ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
S. FRANK MATTOX JOHN W. DOEHRMAN
DERRICK H. WILSON Jeffersonville, Indiana
Mattox, Mattox & Wilson
New Albany, Indiana
COURT OF APPEALS OF INDIANA
CYNTHIA JANE COOPER, )
vs. ) No. 10A04-9912-CV-575
FOREST COOPER, )
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Daniel F. Donahue, Judge
Cause No. 10C01-9711-DR-372
June 20, 2000
OPINION - FOR PUBLICATION
BAILEY, Judge Case Summary
Cynthia Cooper (Cynthia) appeals from the decree of dissolution of her marriage to
Forest Cooper, Jr. (Forest), wherein the trial court determined that a portion of
real estate acquired by Forest during the parties marriage was a gift, and
as a result, set aside that portion to Forest. We affirm in
part, reverse in part, and remand.
Cynthia raises three issues for our review, which we restate as follows:
Whether the trial court erred by concluding that a portion of real estate
was a gift to Forest from his mother, and assigning the value of
the gift to Forest.
Whether the trial court erred by finding that the real estate did not
appreciate in value following the transfer to Forest.
Whether the trial court erred by ordering Cynthia to pay to Forest one-half
of real estate taxes, and then crediting Forest for the entire payment of
Facts and Procedural History
Forest and Cynthia were married in 1982. In 1990, Forests mother, Virginia
Cooper (Virginia) transferred a 300 acre parcel of land to Forest by warranty
deed. Virginia and her husband had purchased the land for $550,000 in
1980. In exchange for the deed, Forest executed a mortgage and note
in the amount of $300,000. Forest testified in a deposition that the
$300,000 purchase price was acceptable to both him and Virginia, and that it
was the value of the land. At the dissolution hearing, Forest testified
that the 300 acres was given to him as a gift in 1990,
but that he had agreed to pay Virginia $300,000 for the land.
Virginia testified that the 300 acres was worth between $650,000 and $700,000 in
1990, and that she intended to give Forest the value of the land
in excess of his $300,000 payment as a gift. Forests appraiser, Richard
Crum (Crum), testified that the 300 acres was worth between $500,000 and $600,000
at the time of the 1990 transfer to Forest. Both Forest and
Cynthia had their real estate appraised prior to the dissolution hearing. The
parties averaged those two appraisals and stipulated that the average was the value
of the various parcels of land. As a result, the value of
the 300 acres was determined to be $712,500 at the time of the
dissolution. Crum also testified that he was comfortable with the stipulated present
day value of $712,500 for the 300 acres.
The trial court entered findings of fact and conclusions of law. The
court found that Virginia testified that the value of the 300 acres in
1990 was between $650,000 and $700,000, and that the value of the 300
acres in excess of $300,000 was intended as a gift from Virginia to
Forest. In addition, the trial court found that the land had appreciated
very little, if any, during the time Forest owned it prior to the
parties dissolution. As a result, the trial court subtracted the $300,000 purchase
price from the stipulated value of the land at the time of the
dissolution, and set aside $412,500 to Forest. The trial court also found
that Forest had paid real estate taxes for 1998 in the amount of
$4,666, and that Cynthia owed Forest half of that amount. In a
subsequent order dividing crop proceeds, the trial court credited Forest with $4,666 as
a result of his payment of the real estate taxes. Cynthia filed
a motion to correct error, which was deemed denied after 45 days.
Ind. Trial Rule 53.3. Cynthia now brings this appeal from the dissolution
Discussion and Decision
Standard of Review
At Cynthias request, the trial court issued findings of fact and conclusions of
law. Where a trial court has made special findings pursuant to a
partys request under Indiana Trial Rule 52(A), the reviewing court may affirm the
judgment on any legal theory supported by the findings. Mitchell v. Mitchell,
695 N.E.2d 920, 923 (Ind. 1998). In reviewing the judgment, we must
first determine whether the evidence supports the findings, and second, whether the findings
support the judgment. Ahuja v. Lynco Ltd. Medical Research, 675 N.E.2d 704,
707 (Ind. Ct. App. 1996). The judgment will be reversed only when
clearly erroneous. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind. Ct. App.
1991). Findings of fact are clearly erroneous when the record lacks any
reasonable inferences from the evidence to support them. Id. To determine
whether the findings or judgment are clearly erroneous, we consider only the evidence
favorable to the judgment and all reasonable inferences flowing therefrom, and we will
not reweigh the evidence or assess witness credibility. Id.
Cynthia contends that the trial court erred by concluding that a portion of
the value of the 300 acres was a gift from Virginia to Forest,
and as a result, assigning the value of the gift to Forest.
The division of marital property is governed by Indiana Code section 31-15-7-5, which
The court shall presume that an equal division of the marital property between
the parties is just and reasonable. However, this presumption may be rebutted
by a party who presents relevant evidence, including evidence concerning the following factors,
that an equal division would not be just and reasonable:
. . .
(2) The extent to which the property was acquired by each spouse:
. . .
(B) through inheritance or gift.
Cynthia contends that Forest did not present sufficient evidence that a portion of
the land was a gift to him. Specifically, Cynthia argues that all
terms of the transfer of the land were embodied in the deed, mortgage
and note executed by Forest and Virginia in 1990, none of which indicated
that a portion of the value of the land was a gift.
Further, Cynthia argues that the only evidence supporting a gift was parol evidence,
which she argues the trial court should not have considered.
A. Written Conveyance of Land
The transaction involving the land in question was evidenced by a deed, mortgage
and note, all of which described the 300 acres being conveyed. The
note states that, in exchange for the described land, Forest promises to pay
to Virginia the principal sum of $300,000. The mortgage states that it
is given to secure the payment of the note in the amount of
$300,000. Finally, the warranty deed states that, for and in consideration of
the sum of $1.00 and other good and valuable considerations, Virginia conveys and
warrants to Forest 300 acres of land. (R. 231.) Cynthia argues
that these documents evidence a sale of the entire 300 acres for $300,000.
Thus, she argues, there was no remaining land to be gifted following
the sale, and any such gift is illusory. We disagree.
Although the writings establish that Forest was to pay Virginia $300,000 for the
land, they do not set forth the value of the land at the
time of the transaction, nor do they mention that a portion of the
undisclosed value is a gift to Forest. However, both Forest and Virginia
testified that the lands value in 1990 was much more than the $300,000
purchase price, and that Virginia intended the value of the land in excess
of $300,000 to be a gift to Forest. Cynthia contends that the
trial court erred by relying on this parol evidence of a gift submitted
by Forest and Virginia.
B. Parol Evidence
The parol evidence rule provides that extrinsic evidence is inadmissible to add to,
vary, or explain the terms of a written instrument if the terms of
the instrument are clear and unambiguous.
Hauck v. Second Natl Bank of
Richmond, 153 Ind. App. 254, 286 N.E.2d 852, 861 (1972). Cynthia argues
that the terms of the written agreement between Forest and Virginia unambiguously evidence
a sale, and thus, parol evidence of a gift was inadmissible. In support
of her argument, Cynthia relies on Hall v. Hall, 777 P.2d 255 (Idaho
1989). In Hall, a husband and wife purchased a ranch from the
husbands grandparents for $60,000. The deed conveyed the land to both husband
and wife For Value Received[.] During the dissolution proceedings, however, the husbands
grandmother testified that the land was worth $100,000 at the time of the
conveyance, and that the value in excess of the purchase price was intended
as a gift to the husband alone. Id. at 256. The
trial court considered this testimony, over the wifes objection, and set aside the
value of the property in excess of the purchase price to the husband,
while dividing the remainder of the value of the property evenly between the
parties. Id. On appeal, the Idaho Supreme Court stated that the
language of the deed was plain and unambiguous, and therefore, parol evidence was
inadmissible to contradict the deed by attempting to show the transfer was in
part a gift rather than for value. Id.
The facts of
Hall are similar to the case before us except for
one significant distinction. In Hall, the property was deeded to both the
husband and the wife. Here, only Forest and his mother were parties
to the agreement; Cynthias name is not on the deed, the mortgage or
the note. Thus, in contrast to the wife in Hall, Cynthia was
not a party to the written agreement at issue here. As a
result, Forest argues that Cynthia cannot invoke the parol evidence rule to support
her challenge to the trial courts order.
Our supreme court has stated, The relations between two persons who have contracted
in writing may be brought in issue collaterally in a suit between others.
In such a case the parol evidence rule does not apply.
The facts may be proved as they exist, regardless of the oral evidence
varying the terms of any writing between the parties.
White v. Woods,
183 Ind. 500, 109 N.E. 761, 763 (1915) (quoting McKelvey on Evidence, §
280; Greenleaf, Evidence, § 279). Thus, the inadmissibility of parol evidence to
vary the terms of a written instrument does not apply to a controversy
between a third party and one of the parties to the instrument.
Id. See also Nelson v. United Fire Insurance Co. of New
York, 267 S.E.2d 604, 606 (S.C. 1980).
Nevertheless, Cynthia claims that, as Forests wife at the time of the land
transaction, she had an interest in the agreement between Virginia and Forest, and
was a privy to Forest. We disagree. Husbands and wives have
equal rights to enter into contracts and hold property, separate and apart from
See Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 10
n.5 (Ind. 1993) (recognizing that married women have the right to make contracts
that are not binding on their husbands). Such is the case here.
Forest and Virginia entered into a contract to which Cynthia was not
a party. Therefore, only Forest and Virginia are bound by the terms
of that contract, and the parol evidence rule prohibits them from varying the
terms in a suit against each other. However, as this action is
not between the parties to the contract, the parol evidence rule does not
The transfer of the 300 acres from Virginia to Forest was evidenced by
a writing. Although that writing set forth the purchase price of $300,000,
it was silent as to the value of the land at the time
of the transfer. Both Forest and Virginia testified as to the value
of the 300 acres in 1990, and their intent that the value of
the land in excess of $300,000 was to be a gift to Forest.
As Cynthia was not a party to the contract, she cannot raise
the parol evidence rule in support of her argument that the trial court
should not have considered Virginias and Forests testimony as to the value and
the nature of the transfer of the 300 acres. Thus, we hold
that oral testimony of value was not erroneously considered. Furthermore, based on
Virginias testimony that the value of the 300 acres in excess of $300,000
was intended to be a gift to Forest, we hold that the deed
encompassed both a sale and a gift of the 300 acres. Therefore,
the trial courts disposition of the 300 acres is supported by the courts
findings, and is not clearly erroneous.
Cynthia contends that the trial courts finding that the 300 acres did not
appreciate in value from 1990 to the time of the dissolution was clearly
erroneous, and as a result, the trial courts assignment of the value of
the 300 acres in excess of $300,000 to Forest was erroneous. We
A. Evidence as to Value of 300 Acres
In a deposition taken prior to the dissolution hearing, Forest testified that the
300 acres was worth $300,000 at the time he purchased the land from
Virginia in 1990. At the dissolution hearing, Virginia testified that she believed
the 300 acres was worth between $650,000 and $700,000 when she transferred it
to Forest in 1990. Crum, a professional appraiser, testified that the fair
market value of the 300 acres was between $500,000 and $600,000 in 1990.
(R. 327-28.) Crum further stated that the value of farmland in
the area had not increased much between 1980 when Virginia and her husband
purchased the 300 acres for $550,000, and 1990 when Virginia transferred it to
Forest for $300,000. At the time of the dissolution, Crum appraised the
300 acres at $680,000, but he testified that he was comfortable with the
parties stipulated value of $712,500.
The trial court found that the 300 acres had not appreciated in value
during the time Forest owned it prior to the parties dissolution. As
a result of that finding, the trial court awarded Forest and Cynthia each
one-half of the $300,000 purchase price of the property, and set aside the
remainder of the value of the land, $412,500, to Forest. However, the
evidence reveals that the 300 acres did appreciate in value between 1990 and
the time of the dissolution. Specifically, the professional appraiser testified that the
land was worth between $500,000 and $600,000 in 1990, and he did not
dispute the stipulated value of $712,500 at the time of the dissolution.
Further, Virginia testified that the value of the land in 1990 was between
$650,000 and $700,000. Thus, contrary to the trial courts finding, the evidence
reveals that the 300 acres did appreciate in value between 1990 and the
time of the dissolution.
Therefore, we hold that the trial courts finding
of no appreciation is clearly erroneous, and we remand with instructions for the
trial court to determine the value of the land at the time of
the transfer in 1990, in accordance with the evidence. The difference between
the 1990 value and the $300,000 purchase price represents the amount of the
gift to Forest and may be assigned to him, as established above.
However, the trial court should then divide the appreciation, namely the difference between
the $712,500 stipulated value and the value of the land in 1990, between
Forest and Cynthia in accordance with Indiana Code section 31-15-7-5.
III. Real Estate Taxes
In its dissolution decree, the trial court found that Forest had paid 1998
real estate taxes in the amount of $4,666. As a result, the
trial court concluded that Cynthia should pay Forest the sum of $2,333 as
reimbursement for one-half of the real estate taxes. In a subsequent order,
dividing the proceeds from crops harvested in 1997, the trial court credited Forest
$4,666 for his payment of 1998 real estate taxes. Cynthia argues, and
Forest agrees, that the trial court erred by crediting Forest twice with regard
to his payment of real estate taxes. Therefore, we remand with instructions
for the trial court to delete the credit to Forest from its subsequent
order dividing crop proceeds, and to divide that amount accordingly.
Affirmed in part, reversed in part, and remanded.
BAKER, J., and NAJAM, J., concur.
Oral argument was held on Tuesday, May, 9, 2000, at
Jasper High School in Jasper, Indiana.
Based on Virginias and Crums testimony, the appreciation in the value of
the 300 acres was at least $12,500 and at most $212,500.