FOR PUBLICATION

ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEES:

J. CLAYTON MILLER                                 JAMIE H. HARVEY
Jordan Law, LLC                                   Smith Harvey Law Office
Richmond, Indiana                                 Connersville, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA


IN THE MATTER OF THE ESTATE OF                    )
STEPHEN T. HANNEBAUM, Deceased,                   )
                                                                Dec 19 2013, 11:11 am
                                                  )
RENADA FAY HANNEBAUM,                             )
                                                  )
               Appellant,                         )
                                                  )
               vs.                                )    No. 81A05-1301-ES-17
                                                  )
MARY REBECCA HANNEBAUM                            )
and STEPHEN T. HANNEBAUM,                         )
II, as Personal Representatives of Estate of      )
Stephen T. Hannebaum,                             )
                                                  )
               Appellees.                         )


                       APPEAL FROM THE UNION CIRCUIT COURT
                           The Honorable Matthew R. Cox, Judge
                               Cause No. 81C01-1105-ES-8



                                       December 19, 2013

                               OPINION - FOR PUBLICATION

SHEPARD, Senior Judge
       Under Indiana’s probate law, a spouse who has voluntarily left the marital

residence and engaged in an adulterous relationship is barred from inheritance by

intestacy. In this case, the issue is what evidence suffices to invoke this disqualification.

                        FACTS AND PROCEDURAL HISTORY

       Stephen T. Hannebaum and Renada Fay Hannebaum were married in June 2002.

On August 1, 2007, Renada moved out of the marital residence and began dating Doug

Wilson. Renada filed a petition for dissolution in October 2007, but her divorce from

Stephen was never finalized. Stephen died intestate on April 3, 2011.

       Renada paid Stephen’s funeral expenses, and she subsequently petitioned the court

to open a supervised estate and name her personal representative. Stephen’s mother

Mary and his son Stephen II filed an objection to the appointment of Renada. Following

a hearing, the court appointed Mary and Stephen II as personal representatives. Renada

then filed a motion indicating her desire to be considered an heir of Stephen’s estate. The

court held a hearing to determine heirship and in due course it issued an order finding that

Renada had forfeited her right to inherit from Stephen’s estate.

                                           ISSUE

       Renada claims on appeal that the evidence did not establish either of the

conditions necessary to exclude her as an heir to Stephen’s estate.

                             DISCUSSION AND DECISION

       Many American jurisdictions adopted the rule that prevailed in England at least

since the reign of Edward I — that someone who voluntarily leaves a spouse and is living

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in adultery with another person when that spouse dies may not inherit through the laws of

intestacy. Indiana embraced this policy no later than the Revised Statutes of 1852. 1

R.S. Chapter 27, §§ 32, 33. The present version of the Indiana statute says:

              If either a husband or wife shall have left the other and shall
              be living at the time of his or her death in adultery, he or she
              as the case may be shall take no part of the estate or trust of
              the deceased husband or wife.

Ind. Code § 29-1-2-14 (2005).

       The history and meaning of this statute was thoughtfully explored early on in an

opinion by Justice Elliott. See Shaffer v. Richardson’s Adm’r, 27 Ind. 122 (1866). More

recently, Judge Friedlander has helpfully traced the decisions issued during the

intervening decades. In re Estate of Patrick, 958 N.E.2d 1155 (Ind. Ct. App. 2011),

trans. denied. The short of the matter for present purposes is that to deny a surviving

spouse an inheritance, the estate must establish that the surviving spouse (1) was living in

adultery at the time of the deceased’s death and (2) voluntarily abandoned the deceased

spouse. See id. at 1158-59.

       In resolving the present dispute, the trial court sua sponte entered findings of fact

and conclusions of law. When the trial court enters findings and conclusions without

being asked or required to do so, the specific findings control only as to the issues they

cover, while a general judgment standard applies to any issues upon which the court has

not made findings. In re Estate of Powers, 849 N.E.2d 1212, 1216 (Ind. Ct. App. 2006).

We will reverse the judgment only when it is shown to be clearly erroneous, i.e., when it


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is unsupported by the findings of fact and the conclusions entered on those findings. Id.

With the benefit of the foregoing cases and this standard of review in mind, we proceed

to the two points on which Renada claims the evidence is inadequate.

                                    A. Living in Adultery?

       Renada admits to dating Doug Wilson after she left Stephen and to spending some

nights alone with him at his residence. Tr. pp. 6, 7; Appellant’s Br. p. 7. She alleges,

however, that there was no evidence presented that she was in a sexual relationship with

Wilson at the time of Stephen’s death.

       The fact of sexual relations must usually be inferred from the circumstances in

adultery cases because “direct proof of sex acts between the parties is virtually

impossible to produce.” Oliver v. Estate of Oliver, 554 N.E.2d 8, 11 (Ind. Ct. App.

1990). Thus, an adulterous relationship may be inferred from circumstantial evidence

establishing an opportunity for such conduct. Id.

       The evidence Stephen’s estate cites in support of the finding that Renada was

living in adultery when Stephen died in April 2011 was: (1) Renada’s confirmation that

she began dating Doug Wilson “after [she] left Stephen” in August 2007, (2) her

agreement during trial that she “spent some nights at Mr. Wilson’s residence alone with

him,” and (3) testimony from a private investigator who observed Renada three months

after Stephen died entering Wilson’s residence through the garage by punching in a code

at the door. Tr. pp. 6, 7, 12-14.



                                            4
       The first two items on this list of the pertinent evidence, identified as to date only

as being sometime after August 2007, offered only the slightest hint at whether Renada

was sexually involved with Wilson at the time Stephen died on April 3, 2011. Similarly,

if the private investigator’s testimony about Renada’s comings and goings three months

after the death stood alone, it might well not be probative on the question of adultery on

the day of Stephen’s death.

       The three pieces of evidence together, though, suggest a continuing behavior that

we conclude is sufficient to sustain the trial court’s finding of an adulterous relationship

between Renada and Wilson in April 2011.

                                  B. Voluntary Departure?

       Although the parties do contest the finding on adultery, their arguments focus

primarily on abandonment. “Voluntary abandonment” in the context of Indiana Code

section 29-1-2-14 means that the departing spouse intended a permanent separation rather

than a temporary one, and that the deceased spouse neither agreed to the separation nor

caused it. See In re Estate of Patrick, 958 N.E.2d at 1160.

       Renada asserts that she did not voluntarily abandon Stephen; rather, she maintains

that she fled the marital home to escape domestic abuse. The trial court’s judgment,

however, rests in substantial part on finding that the only identified instance of abuse

occurred after Renada had already moved out of the marital residence.

       At the hearing, Renada testified unequivocally that she moved from the marital

residence on August 1, 2007. Her counsel argued, as he does on appeal, that Stephen

                                             5
committed battery before Renada moved out of the residence and that this battery was the

cause of her moving out. Renada’s counsel asked the trial court to take judicial notice of

its own record in cause number 81C01-0709-CM-239, the criminal case arising from

Stephen’s battery upon Renada.

      On appeal, the Estate has included in its appendix some of the documents of which

the trial court presumably took judicial notice in cause number 81C01-0709-CM-239.

The affidavit of probable cause for that proceeding and its attached Exhibit A show that

the battery occurred on September 9, 2007, at 508A Harbor Court in Liberty, Indiana.

These documents indicate that this address was Renada’s place of residence at the time

and that Stephen’s address was 2605 West Snake Hill Road in Liberty. If there were any

other acts of violence, the record does not establish them, either through documentary

evidence or Renada’s testimony. Based upon this evidence, the trial court properly found

that Renada voluntarily abandoned Stephen.        As for whether Renada left Stephen

permanently rather than temporarily, we think that a court can find permanent departure

where, as here, a spouse leaves the marital residence, files for dissolution, and remains

away for roughly four years, notwithstanding the fact that a final decree of dissolution

had not been issued.

                                    CONCLUSION

      We therefore affirm the trial court’s judgment.

MATHIAS, J., concurs.

ROBB, C.J., concurs in result.

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