Hart v. Hart
| Decision Date | 01 November 1929 |
| Docket Number | No. 13339.,13339. |
| Citation | 90 Ind.App. 220,168 N.E. 492 |
| Parties | HART v. HART. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Rush Circuit Court; William M. Sparks, Judge.
Suit by Andrew J. Hart against Mary C. Hart for divorce, in which defendant filed a cross-complaint. Plaintiff recovered a decree of divorce, but the decree gave defendant judgment for alimony and attorney's fees, and plaintiff appeals. Affirmed conditionally.Chauncey W. Duncan, of Rushville, and Owen S. Boling, of Indianapolis, for appellant.
John H. Kiplinger, of Rushville, for appellee.
Appellant filed his complaint against appellee for divorce. Appellee filed a cross-complaint, divorce was granted appellant on his complaint, and there was a judgment against appellee on her cross-complaint. In the final decree the court gave appellee a judgment for alimony in the sum of $2,350, and $150 “as and for a fee for defendant's attorney.”
Appellant, on appeal, contends the amount of the judgment for alimony is too large, and that the court had no authority to render a judgment against him for attorney fee.
[1] In so far as the allowance of the $2,350 as alimony is concerned, the amount is not so great as to justify us in holding as a matter of law that the court committed reversible error in such allowance.
Section 1109, Burns' Ann. St. 1926, § 1042 R. S. 1881, after providing for interlocutory orders for the disposition of persons, property, children, and relative to such expenses of the suit as will insure the wife an efficient preparation of her case and a fair and impartial trial, provides that “on decreeing a divorce in favor of the wife or refusing one on application of the husband, the court shall, by order to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition when such divorce has been granted or refused.” (Our italics.)
[2][3] In the instant case the court did not decree a divorce in favor of the wife, nor did it refuse one on the application of the husband. It is clear that under this section the court had no authority to make an allowance for attorney fee in addition to the decree for alimony. When a decree of divorce is granted the husband on his application, no allowance can be made in the final order for attorney fee. The court, however, in granting a divorce to the husband, shall make such a decree for alimony as the circumstances of the case shall render just and...
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O'Connor v. O'Connor
...Consequently, on a final decree, an allowance could only be made as specified by the statute. Fites was followed by Hart v. Hart (1929), 90 Ind.App. 220, 168 N.E. 492 and Fordice v. Fordice (1956), 126 Ind.App. 562, 132 N.E.2d 618, on which the Appellate Court in the instant case These case......