Grace v. Quigg

• Decision Date: 23 December 1971
• Docket Number: No. 1,No. 571A99,571A99,1
• Citation: 150 Ind.App. 371,276 N.E.2d 594
• Parties: Robert GRACE, Appellant, v. Anna Mae QUIGG, Appellee
• Court: Indiana Appellate Court

Page 594

276 N.E.2d 594

150 Ind.App. 371

Robert GRACE, Appellant, v. Anna Mae QUIGG, Appellee.

No. 571A99.

Appellate Court of Indiana, Division No. 1.

Dec. 23, 1971.

Charles V. Livengood, Richmond, for appellant.

Harris, Knoll & Kolger, Richmond, for appellee.

LOWDERMILK, Judge.

The parties to this action were duly married and had as the fruits of their marriage one child, to-wit John Robert Grace, born December 8, 1950.

Defendant-appellant brought an action in the Wayne Superior Court, Wayne County, Indiana, for divorce and on which a decree of divorce was entered for the defendant-appellant on August 21, 1954. Defendant-appellant was ordered by the court to pay $10.00 per week for the support and maintenance of said child, beginning August 21, 1954.

John Robert Grace, the son, became emancipated on December 8, 1968, and prior thereto he resided with the plaintiff-appellee, who provided for him from the time of the divorce until that date.

From August 21, 1954 to April 1, 1960, defendant-appellant paid for the support, care and upkeep of the child the sum of $100.00, when, under the order of court, he should have paid to that time $2,920.00, thus leaving a balance he owed as of April 1, 1960 of $2,820.00.

From and after April 1, 1960 to December 8, 1968, under the court's order the defendant-appellant was obligated to pay the sum of $4,510.00 for the care, support and maintenance of said child, but only paid the sum of.$4,110.00, leaving a balance due for that period in the amount of $400.00.

Plaintiff-appellee brought the suit at bar on May 28, 1969, praying for a judgment of $3,730.00 against the defendant-appellant for the arrearages in the support payments.

Plaintiff-appellee's complaint is in four rhetorical paragraphs, of which the first alleges the parties were formerly man and wife and the date of the divorce and the second alleges that there was one child, John Robert Grace, born on December 8, 1950, and the defendant was ordered to pay for the support of the child the sum of $10.00 per week, beginning August 21, 1954.

To these two rhetorical paragraphs of complaint the defendant-appellant filed answer, in which he admitted the allegations.

The complaint further alleged, in rhetorical paragraph 3, the payment of $3,680.00 for the support of the child for the period of August 21, 1954 through December, 1968, and further alleged that there should have been paid $7,410.00 to that time.

Rhetorical paragraph 4 alleges plaintiff-appellee is entitled to recover the unpaid portion of the support, in the sum of $3,730.00.

Defendant-appellant denies the allegations of rhetorical paragraphs 3 and 4 of plaintiff's complaint.

Defendant-appellant filed a second paragraph of answer, in which he alleged that he consistently paid support in amounts consistent with the order of the court and in addition thereto had paid for the benefit of his son insurance premiums and that the son had been emancipated since 1968.

No reply was filed thereto. However, the plaintiff-appellee filed a motion for summary judgment which is in the words and figures as follows, to-wit:

'The plaintiff, Anna Mae Quigg, moves the Court for a summary judgment in her favor on the prayer of the complaint as filed herein.'

In support of the summary judgment, Raymond Knoll, her attorney, made an affidavit that the divorce decree in issue was made on August 21, 1954 and that all facts upon which the plaintiff relied are matters of record in the office of the Clerk of the Wayne Superior Court. The affidavit further stated that no answer was on file in the action and the defendant did not deny any of the material allegations of the plaintiff's complaint and that there was no question of fact in the case and that plaintiff was entitled to recover as a matter of law.

This affidavit was filed on August 27, 1970 and defendant-appellant's answer, as above referred to, was filed on September 11, 1970.

On September 14, 1970, the court entered summary judgment as follows:

'Plaintiff's motion for summary judgment now comes before the Court for hearing. Plaintiff and Defendant are present by counsel. And the Court, having examined the pleadings and the affidavit of plaintiff and by interrogating counsel now finds and orders that the following material facts exist without substantial controversy:

'That plaintiff and defendant were husband and wife and that on August 21, 1954, their marriage was dissolved by an absolute divorce granted in the Wayne Superior Court, Wayne County, Indiana;

'That said decree of divorce granted to the plaintiff the custody of John Robert Grace, born December 8, 1950, and ordered defendant to pay the sum of $10.00 per week for the support of said child beginning August 21, 1954;

'That the defendant did, in fact, make some payments of support as provided in said decree, but has not paid the same in full;

'That the defendant is liable to the plaintiff herein in this action for the difference between the amount he was ordered to pay in said decree of divorce, less those sums of money that he paid and to which he is entitled for credit as payment of child support.

'The Court further finds that the question as to what credits the defendant is entitled to as payments of child support is in good faith controverted, and that the same is the sole remaining issue in this matter, and that the introduction of evidence is necessary to determine the same.

'The Court now sets this matter for trial on said remaining issue on October 7, 1970, at 9:00 A.M.

'Entered this 14th day of September, 1970.'

Defendant-appellant relies on an agreement and property settlement entered into by and between the parties after the divorce action was commenced back in the year of 1954, in which they agreed, subject to approval of the Judge of the Superior Court of Wayne County, that the custody of the child was to remain with the mother, with reasoanble visitation rights to the father. The property settlement agreement further stipulated that 'said Robert Dale Grace will pay, so long as he is financially able, the sum of Ten Dollars ($10.00) per week to Anna Mae Grace for the support of said child.'

This agreement was entered into evidence over the plaintiff's objection, at which time the court stated, 'I don't have the prior record before me as to what went into evidence and whether or not it was part of the decree. I can take judicial notice of that. At the conclusion of this case I will have to get it out there and see it. I will admit this into evidence.'

At no place in the briefs or in the transcript is there ever a copy of the court's final divorce decree.

The defendant-appellant made no reply to the summary judgment and the court heard evidence as to damages, such evidence as to damages being limited as set out in the summary judgment, i.e., the amount of credits to which the defendant was entitled.

There is ample evidence to support the court's judgment, which, in pertinent parts, is as follows:

'This matter having been heretofore heard by the Court without the intervention of a jury, now comes before the Court for finding and judgment.

'And the Court having heard the evidence and the argument of counsel and being duly advised now finds for the plaintiff on her complaint;

'That plaintiff and defendant were husband and wife and are the parents of John Robert Grace, born December 8, 1950;

'That their marriage was dissolved by an absolute divorce granted in this Court on August 21, 1954, which decree awarded the custody of said John Robert Grace to the plaintiff herein, and ordered the defendant herein to pay the sum of $10.00 per week for the support of said child beginning on August 21, 1954.

'That said child became emancipated on December 8, 1968, and that prior thereto he resided with the plaintiff who provided for him from the time of the divorce to that date.

'That from the period of August 21, 1954, to April 1, 1960, defendant was obligated to pay the sum of $2,920.00 for the support of said child, but in fact paid the sum of $100.00, leaving a balance of $2,820.00.

'That from said April 1, 1960, to December 8, 1968, the defendant was obligated to pay the sum of $4,510.00 for the support of said child, but in fact paid the sum of.$4,110.00, leaving a balance of $400.00.

'That there is due and owing to the plaintiff from the defendant the sum of $3,220.00.

'IT IS THEREFORE ADJUDGED AND DECREED that the plaintiff have and recover of the defendant the sum of $3,220.00 and the costs of this action.

'Dated this 5th day of January, 1971.'

Defendant-appellant timely filed his motion to correct errors, which motion is as follows, to-wit:

'Comes now the defendant in the above entitled cause and moves the Court to correct errors in the proceedings upon the following grounds and for the following reasons:

'1. That the finding of the Court is contrary to law in that the evidence shows that the defendant complied with all rules and regulations of this Court in his actions prior to these proceedings.

'2. That he complied with the rule of the Court at the time of the granting of said divorce and in accordance with an agreement by and between the parties, and if there is any recovery to be had, it should be under the contract between the parties and not by an action of law upon the decree of the Court in the divorce action.

'3. That the finding of the Court is not sustained and supported by sufficient evidence based upon all the necessary elements of the claim or cause of action stated, or the defense as stated by the answer, and is contrary to the evidence because said evidence did not sufficiently support the cause of action, and defendant's motion for a judgment at the conclusion of plaintiff's evidence should have been sustained.

'4. That the damages and judgment of the Court were excessive.

'5. That the motion of defendant at the conclusion of plaintiff's evidence for judgment of defendant was erroneously overruled and should have...