Crowe v. Crowe
| Decision Date | 04 November 1965 |
| Docket Number | No. 30777,30777 |
| Citation | 247 Ind. 51,211 N.E.2d 164 |
| Parties | Harold W. CROWE, Appellant, v. Carole Lee CROWE, Appellee. |
| Court | Indiana Supreme Court |
Lewellyn H. Pratt, Bloomington, for appellant.
Theodore Puchowski, Hammond, for appellee.
This is an appeal from an order of the Lake Superior Court, ordering appellant to pay an increased amount of support for the minor child of the parties, plus attorney fees for appellee's attorney on appellee's petition to modify a support order entered by the court.
The issues were presented by the filing and submission to the trial court of appellee's verified petition to modify support. The cause was submitted to the court for hearing. Having heard the evidence, the court entered its finding and order as follows:
(1) That appellant's motion for a finding in his favor was overruled by the court;
(2) That the court found for appellee on her petition and ordered appellant to pay into the Clerk's office the sum of $25 per week for the support of the minor child of the parties;
(3) That the court ordered the cause to be continued to a later date for hearing on dental work for the minor child of the parties, and appellant to have the minor child examined by an orthodontist at his expense;
(4) That appellant was ordered to pay into the Clerk's office of Lake Superior Court the sum of $50 as attorney's fees to appellee's attorney for legal fees for services rendered in this action.
The main contentions are, that there is no evidence to support the trial court's order of $25 a week to be paid by the father for the support of the child, and that the court had no authority to order the payment of $50 attorney's fees to the appellee-mother as expenses in this proceeding. The evidence in the case is quite meager with reference to the support order, and consists merely of the mother's (petitioner's) testimony.
The petitioner testified that the parties were divorced in 1953, and that at that time they were the parents of a nine months old child. The court, at the time of the divorce in 1953, made an order against the appellant (the father) to pay $10 a week for the support of the child. The appellee testified with reference to certain costs for dental work that was necessary for the child. She was further asked 'how much it cost to raise the child on a weekly basis' and she replied '$25 per week.' The evidence showed that the child now was ten or eleven years old. Petitioner testified she did not know what the father was doing and whether he was employed or not. The appellant-father did not take the stand or offer any evidence. The court thereupon made the order of $25 a week for support money and $50 attorney's fees.
It is argued by the appellant that there is no evidence that he can pay $25 a week support money; that the evidence does not show he had a job or that he is in good health and able to earn that sum, etc. On the other hand, it is contended that his illness or inability to earn support money is a matter of defense, that such evidence is peculiarly within his own personal knowledge, and that the court will assume he can pay support money unless evidence appears to the contrary.
A husband and father at common law has the duty and obligation to support his children without any court decree or order. A court order requiring the payment of this support does nothing more than carry out the common law principle involved, although the statute makes it mandatory upon the court entering a divorce decree to provide for the support of any minor children. Burns' Ind.Stat.Anno. Sec. 3-1219 (1965 Supp.)
Even bankruptcy does not relieve a father of the obligation to make support payments for his children. Hylek v. Hylek (7th Cir.1945), 148 F.2d 300.
27B C.J.S. Divorce, Sec. 319(1)a, p. 591.
The court determines under the evidence, as in this case, what is a reasonable sum required for the support of such child or children. If there is evidence or facts under which the father is relieved from his common law and statutory duty of support, it is incumbent upon him to come forth with such evidence in mitigation or defense. The burden is upon the father to show that he cannot support his child or children or pay all the sums required for their support. Such evidence might show that the father is unable, physically or mentally, to engage in employment or is unable, for other reasons, to obtain employment and has no other income with which to make such payments. These...
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