Hibbard v. Hibbard
| Decision Date | 10 September 1974 |
| Docket Number | No. 1--473A73,1--473A73 |
| Citation | 161 Ind.App. 422,315 N.E.2d 731 |
| Parties | Robert Lewis HIBBARD, Plaintiff-Appellant, v. Wilma Karen HIBBARD, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Sherwood Blue, Indianapolis, Roger L. Miller, Frankfort, Peter L. O'Bremskey, Lebanon, for appellant.
Frank E. Spencer, Indianapolis, for appellee.
This is an appeal from a final judgment rendered by amended decree on January 22, 1973, in a divorce action commenced by plaintiff-appellant, (husband) and contested by defendant-appellee's (wife) answer and cross complaint, wherein both parties sought a divorce, custody of their minor children, and an equitable division of their marital property.
The wife was granted a divorce on her cross complaint; awarded custody of the minor children of the parties, and was given judgment for certain personal property and alimony in the sum of $18,300. The husband was awarded certain real and personal property and ordered to pay support for the children, certain debts, and the wife's attorney fees in the amount of $2,500.
The first issue raised was as follows: The divorce should have been granted to the plaintiff husband and not to the defendant wife.
The husband contends that there was insufficient evidence to support the granting of the divorce to the wife and that denying the divorce to the husband was contrary to the evidence and contrary to law. An examination of the record discloses that there was a great deal of evidence presented to the trial court in support of both the complaint and the cross complaint for divorce. This evidence is not only voluminous, but is conflicting in nature. An examination of the evidence most favorable to the decision of the trial court discloses that the husband had committed certain marital abuses, including verbal abuse of the wife, striking the children with a belt, holding out the wife to ridicule to others, initiating arguments, and certain physical abuse. There were also charges of adulterous conduct by the husband, with conflicting evidence adduced at trial as to whether the wife condoned those actions.
It is our opinion that although the evidence is conflicting, there is sufficient evidence to support the decision of the trial court to award a divorce to the wife on her cross complaint and deny a divorce to the husband. This court stated in the case of In re Estate of Barnett (1974), Ind.App., 307 N.E.2d 490, 495, as follows:
The second issue raised by appellant is that the care and custody of the two minor children of the parties should have been awarded to the husband and not to the wife. The husband contends that there was insufficient evidence to support the awarding of the children to the wife, that said award was contrary to the evidence, and that the failure to award the children to the father was contrary to law.
The evidence at trial relating to the welfare of the children was voluminous on that point and quite conflicting. There was evidence presented which tended to show that the wife was not a good mother to the children, that the wife failed to cook properly for the children, and that the wife failed to attend to the needs of the children in relation to cleanliness and personal hygiene. However, the record discloses evidence which tends to show that the wife was a good mother to the children, cared for them properly, and could provide the children with a good home and give them proper personal attention.
Judge Buchanan of this court, in Shaw v. Shaw (1973), Ind.App., 304 N.E.2d 536, 539, in discussing the awarding of custody determined that the award may be reviewed for an abuse of discretion of the court in making the award and quoted from Gilchrist v. Gilchrist (1947), 225 Ind. 367, 372, 75 N.E.2d 417, 419, as follows:
(Emphasis supplied.) Gilchrist v. Gilchrist (1947), 225 Ind. 367, 372, 75 N.E.2d 417, 419.'
It is our opinion from the evidence presented to us that the conclusion and judgment of the trial court was not clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom and, therefore, there was no abuse of discretion.
The third issue in this appeal is whether the trial court abused its discretion when it granted the wife an alimony judgment in the amount of $18,300. The husband contends that the property owned by the parties at the time of the dissolution of the marriage was, in fact, of negative value and that the evidence does not support the award of alimony as given by the court.
The evidence relating to the amount of property owned by the parties or in which they had interest is typical of divorce cases in that it is conflicting and that contradictory arguments could be made based on such evidence and the inferences to be drawn therefrom.
The assets awarded to the parties by the trial court could be broken down generally as follows:
Assets Given Husband
---------------------
Real Estate $20,000
Hibbard Construction Stock 2,500
Pierce Governor Co. stock 350
Antiques and Guns 1,100
One-half tax refund check 600
-------
24,550
Assets Given Wife
------------------
Household goods $ 2,000
Automobile 750
One-half tax refund check 600
Alimony judgment 18,300
-------
$21,650
Additionally, the husband was ordered to pay the debts of the marriage, including a bank note in the amount of $4,600 which was obtained to pay taxes. The husband was also required to pay certain furniture and merchant debts totalling $2,147. The evidence discloses that the real estate which was awarded to the husband was used not only for a residence but as a home base for the Hibbard Construction Company of which the husband was president. A mortgage on the home in the amount of $12,000 was ordered paid by the husband. During the marriage certain improvements were made upon the real estate and the home situated thereon, primarily for the benefit of the family owned business and an improvement debt in the amount of $14,000 was outstanding to the Hibbard Construction Company.
At one time the wife was an officer of the company and spent many weeks in the employ of the company without compensation. The evidence discloses that during much of this time the wife was working 40 to 50 hours a week without any pay. The husband owned 38% of the stock in the company, with the remaining shares being owned by his father and brother. The husband's salary was $275.00 per week and he was authorized to draw expense money every week at his discretion.
The evidence relating to the financial position of the company was given by the accountant for the husband and there was no evidence of any recent audit being made on the books. Apparently the company alternated profit and loss years by making a profit one year and sustaining certain losses in other years. The evidence discloses that during the year prior to the dissolution of the marriage the company did over $900,000 gross business. There is conflicting testimony on the actual worth of the company, with...
To continue reading
Request your trial
-
Wireman v. Wireman
...will not weigh the evidence, but will consider it in the light most favorable to appellee. Cox v. Cox, supra; Hibbard v. Hibbard (1st Dist. 1974), Ind.App., 315 N.E.2d 731. The standard for reviewing a divorce decree for abuse of discretion was set out in Boshonig v. Boshonig (1971), 148 In......
-
Greiner v. Greiner
...attorney's fee would be, even absent any evidence in the record. Cox v. Cox (1975), Ind.App., 322 N.E.2d 395; Hibbard v. Hibbard (1974), Ind.App., 315 N.E.2d 731. Facing a situation in which attorney fees for appeal were awarded, the Second District, Indiana Court of Appeals, noted: 'The tr......
-
Geberin v. Geberin
...attorney's fee would be, even absent any evidence in the record. Cox v. Cox (1975), Ind.App., 322 N.E.2d 395; Hibbard v. Hibbard (1974), Ind.App., 315 N.E.2d 731. Facing a situation in which attorney fees for appeal were awarded, the Second District, Indiana Court of Appeals, noted: 'The tr......
-
Burkhart v. Burkhart
...or 41% for the Wife and 59% for the Husband. Clearly, the trial court judge did not abuse his discretion. 1 Hibbard v. Hibbard (1974), Ind.App., 315 N.E.2d 731. Having decided that the actual division of the property is not improper, we next turn to the question of whether the cash flow pro......