Adams v. Adams, 17524.

• Decision Date: 21 November 1946
• Docket Number: No. 17524.,17524.
• Parties: ADAMS v. ADAMS.
• Court: Indiana Appellate Court

117 Ind.App. 335

69 N.E.2d 632

ADAMS

v.ADAMS.

No. 17524.

Appellate Court of Indiana, in Banc.

Nov. 21, 1946.

Appeal from Montgomery Circuit, Court; Howard A. Sommers, Judge.

Action by Daisy D. Adams against Max K. Adams for absolute divorce. From judgment granting plaintiff an absolute divorce and awarding plaintiff alimony in sum of $1,750 and further sum of $100 attorney's fee, defendant appeals.

Judgment affirmed.Harding and Harding, of Crawfordsville, for appellant.

Walter W. Spencer, of Crawfordsville, for appellee.

HAMILTON, Chief Judge.

This is an appeal from a judgment of the lower court granting appellee an absolute divorce from the appellant upon the grounds of cruel and inhuman treatment and awarding her alimony in the sum of $1750, and the further sum of $100 attorney's fee for appellee's attorney.

The only error assigned and presented in appellant's brief is that the judgment for alimony is excessive.

Section 3–1217, Burns' 1946 Repl., provides in part:

‘The court shall make such decree for alimony, in all cases contemplated by this act, as the circumstances of the case shall render just and proper; * * *.’ (Our italics.)

In construing this statute the Supreme Court has said: ‘There is in this State no fixed and certain rule as to the allowance of alimony.’ Musselman v. Musselman, 1873, 44 Ind. 106, 123.

In the case of Boggs v. Boggs, 1910, 45 Ind.App. 397, 398, 399, 90 N.E. 1040, this court held: ‘It is well established that the amount of alimony to be awarded in divorce proceedings is in the sound discretion of the trial court, and the appellate tribunal will not review that decision unless an abuse of such discretion has been shown. * * * There are no well-established rules for measuring the amount of alimony to be awarded; such amount always depending upon the facts and circumstances in each particular case. It has been held that alimony, when given to an innocent and injured wife, should be in a proportion to leave her at least as well off pecuniarily in non-cohabitation as she would be in cohabitation.’

In the case of McFarlan v. Fowler Bank City Trust Co., 1938, 214 Ind. 10, on page 14, 12 N.E.2d 752, 754, the Supreme Court, in defining what constitutes an abuse of judicial discretion, says: ‘An abuse of discretion is an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn...