Mary K. Heckaman - Page 8




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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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