Brown v. Brown

• Decision Date: 27 September 1973
• Docket Number: No. 2--473A90,2--473A90
• Citation: 301 N.E.2d 400,157 Ind.App. 672
• Parties: James A. BROWN, Appellant, v. Nancy B. BROWN, Appellee.
• Court: Indiana Appellate Court

Page 400

301 N.E.2d 400

157 Ind.App. 672

James A. BROWN, Appellant, v. Nancy B. BROWN, Appellee.

No. 2--473A90.

Court of Appeals of Indiana, Third District.

Sept. 27, 1973.

Thomas W. Munger, Lafayette, for appellant.

John M. Burgett, Lafayette, for appellee.

SHARP, Judge.

This case involves an action for divorce brought by Appellee-wife against Appellant-husband in the Superior Court of Tippecanoe County.

The facts are lengthy, but may be summarized as follows:

Appellant and Appellee were married in 1952. Two sons were born to the marriage, Mark in 1958 and Michael in 1955. Michael, at the time of this decree, was about to enter college. Appellant has a bachelor of science degree with a major in English and Theater and approximately three years toward a bachelor of science degree in electrical engineering.

At the time of their marriage, Appellant was an enlisted manin the United States Army. During the 9 1/2 months following his discharge from the army in 1953, Appellant worked 2 1/2 months, mostly as an electrician. For the next four years, he was a civilian instructor at an army base, earning $5,000.00 per year. From 1958 to 1963, he was a full-time student at Purdue University. From 1963, when Appellant quit before completing his degree requirements, until 1967 Appellant did not work or attempt to find work. In 1967 Appellant started his present job as a part-time clerk (26 hours per week) with a consulting engineer's firm for $2.50 per hour. (Approximately $3,380.00 per year.)

Appellee has been continuously employed since their marriage. She is a teacher and has progressed in salary to over $13,000.00 per year. Appellee was awarded the residence which is valued at approximately $25,000.00 which has encumbrances of over $20,000.00. It is readily apparent from the detailed findings entered by the trial court that the work ethic was not a predominant part of the Appellant's philosophy.

Appellant raises only one question in his appeal: Whether the trial court erred in ordering the defendant to satisfy attorney fees to the plaintiff-wife's attorney in the sum of $1,800.00 payable in full forthwith and in the event not paid forthwith, bearing interest at the rate of 8%. This was entered in the final decree awarding a divorce to the Appellee-wife.

The record which the Appellant has brought here is absent any evidence whatsoever even though his arguments involve factual questions. The record here contains only the pleadings, the findings and judgment of the trial court. All of the factual inferences therein must be considered in the light most favorable to the Appellee. This is especially true here where the sufficiency of the evidence to support such findings has not been asserted. The record in this case is quite similar to that in Stypczynski v. Kaiser Jeep Corporation, Ind.App., 294 N.E.2d 830 (1973), where we held the record inadequate to permit us to determine the basic issue. While the inadequacy of the record here makes the determination of the issue raised most difficult, we prefer to reach the merits rather than decide cases on points of appellate procedure.

The outcome here turns on whether the trial court abused its discretion in the determination of the amount and manner of payment of attorney fees for the Appellee-wife's attorney. The scope of this inquiry may be further narrowed since nowhere in Appellant's Brief does the Appellant show or attempt to show specifically that $1,800.00 is an unreasonable fee in light of services on behalf of the plaintiff-wife--only that it is unreasonable to require the defendant to pay such fees in full forthwith or with interest.

In oral argument and in his brief, the Appellant took the position that it was an abuse of discretion for the trial court to allow any attorney fees to the wife's attorney. The law is clear on the subject of review of attorney fees on appeal. In Northup v. Northup, Ind.App. 290 N.E.2d 501, 504 (1972), this court said:

'The award of the trial court as to attorneys' fees will be disturbed on appeal only where a clear abuse of discretion is shown. McDaniel v. McDaniel (1964), 245 Ind. 551, 562, 201 N.E.2d 215; Dunn v. Deitschel (1930), 204 Ind. 269, 169 N.E. 529; Hardiman v. Hardiman (1972), Ind.App., 284 N.E.2d 820; Mathews v. Mathews (1972), Ind.App., 278 N.E.2d 325; Stigall v. Stigall (1972), Ind.App., 277 N.E.2d 802.

Appellant would show that the trial court acted mistakenly, not being duly advised in the premises. Appellant contends in one breath that the court: sut'Failed to take into account the financial situation of the parties, particularly the property, income and earning ability of the wife and the total improverishment of the defendant accomplished by its decree . . .'

and then follows:

'The trial court had just heard a full disclosure of property of the parties piece by piece, and was aware that it had taken everything from the defendant and given it to the plaintiff. It was further aware of the defendant's limited income.'

It is apparent from the record that the trial court in a most complete and orderly fashion inventoried the assets and liabilities of the parties well in advance of making the Special Findings of Fact and Conclusions of Law as requested by defendant-appellant.

Appellant cities in support of his position the case of O'Connor v. O'Connor, 253 Ind. 295, 253 N.E.2d 250, 254 (1969), wherein our Supreme Court of Indiana held:

'There may be instances where the financial situations of the parties are such that any allowance against the husband would be unreasonable and unjustified. There must therefore be read into the language of the statute a proviso to the effect that the court shall make the order provided for if a timely and proper application or petition is presented and the facts justify an allowance.'

The practical effect of this decision in O'Connor was to allow the wife, the unsuccessful party, to recover her attorney fees. We do not deem O'Connor as authority here a demonstrate an abuse of discretion in awarding attorney fees to the wife's attorney when granting her a divorce. The decision in O'Connor has furnished the trial court with additional discretion where the court feels that any allowance against the husband would be reasonable or justified. Such action by a trial court...