Haag v. Haag, 29884

Citation240 Ind. 291,163 N.E.2d 243
Decision Date22 December 1959
Docket NumberNo. 29884,29884
PartiesVerne E. HAAG, Appellant, v. Greta L. HAAG, Appellee.
CourtSupreme Court of Indiana

George Sands, South Bend, for appellant.

Leon E. Kowalski, South Bend, for appellee.


This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement, and Rule 2-23 of this court, 1958 Edition. See Haag v. Haag, 1959, 158 N.E.2d 800, for Appellate Court opinion.

The parties hereto were divorced on May 29, 1941, and an order was entered at that time requiring appellant to support their three minor children aged 9 years, 4 years, and 16 months. This order was modified on October 21, 1949, requiring appellant to pay $20 per week for the support of two of the children, Joan and Jack Haag.

On November 12, 1958, appellant filed a verified petition requesting that the support order entered on October 21, 1949, be vacated and set aside. Such petition alleged, inter alia, 'that presently such order requires the payment of the sum of $10.00 per week for the support and maintenance of the child Jack Haag; that the child Joan is twenty-one years of age; that said child Jack Haag attained the age of 18 years on January 20, 1958, and has been graduated from a high school * * *.'

To this verified petition for modification appellee filed her counter-affidavit and an amended counter-affidavit alleging, inter alia, that Jack Haag graduated from Riley High School in June of 1958; that it was his wish and desire to attend college, and he was then in his first year at Purdue University; that the approximate yearly cost of his college education would be $1,200, and that he has no means of paying for his college education other than that furnished by this mother. It is further alleged that appellee is unmarried and has, since March, 1958, been unemployed, that she is not financially able to bear the entire expense of the son's college education; that the father is employed at a salary of approximately $8,950 annually; that Jack Haag is now unemployed by reason of his attending school and for this reason, although he is now 18 years of age, the court order heretofore entered on October 21, 1949, requiring appellant to pay the sum of $10 per week, should be continued in effect, until further order of the court, to insure Jack's college education.

These affidavits, as summarized above, and the verified petition of appellant, were the only evidence submitted at the hearing. The trial court denied the petition for modification and from such order this appeal is prosecuted.

The sole error assigned is that the trial court erred 'in refusing to grant and in denying appellant's verified application to set aside and vacate order for support of child.'

First: We are confronted at the outset with appellee's motion to dismiss, which was sustained by the Appellate Court, on the ground that this was an appeal from an interlocutory order and appellant's brief was not filed within ten days after the case was submitted as required by Rule 2-15 of this court, 1958 Edition.

This presents the question: Is an order denying a petition to modify an order for support, not made pendente lite but under circumstances such as are here present, an interlocutory order within the meaning of Acts 1921, ch. 251, § 1, p. 741, being § 2-3218, Burns' 1946 Replacement, and appealable to the Supreme Court under the provisions of such section and Rule 2-15, supra, of this court; or, is it a final order or judgment appealable as such under the rules of civil procedure?

In an attempt to dispel the confusion which appears to exist regarding the procedure to be followed in appealing a judgment modifying an order for the custody and/or support of minor children, it is necessary to review both the statutes and decisions of this State on the subject.

Acts 1939, ch. 160, § 1, p. 738, being § 3-1216, Burns' 1946 Replacement, provides, in part, as follows:

'Pending a petition for divorce, the court, or the judge thereof in vacation, may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper and such orders relative to the expenses of such suit and attorney fees as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. * * * Provided, That such orders shall be made under the same rules and regulations, and upon such notice, as restraining orders and injunctions are granted in other civil actions, except that no bond shall be required of either party.' (Our italics.)

Orders Pendente lite made under the provisions of this section do not dispose of the cause, but leave even the question of custody and support for final determination in the decree of divorce, and are clearly interlocutory. See F. W. & H., Ind.Tr. & App.Pract., § 2155, p. 36; 17 Ind.Law Encyc. Judgment § 2, p. 136; 49 C.J.S. Judgments § 11, p. 35; 47 C.J.S. Interlocutory, p. 85.

This court has held that an order for the payment of money for support pendente lite 1 and attorney fees is an interlocutory order for the payment of money within the provisions of Acts 1925, ch. 201, § 1, p. 487, being § 4-214, Eleventh, Burns' 1946 Replacement; Brown v. Brown, 1945, 223 Ind. 463, 61 N.E.2d 645, and such an order is appealable under the provisions of Acts 1921, ch. 251, § 1, p. 741, being § 2-3218, First, burns' 1946 Replacement, supra, 3218, First, Burns' 1946 Replacement, supra,

However, we have also held that interlocutory proceeding had, pending an action for divorce, may not be appealed unless authorized by statute. Chapman v. Chapman, 1953, 231 Ind. 556, 557, 109 N.E.2d 724.

The Chapman case is, in our opinion, not in conflict with Brown v. Brown, supra, 1945, 223 Ind. 463, 61 N.E.2d 645, since in the Brown case the right of appeal was founded upon § 4-214, Eleventh, supra, and since it was 'for the payment of money' which was authorized by § 2-3218, First, supra.

We reaffirm the rule in the Chapman case, supra, 'that an interlocutory appeal can only be taken pursuant to statutory authorization.'

It is evident from the foregoing that the order here in question is not an interlocutory pendente lite order and hence does not fall within the provisions of § 3-1216, supra. Since the petition was denied, it is not an order for the payment of money, nor does it fall within any of the other specifications provided in § 2-3218, supra. Therefore, if it is an appealable order it must be so because it is a final judgment from which an appeal will lie.

Acts 1873, ch. 43, § 21, p. 107, being § 3-1219, Burns' 1946 Replacement, provides as follows:

'The court, in decreeing a divorce, shall make provision for the guardianship, custody, support and education of the minor children of such marriage.'

This court has, by a well-established rule, supplemented the provisions of § 3-1219, supra, by providing that in a divorce action the court has continuing jurisdiction in respect to minor children of the parties and may, in a proper proceeding, 2 modify its decree as it pertains to custody or support, at any time during the dependency of the children, as the circumstances of the parents may require and in order best to serve the interests and welfare of the children involved. Scott v. Scott, 1949, 227 Ind. 396, 406, 86 N.E.2d 533; Zirkle v. Kirkle, 1930, 202 Ind. 129, 132, 172 N.E. 192; Stone v. Stone, 1902, 158 Ind. 628, 633, 64 N.E. 86; Bryan v. Lyon et al., 1885, 104 Ind. 227, 234, 3 N.E. 880, 54 Am.Rep. 309; Reineke v. Northerner, 1949, 119 Ind.App. 539, 544, 84 N.E.2d 900; 10 Ind. Law Encyc. Divorce § 168, p. 655. See also Rosenbarger v. Marion Circuit Court, Ind.1959, 155 N.E.2d 125, 127.

Such orders are subject to modification as above stated, not because they are interlocutory and reserve or leave some question or decision for future determination, but because changes in conditions and other causes which cannot be anticipated at the time the divorce decree is entered, may make it necessary for the best interest and welfare of the children to change either the order of custody or of support. An order in a divorce decree for the custody and support of minor dependent children 'cannot anticipate the changes that may occur' in the circumstances surrounding the 'parents, or in their habits, character and fitness to have the custody and care of the children,' and it is to meet these contingencies that the court retains jurisdiction to modify its decree as to custody and support of minor children should the occasion to do so arise. Otherwise the original decree remains unchanged. State ex rel. Davis v. Achor, supra, 1947, 225 Ind. 319, 326, 75 N.E.2d 154.

Appellee rests her motion for dismissal on the ground that appellant's brief was not filed within the time provided for appeals from interlocutory orders, upon a statement in State ex rel. Davis v. Achor, supra, 1947, 225 Ind. 319, at page 326, 75 N.E.2d 154, at page 157, as follows:

'Such orders [for the custody of children] therefore are interlocutory in nature * * *.'

This gratuitous statement lends no support to appellee's position that the order from which this appeal is prosecuted is interlocutory for two reasons: (1) No question was raised in that case concerning the nature of the judgment, hence the above statement is merely dictum; and (2) Even if the statement were not dictum, but related to the sole question presented, it must be remembered that it does not say, as appellee has, as we charitably believe, inadvertently stated in her brief, that 'orders for custody of children of divorced parents are interlocutory,' but the correct statement is only that such orders 'are interlocutory in nature.'

Orders for the custody and support of minor children might be said to partake of the nature or character of an interlocutory order from the fact that they are subject to...

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