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Specifically, we must decide whether under the terms of the
provisional order, Mr. Heckaman would have been liable for
payment of the amounts in issue in the event of petitioner’s
death. Because the Divorce Court’s provisional order fails to
address termination of payments in the event of petitioner’s
death, we must refer to Indiana State law. See Morgan v.
Commissioner, 309 U.S. 78, 80 (1940); Sampson v. Commissioner, 81
T.C. 614, 618 (1983), affd. per curiam without published opinion
829 F.2d 39 (6th Cir. 1987).
We begin with the operative Indiana statute, Ind. Code sec.
31-1-11.5 to 7 (1995), pursuant to which the Divorce Court issued
the provisional order. As pertinent here, Ind. Code sec. 31-1-
11.5 to 7(a) (1995), provides that in any pending divorce
proceeding, either party may make a motion for, inter alia,
temporary maintenance. In turn, Ind. Code sec. 31-1-11.5 to 7(d)
(1995), provides that the “court may issue an order for temporary
maintenance or support in such amounts and on such terms as may
seem just and proper”. Finally, Ind. Code sec. 31-1-11.5 to 7(f)
(1995) provides as follows:
The issuance of a provisional order shall be
without prejudice to the rights of the parties or the
child as adjudicated at the final hearing in the
proceeding. Its terms may be revoked or modified prior
to final decree on a showing of the facts appropriate
to revocation or modification, and it shall terminate
when the final decree is entered subject to right of
appeal or when the petition for dissolution or legal
separation is dismissed. [Emphasis added.]
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