Bowman v. Bowman

• Decision Date: 17 March 1948
• Docket Number: 17705.
• Citation: 77 N.E.2d 900,118 Ind.App. 137
• Parties: BOWMAN v. BOWMAN.
• Court: Indiana Appellate Court

77 N.E.2d 900

118 Ind.App. 137

BOWMAN v. BOWMAN.

No. 17705.

Appellate Court of Indiana, in Banc.

March 17, 1948

Appeal from Hendricks Circuit Court; Horace L. Hanna, Judge.

Suit for divorce by Marjorie Grace Bowman against Matthew Porter Bowman. From an adverse decree, Matthew Porter Bowman appeals.

Reversed with instructions.

H Wayne Baker, of Bedford, for appellant.

Claude Raber, of Danville, for appellee.

FLANAGAN Judge.

Appellee was granted an absolute divorce from appellant and this appeal followed. The sole assignment of error is the overruling of appellant's motion for a new trial which challenges the sufficiency of the evidence and the rulings of the trial court on the introduction and exclusion of certain evidence.

The first proposition urged by appellant is that appellee failed to meet the requirements concerning proof of residence. The statute requires that the petitioner in a divorce proceeding be a bona fide resident of the county for six months and of the state for one year immediately preceding the filing of the petition and that such residence be proven to the satisfaction of the court by at least two witnesses who are resident householders of the state. Section 3-1203, Burns' 1933.

On this point the petitioner may be a competent witness. Thompson v. Thompson, 1921, 75 Ind.App. 415, 130 N.E. 655. In the instant case appellee testified as to her proper residence and the evidence discloses that she was a householder. In addition one John M. Lieske testified that he was a resident householder and gave the proper testimony as to appellee's residence. This was sufficient.

Appellant next contends that there was evidence showing that appellee was guilty of misconduct and was unfit to have the custody of the children. Such evidence was introduced but it was controverted. This court cannot weigh conflicting evidence.

Appellant says that the trial court erred in permitting appellee to introduce evidence concerning her residence as a part of her rebuttal. It is within the discretion of the trial court to admit original testimony out of its regular order and a cause will not be reversed for that reason unless it clearly appears that such discretion was abused. Roush v. Roush, 1900, 154 Ind. 562, 55 N.E. 1017. There is no showing of an abuse of discretion in this case.

Finally appellant complains that the trial court refused to permit an eleven year old child of the parties to testify. During the trial appellant offered as a witness one Lois Bowman. She testified that she was the daughter of the...