Boshonig v. Boshonig, 270A21

Decision Date22 March 1971
Docket NumberNo. 1,No. 270A21,270A21,1
Citation267 N.E.2d 555,25 Ind.Dec. 113,148 Ind.App. 496
PartiesKarl BOSHONIG, Appellant, v. Frieda BOSHONIG, Appellee
CourtIndiana Appellate Court

John R. Nesbitt, Nesbitt & Fisher, Rensselaer, for appellant.

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


The appellant-defendant and appellee-plaintiff were divorced on the 7th of October 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 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 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 the trial court, relative to property rights, alimony, and other allowances are reviewable for a determination of an abuse of judicial discretion, and for that purpose only. The judicial discretion in a case of this nature is an exercise of official conscience, not arbitrarily, willfully, or passionately exercised, but based upon the facts and circumstances of the particular case with regard to what is right and equitable under the applicable law and to the end of a just result. The appellant's responsibility is to show a clear abuse of judicial discretion. Buckner v. Buckner (1958), 128 Ind.App 654, 152 N.E.2d 97; Tomchany v. Tomchany (1962), 134 Ind.App. 27, 185 N.E.2d 301; Chaleff v. Chaleff (1969), Ind.App., 246 N.E.2d 768. The fact that circumstances would have justified a different result by another trial court than that reached by the trial court in this case does not warrant this court in substituting its judgment for that of this trial court. Buckner v. Buckner, supra.

The law is replete with cases stating the guidelines and rules to be followed by a trial court in the granting of alimony. The case of Dunbar v. Dunbar (1969), Ind.App., 251 N.E.2d 468, at page 472 sets forth a brief summary of the factors to be considered by the trial court in determining the amount of alimony. The existing property rights of the parties, the amount of property owned and held by the husband, and the source from which it came, the financial condtion and income of both the parties, the ability of the husband to earn money, whether or not the wife by her industry and economy has contributed to the accumulation of the husband's property, and the separate estate of the wife, are among the many factors that may be considered. The Dunbar case, supra, cites authorities where each of these propositions may be found. Additional rules of thumb have also been set forth in that the nature of abuse of the wife, especially as it affects her earning power or ability, may be considered in the determination of the granting of alimony and the amount thereof. Shula v. Shula (1956), ...

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19 cases
  • Wireman v. Wireman
    • United States
    • Indiana Appellate Court
    • March 4, 1976
    ...315 N.E.2d 731. The standard for reviewing a divorce decree for abuse of discretion was set out in Boshonig v. Boshonig (1971), 148 Ind.App. 496 at 499, 267 N.E.2d 555 at 556--7. 'We will not weigh the evidence, but will consider it in a light most favorable to the appellee. The decision of......
  • Stigall v. Stigall
    • United States
    • Indiana Appellate Court
    • February 2, 1972
    ...Ind.App., 267 N.E.2d 555. We are of the opinion that our opinion can be more complete and we are not violating the ruling of Boshonig v. Boshonig, supra, in including specifications 1 through 5, as they have been properly set forth as heretofore said in the remaining twelve The first series......
  • Terry v. Terry
    • United States
    • Indiana Appellate Court
    • June 28, 1974
    ...its judgment for that of the trial court. Buckner v. Buckner (1958), 128 Ind.App. 654, 152 N.E.2d 97; Boshonig v. Boshonig (1971), 148 Ind.App. 496, 267 N.E.2d 555. Equally well settled is the proposition that the trial court's determination of alimony will not be disturbed on appeal unless......
  • Zagajewski v. Zagajewski
    • United States
    • Indiana Appellate Court
    • July 31, 1974 with regard to what is right and equitable under the applicable law and to the end of a just result.' Boshonig v. Boshonig (1971), 148 Ind.App. 496 at 499, 267 N.E.2d 555 at 556. See also, Buckner v. Buckner (1958), 128 Ind.App. 654, 152 N.E.2d 97. As Judge White ably indicates, there ......
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