Baker v. Baker, 18307
| Decision Date | 10 October 1952 |
| Docket Number | No. 18307,18307 |
| Citation | 108 N.E.2d 70,123 Ind.App. 152 |
| Parties | BAKER v. BAKER. |
| Court | Indiana Appellate Court |
Theodore Lockyear, Evansville, for appellant.
Robert J. Hayes, Carrol F. Dillon, Evansville, for appellee.
Appellee commenced this action by filing her complaint for divorce against appellant. He filed a cross-complaint. At the conclusion of the trial appellant was granted a divorce from appellee. Appellee was awarded custody of the minor children and alimony in the form of certain improved real estate in Vanderburgh County.
The error assigned here is the overruling of appellant's motion for a new trial which contained six specifications. Appellant has grouped these together because they all relate to the same alleged error.
The only contention here is, the trial court erred in awarding appellee the above referred-to property, which had been owned by the parties as tenants by the entireties when the court denied her a divorce and granted the divorce to him. In support of this contention appellant relies on the following authorities: Blagetz v. Blagetz, 1941, 109 Ind.App. 662, 37 N.E.2d 318; Radabaugh v. Radabaugh, 1941, 109 Ind.App. 350, 35 N.E.2d 114; Mendenhall v. Mendenhall, 1946, 116 Ind.App. 545, 64 N.E.2d 806, 807 (Transfer denied). We do not believe these cases sustain the contention of appellant.
In the Blagetz and Radabaugh cases, supra, the wife obtained the divorce. In the Mendenhall case, supra, as in this case, the husband was granted a divorce on his cross-complaint. In each of those cases we followed the well-established rule of this state:
'Where a wife has proved recreant to her marriage obligations and has destroyed the marital union by her misconduct, the court granting a divorce to the injured husband may allot to him such portion of the property previously settled upon the wife by the husband as will place him, as near as may be, in the same position as he would have occupied had the marriage continued.' (Our emphasis.)
Our statute, § 3-1218, Burns' 1946 Replacement, Supp., provides:
'* * * In determining the character of the payments of the alimony the court may require it to be paid in money, other property, or both, and may order the transfer of property as between the parties, whether real, personal or mixed and whether title at the time of trial is held by the parties jointly or by one of them individually. * * *'
In the case of Cornwell v. Cornwell, 1940, 108 Ind.App. 350, 29 N.E.2d 317, 318, this court siad:
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Miller v. Miller
...the property previously settled upon the other. Radabaugh v. Radabaugh, (1941), 109 Ind.App. 350, 35 N.E.2d 114; Baker v. Baker, (1952), 123 Ind.App. 152, 108 N.E.2d 70.' In the more recent case of Grant v. Grant (1967) Ind.App., 230 N.E.2d 339, Judge Cooper of this court explicitly and ver......
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White v. White
...of real estate between the parties in proper cases.' Gray v. Miller, 1952, 122 Ind.App. 531, 538, 106 N.E.2d 709, 712; Baker v. Baker 1952, 123 Ind.App. 152, 108 N.E.2d 70; Wallace v. Wallace, 1953, 123 Ind.App. 454, 110 N.E.2d 514, 111 N.E.2d 90; Proctor v. Proctor, 1955, 125 Ind.App. 692,......
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Dieterle v. Dieterle, 19301
... ... Miller, 1952, 122 Ind.App. 531, 538, 106 N.E.2d 709, 712; Baker v. Baker, 1952, 123 Ind.App. 152, 108 ... N.E.2d 70; Wallace v. Wallace, 1953, 123 Ind.App. 454, ... ...
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Wallace v. Wallace, 18354
...transfer of real estate between the parties in proper cases.' We again affirm our construction of this statute. See also Baker v. Baker, Ind.App. 1952, 108 N.E.2d 70. In this case both the complaint and cross-complaint, in referring to the property of the parties, averred the ownership of t......