Fordice v. Fordice, 18700
| Decision Date | 06 March 1956 |
| Docket Number | No. 18700,18700 |
| Citation | 126 Ind.App. 562,132 N.E.2d 618 |
| Parties | Wilma C. FORDICE, Appellant, v. Rex FORDICE, Appellee. |
| Court | Indiana Appellate Court |
Robert E. Coates, Indianapolis, Charles H. Foley, Martinsville, for appellant.
Frederick W. Steiger, Gilbert W. Butler, Martinsville, for appellee.
The appellee was granted an absolute divorce from the appellant by judgment of the Morgan Circuit Court on a charge of cruel and inhuman treatment. The appellant contends, inter alia, that the evidence fails to sustain such charge and therefore the finding of the court is contrary to law. We are presented with a bill of exceptions consisting of 166 pages of testimony a recital of which can be of no service to the parties, bar or public. It is sufficient to say that the record reveals a two-sided marital controversy. The appellee's version makes a case of cruel and inhuman treatment and the trial court having accepted such version has put it beyond our reach to disturb its decision on the facts.
The appellant insists, however, that certain undisputed evidence compels the conclusion that her offenses, because of which the court decreed divorce, were fully condoned by the appellee and that she has committed no acts constituting grounds for divorce subsequent to such condonation. This contention is based on the undisputed fact that on the night before their final separation there was sexual consortium after which there has been no incidents, anti-social in character, to this day. The appellee explained the occurrence in these words: 'The night before I left my wife came into my room and forced me to have relations with her.' Without spelling out our process of deductive reasoning we characterize this statement as beyond belief. The evidence indicates, however, that the consortium occurred upon the initiative and advance of the wife. With some knowledge of the chemistry of the human male we conceive it to be possible that the act was merely an outlet for a normal biological urge rather than an expression of love and foregiveness. However that may be, we believe it is the law that a single act of sexual intercourse is not condonation of cruelty unless done with the intent to forgive. 17 Am.Jur., Divorce and Separation, § 210, p. 257. See also Annotations: 14 A.L.R. 939 and 98 A.L.R. 1359. Such being the law, obviously the appellee's intent was a question of fact for the trial court to determine and having resolved it in favor of the appellee we are bound thereby.
Finally the appellant contends that the court erred in refusing to allow her a reasonable sum of money for the use of her attorneys in defending her interests in court. The power of the court to allow attorney fees in divorce cases is statutory. The pertinent statute is § 3-1216, Burns' 1946 Replacement, which reads as follows:
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