Dragoo v. Dragoo, 19509

• Decision Date: 16 May 1962
• Docket Number: No. 1,No. 19509,19509,1
• Citation: 133 Ind.App. 394,182 N.E.2d 434
• Parties: Eleanor Louise DRAGOO, Appellant, v. Lloyd Nelson DRAGOO, Appellee
• Court: Indiana Appellate Court

Page 434

182 N.E.2d 434

133 Ind.App. 394

Eleanor Louise DRAGOO, Appellant, v. Lloyd Nelson DRAGOO, Appellee.

No. 19509.

Appellate Court of Indiana, Division No. 1.

May 16, 1962.

Robert W. Young, of Acher, Young & Pushor, James B. Young, of Pogue, Young & Jones, Franklin, for appellant.

Allen E. Goltra, Goltra & Kershaw, Columbus, for appellee.

AX, Judge.

Appellant (plaintiff below) was awarded an absolute divorce on her amended complaint charging her husband with cruel and inhuman treatment. She was further awarded custody of their five minor children with weekly support in the sum of $40.00, a two-story frame residence of a value of $11,000.00 subject to a mortgage debt of approximately $1,000.00, and all household goods which she owned prior to her marriage. In addition the court ordered appellee to pay additional attorney fees to appellant's attorney in the sum of $275.00, which was in addition to a preliminary attorney fee of $125.00.

The appellee, by the terms of the judgment, was permitted to retain ownership of a concrete block house, used as a warehouse, of a value of $3,200.00, a 93 1/2 acre farm of a value of $27,000.00, and a 100 acre farm adjacent thereto, valued at $30,000.00, all subject to mortgages and debts in the amount of $18,000.00. In addition appellee was permitted to retain all personal property not ordered given to appellant.

There was no evidence in the record of values of the personal property given to either appellant or appellee by the decree.

Appellant, satisfied with her grant of an absolute divorce, nevertheless has brought this appeal, challenging the discretion of the judge of the lower court in not awarding her alimony of a minimum net value of $14,333.00 which she claims to be one-third of the net estate of appellee instead of alimony valued at only $10,000.00. In addition, appellant has claimed that the judge abused his discretion in only awarding her the amount of $40.00 per week as support for her five minor children and additional attorney fees for her attorney only in the amount of $275.00.

The undisputed evidence in this case tends to show that the entire estate of the parties hereto, other than the household goods and personal property of an undermined value, had a gross value of $71,200.00, agreed to by both appellant and appellee in their briefs. Appellant claims that the debts against this are $28,000.00 leaving a net estate of $43,200.00, and appellee by his brief accepted this amount as being correct.

The undisputed evidence herein also shows that appellee's physical condition at the time of the divorce was such that he was crippled from or 3 or 4 accidents, suffered arthritis in his back and was permanently unable to work due to physical impairment. His income, therefore, must come from the property which was left to him by the court. The only evidence as to income which he received from the properties remaining in his name shows that the block warehouse was rented for the sum of $38.00 per month, that the 93 1/2 acre farm was rented for the three years preceding the divorce for a net of $200.00 per year over and above all taxes and expenses. There was no evidence in the record as to how much appellee was earning from renting the 100 acre farm, and no evidence in the record of what the prospective earnings of appellee would be for all three of the parcels of real estate after the divorce.

The evidence herein also shows that all of the parcels of real estate were in the name of appellee and had been obtained by him from his father by way of a settlement for past services rendered by appellee in joint farming with his father and brothers. Appellee had quit farming in 1956 because he was physically unable to continue actively farming. The 93 1/2 acre farm had been obtained by appellee in 1951 from his father as a settlement for his past ten years of joint farming with his father and brother. It was taken subject to a mortgage of $5,000.00 which has been paid. The house which was given by the court to appellant was obtained by appellee from his father in 1956 for an exchange of farm equipment, tools and grain. The block warehouse was acquired by appellee from his father in 1950 in exchange for the interest of appellee in a truck owned with his father, which truck had been traded for the block warehouse. The 100 acre farm was acquired by appellee in 1958 for $16,000.00 from his father. Appellee mortgaged his 93 1/2 acre farm for $10,000.00 in order to pay his father a down payment of $9,000.00, leaving a balance of $7,000.00 still unpaid on said farm.

The evidence also shows that for the six calendar years preceding the filing of the divorce action the yearly adjusted gross income of appellee on which he paid taxes was as follows:

Year 1959 $2027.66

Year 1958 801.12

Year 1957 3986.03

Year 1956 7965.98

Year 1955 4154.70

The statutory rule relative to alimony is set out in Burns' 1946 Replacement, § 3-1218, 1961 Supplement, part 2, and provides in part:

'The court shall fix the amount of alimony * * * which in his discretion he deems to be just and proper under all of the evidence, * * *. In determining the character of the payments of the alimony the court may require it to be paid in money, other property, or both, and may order the transfer of property as between the parties, whether real, personal or mixed and whether title at the time of the trial is held by the parties jointly or by one of them individually. * * *'

Appellant contends that the court abused its discretion in not awarding her a minimum of one-third of the net estate of appellee, basing this contention on the standard that has been propounded for the guidance of trial courts which is that an innocent and injured spouse should receive such sum as would leave her in as good condition as she would have been in had she been a surviving wife upon her husband's death, in other words, she should receive the same amount she would receive in accordance with the laws of intestate succession. Glick v. Glick (1927), 86 Ind.App. 593, 159 N.E. 33; Ferguson v Ferguson (1955), 125 Ind.App. 596, 125 N.E.2d 816; Temme v. Temme (1937), 103 Ind.App. 569, 9 N.E.2d 111; Dissette et al. v. Dissette (1935), 208 Ind. 567, 196 N.E. 684; Musselman v. Musselman (1873), 44 Ind. 106.

The question of whether there has been an abuse of discretion must be apparent upon the face of the record. Draime v. Draime (1961), Ind.App., 173 N.E.2d 70. In that case our court quoted with approval the following:

'An abuse of discretion is an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. The exercise of the lower court's discretion is not reviewable; it is only the alleged abuse of that power which is reviewable on appeal.' McFarlan v. Fowler Bank City Trust Co., et al. (1938), 214 Ind. 10, 14, 12 N.E.2d 752, 754.

In the case of Ferguson v. Ferguson, supra, 125 Ind.App. at page 602, 125 N.E.2d at page 818, Judge Bowen, speaking for our Court, stated:

'It is well settled in this state that the amount of alimony to be awarded in each case must be dependent upon the circumstances of such case. The case law has established a pattern under our statute to be used as a guide in the determination of alimony, by which the trial court may take into consideration the financial condition of the husband, the source of any property owned by him, his income, ability to earn money, the conduct of the parties toward each other, and the wife's separate estate. * * *'

It seems apparent that the trial court applied these standards in arriving at its conclusion.

In this case at bar the appellee owned all of the property in his name alone. All of the property was real property which he had acquired from his father.

The appellee was crippled and unable to work. His income must therefore come from his property. He will have to depend upon rental income from all of his properties or farm by hiring labor. There is no evidence in the record that he will ever be able to earn from such rentals the net amount of $2080.00 per year which the trial court ordered him to pay as support for his minor children.

It is obvious that the court had the best interests of the children in mind when this judgment was made. He gave the wife and children a place to live where the children could go to city schools and left the husband enough property so he could pay support money. Had the court taken any more property from the appellee it probably would have been impossible for him...