Holst v. Holst

• Decision Date: 03 December 1965
• Docket Number: No. 20284,No. 1,20284,1
• Citation: 212 N.E.2d 26,139 Ind.App. 683
• Parties: Daisy HOLST, Appellant, v. Henry Jack HOLST, Appellee
• Court: Indiana Appellate Court

Page 26

212 N.E.2d 26

139 Ind.App. 683

Daisy HOLST, Appellant, v. Henry Jack HOLST, Appellee.

No. 20284.

Appellate Court of Indiana, Division No. 1.

Dec. 3, 1965.

Rehearing Denied Jan. 14, 1966.

[139 INDAPP 684]

Edgar A. Grimm, Kendallville, Howard S. Grimm, Sr., Auburn, for appellant.

Leroy K. Schultess, La Grange, F. L. Wiltrout, Elkhart, for appellee.

CARSON, Judge.

This appeal comes to us from the Elkhart Circuit Court from a judgment wherein the court granted a divorce to the plaintiff, the appellant herein, and an alimony judgment in the amount of $9,610.00, and awarding to her all possession of furniture, household goods and appliances located on a certain piece of real estate which was known as the home place, and a Pontiac automobile which was then in the possession of the appellant. The appellee was awarded all the real estate owned by the parties in fee simple, and the wall to wall carpets and cabinets situated in the house located on the farm commonly known as the home place.

Our consideration of this appeal is upon the appellant's brief and the appellee's answer brief. It is the opinion of the Court that the briefs adequately presented the questions for the court's consideration and appellant's failure to appear for the argument did not prejudice the appellant's appeal. We shall proceed to discuss and dispose of the points raised by the appellant's brief.

[139 INDAPP 685] The motion for new trial presents 11 points, some of which we shall discuss collectively. Points 1, 4, and 5 are based upon the sufficiency of the evidence. This, being an appeal in part from a negative judgment, presents no question for our consideration. Points 2 and 3 assign that the decision of the court is contrary to law and present for our consideration the important question of whether or not, considering all the evidence favorable to the appellee and reasonable inferences which might be drawn therefrom, reasonable minded men would have arrived at a different result. Points 6, 7, 8, 9 and 10 raise the question of the exercise of the discretion by the trial court in fixing the amount of alimony and settling the property rights between the parties. Point 11 attempts to raise the proposition of after discovered evidence of which plaintiff claims no knowledge at the time of the trial. Plaintiff attached an affidavit to the motion for new trial seeking the granting of such motion on the proposition covered by the affidavit.

The appellant also filed a motion to modify the judgment and requested an allowance of counsel fees and court costs on appeal. This motion was overruled by the trial court. The appellant assigned two errors, first that the court erred in overruling the appellant's motion for new trial and second, that the court erred in overruling plaintiff's motion to modify the judgment and for counsel fees and court costs on appeal. We shall consider the errors in the order they are assigned.

The pertinent sections of the Indiana statute concerning the trial court's authority to grant alimony and to settle property rights are Secs. 3-1217 and 3-1218 and read in part as follows:

[139 INDAPP 686] '3-1217 [ 1110]. Alimony.--The court shall make such decree for alimony, in all cases contemplated by this act, as the circumstances of the case shall render just and proper; and such decree for alimony, heretofore made or hereafter made, shall be valid against the husband, whether asked for in the petition or given by the judge on default.'

'3-1213 [ 1111]. Alimony--Entry of judgment--Method of payment--Effect upon real property.--The court shall fix the amount of alimony and shall enter a judgment for such sum, and specify the...