Kessler v. Kessler, 19827

• Decision Date: 15 August 1963
• Docket Number: No. 1,No. 19827,19827,1
• Citation: 135 Ind.App. 85,192 N.E.2d 4
• Parties: Carlene M. KESSLER, Appellant, v. Frank H. KESSLER, Appellee
• Court: Indiana Appellate Court

Page 4

192 N.E.2d 4

135 Ind.App. 85

Carlene M. KESSLER, Appellant, v. Frank H. KESSLER, Appellee.

No. 19827.

Appellate Court of Indiana, Division No. 1.

Aug. 15, 1963.

Grimm & Grimm, Auburn, for appellant.

Phyllis R. Gratz, Auburn, for appellee.

COOPER, Judge.

This matter comes to us from the Steuben Circuit Court wherein the appellant herein, Carlene M. Kessler, brought an action for an absolute divorce against the appellee herein, Frank H. Kessler, alleging cruel and inhuman treatment. The complaint also prayed for the custody of three minor children of the parties.

The record now before us also reveals that the appellee herein filed an answer in two paragraphs--one in denial, and the other by way of cross complaint in which the appellant sought a divorce and also the custody of three minor children of the parties.

Upon the issues thus joined, the cause was submitted to the court for trial on the eleventh day of December, 1961, and, at the conclusion of all the evidence, the trial court entered his finding and judgment, the pertinent parts reading as follows:

'* * * The evidence having been concluded, the court now finds against the plaintiff and that she take nothing by her complaint for absolute divorce herein.

'The court finds for the defendant upon his cross-complaint that the allegations are true and proven and that the defendant and cross-complainant is entitled to an absolute divorce of and from the plaintiff herein.

'The Court further finds that the cross-complainant is a fit and proper person for the care, custody and control of the minor children of said parties, namely, Frank H. Kessler born September 16, 1957, Katrina Jo Kessler born February 14, 1958, and Archie James Kessler, born April 18, 1961, and that the plaintiff shall be entitled to visit said children at all reasonable times and places and the custody and right of visitation subject to the further order of the court.

* * *

* * *

'It is therefore ordered, adjudged and decreed by the court that the plaintiff herein shall take nothing by her complaint for divorce herein.

'It is further ordered by the court that the defendant and cross-complainant herein is entitled to an absolute divorce of and from the plaintiff herein.

'It is further ordered that the defendant and cross-complainant is granted the care, custody and control of the minor children of said parties, namely, Frank H. Kessler, born September 16, 1957, Katrina Jo Kessler, born February 14, 1958, and Archie James Kessler, born April 18, 1961, and that the plaintiff shall be entitled to visit said children at all reasonable times and places and the custody and right of visitation is subject to the further order of the court. * * *'

Thereafter, on the 27th day of December, 1961, it appears from the record that the appellant filed her verified motion to modify the decree and judgment as to the custody of the minor children of said parties. Said motion was overruled by the trial court and thereafter the appellant filed a motion to retain custody of the infant children pending appeal, which was denied, and thereafter, within the proper time, the appellant filed her motion for a new trial, the same being overruled, and this appeal followed.

The appellant assigns the following errors:

'1. The court erred in overruling appellant's motion for new trial.

'2. The court erred in overruling plaintiff-appellant's motion to modify the judgment entered in said cause.

'3. The court erred in overruling plaintiff's petition to retain custody of infant children pending appeal.

'4. The court erred in overruling plaintiff's request for permission to introduce evidence in support of motion to modify judgment as relates to custody of minor children and court costs.

'5. The court erred in overruling plaintiff's motion to introduce evidence in support of plaintiff's petition to retain custody of infant children pending appeal.'

The appellant in the argument portion of her brief urges only the following two causes of the foregoing motion:

'1. The decision of the court is not sustained by sufficient evidence.

2. The decision of the court is contrary to law.'

thereby waiving the other three assigned errors.

The appellee in his cross complaint charged the appellant with certain acts of cruel and inhuman treatment. On appeal, where the sufficiency of the evidence is questioned, we are required to determine whether or not there is any evidence of probative value produced by the appellee to sustain the allegations of his cross complaint, bearing in mind that we are not permitted to weight such evidence, and the general rule is well established that this court is permitted to consider only the evidence most favorable to the appellee.

We do not deem it necessary to set forth all of the conflicting evidence which appears in the record of this cause, but believe it sufficient to state that there is evidence favorable to the appellee which shows that the appellant maintained an attitude of neglect and indifferent towards the appellee in her marital duties and responsibilities; that she neglected the home of the parties and failed to give their minor children proper care and attention in many respects too numerous to set forth in this opinion; that she worked in a factory against the wishes of her husband and remained out until the late hours of the nighttime; that, although she left her place of employment at 12:30 a. m., she would not return home until about 8:00 in the morning; that the appellant has told the appellee that she no longer cared for him.

In considering the evidence most favorable to the appellee relative to a charge of cruel and inhuman treatment, we find the general rule is well stated by our Supreme Court in the case of Heckman v. Heckman (1956) 235 Ind. 472, pp. 478, 479, 134 N.E.2d 695, 698, wherein the court stated:

'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...