Draime v. Draime, 19206

• Decision Date: 29 March 1961
• Docket Number: No. 1,No. 19206,19206,1
• Citation: 173 N.E.2d 70,132 Ind.App. 99
• Parties: Bertha DRAIME, Appellant, v. Linus F. DRAIME, Appellee
• Court: Indiana Appellate Court

Page 70

173 N.E.2d 70

132 Ind.App. 99

Bertha DRAIME, Appellant, v. Linus F. DRAIME, Appellee.

No. 19206.

Appellate Court of Indiana, Division No. 1.

March 29, 1961.

Rehearing Denied May 4, 1961.

Cecil C. Tague, Sr., Brookville, Owen S. Boling, Indianapolis, for appellant.

Ewing E. Wright, Osgood, Paul V. Wycoff, Batesville, for appellee.

AX, Chief Justice.

This is an appeal from a judgment in an action for absolute divorce. Appellant brought this action against appellee, alleging cruel and inhuman treatment.

Appellant in her complaint, asked that she be granted alimony in the amount of $5,000, or in lieu thereof, be declared the sole owner of a tavern business, as well as all the personal property located therein.

The court granted appellant an absolute divorce and awarded her title to all the assets of the parties, including the tavern business subject to all liabilities, but excluding a 1955 Oldsmobile owned by appellee which he was permitted to retain. In addition appellee was awarded judgment in the sum of $5,500 for his interest in the property belonging to both parties.

Appellant, although satisfied with the grant of an absolute divorce, nevertheless has brought this appeal, challenging the discretion of the lower court in awarding a monetary judgment of $5,500 to appellee.

The sole question presented to this court is whether the lower court abused its discretion in making this adjustment of the property rights of the parties.

It is contended by appellant that the judgment failed to award her alimony and that such failure is an abuse of discretion.

The law has laid down certain rules which must by necessity govern the reviewing court. That divorce courts have much discretion in determining the amount of alimony that shall be awarded in any particular case is a rule so well settled that we need not burden this opinion by citing authority. It is equally well settled that it is not mandatory that the trial court grant alimony in each and every case. It has been held in certain cases that the trial court did not abuse its discretion by refusing to award alimony to a wife who was granted a divorce. Ralston v. Ralston, 1942, 111 Ind.App. 570, 41 N.E.2d 817; Gibble v. Gibble, 1942, 111 Ind.App. 60, 40 N.E.2d 347; Radabaugh v. Radabaugh, 1941, 109 Ind.App. 350, 35 N.E.2d 114. Whether alimony shall be awarded depends upon the existing property of the parties and its source. Shula v. Shula, 1956, 235 Ind. 210, 132 N.E.2d 612. Also, to be taken into consideration is the conduct of the parties toward each other. Ferguson v. Ferguson, 1955, 125 Ind.App. 596, 125 N.E.2d 816.

The appellant propounded to the court in her complaint two possible alternatives, which might be used in settling the property rights of the parties. She asked that 'she be granted alimony in the amount of Five thousand ($5,000) Dollars or in lieu thereof, be declared the sole owner of said tavern business and personal property located therein.'

The court accepted the latter by granting her the business and personal property, but now she complains that it erred by not granting her alimony also.

'An appellant cannot successfully present as error action which he induced the trial court to take.' Seward v. Seward, 1956, 126 Ind.App. 607, 611, 134 N.E.2d 560, 562; and cases cited therein.

We see no abuse of discretion in doing that which the appellant asked to be done.

Appellant further complains that the setting off a money judgment to appellee is contrary to law and is an abuse of discretion. We disagree. In the Seward case, supra, the appellant wife contended that she was the owner of certain real estate and asked in her complaint that the said real estate be set off to her. The lower court in adjusting the property rights set off the real estate to the wife and ordered that she pay appellee $3,500. The court held in adjusting the property rights of the parties the trial court has the authority under certain circumstances

'* * * to enter a money judgment in appellee's favor or to set off and award to him a part of the physical assets. It chose to do the former and we find no error or abuse of discretion in such action.'

We reiterate again that which has been said many times by this court that the trial court has not only the power but the mandatory duty to adjust and adjudicate the property rights of the parties. While the awarding of alimony lies solely with the court's discretion, the adjusting of property rights is a mandatory duty upon the court. But, however, in so doing it has broad discretionary powers. It may transfer property as between the parties, whether it be 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. Proctor v. Proctor, 1955, 125 Ind.App. 692, 125 N.E. 443. See also 3-1218 Burns' 1946 Repl.

It is contended by appellant that the lower court further abused its discretion by awarding to appellee the sum of $5,500 because such amount is excessive. The evidence demonstrates that the parties owned the property...