Fites v. Fites

• Decision Date: 29 March 1916
• Docket Number: No. 9000.,9000.
• Citation: 62 Ind.App. 396,112 N.E. 39
• Parties: FITES v. FITES.
• Court: Indiana Appellate Court

62 Ind.App. 396

112 N.E. 39

FITES

v.FITES.

No. 9000.

Appellate Court of Indiana, Division No. 2.

March 29, 1916.

Appeal from Superior Court, St. Joseph County; Vernon Van Fleet, Judge.

Suit by Edward Fites against Nancy Fites. Judgment for plaintiff in part, and from an order overruling his motion to modify such judgment, plaintiff appeals. Reversed, with directions.

Charles Weidler, Orie Parker, and Samuel Pettengill, all of South Bend, for appellant. Guy N. Bever, of Torrington, Wyo., and Rodney H. Bayless and Clifford V. Du Comb, both of South Bend, for appellee.

IBACH, C. J.

In this case the court granted a divorce to appellant on the grounds “alleged in his complaint.” The grounds pleaded are “adultery with one Mike McClanahan and divers other men,” habitual drunkenness, and cruel treatment.

[1] On granting the divorce the court decreed appellee $350 alimony and the further sum of $175 for attorneys' fees. Appellant is here contending that the trial court erred in overruling his motion to modify the judgment on the ground that alimony cannot be decreed where a divorce is granted to the husband because of the adulterous conduct of the wife. While authority is given the trial court generally to award alimony (section 1083, Burns 1914), yet in almost every instance where the wife has yielded her person to promiscuous intercourse with other men, and the divorce has been granted to the husband on that ground, the higher courts have set aside an award of alimony to her, if such was granted by the trial court. The case which clearly lays down this rule is Spaulding v. Spaulding, 133 Ind. 122, 32 N. E. 224, 36 Am. St. Rep. 534. See, also, Drollinger v. Drollinger, 57 Ind. App. 115, 106 N. E. 428, and cases there cited. The courts, however, have recognized an exception to this general rule, where the wife's industry has aided in accumulating the property possessed by the husband, and it is also held to be contraryto public policy to leave a wife destitute, even though adulterous. Conner v. Conner, 29 Ind. 48;Fivecoat v. Fivecoat, 32 Iowa, 198. While the evidence is not before us, appellant in his motion to modify admits that appellee's evidence tended to show that she had contributed to her husband's property. From this, together with the presumption which we are permitted to indulge in support of the judgment, we are justified in holding that this case forms an exception to the general rule, and the court did not err in adjudging the alimony to appellee.

[2] Appellant also insists that it was error for the court to award judgment against him for appellee's attorneys' fees. The power to award fees for services rendered by attorneys for the wife in connection with divorce cases is not a power inherent in the common law, but comes to the trial court solely by the virtue of the statute, and before any order with respect thereto will be upheld it must appear that...