Dieterle v. Dieterle, 19301

• Decision Date: 07 April 1961
• Docket Number: No. 2,No. 19301,19301,2
• Citation: 132 Ind.App. 213,173 N.E.2d 665
• Parties: Lucille DIETERLE, Appellant, v. Herman R. DIETERLE, Appellee
• Court: Indiana Appellate Court

Page 665

173 N.E.2d 665

132 Ind.App. 213

Lucille DIETERLE, Appellant, v. Herman R. DIETERLE, Appellee.

No. 19301.

Appellate Court of Indiana, Division No. 2.

April 7, 1961.

Rehearing Denied June 1, 1961.

Vernon E. St. John, Lafayette, for appellant.

William K. Bennett, Lafayette, for appellee.

BIERLY, Judge.

Action by appellant against appellee for divorce on grounds of cruelty and inhuman treatment. Appellee answered the amended complaint under the rules and also filed a cross-complaint, which was answered by the appellant under the rules. The amended complaint prayed for an absolute divorce, custody of three minor children, support money for the minor children, an equitable adjustment of property rights, attorney fees and alimony 'in such sum as may be just.' The cross-complaint, in addition to specific allegations of cruel treatment of appellee by appellant, prays judgment for absolute divorce from appellant and for costs.

Trial resulted in a decree granting appellant an absolute divorce on her amended complaint, awarded her the custody of their three children, provided for the support of the latter, awarded alimony and made an adjustment of the property and property rights of the parties. The particulars of the allowance of alimony and the division of property will be hereinafter more specifically noticed.

Motions by appellant to modify the judgment and for a new trial were overruled and this appeal followed.

Neither party contests the action of the court in granting the divorce and the only matter presented here by appellant pertains to the alimony allowance and property adjustment. In this regard appellant says that the court abused its discretion.

It appears from the record that at the time of their marriage in 1940, neither party owned or possessed any real estate and but meager personalty. During the marriage, appellant's earnings were approximately $19,836.41 and the approximate earnings of appellee were $17,520.77. Real estate was acquired as follows: 40 acres purchased by appellee from his mother for $4,000.00, title to which was taken by the entireties; and 70 acres formerly owned by appellee's deceased father and of which appellee inherited a 2/15 interest, by the purchase by appellee of the remaining 13/15th interests for $17,500.00. The title to the latter tract was originally taken in appellee's name but later, by reason of appellant's repeated insistence, was vested in the parties as entireties.

At the time of the divorce, appellant possessed a separate estate consisting of stock valued at $1500.00; a $700.00 checking account; a $3500.00 savings account; a life insurance policy valued at $458.00; and an inheritable interest in farm land of her deceased father, valued at $6396.20. Appellee possessed stock valued at $2590.00; life insurance of $1995.00; farm machinery valued by appellant at $3305.00 but valued at $1665.00 by appellee; hog equipment valued by appellant at $2462.75 but valued by appellee at $862.00; a checking account of $228.44; two (2) automobiles of approximately equal value and valued at $2300 each. The parties possessed furniture and household goods valued at $2325.00. The 110 acres of land, purchased by appellee, as aforesaid, was encumbered with a mortgage lien of $3272.50, and the net value thereof was shown to be $29,227.50.

The court found and adjudged that the appellee should pay the sum of $25.00 per week during school sessions and $12.50 per week during school vacation, for the support of said children; that appellant be awarded one automobile and the household furniture and effects; that she recover of appellee 'as and for alimony and in settlement of all property rights between the parties,' Eleven Thousand ($11,000.00) Dollars, to be paid in semi-annual installments of $500.00 each, on the 1st day of January and July of each year, beginning January 1, 1959 and a final installment on July 1, 1969. It was further found that a reasonable fee for appellant's attorneys is $1600.00 which appellant had paid to her counsel, and that, to reimburse her, appellee should pay into the clerk's office semiannual installments of $250.00 each, payable on the 1st day of January and July in each year, beginning January 1, 1959 and a final installment on July 1, 1962. (NOTE: said installments, as ordered by the court, total the sum of $2,000.00 instead of $1600.00, the amount found due the appellant for her incurred counsel fees.) The entireties real estate of 110 acres was set off to appellee, with appropriate provisions for transfer of the title thereto to appellee.

The evidence of values heretofore attributed to some of the items of personalty was in slight conflict. In general, however, considering the separate property of each party, it appears that the court arrived at a near equal division of the property between the parties. However, appellant contends that as she was found to be the guiltless wife, it was error and an abuse of discretion for the court to divest her of her entireties interest in the real estate without full compensation therefor. All cases relied upon by appellant in support of her position were decided prior to the effective date of the amendment of Ch. 43, Acts of 1873 by Ch. 120, § 3 of the Acts of 1949, being § 3-1218 Burns 1960 Supplement. Since the enactment of said amendment of 1949, it has been consistently held that said Act, although primarily an alimony statute, recognizes the case law 'which grants broad powers to a divorce court to fully adjudicate the rights of the parties and order the transfer of real estate between the parties in proper cases.' Gray v. Miller, 1952, 122...