Bahre v. Bahre, 19504

• Decision Date: 12 April 1962
• Docket Number: No. 1,No. 19504,19504,1
• Citation: 181 N.E.2d 639,133 Ind.App. 567
• Parties: Rosemary BAHRE, Appellant, v. George BAHRE, Appellee
• Court: Indiana Appellate Court

Page 639

181 N.E.2d 639

133 Ind.App. 567

Rosemary BAHRE, Appellant, v. George BAHRE, Appellee.

No. 19504.

Appellate Court of Indiana, Division No. 1.

April 12, 1962.

Rehearing Denied May 17, 1962.

Transfer Denied June 28, 1962.

Sidney A. Horn, John J. Rochford, Paul Rochford, Paul E. Blackwell, Frank W. Morton, Rochford & Blackwell, Indianapolis, Ivan Pogue, Pogue & Young, Franklin, for appellant.

Harry M. Stitle, Jr., Indianapolis, Richard L. LaGrange, Franklin, for appellee.

MYERS, Judge.

This is an action for divorce brought by appellant against appellee in the Marion Superior Court No. One, and, on change of venue, tried in the Johnson Circuit Court.

The issues were formed by appellant's amended complaint, which alleged that appellee was guilty of cruel and inhuman treatment toward appellant; that appellant was a fit and proper person to have the care and custody of the two minor children of the parties; that appellant was a partner in a construction business with appellee; that the successful business enterprise resulted in the acquisition of jointly-held real estate and personal property. Appellant asked for an accounting with reference to rental income, profits and property, an absolute decree of divorce, custody of the children, support money and judgment for alimony.

Appellee filed an answer in one paragraph, in conformity with Supreme Court Rule 1-3, wherein he denied the above allegations. He filed his cross-complaint for absolute divorce, alleging that appellant was guilty of cruel and inhuman treatment. To this appellant filed an answer in general denial, pursuant to Supreme Court Rule 1-3.

Trial was had before the court and judgment rendered on September 28, 1959, in favor of appellant under her amended complaint and against appellee on his cross-complaint. Appellant was granted an absolute divorce and custody of the two children. Appellee was ordered to pay $20 per week for each child when they were with appellant and was excused from so doing when they were away at school or visiting appellee. Appellee was given the right to have the children visit him for the month of July each year, plus other visitations at their home. Appellee was to provide all travel expenses in connection with the visitations. Appellant was decreed to be the owner of all corporate stocks in her name, and of a 1956 Jaguar, a 1951 Plymouth, and a 1941 Ford. She was also decreed to be the owner of the parties' residence in the State of Arizona, together with all household furniture, equipment, fixtures and personal property located therein.

Appellee was decreed to be the owner of all corporate stocks in his name, and of all property in the name of the parties located in the State of Indiana, including real estate and personal property. Appellee was decreed to be the sole owner of the construction business known as 'George Bahre Company,' including all tools, equipment, materials, motor vehicles, office supplies, fixtures and accounts receivable, with the obligation that appellee pay all debts and liabilities. Each party was given all bank accounts in their respective names. Appellant recovered an alimony judgment against appellee in the sum of $24,400, payable over a period of ten years and two months in equal installments of $200 a month, commencing October 10, 1959. Appellee was ordered to pay final attorney fees and expenses for appellant's counsel. Appellant filed a motion for new trial and a motion to modify and correct the judgment, both of which motions were overruled. This appeal followed. The assignment of errors is based upon the overruling of the motion for new trial and the motion to modify and correct the judgment.

The basis of the appeal is that the award of alimony and support allowance are inadequate and insufficient, not being supported by the evidence and being contrary to law. No question is raised concerning the granting of the divorce or the attorney fees. Essentially, the problem presented to us is whether or not the trial court abused its discretion in making these awards.

Our statute, § 3-1217, Burns' Ind.Stat., 1946 Replacement, provides that the court shall make such decree for alimony in all cases contemplated by the act, as the circumstances of the case shall render just and proper. It is a well-settled rule that the question of the amount of alimony to be decreed in any case is a matter of judicial discretion within the province of the trial court. This court will not interfere with the exercise of that discreton unless it is apparent that the discretion has been abused. Yost v. Yost (1895), 141 Ind. 584, 41 N.E. 11.

There are no hard and binding rules, nor is there any single test, which may be followed for the guidance of the court in its award of the sum which the husband shall pay to his wife whom he has injured by reason of the wrongs and grievances of which she has complained and which she has sustained by the evidence upon trial. Glasscock v. Glasscock (1884), 94 Ind. 163; Ralston v. Ralston (1942), 111 Ind.App. 570, 41 N.E.2d 817; Smith v. Smith (1960), 131 Ind.App. 38, 169 N.E.2d 130. However, in determining the amount of alimony in a particular case, our courts have stated that certain factors must be investigated and considered. They are (1) the existing property rights of the parties, Shula v. Shula (1956), 235 Ind. 210, 132 N.E.2d 612; Ferguson v. Ferguson (1955), 125 Ind.App. 596, 125 N.E.2d 816; (2) the amount of property owned and held by the husband and the source from which it came, Poppe v. Poppe (1944), 114 Ind.App. 348, 52 N.E.2d 506; McHie v. McHie (1939), 106 Ind.App. 152, 16 N.E.2d 987; (3) the financial condition and income of the parties and the ability of the husband to earn money, Logan v. Logan (1883), 90 Ind. 107; Poppe v. Poppe, supra; Glick v. Glick (1927), 86 Ind.App. 593, 159 N.E. 33; Cornwell v. Cornwell (1940), 108 Ind.App. 350, 29 N.E.2d 317; Hedrick v. Hedrick (1891), 128 Ind. 522, 26 N.E. 768; (4) whether or not the wife by her industry and economy has contributed to the accumulation of the husband's property, Yost v. Yost, supra; (5) the separate estate of the wife, Stultz v. Stultz (1886), 107 Ind. 400, 8 N.E. 238.

Certain rules of thumb have been laid down to further guide the trial court, such as that an award to an innocent and injured wife should be a sum as would leave her in as good condition as she would have been if her husband had died and she remained a surviving widow. Glick v. Glick, supra; Ferguson v. Ferguson, supra; Temme v. Temme (1937), 103 Ind.App. 569, 9 N.E.2d 111; Dissette et al. v. Dissette (1935), 208 Ind. 567, 196 N.E. 684; Musselman v. Musselman (1873), 44 Ind. 106. The wife must be left as well in non-cohabitation as in cohabitation. Adams v. Adams (1947), 117 Ind.App. 335, 69 N.E.2d 632; Boggs v. Boggs (1910), 45 Ind.App. 397, 90 N.E. 1040; Yost v. Yost, supra.

According to the evidence presented to us by the record, the parties were married on August 17, 1939. They were people of modest means, appellee being a carpenter with weekly average earnings of from $32 to $37 per week. Appellant had no money at the time of their marriage, while appellee had saved $800 to $1,000. Within six months they had lost all his savings because of a car breakdown and an emergency operation which had to be performed on appellee. Appellant went to work as a bookkeeper for a fraternity house and did other outside jobs. At the time, they lived in a rented house in Indianapolis. Toward the latter part of 1945, appellee started in business on his own as a building contractor in Indianapolis. The name of his business subsequently became known as 'George Bahre Company.' They purchased a home which they also used as an office. During these early years, appellant kept the books and records, took care of the telephone, prepared the pay roll, wrote checks and performed general office functions, including the preparation and filing of federal income tax returns. Their home was mortgaged to appellee's mother. In 1946 the company ran out of funds and they placed a second mortgage on the home so as to provide money for the business.

The early years of the business were very difficult, the income for the first year being only $2,700. In 1946 they lost approximately $5,250. Then the picture changed and the company began to prosper. In round figures, it made a profit of $14,000 in 1947; $41,200 in 1953; $59,500 in 1954; $64,800 in 1955; $58,100 in 1956; $68,600 in 1957; $47,400 in 1958.

In general, the type of business in which appellee was engaged was commercial construction, which consisted of the construction, remodeling and improving of governmental and commercial buildings, schools, churches and the like. From a series of contracts introduced into evidence as exhibits by appellee, we are able to determine that when he started in business he had such contracts as one for remodeling a floor of an office building in Indianapolis for the total sum of $2,042 in 1948. Nine years later he had such contracts as one for the construction of a new church in the total sum of $1,864,805.55. From 1947 to 1949 the volume and type of the business grew and expanded so that as of April 3, 1959, he had contracts for six jobs under construction which totaled $2,022,414.76. The previous year he had done $4,216,782.58 worth of construction. In 1947 appellant paid federal income taxes in the sum of $2,163.49. Ten years later he paid $31,958.86. An accountant testified that if appellee were a single person filing a separate return, his tax rate would be in the 51 per cent. bracket.

In order to obtain performance and bid bonds, appellee filed certain annual financial statements with an insurance and bonding agency. These were signed and sworn to under oath. For the years 1955 and 1956 they reflected a net worth of $567,096.94 and $729,334.96, respectively. The agent for the surety company testified that he had personally verified the information upon...