con- tinued spirit of cooperation between the parents and may aid the child in its right to a meaningful relationship with both mother and father. Of course, such orders do not always operate as intended. . . . In such instances, upon application of one of the parties, the common practice of our courts is to specify times for visitation. In other cases parties relocate their homes in other communities with the result that to remain "reasonable" a prior visitation order should be modified. / do not believe it to have been the legislative intent to require that in all such instances . . . the court should be required to find that unless the order is made the child's physical health will be endangered or its emotional development will be significantly impaired. Id. (emphasis added). 60363 N.E.2d 1298 (Ind. Ct. App. 1977). 61 Id. at 1302. Since no restriction on the father's previously granted rights to "reasonable visitation" was involved, the finding here was made under Ind. Code § 31-l-11.5-24(a) (1976) which provides: "A parent not granted custody of the child is en- titled to reasonable visitation rights unless the court finds, after a hearing, that visita- tion by the parent might endanger the child's physical health or significantly impair his emotional development." Although the father here had been granted visitation rights, he would be unable to exercise them unless the court ordered the wife to allow the children to visit him in prison. 82363 N.E.2d at 1300-01. The majority felt it would be better for the children to "learn the truth about their father now" and that their visits might have a "rehabilitiative effect" on the father. Id. at 1301. It may indeed have been better for the children to know the truth, but this does little to prove that they should be ordered to visit their father in prison. Any rehabilitative effect on the father is highly speculative. 166 INDIANA LAW REVIEW [Vol. 12:157 the record to support the trial court's finding and order.63 It does in- deed seem that the court of appeals has exalted the parent's right to visitation above the welfare of his children in holding that an in- carcerated father is entitled as a matter of law to visitation from his young children64 despite the trial court's finding that such visitation might endanger the children's physcial health or significantly impair their emotional development. 3. Child Support. — The Dissolution of Marriage Act no longer places the primary burden for supporting a child on the father. Either or both parents can be ordered to pay reasonable child sup- port, taking into account the financial resources of both parents and the needs of the child.65 The court also can order either parent to provide for the child's college education, or for medical expenses. 66 In re Marriage of Osborne™ involved a dissolution of marriage decree in which the father was ordered to pay all of his daughter's 63 Id. at 1302 (Hoffman, J., dissenting). Judge Hoffman described the evidence as follows: Testimony of two witnesses at the hearing described the reaction of Tamela to her father's arrest and incarceration in the county jail. "And she withdrawed. (sic) She cried an awful lot; she just didn't seem happy with anything. She didn't want to be with the other children, she didn't want to be with people; she more or less wanted to be off to herself. And when it would get dark, she wanted to make sure she was by her mother." It took about six months for Tamela to return to her cheerful self as a happy and content child, who likes to be with other children and have a good time. Id. 64The children were four and seven years old at the time the original dissolution decree was entered in June 1975. Id. at 1299. The youngest child was six years old when the decision on appeal was issued June 28, 1977. 65 Ind. Code § 31-l-11.5-12(a) (1976) provides: Sec. 12. Child Support, (a) In an action pursuant to section 3(a) or (b), the court may order either parent or both parents to pay any amount reasonable for support of a child, without regard to marital misconduct after considering all relevant factors including: (1) the financial resources of the custodial parent; (2) standard of living the child would have enjoyed had the marriage not been dissolved; (3) physical or mental condition of the child and his education needs; and (4) financial resources and needs of the noncustodial parent. 66 Ind. Code § 31-l-11.5-12(b) (1976) provides: (b) Such child support order may also include, where appropriate: (1) sums for the child's education in schools and at institutions of higher learning, taking into account the child's attitude and ability and the ability of the parent or parents to meet these expenses; and (2) special medical, hospital or dental expenses necessary to serve the best interests of the child. 87369 N.E.2d 653 (Ind. Ct. App. 1977). The principal issue in the case concerned the property division provisions of the decree. It is discussed at notes 173-76 infra and accompanying text. 1979] SURVEY-DOMESTIC RELATIONS 167 college expenses, including tuition, books, room and board and an allowance of $15 per week. When the daughter was not in college, the father was to pay $50 per week and all medical expenses in ex- cess of $100 per year. At the time of the dissolution, the wife's earn- ings were slightly higher than the husband's. The court of appeals reversed, holding that the trial court had failed to give sufficient consideration to the wife's earnings and to her duty of support: "It appears instead that the order was premised upon the assumption that it was the father's preliminary obligation to support his child regardless of the economic circumstances of the parties."68 The trial court had apparently disregarded the standards set forth in the statute and made a determination improperly based upon the sex of the parent.69 The court of appeals was perhaps too ready to assume that, by paying all of his daughter's college expenses, the father would be meeting all of the daughter's support needs. It is apparent to any parent of a child in college that there are additional expenses not covered by the court order, for instance, clothing and transpor- tation. It will also continue to be necessary for the mother to main- tain a home for the daughter, although it may be used only during vacation periods. Even if these expenses are taken into account, however, the trial court's order still seems to impose too large a share of the burden of support on the father. The criminal non-support statute has long been sex-neutral, at least as far as non-support of children was concerned.70 The former statute applied to "every person having any child under the age of eighteen (18) years depending upon him or her for education or sup- port, who wilfully neglects to furnish necessary food, clothing, shelter and medical attention . . . ." 71 Under the present statute, it is a Class D felony for "a person [to] knowingly or intentionally [fail] to provide support to his dependent child."72 It is debatable whether the changes in the wording of the statute will alter the result in cases such as Hudson v. State™ decided under the former statute. 6S Id. at 658. The court rejected any contrary implication in the dictum in Geberin v. Geberin, 360 N.E.2d 41, 46 (Ind. Ct. App. 1977), that "it is not an abuse of discretion for the trial court to ignore the mother's financial means." In Geberin, the husband's earnings were more than triple those of the wife. 69 369 N.E.2d at 658. 70 Ind. Code § 35-14-4-1 (1976) (repealed effective 1977). With regard to support of spouses, only the husband was liable for criminal nonsupport. Id. n Id. (emphasis added). Criminal nonsupport was a misdemeanor, punishable by a fine of not more than $500 and imprisonment in the county jail for a period not ex- ceeding six months. Id. 12 Id. § 35-46-1-5 (Supp. 1978) (emphasis added). Inability of a parent to provide support is a defense to the charge. Id. 73370 N.E.2d 983 (Ind. Ct. App. 1977). 168 INDIANA LAW REVIEW [Vol. 12:157 In Hudson, the court of appeals upheld the conviction of an able- bodied unemployed father, who had make no support payments under a dissolution decree. The court held that the evidence was sufficient to support a jury finding that he was "deliberately pursu- ing an irresponsible lifestyle, that he intentionally failed to conscien- tiously seek employment, and that he wilfully neglected to provide support for his children." 74 It is at least arguable that the same evidence would also support a finding under the current statute that the father "knowingly or intentionally" failed to support his children. In Strawser v. Strawser, 75 the husband had obtained an ex parte divorce which made no provision for the custody or support of the parties' three sons. The children continued to live with their mother in Florida, and in 1973 all three children were emancipated. In January, 1976, the mother sued the father for reimbursement of sums allegedly spent on support of the children prior to their eman- cipation. The trial court's judgment in her favor for $13,649 was reversed by the court of appeals, which held her action was barred by the two-year statute of limitations for "injuries to personal prop- erty." 76 The court's "reasoning" was: The nature of the mother's action is "in effect an allegation of a debt,"77 hence, it is an action "at law" and the statute of limitations — rather than the equitable doc- trine of laches — applies; the right to a debt is a chose in action, which is also a property right; choses in action are properly characterized as personalty; therefore, the statute of limitations for "injuries to personal property" applies.78 If the court of appeals was correct in its initial determination that the Strawser action was "in effect an allegation of a debt," then the court should have applied the statute of limitations for debt,79 in- stead of following this circuitous line of reasoning to the astonishing conclusion that what had started as an action for "debt" should be treated as an action for "injuries to personal property" for statute u Id. at 985. 75364 N.E.2d 791 (Ind. Ct. App. 1977). 16 Id. at 792. The statute applied was Ind. Code § 34-1-2-2 (1976). 77364 N.E.2d at 792. ls Id. at 792. 79 It is not clear which statute of limitations would apply, since the Indiana statutes speak of debt only in terms of contractual obligations, whereas the father's obligation in Strawser was based upon his legal duty to support his children. The analogy to a contractual obligation, however, is certainly much closer than the analogy to an action for "injuries to personal property." If the obligation were analogized to a debt, the appropriate statute would be either Ind. Code § 34-1-2-1(1) (1976) (6 years for a contract not in writing), or id. § 34-1-2-2(5) (1976) (10 years on a written contract). Either would seem more appropriate than the two-year statute for injuries to personal property. Id. § 34-1-2-2(1) (1976). 1979] SURVEY-DOMESTIC RELATIONS 169 of limitations purposes. The characterization of this action as debt is also open to serious question. The court of appeals relied upon Owens v. Owens 80 and Corbridge v. Corbridge,^ both of which refer to past-due installments of court-ordered support as "debt"; but these cases are not apposite here, because no decree was ever entered fixing the amount of support due from the father.82 The initial determination by a court, fixing a reasonable amount due from the father for support of his children, is equitable in nature. 83 No such determination had ever been made in Strawser, and this was essentially what the mother was entitled to in her reimburse- ment action. Although she sued to recover a specific sum of money spent on support of the children, she was not ipso facto entitled to reimbursement. When the trial court awarded her judgment for these sums, it implicitly found that the sums expended by the wife were reasonable and necessary to the support of the children, and that the husband should equitably be required to reimburse her. 84 Although the form of the action may have resembled an action "at law," on a "debt," in substance it was an action in equity to enforce the legal duty of a parent to support his children. It is, thus, doubly ironic that such an action should be held to be barred by a two-year statute of limitations for injuries to personal property. 80354 N.E.2d 350 (Ind. Ct. App. 1976). 81230 Ind. 201, 102 N.E.2d 764 (1952). 82 If there had been an order of support entered in Strawser, the ten-year statute of limitations relating to judgments, Ind. Code § 34-1-2-2(6) (1976), should apply, despite any inference to the contrary which might be drawn from the language of Owens. For a more complete discussion of Owens, see Garfield, supra note 26, at 173-75; Town- send, Secured Transactions and Creditors' Rights, 1977 Survey of Recent Developments in Indiana Law, 11 Ind. L. Rev. 252, 281-82 (1978). Merritt v. Economy Dept. Store, 125 Ind. App. 560, 128 N.E.2d 279 (1955), cited in Strawser v. Strawser, 364 N.E.2d at 792, 793, also has no relevance to the issue presented. Although characterized in the Strawser opinion as involving the husband's "right to reimbursement" for his wife's medical expenses, 364 N.E.2d at 793, Merritt was a suit by the husband for damages resulting from personal injuries inflicted on his wife through defendant's negligence. One of the items of damage alleged was the medical expenses, but it was the husband's claim for loss of services which led the court to classify the action, for statute of limitations purposes, as one for injuries to personal property. 128 N.E.2d at 280-81. No such claim was involved in Strawser. •"Although actions for child support are authorized by statute, Ind. Code § 31-l-11.5-3(b) (1976), it has long been recognized in Indiana that courts of general equity jurisdiction have the power to order parents to support their children independent of statutes. Leibold v. Leibold, 158 Ind. 60, 62 N.E. 627 (1902). See generally, H. Clark, Law of Domestic Relations § 15.1 (1968). SiSee H. Clark, supra note 83, § 15.1: "The only issue [in a dispute over reim- bursement of past support expenses] is, as between husband and wife, who should equitably bear the expense." (Emphasis added.) If the action is characterized as equitable, then the equitable doctrine of laches, rather than the statutes of limitations, should apply. 170 INDIANA LAW REVIEW [Vol. 12:157 D. Dissolution of Marriage 1. Jurisdiction. — Dissolution of marriage has always been regarded as the province of state, rather than federal, government.85 Problems arise, however, when two or more states become con- cerned with the dissolution of a single marriage. Each state is re- quired by the United States Constitution to give "full faith and credit" to the judicial proceedings of every other state.86 Whether in a given instance one state must defer to the decree of another state in an action affecting marital status ultimately depends on the jurisdiction each state has over the various aspects of the marriage relation. Since it is increasingly likely, in a highly mobile society, that more than one state will have a legitimate claim to jurisdiction over a single marriage, complex problems of jurisdiction and full faith and credit arise. These problems were explored in two opinions issued by the Indiana Court of Appeals during the survey period, In re Marriage of Rinderknecht 81 and Abney v. Abney. 88 In Rinderknecht, both Nebraska and Indiana had issued decrees affecting the marriage of a serviceman stationed in Omaha, but domiciled in Indiana. The wife had filed an action for separate maintenance in Nebraska four days before the husband petitioned for dissolution of the marriage in Indiana.89 Subsequently, each court issued a decree. The Indiana decree dissolved the marriage; the Nebraska separate maintenance decree did not purport to affect the parties' marital status. Both decrees awarded the wife custody of the parties' only child, which, apparently, was not in dispute, but each decree awarded the wife a different amount as child support.90 The decrees also awarded the respective parties different automobiles.91 Since the two decrees were inconsistent with each other, it became necessary for the Indiana Court of Appeals to resolve the conflict. The court held that the Indiana trial court had jurisdiction 65See Sosna v. Iowa, 419 U.S. 393, 404 (1975) (citing Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859)). 86 U.S. Const. Art. IV, § 1, provides: "Full faith and credit shall be given in each State to the public acts, records and judicial proceea. js of every other State." 87367 N.E.2d 1128 (Ind. Ct. App. 1977). 88374 N.E.2d 264 (Ind. Ct. App. 1978). 89The husband was personally served with summons in Nebraska. The wife was served by certified mail in the husband's Indiana action. 90The Nebraska decree ordered the husband to pay $65 every two weeks as child support. The Indiana decree ordered him to pay $25 per week, and to provide for the medical and insurance needs of the child. 91The Nebraska decree awarded the wife possession of a 1975 Matador automobile, title to which was in the husband's name alone. The Indiana decree award- ed this automoblie to the husband, giving the wife a 1968 automobile (also held in the husband's name). 1979] SURVEY-DOMESTIC RELATIONS 171 over the marital status, based upon its determination that the hus- band was a domiciliary of Indiana.92 Domicile is the key to a court's jurisdiction over marital status. A state where either of the parties is domiciled has jurisdiction to dissolve the marriage, even without personal jurisdiction over the other party.93 Jurisdiction in divorce is divisible, however. Jurisdiction over custody, support and property rights does require personal jurisdiction over both parties,94 and the Indiana court did not have personal jurisdiction over the wife. The court of appeals rejected the husband's contention that his wife and child were also domiciled in Indiana, recognizing the "modern trend" which allows a wife the right to choose her own domicile, separate from the husband's.95 The domicile of the wife was held to be Nebraska and the domicile of the child was the same as that of the mother with whom she lived.96 In view of this, the Indiana court could not claim personal jurisdiction over the wife based upon ser- vice outside the state by certified mail.97 The Indiana decree was, therefore, held to be effective to dissolve the marriage, but not to affect custody or property rights of the nonresident wife.98 The con- flicts in the support and property provisions were thus resolved in favor of the Nebraska decree. The Rinderknecht opinion discusses the effect of Shaffer v. Heitner" on jurisdiction problems in dissolution of marriage actions. The United States Supreme Court held in Shaffer that all assertions of state court jurisdiction must meet the "minimum contacts" due process standard of International Shoe Co. v. Washington, 100 92The court of appeals upheld the trial court's finding of domicile although the husband had not lived in the state since his enlistment from Indiana in 1968. 367 N.E.2d at 1132. Once domicile is established, it is not lost by absence from the state, as long as the party intends to return. H. Clark, supra note 83, § 4.2. The husband's status as a domiciliary satisfied the requirement of the Indiana statute that "at least one of the parties shall have been a resident of the state" for six months immediately preceding the filing of a petition for dissolution of marriage, Ind. Code § 31-1-11.5-6 (1976), "resident" under the statute being construed to mean "domiciliary." 367 N.E.2d at 1131 (citing Board of Medical Registration v. Turner, 241 Ind. 73, 168 N.E.2d 193 (I960)). 93Williams v. North Carolina, 317 U.S. 287 (1942). 94 Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); May v. Anderson, 345 U.S. 528 (1953); Estin v. Estin, 334 U.S. 541 (1948). 95367 N.E.2d at 1132 (citing H. Clark, supra note 83, § 4.3). w 367 N.E.2d at 1132. "[T]he residence or domicile of the child would follow the residence of the parent with whom the child is living." Id. 97Under Milliken v. Meyer, 311 U.S. 457 (1940), such service would apparently be sufficient to confer personal jurisdiction over a domiciliary of the state, provided there was actual notice, as there evidently was in Rinderknecht. 98367 N.E.2d at 1136, 1137. "433 U.S. 186 (1977). 100 326 U.S. 310 (1945), cited with approval in Shaffer, 433 U.S. at 212. 172 INDIANA LAW REVIEW [Vol. 12:157 whether the jurisdiction asserted is in rem or in personam. Dissolu- tion of marriage involves both types of jurisdiction. Insofar as it af- fects the parties' marital status, dissolution has generally been treated as a proceeding in rem; adjudication of the parties' rights to custody, support and property has been treated as in personam.101 As to the in rem (status) aspects of divorce, the court of appeals held only that the minimum contacts test was satisfied "by requiring only the residency of one of the parties." 102 Assuming that the court used "residency" to mean "domicile," this is an accurate state- ment of the rule of Williams v. North Carolina, 103 which appears to be in no imminent danger of being overruled. 104 It is conceivable, however, that application of the Shaffer "minimum contacts" test could lead the Supreme Court to modify the Williams rule to the ex- tent that it might be used to confer divorce jurisdiction on a state which is merely the technical domicile of one of the parties, but has no real contact with either party, or with the marriage. But Rinderknecht is not such a case. Although Indiana had no real con- tact with the wife or with the marriage, its contact with the hus- band appeared to be substantial enough to justify the Indiana courts in assuming jurisdiction over his marital status. Since the wife was protected by the requirement that a court must have personal jurisdiction over her before it can adjudicate her custody or proper- ty rights, it seems doubtful that her due process rights were violated by allowing Indiana to dissolve the marriage. As far as the in personam aspects of jurisdiction are concerned, there was no real need for the court of appeals to discuss the im- plications of Shaffer. Because the court held that there was no valid basis for the trial court to assert jurisdiction, either under Trial Rule 4.4 105 or on a theory of waiver by the wife,106 there was no need 101 367 N.E.2d at 1133. The Supreme Court has been equivocal about attaching these jurisdictional labels, see Williams v. North Carolina, 317 U.S. 287, 297 (1942), but its treatment of jurisdictional issues in divorce, especially the different requirements for jurisdiction over the status and over the other incidents of marriage, is entirely consistent with the in rem-in personam analysis. 102367 N.E.2d at 1134. 103317 U.S. 287 (1942). 10 *See Sosna v. Iowa, 419 U.S. 393, 407 (1975). 105 Ind. R. Tr. P. 4.4(A)(7) provides for jurisdiction over a nonresident "living in the marital relationship within the state notwithstanding subsequent departure from the state . . . ." There was no evidence that the Rinderknechts had ever lived in Indiana as husband and wife. They had married in Idaho after the husband, an Indiana citizen, had enlisted in the Air Force. At the time the two actions were filed, both parties ap- parently were living in Nebraska. 108The court of appeals held that the wife had not waived her objection to the trial court's jurisdiction by making what was, in effect, a special appearance, noting that special appearances are no longer necessary. If a defendant makes a timely challenge 1979] SURVEY-DOMESTIC RELATIONS 173 to further test the claim of in personam jurisdiction under the con- stitutional "minimum contacts" standard. Only where the trial court did have a valid claim to in personam jurisdiction, under the long arm provisions of Trial Rule 4.4 or otherwise, would Shaffer require that such claimed jurisdiction also meet the minimum contacts test. If it failed to meet the test, there would be no valid personal jurisdiction, despite the long arm provision, because such jurisdic- tion would violate the wife's due process rights under the four- teenth amendment.107 In Abney v. Abney,xm the wife had obtained a separate maintenance decree in Tennessee in 1964. The husband thereafter attempted unsuccessfully to obtain a divorce in Tennessee. In 1970, the Tennessee Court of Appeals held his petition for divorce barred by his unpurged contempt for failure to pay arrearages in support under the separate maintenance decree.109 The husband then filed a petition for dissolution of marriage in Marion County, Indiana. When the Indiana court refused the wife's request that it defer to the Ten- nessee court because of the prior litigation in that state, the wife ob- tained a Tennessee decree restraining the husband from pursuing his Indiana dissolution action. 110 The Indiana court, nevertheless, entered a decree dissolving the marriage, and the court of appeals affirmed. 111 The wife argued that the trial court was bound to give effect to the Tennessee injunction, either under the full faith and credit clause of the United States Constitution 112 or as a matter of comity. to the court's in personam jurisdiction, either by motion to dismiss or by answer, the issue may properly be raised on appeal even if the case proceeded to trial on the merits. Id. at 1136, n.ll. 107 U.S. Const, amend. XIV, § 1. See Kulko v. Superior Court, 98 S. Ct. 1690 (1978) (holding that the California courts could not assert long-arm personal jurisdiction over a nonresident father in an action for support of a child domiciled in California). 108374 N.E.2d 264 (Ind. Ct. App. 1978). 109Abney v. Abney, 61 Tenn. App. 531, 456 S.W.2d 364 (1970), cited in Abney v. Abney, 374 N.E.2d at 266. 110The Tennessee decree asserted that "this court [has] continuing jurisdiction over this Defendant through a separate maintenance decree . . . [and] refused this Defendant such relief previously requested . . . because of his being in contempt, and this contempt having never been purged." 374 N.E.2d at 266. The Tennessee decree restrained the husband from obtaining a dissolution of the marriage in any other jurisdiction. ni Id. at 271. The court of appeals had initially sought to avoid a decision on the merits, affirming the trial court's decree because the wife's brief did not contain a ver- batim statement of the dissolution decree as required by Ind. R. App. P. 8.3(A)(4). Abney v. Abney, 360 N.E.2d 1044 (Ind. Ct. App. 1977). The Indiana Supreme Court remanded the case for review on the merits, holding that the omission was cured by the verbatim statement contained in the husband's brief. Abney v. Abney, 374 N.E.2d 264, 265 (Ind. Ct. App. 1978). 112 U.S. Const, art. IV, § 1. 174 INDIANA LAW REVIEW [Vol. 12:157 In a well-reasoned opinion, the court of appeals first noted the general agreement among the authorities that no court is obligated to give full faith and credit to an injunction issued in a sister state against the prosecution of judicial proceedings in the forum state.113 The jurisdiction of the Indiana court over the parties' marital status derived from the bona fide residence (domicile) of the husband in the state. 114 Once that jurisdiction attached, it could not be ousted by the action of the Tennessee court in issuing an injunction against fur- ther prosecution of the suit by the husband. If any effect was to be accorded to the Tennessee injunction, it would have to be under the discretionary doctrine of comity, rather than under the constitu- tional compulsion of the full faith and credit clause.115 The wife's comity argument was based upon the premise that the Tennessee court retained "continuing jurisdiction over the marital relationship" under its 1964 separate maintenance decree.116 Such jurisdiction, however, extended only to modification of the sup- port obligations imposed by that decree, and not to the parties' marital status. 117 The Tennessee court had expressly declined to assert jurisdiction over the parties' marital status by dismissing the husband's petition for divorce.118 Indiana was, therefore, the first state to obtain jurisdiction over the marital status and was not re- quired to defer to the later Tennessee injunction. Although priority of jurisdiction might not be the controlling factor in every case, it was considered dispositive here.119 The court of appeals held that the trial court had given Tennessee all the deference required when it 113374 N.E.2d at 267-68. n4See Williams v. North Carolina, 317 U.S. 287 (1942). See discussion of the similar jurisdictional issues raised by Rinderknecht, supra at notes 89-107 and accom- panying text. No question was raised in Abney as to the bona fides of the husband's Indiana domicile. 374 N.E.2d at 269. m374 N.E.2d at 267. n «Id. at 268. ul Id. The divisible nature of divorce jurisdiction was also involved in Rinderknecht. U8The Tennessee court's order is quoted at note 110 supra. 119374 N.E.2d at 268, 269. The court of appeals acknowledged that the "equities in- volved and the other competing interests of the two jurisdictions should also be con- sidered." Id. at 268. However, priority of jurisdiction was given primary consideration, "based on the policy that after suits are commenced in one state, it is inconsistent with inter-state harmony to let the courts of another state control their prosecution." Id. (citing James v. Grand Trunk W.R. Co., 14 IU.2d 356, 152 N.E.2d 858, cert, denied 358 U.S. 915 (1958)). Ehrenzweig suggests that anti-suit injunctions, such as that entered by the Tennessee court here, might be refused enforcement on the ground they "do not adjudicate the merits of the case," which would certainly be applicable to the facts of Abney. A. Ehrenzweig, A Treatise on the Conflict of Laws 183 (1962). See also, H. Goodrich, Handbook of the Conflict of Laws §§ 216, 218 (4th ed. E. Scoles 1964). 1979] SURVEY-DOMESTIC RELATIONS 175 ordered the husband to pay $10,390 in past-due support and maintenance "as ordered by the Tennessee courts." 120 2. Grounds. — The wife in Abney v. Abney121 argued that the trial court should have exercised its equitable discretion to deny the husband's petition for dissolution, even though it found the marriage was irretrievably broken. The finding of irretrievable breakdown was not challenged by the wife, nor could it have been, in view of the fact that the parties had lived apart since at least 1964.122 The wife's opposition to dissolution of the marriage apparently stemmed from concern over termination of her husband's military medical benefits. She suffered from severe rheumatoid arthritis requiring costly medical treatment, and the trial court expressly found that the husband was incapable of providing her with sufficient maintenance to offset the loss of the medical benefits. The court of appeals held that the trial court had no discretion to deny dissolu- tion once it found the marriage was irretrievably broken, and affirmed its decree of dissolution.123 Under the no-fault ground, the key issue is whether there is a reasonable possibility of reconciliation. If on final hearing the court finds that there is such a possibility, the court may continue the matter and order the parties to seek reconciliation through counsel- ing. 124 However, if the court finds that the marriage is irretrievably broken — that there is no reasonable possibility of reconcilia- tion—then "the court shall enter a dissolution decree." 125 The dissolution decree is mandatory once the finding of irretrievable breakdown is made. The courts' disposition of the Abney case undoubtedly works a hardship on the wife. Although maintenance was awarded to her, it was admittedly insufficient to provide for her medical needs. Yet denial of the divorce would have done violence to the statute, and would have worked a hardship on the husband. To have condemned 120374 N.E.2d at 269. A foreign judgment for arrears in support is entitled to full faith and credit in other states, to the extent that it is final under the law of the state in which it was entered. Sistare v. Sistare, 218 U.S. 1 (1909). 121374 N.E.2d 264 (Ind. Ct. App. 1978). 122The Tennessee separate maintenance decree was dated May 25, 1964, and the parties had lived apart continuously since their initial separation. 123374 N.E.2d at 269-71. 124 Ind. Code § 31-l-11.5-8(a) (1976). The statute provides: Upon the final hearing: the court shall hear evidence and, if it finds that the material allegations of the petition are true, either enter a dissolution decree ... or if the court finds that there is a reasonable possibility of reconcilia- tion, the court may continue the matter and may order the parties to seek reconciliation through any available counseling .... 125 Ind. Code § 31-l-11.5-9(a) (1976) (emphasis added). 176 INDIANA LAW REVIEW [Vol. 12:157 him to a lifetime of marriage to a woman with whom he had not lived for fourteen years, solely to assure her continued access to his medical benefits, would have been a questionable exercise of equitable discretion even if such discretion had been found to exist. The court of appeals' disposition of the case appears to be the only possible resolution of an impossible dilemma. 3. Maintenance. 12*— Although the Indiana courts' power to award spousal maintenance is sharply limited,127 they still possess broad power to award temporary maintenance during the pendency of dissolution proceedings. 128 In Wendorf v. Wendorf, 129 the husband claimed that the trial court abused its discretion in awarding tem- porary maintenance and child support of $200 per week. Although the weekly payment ordered was almost equal to the husband's week- ly salary, he had substantial additional income.130 The court of ap- peals affirmed the order, holding that the trial court was entitled to consider the temporary nature of the order along with the needs of the spouse and children and the husband's ability to pay.131 Even a temporary order which exceeded the husband's present earnings would not be per se an abuse of discretion.132 126Two cases decided during the survey period involved "alimony judgments," which no longer exist in Indiana; all financial awards to spouses are now labeled either as maintenance or property division. See Ind. Code §§ 31-1-11.5-9(c) to 11 (1976). In Johnson v. Johnson, 367 N.E.2d 1147 (Ind. Ct. App. 1977), the court of appeals re- versed a decree awarding the wife an "alimony" judgment for $5,500, and remanded the case to the trial court for clarification of the statutory basis for the award. Lyon v. Lyon, 369 N.E.2d 649 (Ind. Ct. App. 1977), concerned a decree entered in 1961, under the former statute, based upon a written property settlement agreement of the parties. The decree ordered the husband to pay the wife alimony of $525 per month for the rest of her life, unless she remarried or the husband died. The court of appeals held that the husband was estopped from now challenging the award by reason of his participation in the original divorce proceedings, from which no appeal was taken. l21See Ind. Code § 31-1-1 1.5-9(c) (1976) discussed infra at notes 140-80 and accompa- nying text. 128 Ind. Code § 31-l-11.5-7(d) (1976) provides: "The court may issue an order for tem- porary maintenance or support in such amounts and on such terms as may seem just and proper . . . ." Ind. Code § 31-l-11.5-7(e) (1976) provides: The issuance of a provisional order shall be without prejudice to the rights of the parties or the child as adjudicated at the final hearing in the proceeding. Its terms may be revoked or modified prior to final decree on a showing of the facts appropriate to revocation or modification and it shall terminate when the final decree is entered subject to right of appeal or when the petition for dissolution is dismissed. 129366 N.E.2d 703 (Ind. Ct. App. 1977). 130Additional income from bonuses and commodity sales amounted to $6,800 in 1975, and his 1975 tax refund was $3,200. The wife was not employed. 131366 N.E.2d at 705. l32 Id. The court of appeals also upheld the trial court's order requiring the hus- band to pay $500 to the wife's attorneys, rejecting the husband's assertion that the wife should have sold her fur coat to pay her attorney's fees. Id. at 706. 1979] SURVEY-DOMESTIC RELATIONS 111 The only major legislative amendment to the Dissolution of Mar- riage Act during the 1978 session was to section 31-1-11.5-13, relating to enforcement of support orders. 133 The section authorizes the courts to order support payments to be made through the clerk of the circuit court, to require an accounting from the recipient, and to enforce support orders by requiring the obligor to make an assignment of wages to the person entitled to receive the payments. All of these provisions now apply to orders for spousal support, as well as to child support orders. 134 The legislature also added a new provision, section 13(e)(1), authorizing the court to "enter a judgment against the person obligated to pay support requiring that person to pay all unpaid obligations to the person entitled to receive payments." 135 With this addition, section 13(e) now provides that, upon application for en- forcement of a support order, the court may either (1) enter a judg- ment for arrears, or (2) order the obligor to make an assignment of wages. If the intent was to list all alternatives open to a court when asked to enforce a support order, it is difficult to understand why contempt was not also listed, especially in view of the specific provi- sion of section 31-l-11.5-17(a), authorizing enforcement of support orders by contempt.136 The omission may well be cited as implicitly supporting the statements in Kuhn v. Kuhn137 to the effect that a judgment fixing the amount of the arrearage is necessary before a support decree can be enforced by contempt.138 It should be noted, however, that the new provision is permissive rather than man- datory. It could as well have been intended to make it clear that courts do have the power to enter judgments for arrears despite repeal of the former statute expressly authorizing such judgments.139 133 Ind. Code § 31-1-11.5-13 (Supp. 1978). Amendments to §§ 1 and 3 changed one of the alternative grounds for dissolution from conviction of an "infamous crime" to con- viction of "a felony." Id. §§ 31-1-11.5-1, -3(a)(2). 134Throughout the section, the word "child" and references to § 12, relating to child support orders, have been deleted, so that § 13 now applies to orders "for sup- port." Id. § 31-1-11.5-13. m Id. § 31-l-11.5-13(e)(l). 136 Id. § 31-1-1 1.5-17(a) provides, in part: "Terms of the decree may be enforced by all remedies available for enforcement of a judgment including but not limited to con- tempt or an assignment of wages or salary, except as otherwise provided in this chapter." (Emphasis added.) Note that § 17(a) is not limited to support decrees, but ap- plies to all "terms of the decree." Despite this broad language, the Indiana Supreme Court has held that contempt is not available to enforce payments ordered as part of a division of property. State ex rel Shaunki v. Endsley, 362 N.E.2d 153 (Ind. 1977). 137361 N.E.2d 919 (Ind. Ct. App. 1977). For a critical discussion of Kuhn, see Gar- field, supra note 26, at 175; Townsend, supra note 82, at 281-82. 138361 N.E.2d at 920. 139Act of Mar. 11, 1967, ch. 282, § 1, 1967 Ind. Acts 901 (repealed 1973). The former statute was also permissive rather than mandatory. 178 INDIANA LAW REVIEW [Vol. 12:157 Unfortunately, it may have succeeded only in raising new am- biguities. 4. Property Division. — The courts of appeal decided several cases dealing with division of property on dissolution of marriage. Because maintenance, formerly "alimony," can now be awarded only to an "incapacitated" spouse,140 in the vast majority of cases, proper- ty division is the sole vehicle for settling the financial affairs of couples upon divorce. Its importance to the parties involved cannot be over-emphasized. In Wilcox v. Wilcox141 the parties were married in 1949, during their final year in college. After graduation, the wife worked while the husband continued his education; he received a Ph.D. degree in 1952. The wife then quit work to raise three children. At the time of the dissolution, the husband was a tenured full professor at Purdue University, earning $20,800 per year. The couple had accumulated tangible assets totalling $42,000. The trial court awarded substan- tially all of these assets, or their cash equivalent, to the wife, and the Indiana Court of Appeals affirmed.142 Both parties were dissatisfied with the trial court's disposition of their property. The husband argued that it was an abuse of discretion to award substantially all of their property to the wife. Normally, a more equal division of property would be appropriate, but the Dissolution of Marriage Act allows the courts to consider many factors in arriving at a "just and reasonable" division of prop- erty. 143 Under the statutory guidelines, the court of appeals held 140 Ind. Code § 31-l-11.5-9(c) (1976) provides: The court may make no provision for maintenance except that when the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of such incapacitated spouse to support himself or herself is materially affected, the court may make provision for the maintenance of said spouse during any such incapacity, subject to further order of the court. "Incapacitated" has been given a restrictive interpretation by the courts. See Liszkai v. Liszkai, 343 N.E.2d 799 (Ind. Ct. App. 1976) (dictum). 141365 N.E.2d 792 (Ind. Ct. App. 1977). U2 I