Carey v. Carey, 19271

• Decision Date: 19 January 1961
• Docket Number: No. 1,No. 19271,19271,1
• Citation: 132 Ind.App. 30,171 N.E.2d 487
• Parties: Carlton F. CAREY, Appellant, v. Audrey R. CAREY, Appellee
• Court: Indiana Appellate Court

Page 487

171 N.E.2d 487

132 Ind.App. 30

Carlton F. CAREY, Appellant, v. Audrey R. CAREY, Appellee.

No. 19271.

Appellate Court of Indiana, Division No. 1.

Jan. 19, 1961.

Kelley, Arnold & Kelley, Anderson, for appellant.

Campbell, Anderson & Jones, Anderson, for appellee.

COOPER, Judge.

This is an appeal from the Madison Circuit Court wherein the appellant filed a petition to modify a decree rendered in a divorce action. The issues were made by the appellant's petition to modify and answer by the appellee filed thereto in two paragraphs, the second paragraph of the appellee's answer being a verified petition for citation for contempt of court. The appellant demurred to the appellee's reply to his petition to modify, which demurrer was overruled by the trial court. The appellant then answered the appellee's affidavit for citation. The cause was thereafter submitted to the trial court for determination and after an order adjudging the appellant as being in contempt of court, the appellant filed his motion for a new trial, which, omitting the formal caption, is as follows:

'1. The court erred in overruling the demurrer to the plaintiff's reply to defendant's petition to modify support.

'2. The decision of the court is not sustained by sufficient evidence.

'3. The decision of the court is contrary to law.'

The error assigned on appeal is the overruling of appellant's motion for a new trial; the court erred in overruling the demurrer of the appellant.

The appellant first urges his assignment of error #2 in that the court erred in overruling appellant's demurrer. Our Supreme Court has held in civil contempt proceedings the affidavit or information is sufficient when it shows the order of the court and its violation. A review of the record shows that both of these requisites were met in the affidavit and averments contained in paragraph 2 of appellee's reply. Hays v. Hays, 1939, 216 Ind. 62, 66, 22 N.E.2d 971; State ex rel. Seifret v. Branner, 1910, 174 Ind. 684, 93 N.E. 70; Locrasto v. State ex rel. Bozarth, 1930, 202 Ind. 277, 281, 173 N.E. 456. Under the foregoing authorities, the trial court did not commit error in overruling the appellant's demurrer thereto.

The other assigned error is the alleged error of the court in overruling appellant's motion for a new trial.

We find in the case of Hays v. Hays, supra, 216 Ind. at page 66, 22 N.E.2d at page 973, the Supreme Court further stated;

'It is necessarily presumed that the trial court in the original action found that the appellant was then able to comply with the order made at that time. The order could have been appealed from and was also subject to modification on the petition of appellant showing a changed condition which would make it impossible for him to comply with the original order. In the absence of any such petition to modify the original order it would not seem to be unfair to place on the appellant the burden of pleading and proving to the satisfaction of the court such facts as would show his inability to comply with the original order.'

Therefore, in considering the question of the sufficiency of the evidence we must bear in mind that where a person seeks to satisfy the court that his failure to obey an order was due to his inability to render obedience, the burden is upon him to establish this fact. Hays v. Hays, supra, 216 Ind. at page 67, 22 N.E.2d at page 973.

It is the law in Indiana under the decisions of the Supreme Court and our court that a decision against one with the burden of proof is a negative decision against him and may not be attacked on the ground that there is a lack of evidence to sustain it. Hinds v. McNair et al., 1955, 235 Ind. 34, 129 N.E.2d 553; Wherry v. Backelman Etc. et al., 1955, 126 Ind.App. 136, 130 N.E.2d 777; Billman v. State, 1955, 234 Ind. 553, 129 N.E.2d 795; Bastow v. Knotts et al., 1956, 126 Ind.App. 152, 131 N.E.2d 155; § 1812, Comment § 6, Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice.

The final contention of the appellant herein is that the last order made by a court in this cause is contrary to law. With this contention, we cannot agree. § 3-1219, Burns' 1946 Repl., provides that:

'The court, in decreeing a divorce, shall make provision for the guardianship, custody, support and education of minor children of such marriage.'

The appellant contends that under the authority of Hachat v. Hachat, 1947, 117 Ind.App. 294, 71 N.E.2d 927, and Morris v. Morris, 1931, 92 Ind.App. 65, 171 N.E. 386, the trial court had no authority of law to require appellant to provide funds to defray the expenses of a general college education for the daughter of the parties. The most recent case in this matter decided by our Supreme Court is the case of Haag v. Haag, Ind.1959, 163 N.E.2d 243, 249, which affirms the general rule as set forth in the two foregoing authorities; however, we note an exception to the general rule as stated in the Haag case, supra, wherein the court stated:

'There is a recent tendency in certain jurisdictions to require contributions to a college education for minor children. However, courts in such cases have taken 'into account various specific factors, such as the financial ability of the father, the ability and capacity of the child for college work, the nearness of the child to his majority, whether the child is self-sustaining or not, and the father's willingness to provide for such education, as shown by some agreement thereto on his part. In a few of the college education cases the courts have had occasion to consider the effect of particular statutory provisions.'' (Our emphasis.)

In the instant case before us the factual situation as shown by the record here is completely different than those in the cases of Haag v. Haag, supra; Hachat v. Hachat, supra; and Morris v. Morris, supra. In this case, we are confronted with an agreement or contract which is conducive to the general welfare of the children, and since it was incorporated into the decree, it is enforceable subject to the court's power subsequently to modify such decree. The welfare of the child is always paramount and, under such circumstances, the trial courts have board power.

Our Supreme Court, in the case of Garner v. Gordon, 1872, 41 Ind. 92, at page 106, stated:

'* * * The welfare of the child is the object to be secured, and that requires attention to many circumstances; such as its sex, age, health and social position as affected by that of its parents; its just expectations of property from them or either of them or from others * * *.' (Our emphasis.)

We are of the opinion that the appellant herein had a legal right to make a contract with the appellee for the support and education of their minor children. The consideration for such contract was adequate and complete, and the contract was mutually and permanently binding on both ...