Dissette v. Dissette

• Decision Date: 02 July 1935
• Docket Number: No. 26457.,26457.
• Citation: 196 N.E. 684,208 Ind. 567
• Parties: DISSETTE et al. v. DISSETTE.
• Court: Indiana Supreme Court

208 Ind. 567

196 N.E. 684

DISSETTE et al.

v.DISSETTE.

No. 26457.

Supreme Court of Indiana.

July 2, 1935.

Action by Margaret P. Dissette against Joseph C. Dissette and others for divorce and incidental relief. Judgment for plaintiff, and defendants appeal.

Affirmed.Appeal from Superior Court, Marion County; Russell J. Ryan, judge.

Roemler, Carter & Rust, of Indianapolis, for appellants.

Miller & Miller, of Indianapolis, for appellee.

HUGHES, Judge.

This was a divorce action in which the appellee was plaintiff, and the appellant Joseph C. Dissette was defendant. The appellants other than Joseph C. Dissette were made parties defendant because of certain property in which appellant Joseph C. Dissette was interested.

A divorce was granted to the appellee, Margaret P. Dissette from the appellant Joseph C. Dissette, and the custody of three children was given to the appellee. The appellee was given $51,421 alimony, $200 per month for the support, maintenance, and education of the three children, and $2,000 incurred for expenses and attorneys' fees.

The errors relied upon for reversal are that the court erred in overruling the motions of each of appellants to modify the judgment and decree, and in overruling the motion of each of the appellants for a new trial.

The plaintiff (appellee) and defendants (appellants) stipulated and agreed to the following facts:

‘The plaintiff and defendant, Joseph C. Dissette, are husband and wife. They were duly married on the 16th day of August, 1917, and, with the exception of six months during the year 1925, lived together as husband and wife until the 5th day of September, 1931, when they separated, and since which time they have not lived or cohabited together.

‘In the fall of 1925, plaintiff separated from defendant and thereafter employed attorneys to bring an action for a divorce from defendant; that before such suit was filed, a written agreement, dated January 2nd, 1926, looking to a reconciliation between plaintiff and defendant, was entered into, and a copy thereof is hereto attached, made a part hereof and marked Exhibit ‘A.’

‘The plaintiff and defendant, Joseph C. Dissette, have as the fruits of their marriage three minor children, two boys and one girl, whose names, date of birth and present ages are as follows:

+------------------------------------------------------+
                ¦                     ¦Date of      ¦                  ¦
                +---------------------+-------------+------------------¦
                ¦Name                 ¦Birth        ¦Approximate Age   ¦
                +---------------------+-------------+------------------¦
                ¦James I. Dissette, II¦May 30, 1918 ¦13 years, 8 months¦
                +---------------------+-------------+------------------¦
                ¦Marjorie Dissette    ¦Sept. 6, 1920¦11 years, 4 months¦
                +---------------------+-------------+------------------¦
                ¦Jos. C. Dissette, Jr.¦July 7, 1922 ¦9 years, 6 months ¦
                +------------------------------------------------------+
                

‘The plaintiff has been compelled to and has employed attorneys to bring and prosecute this suit, and she is without sufficient means wherewith to pay the necessary expenses incident to this suit and to compensate such attorneys for services which have already been and will necessarily hereafter be rendered by them in that behalf; that said attorneys are the firm of Miller and Miller, of Indianapolis, and that they have not received any compensation for their services up to this time.

‘The plaintiff does not own any property, other than her interest in the real estate hereinafter referred to, a small automobile, her personal effects and a small amount of furniture of little value, some small stock holdings amounting in the aggregate to not to exceed $200.00, and the surrender value of certain Life Insurance policies assigned to her, pursuant to Exhibit A, of approximately $2,400.00, and is without means, except as herein stated, with which to support herself and said children, and has no profession, business or other means of livelihood.

‘That plaintiff and said defendant, Joseph C. Dissette, hold in their joint names certain real estate and the improvements thereon located at Spring Lake, Ottawa County, Michigan, Consisting of a substantial tract of land, a frame summer cottage and outbuildings; that said real estate and the improvements thereon were acquired after the marriage of the plaintiff and said defendant; that a substantial sum of money, to-wit: $3,250.00 belonging to the plaintiff in her sole right went into the purchase of said property; that said real estate consists of two lots which were purchased in 1928 for the aggregate amount of approximately $3,300.00; that said realty and improvements thereon cost approximately $25,140.00, and that said real estate and improvements were recently appraised by a competent appraiser at the instance of defendant at $15,130.00. Said appraisement is introduced herewith; that said cottage is furnished, and that the furniture and equipment therein contained, together with other furniture owned by said defendant, and located in Indianapolis, Indiana, which cost approximately $3,960.00, are of the value of $1580.00.

‘That James I. Dissette is the father of the defendant, Joseph C. Dissette; that on the 19th day of January, 1921, the said James I. Dissette and Joseph C. Dissette entered into a certain contract bearing that date, whereby said James I. Dissette sold to Joseph C. Dissette, in consideration of love and affection and the sum of One Dollar ($1.00), and subject to certain conditions therein set out, 60% of the total outstanding common capital stock of the Indianapolis Wire Bound Box Company, an Indiana corporation engaged in manufacturing wire bound boxes, whose business is located in the City of Indianapolis; a copy of said contract is attached hereto, made a part hereof and marked Exhibit ‘B’; that subsequently, on, to wit: the 18th day of August, 1925, said Joseph C. Dissette and said James I. Dissette entered into a certain contract to amend section two of said contract of the 19th day of January, 1921, a copy of which is hereto attached, made a part hereof and marked Exhibit ‘C’;

‘That the par value of the stock of said Wire Bound Box Company is $50.00 per share.

‘That subsequently, on, to-wit: the 20th day of March, 1929, another certain contract was entered into between James I. Dissette and Joseph C. Dissette,as parties of the first part, and the defendants herein, DeWitt W. Brown and L. C. Bradford, as parties of the second part, whereby said Joseph C. Dissette agreed to sell and sold 1200 shares of said stock for the sum of $200,000.00 and James I. Dissette sold 795 shares of said stock for the sum of $198,750.00 to said Brown and Bradford, subject to conditions therein set forth; a copy of said contract is hereto attached, made a part hereof and marked Exhibit ‘D’.

‘That the book value of the stock of said Wire Bound Box Company at the present time is $67.72 per share.

‘That since said contract of March 20, 1929, was made, payments have been made on account of the principal of the purchase price to Joseph C. Dissette of $28,000.00, and to James I. Dissette of $56,000.00, leaving a balance of $172,000.00 payable to Joseph C. Dissette under said contract as provided therein.

‘That since said contract of March 20, 1929 was entered into, at the respective semi-annual interest paying dates the interest then due has been fully paid to both James I. Dissette and Joseph C. Dissette; that in the year 1932, if the earnings of the Indianapolis Wire Bound Box Company warrant the declaration of dividends on its outstanding stock amounting in the aggregate to $172,000, there will become due to Joseph C. Dissette, on to-wit: March 20, 1932, as interest on the unpaid purchase price of said stock the sum of $4300.00 and on the 20th of September, 1932, a like sum of $4,300.00, or a total of $8,600.00 for the year; that the business of said Indianapolis Wire Bound Box Company is such as to warrant the belief that dividends will be declared by said Indianapolis Wire Bound Box Company sufficient to enable said Brown and Bradford to pay the interest which will become payable under said contract, Exhibit ‘D’ during the year 1932, but there is no certainty that dividends will be paid by said Indianapolis Wire Bound Box Company during the year 1932 in an amount sufficient to enable said Brown and Bradford to make any payments upon the principal of the purchase price of said stock during said year either to James I. Dissette or to the defendant Joseph C. Dissette; that payments of principal and interest under said contract for future years are wholly uncertain, being dependent entirely on the success or failure of said corporation to earn sufficient net profits from which, when declared as dividends said Brown and Bradford will be able to pay the same.

‘That said Joseph C. Dissette has no property other than the real estate, furniture and equipment and his interest in the Indianapolis Wire Bound Box Company contract hereinabove referred to, except his personal effects, an automobile, 50 shares of Canadian Marconi Company stock of the value of about $50.00, and the surrender value, amounting to about $380.00 on the policies of life insurance which he has taken out in favor of the three children of the plaintiff and said defendant, Joseph C. Dissette, referred to in said Exhibit ‘A’.'

Exhibit D referred to in the stipulation of facts, was the contract entered into between James I. Dissette and Joseph C. Dissette, parties of the first part, and DeWitt W. Brown and L. C. Bradford, parties of the second part, and the parts of said contract applicable here are as follows:

‘That the parties of the first part are the owners of the total common capital stock of the Indianapolis Wire Bound Box Company, an Indiana Corporation, having 2000 shares of the par value of $50.00 each, the respective holdings being 1200 shares standing in the name of Joseph C. Dissette, and 800 shares standing in the name...