Ferguson v. Ferguson, 18561

• Decision Date: 18 April 1955
• Docket Number: No. 18561,18561
• Citation: 125 N.E.2d 816,125 Ind.App. 596
• Parties: Denver D. FERGUSON, Appellant, v. Lilo Rentsch FERGUSON, Appellee.
• Court: Indiana Appellate Court

Page 816

125 N.E.2d 816

125 Ind.App. 596

Denver D. FERGUSON, Appellant, v. Lilo Rentsch FERGUSON, Appellee.

No. 18561.

Appellate Court of Indiana, In Banc.

April 18, 1955.

Howard R. Hooper, A. Chesterfield Terence, Indianapolis, for appellant.

Milton, E. Craig, Indianapolis, for appellee.

BOWEN, Judge.

This is an appeal from a judgment for divorce and alimony awarded to the appellee on her cross-complaint in a divorce suit filed by the appellant.

Issues were joined on appellant's second paragraph of complaint and appellee's cross-complaint which alleged appellant to be guilty of cruel and inhuman treatment. The trial court found for the appellee on her cross-complaint that she was entitled to an absolute divorce from appellant, and awarded her alimony in the sum of $25,000.00 and $5,000.00 attorney's fees.

The record herein presents a very unusual set of circumstances. The marriage of the parties was the culmination of a romance by correspondence which was initiated by the appellee, Lilo Rentsch, by the placing of an ad by appellee and another girl in the magazine 'Ebony', which contained the following statements:

'Wanted: Two Husbands

'You'll be probably very surprised to receive a letter from two German girls. The explanation is very simple. We were just reading your article, 'Eligible Men', in the Ebony of November. Perhaps it sounds strange to you that we like to meet Negroes. We met through our work so many different Americans and found out that Negroes have much more heart, more sense of human beings. We had many talks about the problems of your race and got the opinion that color means nothing. Only the personality counts.

'You perhaps can understand that there are many doubts for us in having a future in Germany, even in Europe. It is so very hard for a girl to make a living here. So many people are jobless. We are young and hoping for a better future. Our desire is to get married, to build a family, to raise children and be a good housewife and companion, living a happy life.

'Both of us were engaged during the wartime to German officers who got killed in Russia. Often we had chances to get married, but we never could find what we wanted. German men changed a lot. They are much different now than they were before.

'Perhaps Ebony can help us to find the right husbands. We are 27 years old. Friedel is an actress and Lilo a secretary. Both of us are well educated.

'Friedel Schneider

'Lilo Rentsch

'Wiesbaden-Biebrich, Germany'

As a result of this ad the appellant, who resided in Indianapolis, Indiana, started a correspondence with the appellee and wrote the appellee numerous love letters in which he wooed her with an ardor, as shown by the exhibits in this cause, which was maximal. In such letters he professed his undying love for her, his willingness and ability to keep her in a wealthy style, and told her repeatedly of his financial success and his ability as a businessman and financier. He forwarded affidavits attesting to his wealth to the United States immigration authorities to induce them to permit appellee to come to this country. These affidavits and the accompanying appraisals, and the income tax returns, showed the appellant to be worth in excess of $150,000. The record shows that he furnished money to her from time to time, including the money to emigrate to this country. Upon her arrival in this country, and the meeting of the parties, apparently appellant's ardor cooled, and upon the appellee's arrival and the night they were married, the appellee slept at the home of Doctor Kabell, a friend of the appellant, and the appellant slept at the Theresa Hotel. Thereupon they returned to the appellant's home in Indianapolis at 324 West Maple Road, where they occupied separate rooms. However, the appellee testified she visited his bedroom on occasions. She testified that he kept a gun and a hatchet in his room, that she was afraid to occupy it with him, and that he tried to have unnatural relations with her. The parties were married on the 14th day of March, 1952, and separated on the 24th day of February, 1953.

There is substantial evidence of probative value to have justified the lower court in granting a divorce to appellee on the grounds of cruel and inhuman treatment.

By the assignment of errors the appellant has questioned the amount of alimony awarded to appellee. The appellant admitted in the affidavits which he made in order to induce appellee to come to this country that he had an annual net income of $10,000 and personal property of the approximate value of $30,000, and that he had real estate on 'conditional sales contracts' of the approximate value of $85,000. These affidavits were made in 1951 and at a time before he married appellee. At the time of the divorce and the trial of this cause the record shows that appellant, who had two children, had lost and had forfeited much of the property which he was purchasing on real estate contracts, and that at the time of the trial the extent of appellant's property, as shown by the evidence and the reasonable inferences to be drawn therefrom, would not exceed the amount of $10,000. It appeared that certain property which was included in the affidavits in 1951 had been taken over by the Fidelity Trust Company on forfeitures, and had been resold to a brother of the appellant, but no claim or suggestion appears that such transactions were improper or irregular in any manner whatsoever.

The question which we are called upon to determine is whether or not the trial court abused its discretion in the award of $25,000.00 alimony to the appellee herein. Our statute, § 3-1217, Burns' 1946 Replacement, provides that the court shall make such decree for alimony in all cases contemplated by this act, as the circumstances of the case shall render just and proper. The Supreme Court, in interpreting this statute, Glasscock v. Glasscock, 1884, 94 Ind. 163, 164, stated:

'It is evident that the word 'shall' as used in the statute, merely relates to the amount of alimony that may be allowed in cases where it is proper to allow alimony. The statute does not mean, as contended by the appellant, that the court shall, in every action for divorce, allow alimony. The adjusting of alimony is not yet controlled by definite rules. The determination of each case must depend upon its own circumstances.'

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 has been stated:

'It is also a general rule for the guidance of the trial court, though not mandatory, that in awarding alimony to an innocent and injured wife, as a part of...