Indiana Law Review


VI. Domestic Relations

Steven E. King*

Survey-period developments in the law of domestic relations again
spanned the familial spectrum. Among the case precedent and statutory
developments examined herein, particular attention is directed to the
analysis contained in Section E concerning the General Assembly's en-
actment of custodial and rehabihtative maintenance and the discussion
included in Section F regarding the enforceability of oral property set-
tlements. Those developments bear everyday if not profound consequences
for the family law practitioner.

^ A. Adoption

1. The Adoptive Rights of Married Persons and Grandparents.—
An unusual juxtaposition of factual circumstances in Browder v. Harmeyer^
necessitated survey-period review of the constitutional rights of both

married persons and grandparents to adopt. The natural parents of four-

year-old Nathanial Browder divorced in 1980. Following the termination

of their parental rights one year later, Nathanial was placed with paternal

grandmother Mary Browder. There he resided for a period of five months,
when both the paternal grandparents, Browder, and maternal grand-
parents, Harmeyer, filed petitions to adopt Nathanial. Prior to a con-

solidated hearing on the petitions, Mary Browder's husband, who had
separated from her in 1980, withdrew his name from their petition to
adopt. Based on Section 1 of the Adoption Act,^ which prohibits adoption

by a married person whose spouse does not join the petition, Browder's

petition was dismissed. Following a hearing on the Harmeyers' petition,

they were granted adoption rights. Browder challenged both ruhngs on

appeal.

Browder argued the dismissal of her petition violated equal protection

guarantees. Inasmuch as Section 1 permits an unmarried person to adopt

as a single parent,^ she maintained that the denial of that same privilege

to her based on her married-but-separated status constituted a denial of

her equal protection rights and, in turn, impaired her fundamental right

*Probate Commissioner, LaPorte Circuit Court. B.S., Ball State University, 1972;

J.D., Valparaiso University School of Law, 1978. The author serves as fact-finder in

domestic relations cases to the Honorable Robert S. Gettinger, Judge. The author wishes

to express gratitude to Carolyn M. Shebel for her voluntary technical assistance in the

preparation of this Article.

•453 N.E.2d 301 (Ind. Ct. App. 1983).

^IND. Code § 31-3-1-1 (1982).
^Id. The statute reads in pertinent part: ''Any resident of this state desirous of

adopting any person under eighteen (18) years of age . . . may . . . file a petition with

the clerk of the court having jurisdiction . . . ." (emphasis added).

211



212 INDIANA LAW REVIEW [Vol. 18:211

to marry. Following its extensive analysis of equal protection consid-

erations/ the court of appeals applied the intermediate review standard

of Zablocki v. RedhaiP and concluded the state's interest in placing

children in homes free of dissension justified the requirement that spouses

join in petitions to adopt. For the majority, Judge Miller also concluded

the applicability of the requirement should be unaffected by the fact

Browder's husband was estranged: "Although the chances of reconcil-

iation might be remote in this case, there has been no divorce proceeding

either, which proceeding in and of itself can cause problems to which

an adoptive child, already the victim of one marital misadventure, should

not be exposed again. "^ Accordingly, the best interests of the minor

child vindicate the statutory exception.

The court also rejected Browder's due process argument predicated

on her in loco parentis relationship to Nathanial. She maintained the

removal of him from her custody without a finding of unfitness violated

her fundamental right to family integrity. With due respect for the rights

of grandparents, the court refused to apply those strict standards required

to justify the removal of a child from the care and custody of natural

parents.^ Carefully observing that Browder had received notice of the

Harmeyers' petition and the evidentiary hearing thereon,^ the court

concluded the evidence supported the trial court's conclusion that Na-

thanial's best interests would be served via his adoption by the maternal

grandparents.^

2. Notice: Due Process Rights of Putative Fathers.—The due process
rights of putative fathers to notice of pending adoption proceedings were

addressed in Lehr v. Robertson,^^ where the United States Supreme
Court expanded the principle that a mere biological relationship with a

child born out of wedlock is insufficient to warrant constitutional pro-

tection. At issue was New York's statutory scheme requiring that notice
of adoption proceedings be supplied to putative fathers of various cir-

M53 N.E.2d at 305-06.
'434 U.S. 374 (1978). See also Indiana High School Athletic Ass'n v. Raike, 164

Ind. App. 169, 329 N.E.2d 66 (1975).
^453 N.E.2d at 307 (citations omitted).

^A presumption exists that the best interests of the minor child are served if he

remains in the care and custody of a natural parent. That presumption may be rebutted
by evidence establishing either: 1) the unfitness of the parent; 2) prolonged acquiescence

of the parenting role; or 3) the parent's voluntary relinquishment of his responsibihties

to the extent the affections of the child and third party are so interwoven that severance

would seriously endanger the happinesss of the child. Kissinger v. Shoemaker, 425 N.E.2d

208 (Ind. Ct. App. 1981). A petition to terminate parental rights, of course, requires
proof of a "clear and convincing" nature. Santosky v. Kramer, 455 U.S. 745 (1982); see

also. Act of Feb. 29, 1984, Pub. L. No. 131-1984, 1984 Ind. Acts 1176 (codified at Ind.

Code § 31-6-7-13 (Supp. 1984)).
H53 N.E.2d at 309.

""Id. at 309-10.

'"103 S. Ct. 2985 (1983).



1985] SURVEY—DOMESTIC RELATIONS 213

cumstance," including those whose names were filed in the state-main-

tained "putative father registry."'^ Conceding he satisfied none of the

statutory criteria entitling him to notice, putative father Lehr asserted

that "special circumstances gave him a constitutional right to notice and

a hearing before Jessica [his alleged daughter] was adopted.'"^ Those

special circumstances included his filing of a petition to establish paternity

of Jessica in the Westchester County Court one month after the natural
mother and her husband had initiated adoption proceedings in Ulster

County Court. Procedural confusion culminated in the granting of the
adoption petition without a hearing.'^ Lehr's challenges to the Ulster

court's decision were rejected by New York's appellate courts, •^ and the
United States Supreme Court accepted jurisdiction to address concomitant

contentions: 1) whether due process required Lehr be given notice and

opportunity to be heard before he was deprived of his potential rela-

tionship with Jessica, and 2) whether the gender-based classifications of

New York's adoption procedure violated the equal protection clause. On
similar bases, both arguments were rejected.

Drawing upon its prior decisions concerning illegitimate children and

the rights of biological fathers,'^ the Court focused its constitutional

analysis on the "clear distinction between a mere biological relationship

and an actual relationship of parental responsibility.'"^ Only where the

putative father acts on the biological link and assumes some significant

role in the daily responsibihties of the child's upbringing is constitutional

protection accorded the putative father's interest in the relationship.

Consequently, the Court reduced Lehr's due process challenge to the

question whether New York's statutory scheme "adequately protected

"/<^. at 2988. The classes of fathers entitled to notice included: 1) those whose

paternity had been formally established by court order; 2) those identified as the father

on birth certificates; 3) those who had openly resided with the natural mother and child;

4) those identified as the father in a sworn statement of the natural mpther; and 5) those

married to the child's mother prior to the child's attainment of six months. Id. at n.5

(quoting N.Y. Dom. Rel. Law. § lll-a(2) (McKinney Supp. 1983-84)).

'n03 S. Ct. at 2987 n.4 (quoting N.Y. See. Serv. Law § 372-c (McKinney 1983)).
Filing a notice of intent to claim paternity could be accomplished by simply mailing a

postcard containing the requisite information to the registry. 103 S. Ct. at 2995.

'n03 S. Ct. at 2988.

''M at 2988-89. Not withstanding the Ulster court's awareness of the paternity

proceedings pending in Westchester County, and its order staying those proceedings pending

ruling on a motion to consolidate the actions, it inexpHcably granted the adoption petition

without a hearing. Not surprisingly, these procedural circumstances figured significantly

in the dissenting Justices' analysis. Id. at 2997 (White, Marshall, and Blackmun, J J.,

dissenting). The majority deemed the issue outside federal jurisdiction. Id. at 2990 n.lO.

''See In re the Adoption of Jessica XX, 54 N.Y.2d 417, 430 N.E.2d 896, 446
N.Y.S.2d 20 (1981), affg 11 A.D.2d 381, 434 N.Y.S.2d 772 (1980).

'^Caban v. Mohammed, 441 U.S. 380 (1979); Quilloin v. Walcott, 434 U.S. 246
(1978); Stanley v. Illinois, 405 U.S. 645 (1972).

•n03 S. Ct. at 2992.



214 INDIANA LA iV REVIEW [Vol. 18:211

his opportunity to form such a relationship."'^ Observing that the adop-

tion statutes provided for notice to various categories of putative fathers

who Hkely had assumed some degree of parental responsibihty, the Court
concluded that Lehr's failure to avail himself of the opportunity to

qualify himself for notice by filing with the putative father registry

ultimately defeated his claim to due process protection.'^ Similarly, his

equal protection argument was rejected on the basis of his failure to

estabhsh any relationship with Jessica prior to the initiation of the

adoption hearings. The distinction between Lehr's limited interest in the
child and the natural mother's custodial role neutered his claim of gender-

based discrimination. 2°

B. Child Custody

1. Jurisdiction: The Uniform Child Custody Jurisdiction Act and

the Parental Kidnapping Prevention Act.—The jurisdiction labyrinth
that is the Uniform Child Custody Jurisdiction Act (UCCJA)^' should

be rendered less intimidating, if not comprehensible, from study of the

survey-period decision in Funk v. Macaulay}^ Therein, the court of
appeals clarified the concept of continuing and exclusive jurisdiction

contained in the UCCJA and examined the jurisdictional implications
of the Parental Kidnapping Prevention Act.^^

Funk and Macaulay were divorced in Tippecanoe Superior Court in

1971. Macaulay was awarded custody of the parties' minor children and,

one year later, moved to California on a permanent basis. Ten years
of legal skirmishing in the Tippecanoe Superior Court led to Funk filing
a petition to modify custody in that forum; he subsequently dismissed

that petition and refiled it in California. Macaulay responded by filing

a contempt action in the Tippecanoe Superior Court wherein she alleged

that Funk, who continued to reside in Indiana, telephoned the children
daily and encouraged the children to abuse their mother and engage in

''Id. at 2994.

'^M at 2994-95. The implications Lehr holds for Indiana's notice requirements are

unclear. Indiana's statutory adoption scheme does not provide for a putative father registry.

Subsection e of Indiana Code section 31-3-1-6 (1982) does require that notice be provided

to putative fathers. On the other hand, subsection h ehminates the need to give notice
to persons who, pursuant to subsection g(3), have relinquished their right by virtue of

abandonment, nonsupport, or failure to communicate significantly with the child. Lehr

provides constitutional support for an interpretation of these provisions which would

obviate the notice requirement for a putative father guilty of abandonment. Still, aban-

donment may be a factual question not properly resolved without a putative father's
opportunity to be heard; for example, in cases where the birth of the child was not made

known to the putative father, estoppel principles are of dubious validity.
2°103 S. Ct. at 2996.

^•IND. Code § 31-1-11.6-1 to -24 (1982).
^H57 N.E.2d 223 (Ind. Ct. App. 1983).

"28 U.S.C. § 1738A (1982).



1985] SURVEY—DOMESTIC RELATIONS 215

acts of truancy. The trial court denied Funk's motion to dismiss based

on lack of jurisdiction and found him in contempt.

The court on appeal first found that Macaulay's contempt petition

fell within the ambit of the UCCJA in that via her contempt action,
Macaulay sought modification of Funk's visitation rights. ^"^ The court

then turned to the question whether Indiana or CaHfornia was the proper

forum to adjudicate the contempt petition. Recognizing that California

was the "home state" of the minor children and Macaulay pursuant to
subsection 3(a)(1) of the UCCJA,^^ the court also determined that Indiana
retained "significant connections" with Funk and the children per sub-

section 3(a)(2)^^ of the Act's jurisdictional standards. Those "connec-

tions" included Funk's continued residency in Indiana, the semiannual

visits of the children in Indiana, and the fact that all court records

pertaining to the parties' prolonged legal battle concerning the children

were located in Indiana. The court concluded that these circumstances
bestowed subject matter jurisdiction on Indiana. The court relied heavily

on the principle that it is the purpose of the UCCJA to provide that
exclusive and continuing jurisdiction remain in the state of the initial

custody decree. ^^

Given its determination that the Tippecanoe Superior Court retained

subject matter jurisdiction, the court methodically proceeded to the next

hurdle of the UCCJA: whether the trial court's decision to exercise that
jurisdiction was justified. Observing that the UCCJA is designed to
eliminate forum shopping, the court concluded that purpose would have

2^57 N.E.2d at 225. The Uniform Child Custody Jurisdiction Act (UCCJA) sets
forth which state has subject matter jurisdiction to make a "child custody determination."
Ind. Code § 31-1-11.6-3 (1982). A "child custody determination" is defined in Indiana
Code section 31-1-11.6-2 (1982) as any court determination involving custody or visitation
rights; excluded therefrom are matters of child support and monetary obligations. In the

latter respect, see the survey-period decision in Lee v. DeSheney, 457 N.E.2d 604 (Ind.

Ct. App, 1983), where it was held that an order entered in the State of Washington for

attorney fees, costs of litgation, and travel expenses was outside the purview of the

UCCJA.
^'The "home state" jurisdictional standard appHed to California because Macaulay

and the children resided there for more than six months prior to the filing of the petition.

See Ind. Code § 31-1-1 1.6-3(a)(l) (1982).
^'^Indiana Code section 31-1-1 1.6-3(a)(2) (1982) provides a corollary basis for subject

matter jurisdiction where:

it is in the best interest of the child that a court of this state assume jurisdiction

because (A) the child and his parents, or the child and at least one (1) contestant,

have a significant connection with this state, and (B) there is available in this

state substantial evidence concerning the child's present or future care, protection,

training, and personal relationships ....
Id. See generally In re Marriage of Hudson, 434 N.E.2d 107 (Ind. Ct. App. 1982).

^The court's authority for that proposition was Bodenheimer, Interstate Custody:
Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam. L.Q. 214
(1981). Professor Bedenheimer was the reporter for the commission which drafted the

UCCJA. 457 N.E.2d at 226.



216 INDIANA LAW REVIEW [Vol. 18:211

been contravened had the trial court failed to exercise jurisdiction.^^ The

court also noted that the best hope for ending the turmoil in the children's

lives was to resolve the dispute in Indiana, rather than reopening the

litigation in a new forum.
^"^

Finally, the court of appeals buttressed its application of the UCCJA
by reference to the Parental Kidnapping Prevention Act (PKPA)^° and

its principles of continuing jurisdiction and full faith and credit. The

court found that the two-step test for jurisdiction defined in the PKPA
had been satisfied; accordingly, other jurisdictions were required to afford

the Indiana decision full faith and credit.^' This attention to the PKPA
and the methodical approach^^ utilized by Chief Judge Buchanan render

Funk indispensable to intelHgent UCCJA application.
2. Procedural Aspects of Custody Modifications.—Two survey-period

decisions yielded numerous developments in the law of child custody

modification procedure. Due process and default-type custody modifi-
cations were the focus of that precedent.

Provisions of the Soldiers' and Sailors' Civil Rehef Act of 1940"

were at issue in Kline v. Kline. ^"^ As noncustodial parent, the natural

mother filed an emergency petition to modify custody on December 22,

1981, and a hearing date of January 20, 1982, was set. The custodial

parent filed a motion for a continuance based on the fact that his

military assignment in Okinawa precluded his attendance at the hearing.

The motion was granted and, ultimately, hearing on the emergency

petition was rescheduled for March 19, 1982. On that date, the father,
by counsel, again moved for a continuance; in support thereof, an
affidavit from the father's marine commander was submitted which
indicated the absence of Sergeant Kline '"at this time would adversely

2«457 N.E.2d at 228.

'"Id.

^°28 U.S.C. § 1738A (1982).

"457 N.E.2d at 229.

"One commentator has reduced the Funk analysis to the following general meth-
odology:

[a]Where in Indiana was the custody determination sought to be modified made?

[b]Then, does that court still have (and want) jurisdiction of the subject matter,

case and person under Indiana law?

[cjThen, does that court still have (and want) jurisdiction under the UCCJA?
[d]Then, has the child or some contestant remained a resident of Indiana

continuously since the determination?

[e]If the last three questions are answered "yes", the court which made the
original determination still has jurisdiction.

The Honorable Robert L. Justice (Cass County Circuit Court), Indiana Jurisdiction Under

the Uniform Child Custody Jurisdiction Act, Part II (1984), ICLEF, "Child Custody in

Indiana" § 8, pp. 3-4 (1984). Judge Justice indicated that if the last three questions are

answered affirmatively as to another jurisdiction, Indiana lacks subject matter jurisdiction.

"50 U.S.C. app. §§ 501-91 (1982).

^M55 N.E.2d 407 (Ind. Ct. App. 1983).



1 985] SUR VEY—DOMESTIC RELA TIONS 2 1

7

(sic) effect (sic) the capability of this team to accomplish its mission. '"^^

Counsel indicated his client would not be eligible for leave from Okinawa
until late 1982. The trial court denied the motion for a continuance,

proceeded to hearing, and granted the petition to change custody.

The court of appeals found the trial court had abused its discretion
in failing to grant the father's second motion for a continuance. Relying

on provisions of the Soldiers' and Sailors' Relief Act,^^ the court de-

termined that the father's absence at the hearing was the direct result

of a "military order based upon a legitimate military interest"^^ and
that proceeding without his presence was necessarily prejudicial to his

interests. The court did not address the fact that the husband's second
motion for a continuance in effect sought an additional six-month delay

in the disposition of an emergency petition to modify custody. It is

posited that circumstances of a compelling and immediate nature might

arise wherein the interests of minor children should also be weighed in

the implementation of the Act.^^

A custody modification granted in the absence of a parent was also
the subject of In re Marriage of Henderson?'^ There, the court of appeals

found the custodial parent had been deprived of her due process right

to notice of a hearing to be held on the pending petition to modify

custody; in short, no notice of a hearing date was provided to the wife

because the trial court failed to set or conduct a hearing on the petition.

The elemental nature of that omission belies the complexity of the

procedural circumstances present in Henderson. The case gave rise to

a virtual primer on the mechanical aspects of modification procedure.

Included therein was a recitation of the trial court's procedural respon-

sibilities once a petition to modify is filed: "(1) setting the cause for

hearing; (2) giving appropriate notice to the parties of the hearing date;

and (3) conducting a full hearing on the evidence as to change of

custody. '"^^ The latter task was particularly emphasized by the appellate
court which held that a modification of child custody without a hearing

and submission of evidence is never proper, even where one party has

failed to appear after proper notice.^' Recognizing a petition to modify

child custody as a matter of grave consequence to all interested parties, "^^

^^Id. at 409 (quoting the affidavit of Kline's Team Commander).
^^50 U.S.C. app. § 521 (1982).

"455 N.E.2d at 410.

^^Kline is consistent with authority rendered in other jurisdictions, however. See,

e.g., Coburn v. Coburn, 412 So. 2d 947 (Fla. Dist. Ct. App. 1982); Lackey v. Lackey,

222 Va. 49, 278 S.E.2d 811 (1981).

^M53 N.E.2d 310 (Ind. Ct. App. 1983).

""/d/. at 313 (citations omitted).

''Id. at 315.

'^Id. at 316. Relying on Duckworth v. Duckworth, 203 Ind. 276, 179 N.E. 773

(1932), the court of appeals found three interests are at stake in matters involving the

custody of children: 1) the child's interests; 2) the parents' interests; and 3) the state's



218 INDIANA LAW REVIEW [Vol. 18:211

the court reasoned that its effective disposition necessitated evidence to

establish that the proposed modification in fact would serve the best

interests of the child. Albeit the appropriate and natural progression of

existing case precedent, the Henderson evidentiary requirement is tech-

nically dictum, given the court of appeals' determination that proper

notice had not been provided to the absent party /^

i. Race as a Factor in Custody Determinations.—The rare occasion
of United States Supreme Court review of a state court's custody de-

termination occurred in Palmore v. Sidoti,^ where certiorari was granted

to address the role of racial classifications in questions of child custody

of a minor child. In Palmore, the father sought transfer of the child

because the mother had married a person of another race. Although

the trial court acknowledged that the mother and her new spouse were
otherwise suitable persons to care for the child, it ordered the change

in custody because of "peer pressures" and "social stigmatization" which

it concluded the child would inevitably endure as a result of the interracial

marriage. "^^ Writing for a unanimous Supreme Court, Chief Justice Burger

recognized the continued existence of racial and ethnic prejudices, but

unequivocally rejected the notion that such private biases should be

sanctioned in law:

The Constitution cannot control such prejudices but neither can

it tolerate them. Private biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them effect.

Whatever problems racially-mixed households may pose for chil-
dren in 1984 can no more support a denial of constitutional
rights than could the stresses that residential integration was

thought to entail in 1917. The effects of racial prejudice, however
real, cannot justify a racial classification removing an infant

child from the custody of its natural mother found to be an

appropriate person to have such custody. "^^

interests. 453 N.E.2d at 316 n.6. The state's interest was characterized in the survey-

period decision of Palmore v. Sidoti, 104 S. Ct. 1879 (1984), as "a duty of the highest

order to protect the interests of minor children." Id. at 1882.

"•The Henderson court expressly recognized its analysis as dictum, but proceeded to

address the evidentiary issue as "one which has not been directly addressed in this

jurisdiction." 453 N.E.2d at 315. Other authority has established, however, that when

the best interests of minor children are involved, a factual basis for the court's order

must be established, even though it be the product of the parties' stipulation. See, e.g.,

Stevenson v. Stevenson, 173 Ind. App. 495, 364 N.E.2d 161 (1977) (oral agreement for

custody); Delong v. Delong, 161 Ind. App. 275, 315 N.E.2d 412 (1974) (child support);

Ind. Code § 31-1-1 1.5-21(g) (Supp. 1984) Goint custody).
^104 S. Ct. 1879 (1984).

''Id. at 1881.

'''Id. at 1882 (footnote omitted).



1985] SURVEY—DOMESTIC RELATIONS 219

On equal protection grounds, the trial court's change of custody was
reversed/^

C Child Support
1. Emancipation.—The survey-period brought statutory perspective

to the fact-sensitive question of what circumstances result in the eman-

cipation of a minor child and, in turn, trigger cessation of the duty of

support. Practitioners charged with the uncertain task of advising clients

in this troublesome area will find rehef in the 1984 amendments to

section 12,"^^ wherein the General Assembly codified existing case prec-

edent, defined nonexclusive criteria of emancipation, and gave legal effect

to the ameliorative concept of "partial emancipation."

The statutory amendments generally embody the essence of eman-
cipation: via change in the child's socioeconomic circumstances, a new
relationship is created between parent and child which relieves the former

of the legal obligation of support. ^^ Consistent therewith, the legislature

embraced precedent that marriage and military service are emancipating

events as a matter of law.^° A child's attainment of twenty-one years
remains unchanged as the legislature's de jure standard of emancipation. 5'

Significantly, however, a de facto basis of emancipation was established

for children eighteen years or older. Those conditions are that "the child:

(A) is at least eighteen (18) years old; (B) has not attended a secondary

or postsecondary school for the prior four (4) months and is not enrolled

in such a school; and (C) is or is capable of supporting himself through

employment . . . ."^^ The objective nature of subsections A and B
suggests their application will be accompanied by little factual or legal

dispute. Subsection C will be the subject of both, however, for the
legislature failed to address the distinction between capability of em-

ployment and its availability. Obviously, while the unskilled eighteen-

year-old high school graduate may be both physically and mentally
capable of and willing to assume employment, his self-supportive abilities

^^Id. at 1883. Other jurisdictions addressed the Palmare issue but reached differing
results. See Annot., 10 A.L.R. 4th 796 (1981). The role of racial and ethnic heritage has
been raised but not reached in this jurisdiction. See In re Marriage of Davis, 441 N.E.2d
719, 723 (Ind. Ct. App. 1982).

''^Act of Feb. 29, 1984, Pub. L. No. 151-1984, § 1, 1984 Ind. Acts 1297, 1297-98
(codified at Ind. Code § 31-1-1 1.5-12(d), (e) (Supp. 1984)).

""See, e.g., Green v. Green, 447 N.E.2d 605, 609 (Ind. Ct. App. 1983), transfer
denied, June 21, 1983.

^°IND. Code § 31-1-1 1.5-12(e)(l), (2) (Supp. 1984). The case law which preceded the
legislation is Green v. Green, 447 N.E.2d 605 (Ind. Ct. App. 1983), transfer denied, June
21, 1983 (marriage), and Corbridge v. Corbridge, 230 Ind. 201, 102 N.E.2d 764 (1952)
(military service).

5'lND. Code § 31-1-1 1.5-12(d) (Supp. 1984).
"Ind. Code § 31-1-1 1.5-12(d)(3) (Supp. 1984).



220 INDIANA LAW REVIEW [Vol. 18:211

remain dependent upon the existence of entry-level job opportunities.

In that respect, a literal application of the phrase *'is capable of sup-

porting himself through employment" would defeat the intent of the
1984 amendment. The vast majority of eighteen-year-olds not enrolled

in higher education are physically and mentally "capable" of supporting

themselves; significantly, however, it is age twenty-one which the leg-

islature retained as the standard for determining that as a matter of
law a child is or should be self-supporting.

This analysis of the legislature's intent is further buttressed by its

recognition of "partial emancipation," a concept likely to play a sig-

nificant role in the law of child support. If a trial court finds "the

conditions set forth in clauses (A) through (C) are met but that the

child is only partially supporting himself or capable of only partially

supporting himself, the court may order that support be modified instead
of terminated. "^^ Inclusion of this proviso in section 12 reflects a welcome

acknowledgment of the fact that emancipation is neither automatic nor

immediate, that socioeconomic independence normally arrives in halves,

and that part-time employment and minimum wages often bridge the
gap between minority and majority status. ^"^ The law's recognition of

this human experience and its concomitant pro rata reduction of support
will perpetuate confidence in the justness of the law, a matter long-

complicated by the popular lay myth that age eighteen is and always

has been the de jure standard of emancipation in Indiana. ^^

Last, the statutory amendments to section 12 include the provision

that emancipation occurs if the child "is not in the care or control of

either of his parents. "^^ Again, a literal application of the statutory

language should be approached with caution. "Care or control" Hkely

does not refer solely to physical custody and caretaking, but also embraces

economic independence of the child. Any other interpretation would
ignore well-grounded law that a parent is liable for the costs of necessities

provided a child by a third party. ^^

2. Support Guidelines, Schedules, and Automatic Annual Adjust-

ments.—A trial court's usage of support guidelines and its automatic
annual adjustment of support orders based on those guidelines were

endorsed as "laudable judicial advances" in Herron v. Herron.^^ On
appeal, the wife had challenged the propriety of a Hendricks Circuit

''Id.

'"An enlightening look at the peculiar historical origins of the concept of emancipation

is contained in H. Clark, The Law of Domestic Relations § 8.3 at 240 (1968).
"It is the author's personal experience that pro se respondents routinely resist support

enforcement actions on the basis that the minor child has attained the age of eighteen.

See also Hayden v. Hite, 437 N.E.2d 133 (Ind. Ct. App. 1982).

'^IND. Code § 31-1-1 1.5-12(e)(3) (Supp. 1984).
"Wagoner v. Joe Mater & Assocs., 461 N.E.2d 706 (Ind. Ct. App. 1984); see

generally Scott County School Dist. 1 v. Asher, 263 Ind. 47, 324 N.E.2d 496 (1975).

'H51 N.E.2d 564, 571 (Ind. Ct. App. 1984).



1985] SURVEY—DOMESTIC RELATIONS 221

Court decree fixing support, obligating each parent to submit annual

written disclosures of income to the court, and ordering that an annual

review and adjustment of the support obligation would occur as of

December 31 of each year. The wife asserted that the court's procedure

violated the letter and spirit of section 17^^ in that it permitted modi-

fication of the support order without a hearing or proof of a change

of circumstances so substantial and continuing as to render the existing

order unreasonable. A divided court of appeals rejected the wife's con-
tentions.

The Herron majority focused on Branstad v. Branstad^^ and con-

siderations of judicial economy to support its conclusions. In Branstad,
a support order containing an "escalator clause" provision requiring

annual adjustments based on the cost of living index was upheld as

consistent with public policy and the purposes of the Dissolution of

Marriage Act.^' Reiterating the Branstad analysis, the majority noted

that support orders with built-in flexibility serve the best interests of

the child by maintaining the purchasing power of the original support

order. ^^ Likewise, the Herron majority amplified the Branstad court's

invocation of judicial economy concerns, indulging in a discourse on

the role support guidelines play in reducing the "ever-increasing crust

of Htigation"" plaguing the judicial system. Noting that the support

guidelines at issue were locally-researched and tailored to the court's

socioeconomic environs, the majority concluded that there were no rea-

sonable objections to court orders incorporating such guidelines as the

measure of child support in dissolution decrees.
^"^

^'Indiana Code section 31-1-1 1.5-17(a) (Supp. 1984) reads in pertinent part: "Pro-

visions of an order with respect to child support . . . may be modified or revoked. Such
modification shall be made only upon a showing of changed circumstances so substantial

and continuing as to make the terms unreasonable."
^^400 N.E.2d 167 (Ind. Ct. App. 1980).

^'For the unanimous Branstad court, Judge Ratliff explained the policy considerations:

In summary, we approve the court's order prescribing an adjustment in

the amount of child support based upon changes in the Consumer Price Index

because the provision (1) gives due regard to the actual needs of the child, (2)

uses readily obtainable objective information, (3) requires only a simple cal-

culation, (4) results in judicial economy, (5) reduces expenses for attorney fees,

and (6) in no way infringes upon the rights of either the custodial parent or

the non-custodial parent to petition the court for modification of the decree .

Id. at 171 (footnote omitted). In Howard v. Reeck, 439 N.E.2d 727 (Ind. Ct. App. 1982),
the inclusion of escalator clauses was entrusted to the trial court's discretion.

"457 N.E.2d at 570.

"Support guidehnes no doubt serve that purpose insofar as provisional orders and

final decrees are concerned. Judge Young's dissent properly challenges the role of suppport

guidelines in postdissolution support actions, however. See infra note 65 and accompanying
text.

^457 N.E.2d at 571.



222 INDIANA LAW REVIEW [Vol. 18:211

Judge Young dissented, ^^ raising a reasoned challenge to the ma-
jority's conclusion that the automatic annual adjustment based on a

support guideline necessarily results in judicial economy. He observed
the procedure required the trial court to annually monitor and review

all of its existing support orders, a time-consuming administrative task

not statutorily mandated. Additionally, he questioned whether the annual

financial statements filed by ex-spouses might result in repeated litigation

where the accuracy of those reports is challenged. Finally, he found

the Hendricks Circuit Court's procedure violated the evidentiary standard

set out in section 17.

It should be noted that in Herron, the wife challenged the trial

court's procedure prospectively.^^ For that reason, the debate will and

mus^ continue. In resolving unsettled issues, two matters must be rec-

ognized. First, a support "guideUne" which is utilized without a hearing

to modify a support order is in fact a "mandatory schedule. "^^ Second,

there is a distinct difference between an annual adjustment based on

the cost of living index, as in Branstad, and annual review which, as

in Herron, also factors in the respective incomes of the parties; the

former generally results in a modest adjustment, while the latter may
effect a dramatic redistribution of the support obligations of parents. ^^

Within this framework and in the context of a post adjustment challenge

to the administrative approach applied by the Hendricks Circuit Court,

its procedure awaits further assessment against the strictures of Section
17.69

''Id.

^*Both the majority and dissenting opinions suffer from the lack of a factual context

in which to assess fully the effects of the Hendricks Circuit Court's procedure. In that

respect, Herron has an advisory quality which weighs against its value as precedent.

Whether the issue was ripe for review is arguable, a matter complicated by the majority's

express refusal to dispose of the question on the basis of the "invited error" doctrine

eveiT though its applicability was recognized. Id. at 569.

''^Likewise, the phrase "adjustment of support" is but a euphemism for "modification

of support" when the parties' respective incomes are considered by the court. Semantics

should not obscure the debate.

''''Herein lies the gist of the wife's procedural argument that the automatic modification

placed an unfair burden upon her to disprove any annual adjustment by the court.

Assuming an annual review results in a drastic reduction of the husband's obligation, the

Herron majority found nothing amiss in the fact that the burden of proof has apparently

shifted to the wife to establish a change of circumstances so substantial and continuing

as to render the modified support order unreasonable. That result seems clearly to contravene

Indiana Code section 31-1-1 1.5-17(a) (Supp. 1984), particularly where the validity of income
figures submitted by sometimes vexatious spouses is subject to different interpretations.

It is not uncommon, for instance, for spouses to place assets in a third party's name to

avoid increases or enforcement of support obligations.

^'Given the Herron majority's emphasis on "judicial economy," it is perhaps ap-

propriate that in the final assessment of the procedure employed by the Hendricks Circuit

Court, the admonition of Judge Sullivan in Hardiman v. Hardiman, 152 Ind. App. 675,

284 N.E.2d 820 (1972), should also be considered:



1985] SURVEY—DOMESTIC RELATIONS 223

3. Health and Hospitalization Insurance. —Pursuant to Section 12^°
of the Dissolution of Marriage Act, a support order may include "special
medical, hospital or dental expenses" incurred on behalf of the minor

child. The scope of the trial court's authority to ensure that health care
is provided to the minor children of divorcees was expanded by the

1984 General Assembly which, via enactment of section 12.1, granted

the court discretion to require that a parent maintain "basic health and

hospitalization insurance coverage for the child. "^* When a title IV-D
agency petitions the court for such an order, however, the trial court

must "consider" granting the petition if the insurance coverage "is

available to the parent at reasonable cost."^^ Identical provisions were

also inserted in Section 13 of the Paternity Act.^^

D. Interspousal Surveillance

Marital litigation is one of the three major catalysts for the private

usage of surveillance in the United States. ^"^ That unsettling conclusion

was part of the legislative history underlying congressional passage of

title III,^^ which proscribes the intentional interception and recording of

We are not unaware that tedium predominates in most divorce trial calenders,
and that such occupy much of a trial judge's time. . . . However, we cannot
condone expeditious disposition of the issues involved in each individual divorce

action merely because the successive hearing of many such actions may be less
than exciting or professionally challenging. The parties to the litigation, and to

be sure, our very system of justice are entitled to a full and complete airing

of the material issues.

Id. at 680, 284 N.E.2d at 823-24 (emphasis added).

™lND. Code § 31-1-11.5-12 (Supp. 1984).
^'Act of Feb. 29, 1984, Pub. L. No. 152-1984, § 1, 1984 Ind. Acts 1299, 1299-1300

(codified at Ind. Code § 31-1-11.5-12.1 (Supp. 1984)).
'Ud. See also Act of Feb. 19, 1984, Pub. L. No. 152-1984, § 3, 1984 Ind. Acts

1299, 1300 (codified at Ind. Code § 31-1-11.5-17.1 (Supp. 1984)). A title IV-D agency
is statutorily entitled to obtain an order for health insurance coverage by initial or

modification proceedings. Curiously, no statutory language authorizes an individual to

seek such an award by modification proceedings. That dichotomy is surely an oversight

rather than a reflection of a legislative obsession for reimbursement of public assistance

rendered.

^^Act of Feb. 19, 1984, Pub. L. No. 152-1984, § 5, 1984 Ind. Acts 1299, 1300-02

(codified at Ind. Code § 31-6-6.1-13 (Supp. 1984)).
^''Witnesses testifying before 1968 congressional committees concerned with title III

included G. Robert Blakely, Notre Dame Professor and author of the Act, who observed
that "private bugging in this country can be divided into two broad categories, commercial

espionage and marital litigation." Hearings on the Right to Privacy Act of 1967 Before

the Subcomm. of Administrative Practice and Procedure of the Senate Comm. on the
Judiciary, 90th Cong., 1st Sess. 413 (1967). Other testimony corroborated Blakely's view.

See Pritchard v Pritchard, 732 F.2d 372 (4th Cir. 1984).

"18 U.S.C. §§ 2510-20 (1982). Extensive analysis of the Act's applicability to in-

terspousal surveillance is contained in Note, Interspousal Electronic Surveillance and Title

III, 12 Val. U.L. Rev. 537 (1978).



224 INDIANA LAW REVIEW [Vol. 18:211

oral and wire communications.^^ Since its inception, the applicability of

the Act to interspousal electronic surveillance is a matter which has

troubled courts, resulting in dichotomous case precedent. Some courts
have followed the lead of Simpson v. Simpson,'''^ where the Fifth Circuit

Court of Appeals concluded that Congress did not intend the Act to

reach interspousal surveillance. The Sixth Circuit Court of Appeals'

decision in United States v. Jones,^^ that the marital relationship was

within the scope of the Act's prohibition, has been invoked by other

courts. ^^ The survey-period saw the balance tipped.

In Pritchard v. Pritchard,^^ the Fourth Circuit Court of Appeals

confronted the question whether title III authorized a civil action against

a former spouse for her interception and recordation of conversations

conducted over the family telephone. Relying on Simpson, the district

court had dismissed the suit. The Fourth Circuit examined the language
and legislative history of title III and found no support for the Simpson

court's conclusion that interspousal surveillance was implicitly exempted

from the Act.^' Concurring in the Simpson court's resolution that ''state

and not federal courts are better suited to handle domestic conflicts, "^^

the Fourth Circuit nevertheless reinstated the civil cause of action and

remanded it to the district court. A similar result was reached in Burgess
V. Burgess, ^^ where a divided Florida Supreme Court found that the

^^Title III establishes both criminal and civil sanctions for its violation. 18 U.S.C.

§ 2511 (1982) (criminal penalties), 18 U.S.C. § 2520 (1982) (civil penalties).

"490 F.2d 803 (5th Cir.), cert, denied, 419 U.S. 897 (1974). Courts which have

implemented a Simpson approach include Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E.2d

910 (1974) and Baumrind v. Ewing, 276 S.C. 350, 279 S.E.2d 359, cert, denied, 454 U.S.

1092 (1981).

^«542 F.2d 661 (6th Cir. 1976).

^^Flynn v. Flynn, 560 F. Supp. 922 (N.D. Ohio 1983); Heyman v. Heyman, 548 F.
Supp. 1041 (N.D. 111. 1982); Citron v. Citron, 539 F. Supp. 621 (S.D.N.Y. 1982); Gill

V. Wilier, 482 F. Supp. 776 (W.D.N.Y. 1980); Kratz v. Kratz, 477 F.Supp. 463 (E.D.

Pa. 1979); Rickenbaker v. Rickenbaker, 290 N.C. 373, 226 S.E.2d 347 (1976).
«°732 F.2d 372 (4th Cir. 1984).

^'Id. at 374. The Fourth Circuit unequivocally rejected the twin postulates of the

Simpson rationale. First, it found no ambiguity in the language of title III to warrant

resort to rules of statutory interpretation. Id. at 373. Second, it found the legislative

history indicated Congress was fully aware of the extent of interspousal surveillance and,

having failed to create an express exception for such conduct, intended it to fall within

the statutory proscription. Id. at 373-74.

^^Id. at 374. The implications for principles of comity and federalism which troubled

the Simpson court are examined in Note, supra note 75, at 550-51.

"447 So. 2d 220 (Fla. 1984), rev'g 417 So. 2d 1173 (Fla. Dist. Ct. App. 1982)

(applying state law). The majority's observations regarding the juxtaposition of electronic

surveillance and the sanctity traditionally accorded the marital relationship are noteworthy:

It is undisputed that spying and prying by one spouse into the private telephone

conversations of the other does not contribute to domestic tranquility or assist

in preserving the marital estate. . . . Eavesdropping, by nature, undermines the

faith and trust upon which the institution of marriage is founded.

Id. at 222-23 (citation omitted). Accord Note, supra note 75, at 551.



1985] SURVEY—DOMESTIC RELATIONS 225

doctrine of interspousal tort immunity still extant in that state did not

preclude a civil remedy for one spouse's electronic surveillance of tiie

other.

This increasing tendency of courts to cast aside protection for spouses

who engage in electronic surveillance of their marital partners warrants

the attention of Indiana practitioners, whose courts have held that

evidence acquired by such surreptitious techniques is admissible for

impeachment purposes. ^"^ Whatever strategic value the fruits of inter-

spousal electronic surveillance may have in dissolution proceedings, eaves-
dropping should be used only with recognition of the potential for civil

and criminal liability. ^^

E. Maintenance

1. Statutory Developments: Maintenance for the Custodial Parent

and the Displaced Homemaker.—Dramatic statutory changes in the law
of maintenance were promulgated by the 1984 General Assembly. Ef-

fective September 1, 1984, spouses whose availability for employment

is effectively precluded by their responsibilities as the custodial parent

may be eligible for maintenance "in an amount and for a period of
time as the court deems appropriate."^^ Similarly, spouses whose marital

role as homemaker has adversely affected their employability may seek
"rehabilitative maintenance"^^ for a period not in excess of two years.

With these amendments to section 11, the legislature has radically re-

structured the framework in which a client's dissolution case must be

assessed.

The provisions for "custodial maintenance" provide:
If the court finds a spouse lacks sufficient property, including

marital property apportioned to him, to provide for his needs

and that spouse is the custodian of a child whose physical or

mental incapacity requires the custodian to forego employment,

the court may find that maintenance is necessary for that spouse
in an amount and for a period of time as the court deems

appropriate.^^

^In re Marriage of Lopp, 268 Ind. 690, 378 N.E.2d 414 (1978); see also. Jacks v.

State, 271 Ind. 611, 394 N.E.2d 166 (1979). The Act expressly precludes the use of the

fruits of electronic surveillance for evidentiary purposes. 18 U.S.C. § 2515 (1982).

^'Criminal penalties include a $10,000 fine and/or imprisonment for a period not

in excess of five years. 18 U.S.C. § 2511 (1982). Civil penalties include actual damages

not less than $1,000, punitive damages, and attorney fees and costs. 18 U.S.C. § 2520

(1982). The doctrine of interspousal tort immunity was abrogated in Indiana in Brooks

v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972).

^''Act of Mar. 2, 1984, Pub. L. No. 150-1984, § 2, 1984 Ind. Acts 1290, 1292-93

(codified at Ind. Code § 31-1-1 1.5-1 1(d)(2) (Supp. 1984).
^'Id.

''Id.



226 INDIANA LAW REVIEW [Vol. 18:211

Two prerequisites for an award of custodial maintenance are established.
First, there must exist a child whose "physical or mental incapacity

requires the custodian to forego employment. "^^ The vagueness inherent

in the concept of a minor child's physical or mental incapacity must

be interpreted by reference to the legislature's use of the mandatory

term "requires": unemployment must be necessitated by the custodial

role. Consequently, the extent of job opportunities and the custodian's

qualifications for employment should not be considered germane. ^° The

focus must be the individual condition and circumstances of the minor

child and the resulting demands upon the custodian. The experience of

other jurisdictions with similar legislation^' indicates that factors relevant

to those considerations include the number and ages of children, "^^ ^\^q[y

physical and emotional needs, ^^ the suitability and availability of third

party assistance to meet those needs, ^"^ and a child's enrollment in school. ^^

The second prerequisite to an award of custodial maintenance is

that the custodian lacks "sufficient property, including marital property

apportioned to him, to provide for his needs. "^^ Obviously, satisfaction

of this requirement cannot be established until the trial court has cal-

culated the manner in which the marital assets will be distributed; not

until that point in time can the resources of the custodian be reduced

to a sum certain. On the other hand, the needs of the custodial parent
can be established at final hearing with the presentation of evidence

^"^Id. (emphasis added).

'"Those factors are part of the remedy of rehabilitative maintenance. See infra notes

101-06 and accompanying text.

''Other jurisdictions generally have adopted the language of the Uniform Marriage

and Divorce Act, wherein the award of custodial maintenance is made dependent upon

the existence of "a child whose condition or circumstances make it appropriate that the

custodian not be required to seek employment outside the home," together with a lack

of financial resources "to provide for his [the custodian's] reasonable needs." Unif.

Marriage and Divorce Act, § 308 9A U.L.A. 160 (1979). See In re Marriage of
Thornqvist, 79 111. App. 3d 791, 399 N.E.2d 176 (1979); Inman v. Inman, 578 S.W.2d

266 (Ky. Ct. App. 1979); Cook v. Cook, 614 P. 2d 511 (Mont. 1980).

^'See, e.g., Reyna v. Reyna, 78 111. App. 3d 96, 398 N.E.2d 641 (1979) (four children,

including a two-year-old); In re Marriage of Vashler, 183 Mont. 444, 600 P.2d 208 (1979)

(nine-year-old child). Indiana precedent suggests, however, that age alone should not be

dispositive of the question whether a child is incapacitated. Cf. Bole v. City of Ligonier,

130 Ind. App. 362, 161 N.E.2d 189 (1959) (addressing whether advanced age of itself can

be considered as a ground for incapacity).

"KSee Smith v. Smith, 105 111. App. 3d 980, 434 N.E.2d 1151 (1982) (ten-year-old

child with emotional problems).

'^Babysitting and day care expenses routinely figure in the calculation of child support

obligations. Where such services are available and do not impair the best interests of the

child, the custodian may be capable of employment. Cf. Richie v. Richie, 596 S.W.2d

32 (Ky. Ct. App. 1980) (enrollment in school enabled mother to work outside the home).

''Id.

Hnd. Code § 31-1-11.5-1 1(d)(2) (Supp. 1984).



1 985] SUR VEY—DOMESTIC RELA TIONS 227

regarding the monthly costs of those needs. Existing Indiana precedent

dictates that the statutory term "needs" be regarded as a relative term

defined with reference to the standard of living established in the mar-

riage.
^^

It also should be recognized that the trial court has authority to

award custodial maintenance of virtually unhmited duration: "for a

period of time as the court deems appropriate."^*^ This provision po-

tentially bears significant adverse consequences for the legislature's policy

of encouraging amicable settlements of marital dissolutions. Spouses who
might otherwise accept the noncustodial parenting role may opt to litigate
custody in the face of the significant economic consequences which can

follow from their acquiescence „ That specter should be tempered by the

realization that maintenance awards bear tax benefits^^ and are subject

to modification if conditions so warrant.'^

The concept of "rehabilitative maintenance" represents the General

Assembly's overdue response to the reality of the "displaced home-

maker. "'°' Following the nationwide assault upon the concept of alimony

''One factor in the calculation of Indiana's traditional maintenance awards has been

the standard of living established in the marriage. See Temple v. Temple, 164 Ind. App.

215, 328 N.E.2d 227 (1975). Other jurisdictions have applied the standard to custodial

and rehabihtative maintenance. See, e.g.. In re Marriage of Rimmele, 102 111. App. 3d

88^ 429 N.E.2d 879 (1981). "Needs" are not automatically commensurate with the marital

standard of Hving, of course. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo, Ct.

App. 1977).

''«lND. Code § 31-1-1 1.5-1 1(d)(2) (Supp. 1984).
'^See infra note 110 for a discussion of tax aspects.

'""Since the inception of Indiana's Dissolution of Marriage Act in 1973, maintenance

awards based on the physical or mental incapacity of a spouse have been subject to

"further order of the court." Ind. Code § 31-1-11.5-9 (c) (Supp. 1984). Curiously, no

such qualification was included in the statutory amendments authorizing custodial or

rehabilitative maintenance. This legislative oversight should not preclude the potential

modification of either of the latter forms of maintenance. The spirit of the legislation

must prevail: if the recipient of maintenance has remarried, obtained gainful employment,

inherited significant sums, or won the Irish sweepstakes, it would defy the purpose of

custodial or rehabilitative maintenance to deny the obligated spouse recourse to the courts

for relief from the obligation. Pursuant to Farthing v. Farthing, 178 Ind. App. 336, 382

N.E.2d 941 (1978), modification of a maintenance award is governed by the standard of

proof enunciated in Indiana Code section 31-1-1 1.5-17(a) (Supp. 1984): "a showing of

changed circumstances so substantial and continuing as to make the terms unreasonable."
""The term "displaced homemaker" is generally attributed to Justice Gardner in his

landmark opinion in In re Marriage of Brantner, 67 Cal. App. 3d 416, 136 Cal. Rptr.

635 (1977), where he bluntly capsulized the concept:

The new Family Law Act, and particularly Civil Code, section 4801, has
been heralded as a Bill of Rights for harried former husbands who have been
suffering under prolonged and unreasonable alimony awards. However, the Act

may not be used as a handy vehicle for the summary disposal of old and used
wives. A woman is not a breeding cow to be nurtured during her years of
fecundity, then conveniently and economically converted to cheap steaks when

past her prime. If a woman is able to do so, she certainly should support



228 INDIANA LAW REVIEW [Vol. 18:211

which marked American jurisprudence in the early 1970's, courts and

commentators ahke recognized the inequitable fate which befell spouses

who, by virtue of their marital roles, held no reasonable postdissolution

prospect of employment.'"^ Historically, our culture has imposed that

inequity upon ex-wives.'"^ Without regard to gender, however, the 1984

legislature has provided that for a transitional period not in excess of

two years from the date of final decree, spouses may be awarded
maintenance while they rehabilitate their employment skills.

The propriety and amount of the rehabilitative award are governed

by specific statutory considerations:

(A) the educational level of each spouse at the time of marriage

and at the time the action is commenced;

(B) whether an interruption in the education, training, or em-

ployment of a spouse who is seeking maintenance occurred during
the marriage as a result of homemaking or child care respon-
sibilities, or both;

(C) the earning capacity of each spouse, including educational

background, training, employment skills, work experience, and
length of presence in or absence from the job market; and

(D) the time and expense necessary to acquire sufficient education

or training to enable the spouse who is seeking maintenance to
find appropriate employment. '""^

The statutory considerations parallel those given effect in sister states,

where extensive litigation has estabHshed the issue as a fact-sensitive

matter of competing policy considerations.'"^ Both spouses' circumstances

must be weighed, for it is the purpose of rehabilitative maintenance to

promote individual self-sufficiency. Given the two year time limitation

present in our statutory scheme, that goal will not be realized in every

case.'"^ Nonetheless, the remedy of rehabilitative maintenance represents

a valuable transitional vehicle for the homemaker's postdissolution eco-

nomic footing.

herself. If, however, she has spent her productive years as a housewife and

mother and has missed the opportunity to compete in the job market and

improve her job skills, quite often she becomes, when divorced, simply a

"displaced homemaker."

67 Cal. App. 3d at 420, 136 Cal. Rptr. at 637.
The concept is discussed in the context of Indiana authority in Garfield, Indiana's

Displaced Homemakers, 23 Res Gestae 80 (1979).

"'^Garfield, supra note 101, at 80.

'"^As Professor Garfield parenthetically noted in her article, "Because the househusband

was unknown 20-30 years ago, she [the displaced homemaker] will invariably be female."
Id. at 81. An excellent analysis of these historical and policy considerations is found in
Turner v. Turner, 158 N.J. Super. 313, 385 A.2d 1280 (1978), where the remedy of

rehabilitative maintenance was invoked by the court.

'o^lND. Code § 31-1-1 1.5-1 1(d)(3) (Supp. 1984).
'°'See authorities collected in Annot., 97 A.L.R. 3d 740 (1980) and Unif. Marriage

AND Divorce Act § 308, 9A U.L.A. 160 (1979).
"^Some spouses may be rendered permanently unemployable by a juxtaposition of



1985] SURVEY—DOMESTIC RELATIONS 229

2. Findings of Fact and the Award of Maintenance.—The General
Assembly complemented its survey-period amendments authorizing cus-
todial and rehabilitative maintenance with legislation which requires the

trial court to make findings of fact whenever any form of maintenance
is awarded. '°^ The legislature thereby rendered moot the debate raised
in Coster v. Coster, ^^^ where Judge Ratliff challenged the majority's

conclusion that such findings were not necessary to support an award

of maintenance. '°^ The legislature's mandate ensures the type of main-

tenance awarded will be identified in the final decree, a matter important

to appellate review and principles of continuing jurisdiction. Likewise,

the fact-finding requirement will eliminate doubts as to the tax rami-

fications of any particular award and, in turn, ensure the trial court

has apprised itself of all monetary aspects of its decree. "°

F. Property

1. Property Settlements: Oral versus Written Agreements.—No single
survey-period decision in domestic relations potentially bears such work-

aday consequences for the family law practitioner as McClure v. McClure.^^^

In McClure, the court of appeals dealt a setback to certainty in the law

of property settlements.

Consistent with the General Assembly's stated policy "[t]o promote

the amicable settlements of disputes" ''^ which attend the breakup of

local economic conditions, age, and their prolonged absence from the job market; other

jurisdictions accommodate this inevitable consequence with permanent awards of main-

tenance subject to further order of the court. See, e.g., Kalmutz v. Kalmutz, 299 So. 2d

30 (Fla. Dist. Ct. App. 1974); In re Marriage of Wisniewski, 107 111. App. 3d 711, 437

N.E.2d 1300 (1982). Indiana's statutory scheme precludes such awards absent physical or

mental incapacity of a spouse. The two year limitation does serve two purposes: 1) the

obligated spouse is provided with certainty as to the nature and extent of his obligation;

and 2) indolence is discouraged as the recipient is provided with an immediate time period

in which to pursue training or employment. See Turner v. Turner, 158 N.J. Super. 313,

385 A.2d 1280 (1978).

'o^Act of Mar. 2, 1984, Pub. L. No. 150-2984, § 1, 1984 Ind. Acts 1290, 1290-91

(codified at Ind. Code § 31-l-11.5-9(c) (Supp. 1984). The amendment states that "[t]he

court may order maintenance in final decrees entered under subsections (a) and (b) after
making the findings required under section 11(d) of this chapter."

'°«452 N.E.2d 397 (Ind. Ct. App. 1983.)

"»M at 404 (Ratliff, J., concurring).
""Payments by one spouse for the support of the other are "income" to the recipient

and deductible by the payor. Property distributed pursuant to a final decree does not

necessarily bear those tax ramifications. See Hicks v. Fielman, 421 N.E.2d 716 (Ind. Ct.

App. 1981) (citing 26 U.S.C. §§ 71 (a)(1), 215 (1967)). An express finding that an award
is maintenance alleviates the need to resort to the subjective set of factors developed to

distinguish between awards of maintenance and property settlements. See Pfenninger v.

Pfenninger, 463 N.E.2d 115 (Ind. Ct. App. 1984).
'"459 N.E.2d 398 (Ind. Ct. App 1984) (Sullivan, J., concurring).
"^ND. Code § 31-1-1 1.5-10(a) (1982). See generally Meehan v. Meehan, 425 N.E.2d

157 (Ind. 1981); Stockton v. Stockton, 435 N.E.2d 586 (Ind. Ct. App. 1982).



230 INDIANA LAW REVIEW [Vol. 18:211

a marriage, authority for parties to "agree in writing''' to the disposition

of property is contained in Section 10"^ of the Dissolution of Marriage

Act. Notably, no statutory authority for the oral settlement of property

issues exists in the Act. In the 1977 decision of Waitt v. Waitt,^^"^ however,

the court of appeals held it is not error for a trial court to adopt and

incorporate an oral property settlement if it determines on the basis of
those factors enumerated in Section 11"^ that the agreement is just and

reasonable.

McClure involved a factual interpolation of these two basic rules

of property settlements. The final dissolution hearing of Mildred and

Emory McClure was set on the trial court's calendar as a contested
matter. As commonly occurs, the parties and their attorneys arrived at
the courthouse for final hearing and entered into ex parte negotiations

which culminated in an oral agreement for the disposition of their

property. The parties then convened in open court and, in conjunction

with the necessary evidence regarding the breakdown of their marriage

and the status of their children,''^ orally stipulated the terms of their

proposed property settlement into the record. Both the wife and the

husband personally indicated their assent to the agreement. At the

prompting of the trial judge, both attorneys verbally represented that

the agreement would be reduced to writing. The hearing concluded with

the following discussion between court and counsel:

"The Court: Fine. I do wish both counsel would sign it though,

because I had another one in here, well all the time you get

one, they don't pass it to the other counsel and all of a sudden,

why, someone wants to set aside the Divorce Decree and all

that so, have everybody sign it. [Counsel for Mildred] Both

counsel will sign it.

"^iND. Code § 31-1-11. 5-10(a) (1982).
"M72 Ind. App. 357, 360 N.E.2d 268 (1977).
"^Ind. Code § 31-1-11.5-11 (Supp. 1984). The factors enumerated therein are:

(1) The contribution of each spouse to the acquisition of the property, including

the contribution of a spouse as homemaker.

(2) The extent to which the property was acquired by each spouse prior to the

marriage or through inheritance or gift.

(3) The economic circumstances of the spouse at the time the disposition of the

property is to become effective, including the desirability of awarding the family

residence or the right to dwell therein for such periods as the court may deem
just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition

or dissipation of their property.

(5) The earnings or earning ability of the parties as related to a final division

of property and final determination of the property rights of the parties.

"^Ind. Code § 31-1-11.5-8 (1982) (deahng with final hearings). The McClures' children
were emancipated.



1985] SURVEY—DOMESTIC RELATIONS 231

The Court: We're really in no hurry for it. Get it in the first

part of next week, that's alright if everybody can sign it. Okay,

thank you gentlemen.""^

The trial court then entered the following entry into its order book:

''Dissolution granted; hold for decree and property settlement. ''^^^

The trial court's observation that "all of a sudden, . . . someone

wants to set aside the Divorce Decree and all that" then turned prophecy.

Sometime subsequent to the final hearing, the wife recanted her ac-

ceptance of the terms of the agreement. Two weeks after final hearing,
with the record still lacking a signed written agreement,"^ the wife filed

a petition to set aside the oral settlement. She asserted that stress suffered

by her at the time of the final hearing precluded her knowing acceptance

of the property settlement terms; '^° she also posited a Waitt-bdiSQd ar-

gument that the oral in-court agreement could not be made binding
upon the parties because the trial court had not received and heard

evidence establishing that the settlement was in fact just and reasonable.

Following a hearing, the trial court denied the wife's petition and "ap-

proved" the property settlement "as it appears in transcript" of final

hearing. •^' A decree of dissolution and a document delineating the terms
of the oral property agreement were subsequently filed with the court.

The latter document bore only the signatures of the husband and his

counsel. The dissolution decree and document of property disposition

were approved and signed by the trial judge and the parties were ordered

to effectuate the terms of their settlement as orally tendered at final

hearing. The wife's motion to correct errors was denied and she appealed.

On appeal, the wife reiterated her Waitt-bdiSQd argument. The court of
appeals, however, ignored that contention and its precedential foundation.

The appellate court instead disposed of the wife's appeal on the basis

of her claim that the trial court had erred in adopting a property

settlement which she had timely repudiated. '^^ For the majority. Chief

"M59 N.E.2d at 399 (quoting the trial court record).

""M (quoting the trial judge's order book entry of Nov. 24, 1982).
"^It is unclear whether the delay prompted the wife's change of heart or the wife's

recantation precipitated the delay.

'^"Although this issue was not addressed on appeal, it underscores the attention McClure

warrants. Emotion pervades divorce; stress, vacillation, and vindictiveness commonly attend

the breakup of a marriage. A written and signed agreement militates against the ability
of a party to successfully assert, for whatever reason, that the terms of a settlement were

not knowingly or voluntarily accepted or that counsel acted improperly in binding the

party to the agreement. See generally Bramblet v. Lee, 162 Ind. App. 654, 320 N.E.2d

778 (1974).

'^'459 N.E.2d at 400 (emphasis omitted).

'^/c?. at 401. It is interesting to observe that the wife regarded her Waitt-hased

argument as the more compelling of her contentions. The "Argument" portion of her

brief began with her Waitt argument, which continued for 13 of the 15 pages devoted



232 INDIANA LAW REVIEW [Vol. 18:211

Judge Buchanan emphasized at the outset of his opinion that the "salient

fact in this case is that there never was a property settlement agreement

in writing between the parties for the court to approve."'" Chief Judge

Buchanan quoted Section 10 of the Dissolution of Marriage Act and

observed, '*The plain language of this provision requires a written agree-

ment."'^'* He also noted that paragraph b of Section 10 requires the
court's approval, incorportion, and merger of the terms of the agreement

into the dissolution decree. Unsettling language was then injected into

the opinion: "The simple two-step process necessary to bring a valid
property settlement agreement into existence never occurred in this case."'^^

Given the unequivocal nature of the court's language and the analysis

preceding it, the reader might justifiably conclude that the court ruled

only written property settlements are valid in Indiana.

That was not the basis for the court's holding, however, as its

subsequent factual analysis reveals. Ultimately, the court's conclusion

that the agreement was not properly binding on the parties was predicated

on two bases: 1) the trial court did noi formally approve^^^ the agreement

at the hearing where it had been orally tendered, but rather required

submission in writing; and 2) the wife repudiated the agreement prior

to its submission in writing. '^^ Chief Judge Buchanan characterized the

trial court's requirement of a written agreement as a "condition prec-

edent" to approval and concluded that "[the wife's] right to repudiate

to that section. Brief for Appellant at 4-15; 459 N.E.2d at 400 (wife's attack premised

on court's failure to determine the reasonableness of agreement). The prominence of Waitt

in the wife's brief highlights the majority's unwillingness to rely on Waitt.

'"459 N.E.2d at 400.

'^M (footnote omitted). Section 31-1-1 1.5-10(a) of the Indiana Code provides "the
parties may agree in writing" to the disposition of their property. Those who would argue
the "plain language" of section 10(a) does not require a written agreement should realize

the majority's statement is supported by precedent not cited in its opinion. Our appellate

tribunals have held it is not the judiciary's prerogative to expand the Dissolution of

Marriage Act beyond that authority expressly or implicitly granted by its statutory terms.

See, e.g., Taylor v. Taylor, 436 N.E.2d 56 (Ind. 1982), rev'g 425 N.E.2d 649 (Ind. Ct.

App. 1981); Lord v. Lord, 443 N.E.2d 847 (Ind. Ct. App. 1982). In section 10(a),

authority is granted for written property settlements; the use of oral agreements was

neither approved nor disapproved. Obviously, the majority wished to avoid the question

whether oral agreements were permissible, for it neither invoked the rule found in Lord

and Taylor nor expressly recognized the Waitt court's conditional approval of the use of

oral property settlements.

'"459 N.E.2d at 401.

^^^Id. Again, the majority opinion suffers a lack of clarity. In the husband's brief,

he specifically argued that the trial court had approved the oral agreement at final hearing.

Brief for Appellee at 17, 23; 459 N.E.2d 400. Inasmuch as the husband's factual assertions

were not addressed by the majority, it must be assumed the court relied on the rule that

a court speaks only through its official orders and entries. See Meehan v. Meehan, 425

N.E.2d 157, 159 (Ind. 1981). The trial court did not expressly approve the McClures'

agreement in its docket and order book entry for the final hearing. 459 N.E.2d at 399.
'2^59 N.E.2d at 401.



1985] SURVEY—DOMESTIC RELATIONS 233

before the two-step process is complete has been upheld by this court.

. . . We need not elaborate further, but would emphasize that our
decision is grounded solely on error by the trial court in approving an

agreement that was timely repudiated. '^^

The closing caveat clarifying the import of the majority opinion

dispels any notion that its langauge necessarily should be interpreted to

preclude the use of oral agreements. Indeed, Chief Judge Buchanan

stated in footnote one of his opinion that the majority was not deciding

the "validity of a stipulated oral agreement. "'^^ Ultimately, no black

letter rule of law can be drawn from McClure. Apparently, however,

had the trial court formally approved the agreement at the close of the

final hearing, the wife's posthearing renunciation of the agreement would

have been without consequence. Solely on this basis did Judge Sullivan

join the majority opinion. In his concurring opinion, he carefully dis-

associated himself from the impHcation in the majority's analysis that

only written property settlements may be valid. '^°

Practitioners should warily recognize this aspect of McClure and do

the obvious: whenever possible, reduce any property agreement to writing

prior to final hearing. In that respect, the vagueness of McClure serves

a positive purpose, for the physical act of reducing an oral agreement

to written and signed form is deemed to ensure that the parties have

carefully considered and accepted its terms. '^' Lacking that document,

however, a practitioner who proceeds to an uncontested final hearing
without a written agreement should recognize two priorities: 1) presenting

evidence to establish the terms of the agreement are just and reasonable,

in accordance with Waitt; and 2) attempting to obtain formal approval

of the agreement on the trial court's- order book entry, as per the

implication of McClure. The need for an immediate ruling by the trial

court which McClure fosters is unfortunate. The trial court's responsibility

to determine that, based on the evidence presented, the terms of an oral

agreement are just and reasonable necessarily includes the license to take

that question under advisement. Caution is particularly demanded when

the parties' agreement also embraces matters of custody, as commonly
occurs. '^^ A trial court's exercise of that prerogative should not be

'''Id.

^'^Id. at 400 n.l. Ironically, the footnote ends with a citation to Waitt.

'^°Id. at 401 (Sullivan, J., concurring). In his concurring opinion, Judge Sullivan cited

Bramblett v. Lee, 162 Ind. App. 654, 320 N.E.2d 778 (1974), where it was held that

pursuant to Indiana Code section § 34-1-60-5, an attorney has authority to orally bind
a client to an agreement, even where it is presented by telephone and results in judgment

of paternity. Practitioners should recognize that authority no longer extends to paternity

default determinations. See infra note 177 and accompanying text.

'3'Waitt V. Waitt, 172 Ind. App. at 362, 360 N.E.2d at 272.

'"To be sure, the trial court's authority to reject or modify a property settlement is

limited to instances of "unfairness, unreasonableness, manifest inequity ... or [where]
the execution of the agreement was procured through fraud, misrepresentation, coercion.



234 INDIANA LAW REVIEW [Vol. 18:211

restricted by the possibility that an otherwise just and reeasonable agree-

ment may be jeopardized by the effects a brief delay may work on the
hearts and minds of persons experiencing divorce.

Given the practical significance to parties and practitioners of the

questions raised by McClure, the legislature should act immediately to

define the capacity of parties to submit oral property settlements. The

present confusion may be the result of our appellate tribunals' traditional
unwillingness to expand the Dissolution of Marriage Act beyond its

letter.'" Authority for the oral settlement of property rights either should

be expressly granted or denied. If granted, it is submitted that a proviso

be included whereby, absent good cause shown, parties to an oral

agreement tendered in open court be bound thereto for a period of not

less than ten days.'^'^

2. Alimony in Gross: Interest versus Present Value Discounted.—
Section 1 1 of the Dissolution of Marriage Act authorizes trial courts to

"divide the property of the parties . . . either by division of the property

in kind, or by setting the same or parts thereof over to one (1) of the

spouses and requiring either to pay such sum, either in gross or in

installments, as may be just and proper.' '^^^ The Act is silent, however,
regarding whether a monetary award made payable in installments, char-
acterized by one court as "alimony in gross, '"^^ should bear interest.

The failure of trial courts to award interest on installment plan awards
recently has been attacked by ex-spouses; their appellate challenges have

resulted in an edifying collection of precedent regarding the valuation

of such awards. The focus of that precedent is the economic principle
of "present value discounted" or, as described in the survey-period

duress, or lack of full disclosure." Stockton v. Stockton, 435 N.E.2d 586, 589 (Ind. Ct.

App. 1982). It is not uncommon, however, for the parties' property settlement to also
embrace matters of custody, visitation and support. See, e.g., Meehan v. Meehan, 425

N.E.2d 157, 158 (Ind. 1981). Agreements concerning minor children demand stricter scrutiny

from trial courts. Cf. Stevenson v. Stevenson, 173 Ind. App. 495, 364 N.E.2d 161 (1977)

(factual basis must be established for custody agreement); Delong v. Delong, 161 Ind.

App. 275, 315 N.E.2d 412 (1974) (factual basis must be established for support agreement).

Practitioners also should recognize that, because of McClure, a trial court, like the court

in McClure, might refrain from approval of an oral agreement pending written submission

for the purpose of ensuring a party has carefully considered and accepted its terms. See

supra note 131 and accompanying text. That occurrence is more probable when one of

the parties proceeds pro se. E.g., Stockton v. Stockton, 435 N.E.2d 586 (Ind. Ct. App.

1982).

'"5e^ supra note 124. This reluctance perhaps explains the narrow and technical

approach employed by the appellate court in McClure as well as its refusal to utilize the

precedent established in Waitt.

"''The ten day period of presumptive enforceability would perpetuate the trial court's

prerogative to take the propriety of an oral agreement under advisement.

'«Ind. Code § 31-1-11.5-1 1(b) (1982) (emphasis added). The authority of the court
to make a monetary award payable in installments was summarily affirmed during the
survey period. Boren v. Boren, 452 N.E.2d 452, 455 (Ind. Ct. App. 1983).

''"Van Riper v. Keim, 437 N.E.2d 130, 132 n.l (Ind. Ct. App. 1982).



1985] SURVEY—DOMESTIC RELATIONS 235

decision of In re Marriage of Merrill, ^^^ "the time value of money." '^*^

In Merrill, the husband was ordered to pay the wife $10,415 in

annual installments of $1,000. The wife challenged the failure of the
trial court to award interest on the toal monetary sum, arguing the

actual value of $10,415 made payable over eleven years was less than
$7,000. The court of appeals agreed with her mathematical assessment
of the total time would take on her award, but rejected her contention

that the trial court had erred in failing to award her interest. Judge

Staton explained:

[T]he decision whether a lump sum award payable in installments
will bear interest rests within the sound discretion of the trial

court. . . . We presume that trial courts are aware of the time
value of money and take it into consideration when dividing
property and deciding whether interest should be awarded. '^^

The presumption that trial courts do consider the "time value" of money
juxtaposes neatly with the 1982 decision of Whaley v. Whaley.^"^^ There,

the trial court expressly refused to adjust an installment award to reflect

its present value discounted because no evidence had been presented on
which to base the mathematical computation. The court of appeals
reversed, holding that the appropriate method for computing a monetary
award was to discount the sum to its present value. '"^^ On remand, the
trial court was instructed either to include a provision for interest or

take judicial notice of annuity tables. '^^

The significant distinction between Whaley and Merrill is that
in the former case, the trial court expressly refused to consider present

value discounted, while in the latter case, the trial court's decree was

silent with respect to the time value of money. In order to ensure that

a trial court in fact does assess the impact of present value discounted

on an award of alimony in gross, practitioners who find that their clients
may receive such an award should: 1) specifically request an assessment
of interest to accommodate the time value of any monetary award; 2)
introduce annuity tables or move that judicial notice be taken of those
tables; and 3) request that specific findings of fact be rendered by the

court. ^"^^ Two purposes are served by these prophylactic measures. A
client is assured that the trial court has fully assessed the present value

of an award of alimony in gross. In addition, an objective foundation

'"455 N.E.2d 1176 (Ind. Ct. App. 1983).

''Hd. at 1178.

'"M at 1177-78 (citing Van Riper v. Keim, 437 N.E.2d 130 (Ind. Ct. App. 1982)).
"'°436 N.E.2d 816 (Ind. Ct. App. 1982).

'''Id. at 820.

'^^Id. at 821. An award of interest is governed by the provisions of Indiana Code
section § 24-4.6-1-101 (Supp. 1984). See, e.g.. Van Riper v. Keim, 437 N.E.2d 130, 132
(Ind. Ct. App. 1982)

'^^Ind. R. Tr. p. 52.



236 INDIANA LAW REVIEW [Vol. 18:211

for appeal is established. The latter purpose is important not only to

a potential challenge to the trial court's refusal to award interest,"^ but

also for the purpose of satisfying the "abuse of discretion" standard

of appellate review, the standard applied to challenges to the overall

disposition of marital assets and liabilities. '"^^

3. Property Disposition: Assets, Liabilities, and the Effect of Fi-

nancial Developments Pendente Lite.—Survey-period appeals from con-
tested final hearings yielded numerous developments in the area of

property disposition. Precedent collected herein involved circumstances

of a recurrent nature not heretofore addressed by Indiana's appellate

tribunals.

A philandering spouse's accumulation of assets in joint title with
his paramour was the subject of Kapley v. Kapley.^^^ The Kapleys'

marriage spanned a period of forty years from nuptials to the date of

"final separation.""*^ Throughout the latter seven years of that marriage,

however, the husband had physically separated from his wife and had

engaged in a bigamous relationship which led to his accumulation of a

joint titleship interest in real property located in Minnesota and Florida.

In the Kapleys' dissolution decree, the wife was awarded a significantly

larger portion of marital property than the husband, including sole

ownership of the parties' 198 acre farm. On appeal, the husband's
contention that the disproportionate distribution constituted "punish-

ment" for his bigamous relationship was rejected; pursuant to Indiana

Code section 31-1-1 1.5-1 1(b)(4), the bigamous relationship was viewed
as conduct related to the dissipation of marital property. The court of

appeals also rejected his assertion that the trial court improperly had

attributed to him the entire fair market value of the property held jointly

with his paramour. Employing a curious harmless error analysis, the

court found that if such valuation had occurred, "it is of arguable

detriment only to the wife for she received no portion of that property

or its value. "''^^ That rationale is dubious, for it ignores the "one pot"

'"^It should be recognized the trial court has two options by which to accommodate

present value discounted: 1) an award of interest; or 2) an increase in the total monetary

amount of the award commensurate to the decrease in present value which results from

the deferred payment plan. In the latter instance, interest accrues on the unpaid balance

once an installment is delinquent, unless the court dictates otherwise. Van Riper v. Keim,

437 N.E.2d at 130, 132 (Ind. Ct. App. 1982).

'•'The standard again was criticized by the court of appeals during the survey period

stating that "absent an error of law, we review the evidence and pronounce in conclusory

terms that the court's decision was or was not an abuse of discretion." Herron v. Herron,

457 N.E.2d 564, 566 n.2 (Ind. Ct. App. 1983) (citing Lord v. Lord, 443 N.E.2d 847,

850-51 n.4 (Ind. Ct. App. 1982)).

'^M53 N.E.2d 331 (Ind. Ct. App. 1983).

'"""[FJinal separation" is defined as "the date of filing of the petition for dissolution."

Ind. Code § 31-1-1 1.5-1 1(a) (Supp. 1984).
'^M53 N.E.2d at 335.



1985] SURVEY—DOMESTIC RELATIONS 237

theory of distribution employed in Indiana property distribution."^^

Developments after final separation were the subject of DeMoss v.
DeMoss,^^^ where, subsequent to the filing of the parties' petition for

dissolution, the husband acquired a significant debt in connection with

his farming operation. At the final hearing, an objection to testimony

regarding the husband's post separation farming expenses was sustained.

In the trial court's findings, however, the husband was charged with

responsibility for those farming debts. The wife appealed, arguing the

trial court had erred by including the debts in the marital estate, thereby

reducing the net marital estate and, in turn, the share of assets awarded

to her. The court of appeals disagreed, finding the trial court's evidentiary

ruhng "clearly indicated that the 1981 debt would not be considered. "'^^

DeMoss perpetuates the statutory principle that assets and debts incurred
subsequent to the date of final separation are not subject to distribution

as part of the marital estate. '^^ At the same time, it should be recognized

that the farming debt was part of the statutory framework for the trial

court's property disposition, for it bore on "[tjhe economic circumstances

of the spouse at the time the disposition of the property [was] to become

effective. "•" In that respect, practitioners should not be misled by the

DeMoss court's generic use of the term "consider"; absent fraud, a
postfinal separation change of economic circumstances is relevant to the

distribution of the marital estate. '^"^ The statutory factor bears particular

import, of course, in cases where a significant lapse of time has occurred

between filing and final hearing.
The rule may also have ramifications subsequent to final hearing,

as revealed in the survey-period decision of Showley v. ShowleyJ^^ There,

following the final hearing and presentation of evidence regarding the

marital assets, liabilities, and distribution thereof, the trial court imple-

mented the forty-five day reconciliation period contained in Section 8'^^

of the Dissolution of Marriage Act. Attempts at reconciliation apparently

'^^The "one pot" theory, as explained in In re Marriage of Dreflak, 181 Ind. App.

651, 393 N.E.2d 773 (1979), prohibits the trial court from excluding from consideration

and distribution any assets of the marriage; conversely, where a trial court awards property

to a spouse which is not part of the marital "pot," its distribution is predicated on an

incorrect value of the total marital estate. Where one spouse is "awarded" all of those

nonmarital assets, the share of the actual marital estate awarded that spouse is smaller

than that percentage or interest calculated by the trial court.

"M53 N.E.2d 1022 (Ind. Ct. App. 1983).

'''Id. at 1025.

'"See, e.g., Sadler v. Sadler, 428 N.E.2d 1305 (Ind. Ct. App. 1981); Irwin v. Irwin,

406 N.E.2d 317 (Ind. Ct. App. 1980).

'"Ind. Code § 31-1-11. 5-ll(b)(3) (Supp. 1984). See, e.g., Showley v. Showley, 454

N.E.2d 1230 (Ind. Ct. App. 1983); Irwin v. Irwin, 406 N.E.2d 317, 320 n.3 (Ind. Ct.

App. 1980).

'^^IND. Code § 31-1-1 1.5-1 1(b)(3) (Supp. 1984).
'«454 N.E.2d 1230 (Ind. Ct. App. 1983).

'5*lND. Code § 31-1-11.5-8 (Supp. 1984).



238 INDIANA LAW REVIEW [Vol. 18:211

failed and, after an inexplicable delay of fifteen months, dissolution was

granted and a property disposition decreed. The wife appealed, arguing

the fifteen month lapse from presentation of evidence to entry of decree
violated the mandate of the trial court to consider the economic cir-

cumstances of the parties at the time the disposition becomes effective.

For the majority, Judge Shields invoked a waiver analysis, holding that

''if for any reason the entry of the decree is delayed, it is reasonable

to impose the obligation upon the parties to seek the opportunity to
submit additional evidence on a change in circumstances occurring during

the delay. "'^^ The wife's argument was rejected because she did not seek

to reopen the case for additional evidence. Showley has obvious and

potentially significant application to cases taken under advisement.

Showley also resurrected the court of appeals' debate over the trial

court's responsibilities where parties have failed to introduce evidence

as to the value of marital property. Relying on In re Marriage of
Church,^^^ the majority summarily rejected the wife's contention that

the trial court had erred by failing to act sua sponte to fill the evidentiary

void regarding both the value of the marital property and the extent

of each party's contribution to its acquisition. Chief Judge Buchanan

dissented, hkening a trial court's division of property without evidence

of value to "depriving the carpenter of his hammer and saw or the
bricklayer of his trowel. "'^^ Because the distribution had involved real

property of significant value, not susceptible to valuation by reference

to "rules of thumb," he argued for remanding the cause to determine

the value of the property. Given the weaknesses inherent to Chief Judge

Buchanan's approach, '^° its minority status likely will remain such. Ac-

cording to Church and Showley, the duty to supply those evidentiary

"tools" necessary to a knowledgeable distribution continues to rest on

the parties.

4. Post dissolution Attacks: Fraud and Misconduct.—A final property
dispostion is subject to modification or revocation only in the event of

'"454 N.E.2d 1231 (emphasis added).

•58424 N.E.2d 1078 (Ind. Ct. App. 1981).
"^454 N.E.2d at 1233 (Buchanan, C.J., dissenting).

'^To be sure, the circumstances of any particular case may justify the trial court's

exercise of its inherent authority to require the submission of additional evidence. See,

e.g., Marsico v. Marsico, 154 Ind. App. 436, 290 N.E.2d 99 (1974). Whether the trial

court's interposition into the adversarial process should be mandatory is another matter.

Philosophical considerations aside, the question of when the duty would be triggered is

problematic. For instance, Chief Judge Buchanan did not address wife Showley's assertion

that the trial court also erred by failing to elicit evidence regarding each party's contribution

to the acquisition of the property; that argument is not meritless, for Indiana Code section

§ 31-1-1 1.5-1 1(b) provides that the court "shall consider" that factor, as well as four

other nonexclusive criteria specifically defined therein. In short, the would-be fact-seeking

role of the trial court has potential for limitless expansion. Absent removal of marital

dissolutions from the adversarial system, factual development should remain the burden

of the parties.



1985] SURVEY—DOMESTIC RELATIONS 239

fraud, which must be asserted within two years of the entry of the

decree.'^' The survey period saw this statute of hmitations upheld as

not violative of equal protection. Additionally, Trial Rule 60(B)(3) was

recognized as an adjunct to the two year period.

The former ruling came in In re Marriage of Murray, ^^^ where the

court of appeals also rejected a contention that implementation of the

two year period should be barred by the doctrine of equitable estoppel.

In Murray, the wife's motion to set aside an alleged fraudulently-obtained

property settlement and decree was dismissed because it had been filed

over two years subsequent to final dissolution. On appeal, she asserted
her husband should be estopped from reliance on the Hmitations period

because of his overtures of reconciHation during the two year period.

She maintained she had not considered the marriage ended or the property

division final until the month ending the two year period, when her ex-
husband forced her to vacate the home awarded to him in the final
decree. Her equitable estoppel defense was rejected by the court of

appeals, which found she lacked a right to rely on her former husband's

representations and to ignore the legal effect of their divorce: "Our
divorce laws are not designed to be employed as an experiment in creative

marriage enhancement."^"

Meanwhile, in Joachim v. Joachim, ^^'^ the court of appeals recognized

that where postdissolution actions constitute "misconduct" and no fraud
is involved. Trial Rule 60(B)(3) provides an alternative vehicle for chal-

lenging a disposition of marital property. ^^^

G. Paternity

1. Limitations of Actions.—Reverberations from the 1982 decisions
in Mills V. HabluetzeP^^ and In re M.D.H.^^^ continued during the survey

period, bringing predictable refinements to the law surrounding paternity

statutes of limitations. In Pickett v. Brown, ^^^ the United States Supreme

Court expanded the principles laid down in Mills to unanimously find
that Tennessee's two year statutory period of limitations on paternity

actions denied equal protection to children born-out-of-wedlock.^^^ The

""IND. Code § 31-1-11.5-17 (Supp. 1984).
•"460 N.E.2d 1023 (Ind. Ct. App. 1984).

'"M at 1026.
'^450 N.E.2d 121 (Ind. Ct. App. 1983).

'*^A not uncommon postdissolution vindictiveness resulted in wife Joachim's refusal
to cooperate in the sale of the marital residence. The relief granted to the husband was

reversed because the trial court failed to conduct an evidentiary hearing on his petition

as required by Trial Rule 60(B). 450 N.E.2d at 122.

'*H56 U.S. 91 (1981).

"^M37 N.E.2d 119 (Ind. Ct. App. 1982). '

'^403 S. Ct. 2199 (1983).

'^^M at 2206.



240 INDIANA LAW REVIEW [Vol. 18:211

Pickett decision vindicates the Indiana appellate court's decision in M.D.H.
that the two year statute of limitations formerly applicable in Indiana'''^

was constitutionally invalid. Moreover, the two courts' analyses run

parallel in concluding that a two year period *'does not provide certain

illegitimate children with an adequate opportunity to obtain support and

is not substantially related to the legitimate state interest in preventing

the litigation of stale or fraudulent claims."'^'

The retroactive effect of these constitutional rulings was at issue in

R.L.G. V. T.L.E.,''^ where, in 1981, minor child T.L.E. brought suit

by her next friend to establish her paternity. In effect at the time of

her birth in 1975 was the two year limitations ultimately struck down
in M.D.H. Putative father R.L.G. filed a motion to dismiss T.L.E. 's
action on the basis of the two year statute of limitations. The motion
was granted, but T.L.E. 's subsequent motion to correct errors was granted

and the cause reinstated. '^^ The putative father appealed, arguing the

trial court had erred by giving retroactive force to the twenty year period

of limitations which took effect October 1, 1979.'"^** He maintained that
as of 1977, two years subsequent to T.L.E. 's birth, he had acquired a

vested property right of absolution from T.L.E. 's support, precluding

resurrection of the obligation. The court of appeals rejected his con-

tentions, finding that the twenty year period for illegitimate children

had not created or eliminated any existing rights, but rather provided

another remedy for the enforcement of those rights. '^^ The court but-

tressed its distinction with reliance on the principle that rights cannot

accrue under an unconstitutional statute. '^^ Given the remedial nature

of the 1979 legislation and the M.D.H. holding, the trial court's rein-
statement of T.L.E. 's paternity action was upheld.

2. Hampton v. Douglass: Default Judgments and Retroactive Support
Orders.—The use of default judgments in paternity actions was une-
quivocally rejected in the survey-period decision of Hampton v. Douglass.^'^^

'^°lND. Code § 31-4-1-26 (1974), repealed by Act of Mar. 10, 1978, Pub. L. No.
136, § 57, 1978 Ind. Acts 1196, 1286.

•^'103 S. Ct. at 2209. Accord In re M.D.H., 437 N.E.2d at 129.
'^H54 N.E.2d 1268 (Ind. Ct. App. 1983).

'^^The motion to correct errors was predicated on two bases: 1) the unconstitutional

nature of the prior statute of limitations, and 2) the applicability of the paternity statute

adopted in 1978. The trial court did not state which argument prompted its ruHng. 454
N.E.2d at 1269.

'^^IND. Code § 31-6-6. l-6(b) (Supp. 1984).
'^^454 N.E.2d at 1270 (relying on Malone v. Conner, 135 Ind. App. 167, 189 N.E.2d

590 (1963)). See also Tarver v. Dix, 421 N.E.2d 693 (Ind. Ct. App. 1981) (retroactive

application of paternity statute).
'^^ 454 N.E.2d at 1271 (citing Oolitic Stone Co. of Indiana v. Ridge, 174 Ind. 558,

91 N.E. 944 (1910)).
'"457 N.E.2d 618 (Ind. Ct. App. 1983). For a criticism of this case, see Harvey,

Civil Procedure and Jurisdiction, 1984 Survey of Recent Developments in Indiana Law,

18 Ind. L. Rev. 91, 114 (1985).



1985] SURVEY—DOMESTIC RELATIONS 241

Following the putative father's failure to appear for the paternity hearing,

the natural mother in Hampton sought and was granted a default
judgment on the issue of paternity. Evidence concerning attorney fees

and support was then introduced and the trial court awarded the mother

natal expenses, attorney fees, prospective support, and arrearages for

support from the date of birth to the date paternity was established.

The putative father's motion for relief from judgment was denied, and

he appealed. Notwithstanding alternative procedural bases for its decision,

the court of appeals analogized paternity actions to divorce and custody

matters'^^ and concluded that default judgments as defined in Indiana

are not appropriate in paternity actions for two reasons: 1) no responsive

pleading is required in paternity actions; '^^ and 2) the determination of

paternity is a matter of grave importance which engages the parens

patriae interests of the state. '^° Accordingly, the cause was remanded

for further proceedings.

Putative father Hampton also challenged the propriety of the trial
court's award of retroactive support. Without addressing his specific

contentions, the court of appeals summarily observed in a footnote'^'

that, pursuant to B.G.L. v. C.L.5.,'^^ "this court's position is clear that

the duty of a father to maintain his minor children is imposed by law

beginning at birth. "'^^ This dictum represents an unfortunate rush to

judgment; the statutory language which figured so significantly in the

B.G.L. determination has been repealed and replaced with dissimilar

terms. '^'^ Notwithstanding the short shift given putative father Hampton's

due process right to be heard, ^^^ it remains that a natural mother should

'^«/« re Marriage of Henderson, 453 N.E.2d 310 (Ind. Ct. App. 1983) (modification

of custody without evidentiary basis improper); Scherer v. Scherer, 405 N.E.2d 40 (Ind.

Ct. App. 1980) (dissolution of marriage via summary procedures improper).
'^^457 N.E.2d at 620 (citing Roe v. Doe, 154 Ind. App. 203, 289 N.E.2d 528 (1972)).

Consequently, the default judgment is not necessary in paternity proceedings for the

purpose of preventing delay. Rather, the petitioner may proceed directly to the presentation
of evidence and, in the absence of the respondent, obtain judgment.

'*°457 N.E.2d at 260. Evidence is necessary to establish that the best interests of the

child have been and will be served. See, e.g., D.R.S. v. R.S.H., 412 N.E.2d 1257 (Ind.

Ct. App. 1980); Stevenson v. Stevenson, 173 Ind. App. 495, 364 N.E.2d 161 (1977).
'«'457 N.E.2d at 621 n.2.

'"175 Ind. App. 132, 369 N.E.2d 1105 (1977).
'"457 N.E.2d at 621 n.2.

'^•'The statutory language relied on in B.G.L. included provisions permitting the wife

to "recover" child support in an amount not more than "two [2] years accrued support
furnished prior to the bringing of the action." Ind. Code §§ 31-4-1-3,-26 (1973), repealed
by Act of Mar. 10, 1978, Pub. L. No. 136, § 57, 1978 Ind. Acts 1196, 1286. No express
language pertaining to a retroactive support obligation is contained in the present Paternity

Act. See Ind. Code §§ 31-6-6.1-1 to -19 (1982 & Supp. 1984).
'^^Given that the statutory bases for the B.G.L. decision had been repealed, it is

axiomatic the court of appeals should have either abstained from reaching the question

or reached its merits. As it is, Hampton's opportunity to be heard on remand was
unnecessarily clouded by the court's dicta.



242 INDIANA LAW REVIEW [Vol. 18:211

be eligible for a support order made retroactive to the date of the child's
birth. As succinctly stated in Denny v. Star Publishing Company:^^^

The duty of a father to provide for the maintenance of his

minor children is a principle of natural law. The obligation of

progenitors to support their offspring is universally acknowl-

edged. To discharge this duty is a primal instinct of human
nature. The duty is imposed by law at least as early as at the

birth of a child and continues thereafter until legally terminated. '^^

This jurisprudential approach is also supported by less lofty con-

siderations. The existing Paternity Act provides that the natural mother

may recover the necessary expenses of her "pregnancy and childbirth,
including the cost of prenatal care, delivery, hospitalization, and postnatal

care."'^^ It is doubtful the legislature intended to deprive a mother of

reimbursement for support rendered from birth to determination of

paternity, given the statutory award of natal expenses predating weekly

support expenses. That conclusion is further supported by the fact that

the state's interest in reimbursement for past public assistance rendered

may be at stake. '^^ It has also been recognized that a delay in initiating
paternity proceedings is often attributable to human tendencies'^ or
gamesmanship;'^' again, the economic circumstances of the minor child

should not suffer from these actions of the parents. Indeed, equal

protection guarantees arguably might preclude the denial of retroactive

support to illegitimate children. '^^ For all these reasons, the rule of

B.G.L. should remain intact despite the changes in the statutory langauge

underlying that precedent.

'«^94 Ind. App. 300, 180 N.E. 685 (1932).
'«^M at 307-08, 180 N.E. at 687 (emphasis added) (citations omitted).

'««lND. Code § 31-6-6.1-17 (1982).
'^^ND. Code § 12-1-7-1.1 (1982). See also Pickett v. Brown, 103 S. Ct. at 2204;

D.R.S. V. R.S.H., 412 N.E. 2d 1257, 1261 (Ind. Ct. App. 1980).
'^°Justice Rehnquist observed in Mills v. Habluetzel, 456 U.S. at 100:

Financial difficulties caused by childbirth expenses or a birth-related loss

of income, continuing affection for the child's father, a desire to avoid disapproval

of family and community, or the emotional strain and confusion that often

attend the birth of an illegitimate child all encumber a mother's filing of a

paternity suit within 12 months of birth.

'''See, e.g.. Unwed Father v. Unwed Mother, 177 Ind. App. 237, 379 N.E.2d 467
(1978) (difficulties of parents of children born out of wedlock).

'^^See Pickett v. Brown, 103 S. Ct. at 2206-09.