Brown v. Brown, 28096.

• Decision Date: 21 June 1945
• Docket Number: No. 28096.,28096.
• Citation: 61 N.E.2d 645,223 Ind. 463
• Parties: BROWN v. BROWN.
• Court: Indiana Supreme Court

223 Ind. 463

61 N.E.2d 645

BROWN

v.BROWN.

No. 28096.

Supreme Court of Indiana.

June 21, 1945.

Action by Freeman Brown against Fannie Mae Williams Brown for an annulment, wherein defendant cross-complained for divorce. From an interlocutory order against plaintiff for the payment of money for defendant's support and attorney's fees and from an order for plaintiff's imprisonment for civil contempt as a coercive measure to enforce payment, plaintiff appeals.

Reversed with instructions.Appeal from Lake Superior Court; Fred A. Egan, Judge.

Chester C. McGuire, of Gary, for appellant.

H. B. Steward, of Gary, for appellee.

GILKISON, Judge.

The record is such that this may be considered an appeal from an interlocutory order for the payment of money; which gives us jurisdiction. § 4-214, Burns' 1933, Baldwin's 1934, § 1356. The validity of the order is directly attacked by the first assignment of error. Incidentally it is collaterally attacked by a proceedingfor indirect civil contempt. If appellee was not entitled to the order requiring appellant pendente lite to pay for her support and attorney fees, it should not be enforced for her benefit by appellant's imprisonment which was ordered as a coercive measure and not to uphold the dignity of the court.

Appellant went into a court of equity for annulment of a marriage claimed to be bigamous. Before any answer or cross-complaint was filed appellee filed a petition styling herself as ‘the cross-complainant in the above entitled cause of action for divorce,’ asking for an allowance for support and ‘to pay her attorneys for their said services in the preparation and prosecution of this cause of action.’ Later she filed an unverified answer in denial of the allegations of the complaint and a cross-complaint for divorce. In none of these pleadings does she deny under oath that the marriage was bigamous or attempt any explanation of that charge in the complaint. Appellant's brief claims an oral admission of the charge in open court but there is no bill of exceptions to substantiate this claim.

Our statute provides:

‘Pending a petition for divorce, the court, or the judge thereof in vacation, may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper and such orders relative to the expenses of such suit as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. * * *’ § 3-1216, Burns' 1933. Baldwin's 1934, § 923.

Under this statute courts and judges are authorized to make and enforce such orders relative to the expenses of a divorce suit as will insure to the wife an efficient preparation of her case and an impartial trial thereof, and this includes a reasonable fee for her attorneys. Garrison v. Garrison, 1898, 150 Ind. 417, 50 N.E. 383. Authority to make such an order is statutory and so far as expressed by the statute, is limited to proceedings for limited and absolute divorce. Payne v. Payne, 1930, 90 Ind.App. 594, 169 N.E. 475;Tracy v. Tracy, 1943, 221 Ind. 590, 50 N.E.2d 662.

Whether appellee is entitled to present her petition for...