O'Connor v. O'Connor

• Decision Date: 10 December 1969
• Docket Number: No. 1269,1269
• Citation: 253 N.E.2d 250,253 Ind. 295
• Parties: Donald Scott O'CONNOR, Appellant, v. Elgin Joan O'CONNOR, Appellee. S 283 (20603).
• Court: Indiana Supreme Court

Page 250

253 N.E.2d 250

253 Ind. 295

Donald Scott O'CONNOR, Appellant, v. Elgin Joan O'CONNOR, Appellee.

No. 1269 S 283 (20603).

Supreme Court of Indiana.

Dec. 10, 1969.

Rehearing Denied Jan. 26, 1970.

Richard W. Adney, Lebanon, Paul T. Rochford, Indianapolis, for appellant.

John L. Fox, Indianapolis, for appellee.

John M. Kitchen, Rauch, Chase & Kitchen, and Charles W. Ardery, Jr., Indianapolis, for amicus curiae, the Indianapolis Bar Assn.

HUNTER, Judge.

This case involves an action for divorce brought by appellee against appellant in the Superior Court of Marion County Room No. 3 which upon a change of venue was tried in Boone County, Indiana. Appellant cross-complained and upon trial of the issues, appellee was awarded the divorce.

Appellant appealed the trial court decision to the Appellate Court which reversed and ordered a new trial. Following a denial of rehearing in that court, appellee petitioned this court for transfer. (For Appellate Court opinion see 241 N.E.2d 387). We have accepted.

In her petition for rehearing, appellee alleges three grounds for transfer. The first such ground is that the decision of the Appellate Court contravenes a ruling precedent of this court, namely Sidebottom v. Sidebottom (1968), Ind., 233 N.E.2d 667, where we held that a spouse accepting the benefits of a divorce decree is estopped from challenging such decree on appeal. However, that case involved a remarriage and is easily distinguishable from the case at bar. Here the appellant sold a car after the trial court rendered its decree and it is this act alone which appellee alleges constitutes an acceptance of the benefits.

It is true that the acceptance of financial benefits accruing to a spouse from the granting of a divorce may in some cases estop that spouse from the prosecution of an appeal. Finke v. Finke (1963), 135 Ind.App. 65, 191 N.E.2d 516. Smith v. Smith (1955), 125 Ind.App. 658, 129 N.E.2d 374. However, there are obvious limitations to this theory where the acceptance of certain financial benefits is the only evidence available to support the proposition that a spouse has unqualifiedly accepted the benefits of the decree and hence is precluded from appeal. For example, if a wife is awarded the title to the family home pursuant to a divorce decree, is she to be precluded from living in the house if she wishes to prosecute an appeal on some aspect of the judgment? Likewise should the spouse who was awarded a mechanically defective automobile be required to retain possession of that car even where such possession is sure to result in unreasonably high repair bills? Should a spouse who has been awarded stock be required to hold on to such stock in spite of the fact that it has begun to decline in value? To require a spouse to incur liabilities or losses in order to be free of an allegation of accepting the benefits of a divorce decree is an anomaly indeed. Likewise, a requirement that possession of all assets, regardless of their nature, be frozen in the spouse to which they are awarded if an appeal is contemplated is unreasonable, unrealistic and unnecessary. Appeals often take considerable time, a fact to which this case, from trial through appeal, will bear witness. Certainly the rule does not and should not require that in the interim a spouse be unreasonably hampered by the denial of the right to make those dispositions of property required as a normal incident of everyday life.

It is the considered opinion of this court that to constitute an acceptance of the benefits of divorce so as to preclude an appeal, the benefits 'accepted' must be of such a nature as to clearly indicate an intention on the part of that spouse to be bound by the divorce decree. Remarriage is without doubt an acceptance of the benefits which clearly falls within the rule. Where there is no remarriage however, the facts and circumstances of each case must control in determining whether there is a positive acceptance of the financial benefits precluding appeal. Factors to be considered are the very nature of the 'benefit' and its relation to the parties of the divorce, the likelihood that such 'benefits' will be dissipated and the use to which such 'benefits' are put by the spouse to which they are awarded.

Here, appellant sold a car. Considering the nature of the property and the facts and circumstances of this case against the factors as above outlined, we cannot say that the mere sale of the auto without more is sufficient action to estop an appeal.

A second ground for transfer is that the Appellate Court failed to give a statement in writing of each substantial question arising on the record as included in appellant's brief. First, we note that the Appellate Court reversed the trial court, thereby making it unnecessary to cover all points raised. Secondly, strange as it may seem, appellee is here complaining that the Appellate Court failed to discuss all of appellant's assignments of error. We can readily see how a failure to do so could prejudice the appellant, but it remains a legal mystery to this court to envision in what way a failure to discuss the points raised by appellant in urging a reversal of the cause could prejudice appellee nor does appellee attempt to so establish such prejudice as required by Supreme Court Rule 2--23(4)(c).

Finally, appellee urges transfer of the cause on the grounds that the Appellate Court erroneously decided a new question of law in that they held that an award for attorney fees to a successful wife in the trial court was no longer proper where the cause in chief was reversed. On this point, the court is much indebted to counsel for Amicus Curiae, Charles W. Ardery, Jr., for the fine brief submitted, also to both Charles W. Ardery, Jr. and John M. Kitchen for their participation in oral argument before this court.

To begin our discussion we turn first to the applicable statute on this point, Ind.Ann.Stat. § 3--1216 (1968 Repl.) which reads in pertinent part as follows:

'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 and attorney fees as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. And, on decreeding a divorce in favor of the wife or refusing one of the application of the husband, the court shall, by order to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosection or defense of the petition including a reasonable sum for the services of the attorney representing such wife which sum for attorney fee shall be payable direct to said attorney and the order for same shall be in the name of said attorney, when such divorce has been granted or refused: * * *.'

At the outset we note that the statute covers two distinct situations, the first being where the court grants a pendente lite order for the attorney fees. The granting of same is within the discretion of the trial court and they are usually granted after a consideration of such factors as the needs of the wife and the ability of the husband to pay. Crowell v. Crowell (1942), 219 Ind. 472, 39 N.E.2d 602. Hetherington v. Hetherington (1928), 200 Ind. 56, 160 N.E. 345. Snider v. Snider (1913), 179 Ind. 583, 102 N.E. 32. McCue v. McCue (1897), 149 Ind. 466, 49 N.E. 382. Harrell v. Harrell (1872), 39 Ind. 185. The second situation is where a divorce has been granted in favor of the wife or refused on the application of the husband, and it is with this situation that we are here involved.

The Appellate Court held that the power of the court to award attorney fees upon the granting of the divorce decree was statutory and that only when the wife was awarded the decree or the husband refused a decree was there authority to make the award. Since the wife had been improperly awarded the divorce and that decision was being reversed, the Appellate Court reasoned that the award of attorney's fees was therefore improper and must also be reversed. This results does not necessarily follow.

Such a position presupposes two rules of law. First of all, it presupposes that upon a final decree the wife is entitled to the fees only if she succeeds in the trial court or the husband fails in his action. Secondly it assumes that should the fees be properly awarded the wife on the trial court level and the Appellate Court reverses the cause in chief, then the award of attorney fees is no longer proper.

As to the first supposition, there is case law in support of that view. The Appellate Court initially decided the question in Fites v. Fites (1916), 62 Ind.App. 396, 112 N.E. 39 in which that court held that since there was no power inherent in the common law to award fees for services rendered by attorneys, it came to the trial court solely by virtue of the statute. Consequently, on a final decree, an allowance could only be made as specified by the statute. Fites was followed by Hart v. Hart (1929), 90 Ind.App. 220, 168 N.E. 492 and Fordice v. Fordice (1956), 126 Ind.App. 562, 132 N.E.2d 618, on which the Appellate Court in the instant case relied.

These cases are in error for the following reasons. In Fites v. Fites, supra, the Appellate Court held, as we have already noted, that there was no common law right to an award but such right arises only by statute. However this court has held that a pendente lite order is founded on the common law obligation of the husband to support his wife. Snider v. Snider, supra. To the same efect is Crowell v. Crowell, supra, and State ex rel. Sims v. Hendricks Circuit Court et al. (1956), 235 Ind. 444, 134 N.E.2d 211. Admittedly these cases involve appeals from an award for attorney fees while the action was still pending. There would seem, however, to be little...