Heckman v. Heckman, 29413

• Decision Date: 31 May 1956
• Docket Number: No. 29413,29413
• Citation: 134 N.E.2d 695,235 Ind. 472
• Parties: Joe Rowe HECKMAN, Appellant, v. Mary Ellen HECKMAN, Appellee.
• Court: Indiana Supreme Court

Page 695

134 N.E.2d 695

235 Ind. 472

Joe Rowe HECKMAN, Appellant, v. Mary Ellen HECKMAN, Appellee.

No. 29413.

Supreme Court of Indiana.

May 31, 1956.

John R. Walsh, DeArmond, Booram & DeArmond (Lawrence Booram, of counsel), Anderson, for appellant.

Robert L. Shearer, Anderson, for appellee.

ARTERBURN, Judge.

This case comes to us on transfer from the Appellate Court under § 4-209 Burns' 1946 Repl., by reason of four Judges of said court failing to concur, all Judges participating in the consideration of the appeal in that court.

The appellee was granted a divorce from appellant after a trial of the issues presented by her complaint charging appellant with cruel and inhuman treatment of appellee. The court also awarded appellee alimony in the amount of $8,000, payable in semi-annual installments of $1,000 each, custody of the female child of the parties and $15 per week for the support thereof, attorney fees in the amount of $725, and costs.

Appellant's motion for a new trial specifies insufficiency of the evidence to sustain the court's finding, that the finding is contrary to law, and that the amount of alimony awarded is too large.

The evidence favorable to appellee tends to establish the following facts: The parties were married on June 10, 1948. Appellee then had the custody of two children by a previous marriage. One child, a daughter, aged five or five and a half years at the time of the trial, was born to the union of these parties. At the time of their marriage appellant held an elective position in Madison County but he was defeated for renomination in the May Primary of 1948, and his term of office expired December 31, 1948.

At the time of their marriage, appellee owned a one-half interest in a house on 15th Street, a one-half interest in a business building on Main Street, a one-half interest in a house on West 10th Street, all in Anderson, and certain stock in an investor's syndicate. Appellant's assets consisted of an automobile, stock in a grain company worth about $200, some surveying instruments, and a truck. The house on 15th Street, owned in equal shares by appellee and her sister, was sold in 1950 for $8,500, appellee's share being $4,250. She became indebted to her sister and her half interest in said business property on Main Street was transferred to her sister and appellee, in the adjustment, acquired the whole interest in the West 10th Street Property. This latter mentioned property was therafter disposed of by appellee in a sale and trade whereby she acquired two small houses, which she later sold on contract, realizing an equity of $8,000.

Appellant and his father and mother engaged in a partnership and thereafter, in a new arrangement, a partnership was formed for a general construction business, the partners being appellee, appellant, and his father and mother. Appellant put into the partnership his automobile, surveying equipment, truck, and some small tools. Appellee put $4,000 into the partnership, which she acquired as a loan, using her interest in the said business property as security. Appellant's father and mother put into the partnership an amount which 'matched' the investment of appellant and appellee. After the organization of the partnership, the date not appearing, appellant told appellee that the 'bank balance' was overdrawn $2,000 and that they needed money to meet the payroll. Appellee sold her said stock, which cost her $7,500, for $6,000 and put that amount into the capital of the partnership. Appellant and appellee pledged their insurance for a loan of $1,900 which was also invested in the partnership.

In the Fall of 1951, the parties went to Atterbury where appellant engaged in construction work. While there, appellee and her sister put up the said 15th Street property for sale and appellant told appellee that he and his father did not get along very well and that he thought it a good idea if she would buy out his father's interest in the business, apparently proposing that she use the money to be realized from said sale for such purpose. Appellee ascertained that the father did not want to quit the business and she informed appellant that she wouldn't buy the father's interest unless 'he actually wanted us to.' From then, appellee testified, appellant turned against her and objected to everything she did.

They returned to Anderson and decided that the partnership should remodel appellee's said 10th Street property at a cost of $8,900. When the remodeling was finished there remained $3,000 of unpaid obligations. Dissolution of the partnership was begun in 1952 and completed in 1954. Said $3,000 for unpaid obligations was deducted from appellee's capital contributions to the partnership and, upon final dissolution, she received $2,100 out of the remaining cash assets of the partnership.

Appellee drew against the capital amount of the partnership for her 'grocery money' and whatever money appellant drew was also drawn from the capital account of said partnership. Such arrangement continued until 'there wasn't anything left from which to draw.' The partnership encountered financial difficulties, creditors came to the home of the parties, and a bitterness developed between appellant and his father. In July or August of 1952 appellant told appellee he could no longer talk to the creditors and that he was going to North Carolina to work at a job paying $280 a week. He told appellee that she could take care of the creditors and help his father sell the equipment. From the time appellant went to North Carolina until January 1, 1953, he sent appellee $680, but she paid out in excess of that amount on appellant's obligations.

While working in North Carolina, appellant came home week ends and appellee sought help in getting the business settled but appellant 'wouldn't stay to explain what he owed, to whom, and what for' and appellee said, 'we had some difficulties over that.' Appellant told appellee he had not been happy during their marriage, that appellee was a year and a one-half older than he, that he wanted a son and didn't 'feel' that her health would permit the having of more children, that 'Vive' (the daughter) was nice, but he wanted a boy and 'to find some one else before he became too old'; and that appellee should see a named attorney and file for a divorce. Appellee said she was 'completely dumbfounded' by his statement that he wanted a son by a younger woman and that she 'would get a divorce' if that was what appellant wanted; that appellant liked to travel and didn't want to stay home.

Appellee testified that appellant decided it would be a good idea if his mother adopted the daughter and they could see the child when they wanted to and 'wouldn't have to be bothered.' That around Thanksgiving 1952 he, a Marine reservist, reenlisted in the Marines without her knowledge and she did not learn of it until around Christmas of 1952; that while in the service he sent home $75 a month for support, gave the daughter a coat and shoes, and gave appellee $50 at one time, and $100 on another occasion.

Appellee further testified that appellant one time became angry with appellee's youngest son, hit him on the back and knocked his glasses off; that she objected and he became angry, went out, and returned about 10:00 p. m. with evidence that he had been drinking; that he took the daughter, then eight months old, wrapped in a shawl, out into the rain. He refused to tell appellee where he was going and she followed him; that he took the baby into three different bars and finally brought the child home at appellee's behest.

In support of his specification of insufficiency of the evidence to sustain the finding, appellant confines himself to the point that his reenlistment in the Marines without first informing appellee or seeking her consent is not cruel and inhuman treatment. In considering the sufficiency of the evidence to sustain the finding of the court, a fragment, part or portion of the evidence is not plucked from the whole and appraised alone, but all the evidence, together with all the permissible and reasonable inferences deducible therefrom, is surveyed to determine the ultimate facts and circumstances established thereby favorable to the decision of the trial court. A reversal of a judgment predicated upon a finding results only when there exists no competent evidence to support such finding.

The trial court has before it, within its sight and hearing, the physical presence of the parties and ofttimes...