Boshonig v. Boshonig, No. 270A21

• Docket Nº: No. 1
• Citation: 267 N.E.2d 555, 25 Ind.Dec. 113, 148 Ind.App. 496
• Case Date: March 22, 1971

Page 555

267 N.E.2d 555 148 Ind.App. 496 Karl BOSHONIG, Appellant,
v.
Frieda BOSHONIG, Appellee. No. 270A21. Appellate Court of Indiana, Division No. 1. March 22, 1971.
Rehearing Denied April 26, 1971.

[148 Ind.App. 497] John R. Nesbitt, Nesbitt & Fisher, Rensselaer, for appellant.

Edwin L. Robinson, Robinson & Sammons, Morocco, Donald E. Bowen, Bowen, Myers, Northam & Soards, Indianapolis, for appellee.

ROBERTSON, Judge.

The appellant-defendant and appellee-plaintiff were divorced on the 7th of October,

Page 556

1969, after forty-two (42) years of marriage. There had been an earlier trial of this cause in March of the same year. However, a motion for new trial was filed and granted.

The substance of the decree, insofar as it pertains to the award of property, gave the appellee-plaintiff Fifteen Thousand[148 Ind.App. 498] Dollars ($15,000) alimony and the furniture, fixtures, and appliances located in the home. The appellant-defendant was awarded the remainder of the personal property which consisted of farm machinery, a truck, car, house trailer, various tools and machinery, a boat, motor and trailer, and all other personal property not awarded to the appellee. The ownership of real estate of the parties, consisting of a 105-acre farm, was changed to a tenancy in common, with the defendant being restrained from encumbering or disposing of his one-half until the alimony had been paid.

Other findings of significance made by the court were:

'The Court further Finds that for several years last past the plaintiff has endured extreme hardships from hunger and cold and that during said time the defendant has lived in comparable luxury and has taken six extended vacations in Europe; the Court Further Finds that the defendant willfully and without just cause abandoned and deserted the plaintiff in September, 1962, against her wishes and consent; the Court Further Finds that the defendant has been living in adultery since April, 1968;

'The Court Further Finds that the defendant has been selling and disposing of his personal property under an assumed name and that there is a bank account under such assumed name; * * *.'

The appellant filed a motion for new trial specifying as grounds therefor that the decision of the court was not sustained by sufficient evidence, was contrary to law, and the amount of alimony was too large. The assignment of error is that the court erred in overruling the motion for new trial.

Although there was conflicting evidence, a brief summary of the record viewed in the light most favorable to the appellee shows this childless couple separated in September of 1962. The parties had acquired a farm, free of any encumbrances at the time of the divorce, by buying other property, improving it, and then selling until they obtained this property. The original down payment for the initial property was provided by the appellant in 1927. There was testimony of [148 Ind.App. 499] the appellee's hard work on the farm and her very poor living conditions. The appellant left the farm to work in Chicago and returned on weekends, the weather and his health permitting. His financial support for his wife consisted of Twelve Dollars ($12) per week plus utilities until he went on social security, when it changed to Twenty-two Dollars ($22) per month. There was evidence as to real and personal property values. Testimony was also given regarding the appellant living with another woman for a time after the separation. Trips to Europe, for the most part, were for the purpose of visiting appellant's aged father and were made at a cost of from Three Hundred ($300) to Five Hundred ($500) each.

We will not weigh the evidence, but will consider it in a light most favorable to the appellee. The decision of...