Buckner v. Buckner, 19037

• Decision Date: 13 August 1958
• Docket Number: No. 19037,No. 2,19037,2
• Citation: 128 Ind.App. 654,152 N.E.2d 97
• Parties: Lucille E. BUCKNER, Appellant, v. Roger E. BUCKNER, Appellee
• Court: Indiana Appellate Court

Page 97

152 N.E.2d 97

128 Ind.App. 654

Lucille E. BUCKNER, Appellant, v. Roger E. BUCKNER, Appellee.

No. 19037.

Appellate Court of Indiana, Division No. 2.

Aug. 13, 1958.

Bangs & Yates, Huntington, for appellant.

Frederick M. Mowrer, Huntington, for appellee.

KELLEY, Judge.

In an action for divorce, the trial court granted appellant an absolute divorce from appellee and adjudicated their property rights. This appeal presents the sole contention of appellant that the court abused its discretion in awarding certain entireties real estate to the appellee.

In addition to the two resident witnesses, the evidence consisted of appellant's testimony and a stipulation by the parties of the fair market value of certain personal property belonging to them. Appellee gave no evidence. The evidence tends to establish that appellant had three children by a previous marriage but no children by the union dissolved in this action; that appellee proved unfaithful to his marriage vows and fathered a child by another woman; that at the time of her marriage to appellee on November 23, 1948, appellant was in good health and possessed good eyesight; that at that time she and appellee worked at the same factory and after their marriage she continued to work there until October 5, 1955, at which time appellant underwent surgery for an affliction of her eyes known as glaucoma; that appellant is now totally blind in the right eye and there is a severe reduction of sight in the left eye.

By her first marriage appellant acquired a 'property on Swan Street' in which she and appellee lived during the first four years of their marriage and which appellant continues to own. (The description, size and details as to said Swan Street property do not appear in evidence). During their marriage the parties jointly acquired some household furnishings, a garden tractor, farm tractor, cultivator and mower, a 1950 Plymouth automobile, a 1935 Dodge automobile, and some chickens. Appellant, at the time of the decree, had a savings account of approximately $1,159.

The parties invested their earnings in a residence situated on a tract of about five acres of land on the outskirts of Mt. Etna, Indiana, appraised at the trial in the amount of $8,500. Appellant testified that the purchase price of said property was $8,000 and that appellee made the down payment of $4,000. The parties moved into this property in September, 1952 and continued to hold and occupy the same, as tenants by the entireties, until the divorce decree. The monthly payments on the balance of the purchase price of the property were contributed by the parties in equal shares.

At the trial appellant testified that she desired to continue living in the Mt. Etna property, that she was acquainted with the 'inside and outside of this house' and could find her way around it, and she asked that said property and the household goods be set off to her as her separate property.

The court awarded appellant the $1,159 savings account, all household goods, furniture and chattel property, except the 1950 Plymouth automobile, the 1935 Dodge automobile, the garden tractor, the farm tractor, cultivator and mower, and two dozen chickens, which said excepted items were awarded to appellee. The Mt. Etna home property was awarded to appellee subject to a lien of $4,475.92 alimony awarded appellant.

Appellant contends that in awarding the Mt. Etna residence and the five acres of land to appellee, the court abused its discretion. She says 'appellant admits that the award as to dollar values may come within the range of the discretion which the court may exercise, but to deny the appellant in her condition of near blindness, inability to make a living except from this land with which she was acquainted and which she had asked the court to...