Hurst v. Hurst, 2--1073--A--217
| Citation | 335 N.E.2d 245,166 Ind.App. 243 |
| Decision Date | 14 October 1975 |
| Docket Number | No. 2--1073--A--217,2--1073--A--217 |
| Parties | Beulah I. HURST, Appellant, v. Denlo Carl HURST, Appellee. |
| Court | Court of Appeals of Indiana |
Louis Pearlman, Jr., Lafayette, for appellant.
Robert A. Mucker, Lafayette, for appellee.
The appellant Beulah Hurst (Wife) appeals from a judgment which denied her a divorce on her complaint and granted it to Denlo Hurst (Husband) on his cross-complaint. The decree awarded Wife the household goods and furniture she had inerited from her family and the sum of $13,750.00; it awarded Husband the family residence (along with responsibility for the mortgage), the remainder of household goods and furniture, the tools and farm equipment on such residence, and custody of the couple's minor child. No order of support was made. In this appeal Wife contends that the court committed error both in the property settlement and the award of custody.
We affirm.
The evidence shows that the couple was married in 1942 and had five children, four of whom were emancipated at the time of trial. They lived in various places until 1954, at which time they purchased a house and slightly over 19 acres of land from Wife's mother, property they had rented from 1948 to 1952. It was not modern (no central heating, no indoor plumbing) when purchased, but they had plumbing installed before moving into it and made numerous other improvements while living there. In 1963 they built a new house on the 19 acres and moved into it. (The old house and a small bit of ground were sold to their oldest daughter and her husband; another daughter and her husband were given two lots and they built a house thereon.) The property had an appraised value of $35,000.00 and was mortgaged, the mortgage balance at the time of trial being $7,569.92.
Wife first filed for divorce in 1968, but that action was abandoned. Both parties continued to reside in the house, but Wife moved into a separate bedroom and the parties ceased living as man and wife.
The evidence most favorable to Husband shows that in 1965 Wife, over Husband's objections, began working outside the home. From 1965 until 1968 she worked the 4:00 P.M. to midnight shift in a nearby factory, often going out after work with her fellow employees. During this period Husband, who worked the day shift in a different factory, prepared dinner for and otherwise took care of the children. After that job she worked at two temporary jobs, then worked for two years on the midnight to eight shift in an all night restaurant. When asked by her attorney what she had done with her earnings Wife answered, About a year before filing this action she stopped working at a regular job, although she did babysitting outside the home, including overnight and in at least one instance most of a week. At the time of the trial she was living in with and looking after an elderly couple who paid her $15.00 per week, and also doing babysitting to bring her weekly cash income to about $45.00.
The evidence further shows that even prior to the time she began to work outside the house the wife was an extraordinarily bad housekeeper herself and that she would interfere with the housecleaning efforts of other family members. The house was so dirty and filled with trash, trash that Wife would bring back in if thrown out, that one or more rooms were unusable and the remainder barely so. Husband's testifimony on this subject was supported by the testimony of the oldest daughter, who also described the adverse effect the condition of the house had on her social life and personality development.
The evidence also shows that in the 9 months after Wife had moved out of the house, pursuant to a preliminary order issued in this action, the house, except for Wife's bedroom, had been cleaned and kept clean and that the minor child, then age 10, had begun not only having friends visit but, for the first time in his life, having friends stay overnight.
Wife's Motion to Correct Errors was specifically directed to two issues: First, the awarding of custody to Husband; Second, the awarding of the real property, which she claims is 'ancestral property' to Husband. Although Wife's brief attempts to raise other issues (e.g., the sufficiency of the total property settlement-alimony award) those issues must be considered waived for failure to raise them in her motion to correct errors, TR. 59(G); Buckley v. State (1975), Ind.App., 322 N.E.2d 113, 115, n. 4.
The rule in Indiana for determining custody of children and for review of such judgments is quoted in Watkins v. Watkins (1943), 221 Ind. 293, 298, 47 N.E.2d 606, 607:
"The welfare of the child is paramount to the claims of either parent, and its care and custody should be awarded with regard to the best interests of the child. The trial judge is in a position to see the parties, to observe their conduct and...
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