Hill v. Hill, 20269

• Citation: 204 N.E.2d 222,136 Ind.App. 630
• Decision Date: 10 February 1965
• Docket Number: No. 1,No. 20269,20269,1
• Parties: Imogene E. HILL, Appellant, v. Donald HILL, Appellee
• Court: Court of Appeals of Indiana

Page 222

204 N.E.2d 222

136 Ind.App. 630

Imogene E. HILL, Appellant, v. Donald HILL, Appellee.

No. 20269.

Appellate Court of Indiana, Division No. 1.

Feb. 10, 1965.

[136 INDAPP 631]

James D. Lopp, Evansville, for appellant.

Donald Hill (Attorney for Mr. Hill withdrew).

PRIMA Judge.

This appeal involves an action brought by the appellee against appellant praying for an absolute divorce and asking for custody of theit two minor [136 INDAPP 632] children, based upon grounds of cruel and inhuman treatment. Appellant filed a cross-complaint in which she prayed for separation from bed and board and custody of the children. The issues were closed and the action was submitted to the trial court. At the conclusion of all the evidence, the court made a finding in favor of the appellee on his complaint and against the appellant on her cross-complaint. The court then entered a decree awarding the appellee an absolute divorce; and awarded the appellant custody of the children and a support order for them, alimony and a determination of her property rights.

The appellant filed a motion for a new trial, asserting that the decision of the court was not sustained by sufficient evidence and was contrary to law. The court overruled the motion and appellant brought this appeal.

The only error assigned for reversal is that the trial court erred in overruling appellant's motion for a new trial. Appellant urges in support thereof, that the finding of the court is not sustained by sufficient evidence and is contrary to law. Appellant chooses in the argument portion of her brief to group both specifications together and support them by one argument.

The appellant argues first that there was not sufficient evidence of alleged acts of cruel and inhuman treatment; and, second, that the appellee was not without fault and, therefore, should have been denied relief on his complaint.

As to appellant's second contention, we refer to the case of Stinson v. Stinson (1947), 117 Ind.App. 661, 74 N.E.2d 745, which states:

'It is true, as contended by appellant, that where each of the merried parties have committed a [136 INDAPP 633] matrimonial offense which is a cause for divorce, when one seeks this remedy the trial court will not grant either party a divorce. In this case the trial court, by its judgment, presumably determined this condition did not exist. We cannot overrule its finding without weighing the evidence. This we are not permitted to do. Sostheim v. Sostheim (1941), 218 Ind. 352, 32 N.E.2d 699.'

See also, Bone v. Bone (1962), 132 Ind.App. 630, 179 N.E.2d 584.

Much of the evidence adduced at the trial was conflicting, which is not unusual in cases of this nature. The evidence most favorable to the appellant tends to establish the following facts. The parties were married on February 21, 1959, and two children were born as the fruits of this marriage. Appellee testified that the parties often found it difficult to get along together and that they had separated about fifteen (15) times as a result of arguments and quarreling. He further testified that the appellant treated the children rough, and that on one occasion before the oldest child was born and the appellant was about six (6) months pregnant, she become angry and began to beat on her abdomen, screaming and yelling that she wished the child was dead. He also testified that the appellant told him about two or three weeks prior to the date of trial that, 'I could have the kids if it wouldn't look so bad on her.'

Finally, appellee testified that immediately prior to the time that the parties last separated they were engaged in an argument, and during the course of this argument the appellant threatened him with a .22 automatic pistol, which was loaded at the time.

Appellant in support of her specification of insufficiency of the evidence to sustain the finding, confines [136 INDAPP 634] herself to the argument that the single incident of the threat with the loaded pistol, absent evidence of the surrounding circumstances, is not cruel and inhuman treatment. While it is true that the record lacks any evidence of the circumstances surrounding this incident, we are of the opinion that the appellant has waived her right to voice any objection at this time, inasmuch as she had an opportunity to pursue this matter on cross-examination and again during the presentation of her case in chief. On appeal, this court will only look to the evidence most favorable to the appellee.

In considering the question of the sufficiency of the evidence on the allegation of cruel and inhuman treatment, it was stated by the Supreme Court of Indiana in the case of Heckman v. Heckman (1956) 235 Ind. 472, 478, 134 N.E.2d 695, 698, that:

'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 deductible therefrom, is surveyed to determine the ultimate facts and circumstances established thereby favorable to the decision of the trial...