Crowe v. Crowe, 17410.

• Docket Nº: 17410.
• Citation: 65 N.E.2d 645, 116 Ind.App. 534
• Case Date: March 29, 1946
• Court: Court of Appeals of Indiana

65 N.E.2d 645

116 Ind.App. 534

CROWE
v.
CROWE.

No. 17410.

Appellate Court of Indiana, in Banc.

March 29, 1946

Appeal from Lake Superior Court, No. 3; Fred A. Egan, Judge. [65 N.E.2d 646]

[116 Ind.App. 537] Oscar B. Thiel, of Gary, for appellant.

Stiles & Bayor, of Gary, for appellee.

ROYSE, Presiding Judge.

Prior to September 16, 1937, the parties hereto were husband and wife. They had four children. On said last mentioned date appellant was granted a divorce from appellee. The court gave appellee custody of two children, Ruth Elizabeth who was then six years old, and Robert who was then two years old. Appellant was granted custody of the other two children. Appellant was ordered to pay $30 per month for the support of the children placed in the custody of appellee.

On or about June 5, 1945, appellee filed her motion to modify the order of September 16, 1937, by requiring appellant to pay $100 per month for the support of said two children. In said motion she averred that since said decree was entered appellant's income had increased from $150 per month to $1500 per month. It was further averred that as the children grew older it required a larger sum to adequately support them. To this motion appellant filed what he denominated a response and cross-motion to modify the original decree, in which he alleged appellee did not require more than $30 per month to support said children and that she had removed said children from the jurisdiction of the Court to the State of Arkansas. He further alleged appellee had persistently attempted to poison the minds of said children against him; that the daughter Ruth Elizabeth has expressed a desire to live with her father. He sought custody of said children and relief from further obligation to pay appellee for their support.

Upon the issues thus formed the trial court heard evidence and at the conclusion thereof entered its judgment, the pertinent portion of which is as follows:

[116 Ind.App. 538] [65 N.E.2d 647]

'* * * It is further ordered, adjudged, and decreed by the court that the order heretofore entered herein on September 16, 1937 be and the same is hereby modified and the plaintiff is ordered to pay into the office of the clerk of this court, the sum of Eighty-five ($85.00) Dollars, each and every month commencing as of this date said sums to be paid to the defendant for the support of Ruth Elizabeth Crowe and Robert Crowe. It is further ordered, adjudged and decreed that the plaintiff have the care and custody of Ruth Elizabeth Crowe and Robert Crowe from July 1, 1945 to September 1, 1945, and that he have such care and custody each year hereafter from June 15th to September 1st, and that during the time he has such custody, the order for support of said minor children be and the same is suspended, during the time as such minor children are in the care and custody of plaintiff during each summer. It is further ordered, adjudged and decreed that the plaintiff pay the sum of Fifty ($50.00) Dollars for the use of defendant's attorney, on or before 60 days from the date of this order. And the court now being advised that the plaintiff has paid the defendant the sum of Sixty ($60.00) Dollars for transportation of said minor children, Ruth Elizabeth Crowe and Robert Crowe, from Mountain Home, Arkansas to Gary, Indiana. It is now ordered, adjudged and decreed that the defendant pay the traveling expenses for said minor children from Mt. Home, Arkansas to Gary, Indiana, on July 1, 1945, and also pay the expenses of their return to Mt. Home, Arkansas, on September 1, 1945.

'All of which is now ordered, adjudged, and decreed this 26th day of June, 1945.'

On proper assignment of error appellant makes three contentions here: (1) The trial court erred in overruling his motion to modify the original decree and give him custody of the two children; (2) the court erred in increasing the original support order from $30 to $85; (3) the court erred in awarding appellee's attorney any attorney's fees.

[116 Ind.App. 539] In support of his first contention appellant asserts a father is entitled to the custody of his minor children and should not be compelled to support them in a foreign jurisdiction. He also contends that the children being wards of the Court they must be kept within the...