Hetherington v. Hetherington
| Citation | 160 N.E. 345,200 Ind. 56 |
| Decision Date | 16 March 1928 |
| Docket Number | 25,152 |
| Parties | Hetherington v. Hetherington |
| Court | Supreme Court of Indiana |
Rehearing Denied May 11, 1928.
1. DIVORCE---Application---Must Bring Plaintiff Within Statute.---Divorce actions are statutory, and subject to the rule that he who seeks the benefits of a statute must bring himself clearly within its provisions. p. 59.
2. DIVORCE---Application---Must Show Plaintiff's Residence---Jurisdiction.---A petition for divorce, stating one or more of the statutory grounds therefor, without a showing of residence in compliance with the statute (1097 Burns 1926) is insufficient to give the court jurisdiction of the subject-matter of the action. p. 59.
3. DIVORCE---Requirements as to Plaintiff's Residence---Cannot be Waived.---The provisions of the statute as to plaintiff's residence in a divorce action (1097 Burns 1926) are mandatory and jurisdictional and cannot be waived by either party. p. 59.
4. DIVORCE---Sustaining Demurrer to Complaint---Effect on Plaintiff's Action.---Where a demurrer is sustained to a divorce complaint, the pleading is taken out of the record and the plaintiff has no suit pending justifying any further action in the divorce proceeding. p 59.
5. DIVORCE---Dismissal of Petition---Effect on Cross-Complaint.---By express provision of the statute (1102 Burns 1926), the dismissal of plaintiff's petition in a divorce action does not affect the defendant's right to proceed to trial on his cross-petition. p. 59.
6. DIVORCE---"Suit Money"---When Allowed.---Allowance of "suit money" to wife in action for divorce may be made either for the purpose of enabling her to prosecute or defend such action. p. 59.
7. DIVORCE---Allowance of "Suit Money"---When Husband has Cross-Complaint.---Allowance of "suit money" to wife was authorized, although the court had sustained a demurrer to her petition, thus taking it out of the record so she would have no action pending, where the defendant had filed a cross-petition, as the action would still be pending on his cross-petition. p. 59.
8. DIVORCE---Amount of "Suit Money"---Within Discretion of Trial Court.---The amount of "suit money" to be allowed the wife in a divorce action is within the sound judicial discretion of the trial court subject to review on appeal. p. 60.
9. DIVORCE---Allowance Sustained.---Where the husband was worth approximately $200,000, the allowance of $1,000 "suit money" to the wife was not an abuse of discretion, although she had investments amounting to $6,000 or $7,000. p. 60.
From Cass Circuit Court; Joseph N. Tillett, Special Judge.
Action for divorce by Bertha B. Hetherington against John P. Hetherington, wherein the defendant filed a cross-petition. From an interlocutory order directing the defendant to pay to clerk of the court $ 1,000 for plaintiff's use in preparing for trial, the defendant appeals.
Affirmed.
G. E. Ross, for appellant.
Kistler, Kistler & McHale, for appellee.
This is an appeal from an interlocutory order allowing and ordering appellant herein to pay to the clerk of the Cass Circuit Court the sum of $ 1,000 for appellee's use in the preparation of her case for divorce against appellant. That part of the record sufficient for an understanding of the questions involved will appear from the following memorandum:
On October 10, 1925, appellee filed her petition for a divorce and attached thereto her residentiary affidavit, as also an affidavit for a restraining order, which order was issued. On October 28, 1925, appellant filed a cross-complaint for a divorce from appellee. On October 30, 1925, appellee filed a verified petition for an allowance for the purpose of enabling her to prosecute her action for divorce, and on the same day she filed an amended and substituted affidavit of residence. The following November 25, appellant's demurrer, filed October 10, to appellee's complaint for failure to state facts and for want of jurisdiction of the subject-matter of the action, was sustained. On January 28, 1926, appellant filed an answer in denial to appellee's complaint. Thereafter, upon the affidavits submitted in support of and against making the allowance for which appellee prayed, the court, on February 19, 1926, ordered that appellant pay, on or before March 6, 1926, to the clerk of the Cass Circuit Court, $ 1,000 for appellee's use in the preparation of her cause of action. Five days later, a motion to modify the $ 1,000 allowance, for the reason there was nothing before the court upon which such an allowance could rest, or that the order be modified reducing the allowance to $ 500 instead of $ 1,000, was overruled, appeal prayed and granted. There was no judgment on the demurrer to the complaint.
It is evident from the briefs of counsel and from the record before us that the affidavit of residence filed with appellee's petition was insufficient. Appellant insists that the action of the court in sustaining the demurrer to the petition of appellee took both the petition and affidavit of residence therewith filed out of the record, and that the mere filing of an amended or substituted affidavit of residence would not rehabilitate the petition, and hence there was nothing before the court upon which to base an allowance.
Divorce actions are statutory and within the elementary rule that he who seeks the benefits of a statute must bring himself clearly within its provisions. Steinkuehler v. Wempner (1907), 169 Ind. 154, 160, 81 N.E. 482; Barker v. State (1918), 188 Ind. 263, 120 N.E. 593; Zeller, McClellan & Co. v. Vinardi (1908), 42 Ind.App. 232, 85 N.E. 378.
A petition for a divorce stating one or more of the statutory grounds therefor, without a showing of residence in compliance with the statute (§ 1097 Burns 1926), is insufficient to give the court jurisdiction of the subject-matter of the action. The provisions of this statute as to residence are mandatory and jurisdictional and cannot be waived by either party. Wills v. Wills (1911), 176 Ind. 631, 96 N.E. 763; Smith v. Smith (1916), 185 Ind. 75, 113 N.E. 296; Miller v. Miller (1914), 55 Ind.App. 644, 104 N.E. 588; Hoffman v. Hoffman (1918), 67 Ind.App. 230, 119 N.E. 18; Foreman v. Foreman (1921), 76 Ind.App. 83, 131 N.E. 419.
It is obvious from the record at bar that appellee did not have...
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