Alderson v. Alderson

• Decision Date: 16 November 1971
• Docket Number: No. 171A7,171A7
• Parties: Eugene ALDERSON, Appellant, v. Myrtle E. ALDERSON, Appellee.
• Court: Indiana Appellate Court

Page 710

274 N.E.2d 710

Eugene ALDERSON, Appellant, v. Myrtle E. ALDERSON, Appellee.

No. 171A7.

Appellate Court of Indiana, In Bank.

Nov. 16, 1971.

Opinion Superseded 281 N.E.2d 82.

Richard D. Bray, Martinsville, Jack Rogers, Rogers & Rogers, Franklin, for appellant.

Kenneth Barton, Greenwood, for appellee.

ON APPELLEE'S MOTION TO DISMISS APPEAL

PER CURIAM.

This was a cause of action for divorce in the trial court. The matter is now before this Court on the appellee's motion to dismiss the appeal, which alleges as cause therefor that appellant has accepted a material part of the judgment of the trial court by remarrying, and he has therefore waived any further right to appeal.

The appellant asserts that he is not contesting that part of the judgment granting the divorce, but he is only seeking review of that part of the judgment which concerns the property settlement and alimony.

The law in Indiana is firmly settled that the adjudication of property rights between husband and wife in a divorce proceeding is such an integral part of the judgment that in the absence of fraud it cannot be separated from the decree of divorce. Arnold v. Arnold (1933), 95 Ind.App. 553, 183 N.E. 910; Sidebottom v. Sidebottom (1968), 249 Ind. 572, 233 N.E.2d 667.

It is further settled that an appellant, having recognized the validity of a judgment and decree of divorce rendered in a court of competent jurisdiction and having jurisdiction of the persons, by accepting the favorable provisions thereof, whether financial or marital, in the absence of fraud, is estopped from questioning the validity of that judgment or decree from and after the acceptance of such benefits. Sidebottom v. Sidebottom, supra.

The appellant has not raised any issue of fraud either on the part of the trial court or on the part of the appellee which would remove this cause from the application of the general rule.

The appellant cites authorities from other jurisdictions in support of his claimed right to maintain this appeal. Whatever may be the law elsewhere, our Supreme Court has set out the law in Indiana on the subject in Sidebottom, supra, and we are bound thereby.

The appellee's motion to dismiss is sustained, and this cause is dismissed.

STATON, J., dissents with opinion, in which SULLIVAN, P.J., and SHARP, J., concur.

STATON, Judge (dissenting).

I dissent from the ruling of my brethren which gives continuing life and vitality to the doctrine of estoppel and the doctrine of indivisibility. These doctrines have been misapplied for too many years and should be reexamined. Their continued application in cases such as the one here before us can only lead to further injustice compounded by heedlessly following stare decisis. The doctrine of estoppel denies to a husband or wife the right to prosecute an appeal if either has remarried since the divorce judgment. This rule is founded upon the old equity concept that having accepted the benefits, such party is estopped from further questioning the fairness of the transaction. This equity concept was never applied at common law to divorce proceedings since divorce is a creature of statute and not of the common law. The doctrine of indivisibility means in this instance that each part of the court's judgment including marital status, property settlement, alimony and custody of children is of such an integral and inviolate nature to the whole judgment that no part thereof can be considered on appeal without considering the whole. Therefore, remarriage by one of the parties to the divorce judgment completely incapacitates the court on appeal to hear any of the divorce judgment.

My reasons for dissenting are:

1. The equity doctrine of estoppel in its present form and as it is now applied has no basis for ever being the law in Indiana.

2. The classical equitable estoppel doctrine prevented the party who accepted the benefits of the transaction from questioning its validity or correctness. The same equitable result can not always be accomplished when estoppel is applied to pending appeals. If the estoppel doctrine is applied in divorce cases for the original reason given * * * to prevent one of the parties from becoming a bigamist * * * the remarriage of either the husband or wife during the pending of an appeal would be a sufficient cause to invoke the rule. Where cross-errors have been filed, invoking the estoppel doctrine could conclude the right to appeal for both parties. It may be contended that the rule applies only to the party who is taking the appeal, but this application of the rule does not accomplish the result originally intended. For example, if the wife-appellee remarried while the appeal is pending and the husband-appellant is successful on appeal in having the entire cause reversed, the wife-appellee would be a bigamist before the trial court. This would be true even though the only question raised on appeal was alimony. The doctrine of indivisibility which has developed in a parallel fashion since 1904 with the doctrine of estoppel but at a more rapid rate, forecloses the absolute submission of individual issues to the appellate tribunal. The inherent risk of having the entire divorce judgment tried de novo lurks in every submission of one or more issues to the appellate tribunal. This is true even though the parties are not questioning the validity of the marital status.

The doctrine of estoppel and the doctrine of indivisibility are not applicable to the results intended. As Judge Hunter recently stated in O'Connor v. O'Connor (1969), Ind., 253 N.E.2d 250, : "If the result can no longer be justified the doctrine should be struck down regardless of its historical-legal basis."

3. Divorce is not an uncommon or infrequent occurrence in our society today. If a party is penalized for remarrying while his or her appeal is pending on matters other than the validity of their marital status, a restoration to normal and productive living is senselessly postponed. The order and tranquility of our society is ill served by insisting on a semistatic marital relationship during a long drawn out appeal. Marriage and family living is a cornerstone of our civilization. To perpetuate a bitter experience and an abnormal relationship during an appeal serves no purpose to God or man.

4. The doctrine of indivisibility is a step-child of an unimaginative approach which assumes that evidence heard at trial can not be departmentalized upon appeal and retrial. In other words, the same evidence can not be heard in the trial court again for less than all the parts contained in a divorce proceeding. Admittedly, the same evidence may be applied to several parts in the same proceeding. Indivisibility is not true in practice and should not be coveted in theory.

5. TR. 59(G) can not be effectively administered in practice under the doctrine of indivisibility. The pretense of the doctrine should be dealt with now before its extension in the law leads us into one legal fiction after another thereby obliterating its source and reason for being.

The legal concept of estoppel, as applied in the present case has meager and doubtful parentage in Indiana law. This concept is not related to reason. As originally applied, it related to a concern of the court that a reversal of a decree for divorce would render one of the parties on appeal a bigamist. This concern can not exist where the only question raised on appeal is alimony, property settlement or some other question which does not directly affect the validity of the marital status of the parties. Estoppel has been nourished over the years by misapplied evidentary considerations. Evidence considered by the court in arriving at the division of property or determining alimony is sometimes identical in many cases with the evidence necessary to determine whether a divorce should be granted. The pseudo-corollary of trial de novo sprang forth. The corollary of indivisibility was an easy and expected development.

Parentage of Estoppel:

The doctrine of estoppel was born in 1871 to obiter dictum in Garner v. Garner (1871), 38 Ind. 139.

Only the question of alimony was being appealed by the appellant-husband. The appellee-wife who had been granted alimony in the sum of One Thousand Two Hundred Dollars ($1,200.00) moved to dismiss the appeal because appellant-husband " * * * since the rendition of the judgment of divorce, and before the appeal, has married another woman; * * * ". Commenting upon the appellant-husband's brief, the court stated: "The appeal is prosecuted by the appellant under the impression, as we infer from the brief of his counsel, that this court will not, and perhaps cannot, in any case, reverse a judgment granting a divorce; and hence it is only asked that we will reverse or modify the judgment for alimony. In this position counsel are mistaken. This question came before us and was decided in Sullivan v. Sullivan [ (1870) ], 34 Ind. 368." In Sullivan v. Sullivan, supra, the court merely recognized that the doctrine of condonation applies to cruel treatment as well as to adultery and that the Supreme Court may upon appeal reverse the judgment granting a divorce which isn't really a revelation. The only questions on appeal in Sullivan, supra, were: (1) whether the doctrine of condonation applied to cruel treatment as well as to adultery, and (2) whether condonation had to be specially pleaded where the petitioner had set out the condonation and also alleged the violation of its conditions. The court held that: "As the pleadings stood, the court committed no error in hearing the evidence to which objection was made." Sullivan, supra, at 371. The court then proceeded to affirm the lower court. The appellee had raised the question that the court will not reverse a judgment granting a divorce. This contention provoked the declaration of the court that it could reverse a judgment granting a divorce. Neither the appellant nor the appellee in the Sullivan case...