Finke v. Finke, 19660
| Decision Date | 03 July 1963 |
| Docket Number | No. 19660,No. 2,19660,2 |
| Citation | 191 N.E.2d 516,135 Ind.App. 65 |
| Parties | Clova D. FINKE, Appellant, v. Oscar H. FINKE, Appellee |
| Court | Indiana Appellate Court |
Kimmell, Kimmell & Funk, Vincennes, for appellant.
Lewis & Lewis, Vincennes, for appellee.
Appellant duly instituted this action against appellee for a limited divorce. The latter appeared to the action and filed his 'cross-complaint' for an absolute divorce from appellant. Appropriate answers closed the issues which were submitted to the trial court for trial and determination. After due hearing the court found against the appellant upon her complaint and for the appellee upon his cross-complaint and that he be granted an absolute divorce from appellant. Custody of the 18 year old son of the parties was awarded to the appellee and custody of their 14 year old daughter was given to appellant, with an order against appellee for the support of said daughter. The property rights and interests of the parties were found and adjusted. Consistent judgment followed the findings.
Error here assigned is the overruling of appellant's motion for a new trial consisting of three specifications, namely, that the decision of the court is not sustained by sufficient evidence; that the decision is contrary to law; and that the 'assessment of the amount of recovery of alimony by the Plaintiff is too small.'
On October 9, 1961, and prior to the oral argument, the appellee filed his verified motion to dismiss this appeal or to affirm the judgment appealed from, upon the alleged grounds that appellant's brief fails to demonstrate reversible error under the rules, and that appellant has recognized the validity of the challenged judgment by having accepted and availed herself of certain benefits thereof, thereby estopping her from prosecuting this appeal. Upon consideration of said motion on October 24, 1961, this court determined to hold the same in abeyance pending the oral argument and final determination of this appeal. The oral argument on the merits has been made and we now turn to the consideration of said motion.
The following entry appears as a part of the decree of the Greene Circuit Court:
It is alleged in appellee's said verified motion:
'* * * on the 11th day of April, 1961 and prior to the filing of appellant's transcript with this Court, said Appellant made application to said building and loan association to withdraw one-half of said account pursuant to and in conformity with the final decree of the...
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O'Connor v. O'Connor
...to a spouse from the granting of a divorce may in some cases estop that spouse from the prosecution of an appeal. Finke v. Finke (1963), 135 Ind.App. 65, 191 N.E.2d 516. Smith v. Smith (1955), 125 Ind.App. 658, 129 N.E.2d 374. However, there are obvious limitations to this theory where the ......
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