Hunter v. Hunter

• Decision Date: 19 November 1948
• Docket Number: 17771.
• Citation: 82 N.E.2d 272,118 Ind.App. 553
• Parties: HUNTER v. HUNTER.
• Court: Indiana Appellate Court

82 N.E.2d 272

118 Ind.App. 553

HUNTER v. HUNTER.

No. 17771.

Appellate Court of Indiana, in Banc.

November 19, 1948

Appeal from Warrick Circuit Court; J. Harold Hendrickson Judge.

William D. Hardy, of Evansville, for appellant.

Philip Gould and Ben. J. Biederwolf, both of Evansville, for appellee.

CRUMPACKER Judge.

By this appeal the appellant seeks to reverse a decree of the Warrick Circuit Court whereby the appellee was granted a divorce from him and was adjudged to be the owner in fee simple of certain real estate in the city of Evansville, Indiana, which for approximately two years prior to such decree had belonged to the parties as tenants by the entireties. The appellant insists that this decree is neither supported by sufficient evidence nor in accordance with the law.

The appellee and the appellant were respectively, plaintiff and defendant below and, being husband and wife, each sought a divorce from the other by complaint and cross-complaint based on alleged cruel and inhuman treatment. The evidence is conflicting and the trial court chose to accept the appellee's version of the marital difficulties between the parties and its finding on the issue of cruel and inhuman treatment is warranted. The appellant makes no serious contention to the contrary and therefore a recital of the evidence bearing on the question of cruel and inhuman treatment and the propriety of a decree of divorce would serve no material purpose. The real controversy between the parties revolves around the action of the court in adjudging the appellee to be the owner in fee simple of the real estate above mentioned which consists of two lots in the city of Evansville improved with a nine room house with three baths and a four-car garage. At the time of her marriage to the appellant on November 6, 1943, this property belonged to the appellee in fee simple subject to a mortgage of approximately $2,800. From the time she went into possession on October 4, 1938, the appellee had used the property as a rooming house and from the rentals so acquired she supported herself, paid taxes and interest on the mortgage indebtedness and reduced the principal thereof in substantial amounts from time to time. On March 2, 1944, four months after her marriage, the appellee conveyed the property to a trustee who, on the same day, reconveyed the same to the appellant and appellee, 'husband and wife, as tenants by the entireties.' The appellant contends that these conveyances were in performance of an ante-nuptial contract between the appellee and him whereby she agreed to create, after their marriage, an entireties estate in the property involved and to pay him one-half the net proceeds gained through her rooming house operations and he in turn, agreed to pay her one-half of his wages in current employment each week. This contention is supported by his own testimony and corroborated to some extent by the undisputed fact that beginning in November, 1943, the appellee made monthly payments, up to the date of their separation in August, 1945, with the exception of four months when there was no net income from the property by reason of taxes due and repairs to the house. Under these circumstances, the appellant insists, it was the court's duty, on decreeing a divorce, to...