Kujaca v. Kujaca
| Decision Date | 19 December 1973 |
| Docket Number | No. 3--1272A104,3--1272A104 |
| Citation | 159 Ind.App. 6,304 N.E.2d 870 |
| Parties | Robert KUJACA, Appellant, v. Lenore KUJACA, Appellee. |
| Court | Indiana Appellate Court |
Robert Kujaca, pro se.
Richard S. Kaplan, Gary, for appellee.
Robert Kujaca brings this appeal pro se. His wife filed a complaint for divorce On July 2, 1972, Robert Kujaca filed his motion to correct errors. A hearing was held on his motion to correct errors, and this motion was overruled by the trial court on October 2, 1972. The issues raised by Robert Kujaca's motion to correct errors are set out in full in the 'Statement of the Issues' section of this opinion.
alleging that he had been guilty of cruel and inhuman treatment. She further alleged in her complaint that he had not supported her or their two year old daughter since their marriage on January 5, 1969 except for the first three months. During a preliminary hearing to determine his support payments and any payment of attorney fees, Robert Kujaca filed an affidavit stating that he was indebted to his relatives in the sum of $1,500, and he urged the trial court to set his support payments at $10.00 per week. He revealed at the hearing that he had a job which paid $600.00 a month. The trial court entered a preliminary support order for $30.00 every two weeks to coincide with his pay period and awarded his wife attorney fees in the sum of $400.00, which was to be paid in equal installments over a 120 day period. Robert Kujaca was later cited for contempt for his failure to comply with this order. In the meantime, he had filed a motion to compel his wife to answer certain interrogatories which she had objected to or answered. A joint hearing was held on this motion to compel and Robert Kujaca's contempt citation. The motion to compel was denied and the contempt citation was withdrawn by the wife. At this joint hearing, the trial court notified all parties present as shown by the record that the final divorce hearing would be held at 9:30 o'clock a.M. on May 31, 1972. Robert Kujaca failed to appear at the final divorce hearing on May 31, 1972. Instead, he filed an application to set visitation rights on May 31, 1972. Lenore Kujaca was granted an absolute divorce by the trial court and given the custody of her two year old daughter, Linda Marie. Robert Kujaca was given reasonable visitation rights.
Our opinion concludes that none of the contended errors have merit and that the judgment of the trial court should be affirmed.
Robert Kujaca and Lenore Kujaca were married on July 5, 1969. Their only child, a daughter, was born in March, 1970. Lenore Kujaca filed her complaint for divorce on March 27, 1972 which alleged that Robert Kujaca had been guilty of cruel and inhuman treatment. Her complaint further alleged:
'(a) The defendant has failed to provide support for the plaintiff and their minor child for their entire married life with the exception of the first three months of marriage and said defendant has failed and refused to seek employment to provide support and maintenance for plaintiff and their minor child; . . .'
Robert Kujaca's answer to this complaint denies that he is guilty of cruel and inhuman treatment and further makes a statement of defense as to his nonsupport. He admitted at a preliminary hearing held on April 3, 1972 that he had not contributed monetarily to his family for the past year. He has no disabilities and is capable of working. At the preliminary hearing on April 3, 1972, the court entered a preliminary order providing that Robert Kujaca pay support into the office of the Clerk in the sum of $30.00 every two weeks and that he pay his wife's attorney fees in the sum of $400.00 in four equal payments over a period of 120 days. Lenore Kujaca was employed. She paid the rent on their apartment and purchased her own automobile for transportation to and from work.
Robert Kujaca filed interrogatories for his wife to answer. Part of her answer to the cruel and inhuman treatment interrogatory was that '. . . I sustained no physical injury at the hands of the defendant On July 2, 1972, Robert Kujaca filed his motion to correct errors. The trial court granted him a hearing upon his motion to correct errors which was held on September 21, 1972 and then continued to September 26, 1972. Robert Kujaca appeared pro se. On October 2, 1972, the trial court overruled Robert Kujaca's motion to correct errors. Robert Kujaca brings this appeal pro se and raises the questions set forth in the 'Statement of the Issues' section of our opinion below.
except for the two times when the defendant grabbed me by the throat.' She objected to some of the other interrogatories. Robert Kujaca filed a motion to compel under Rule TR. 37(A) of the Indiana Rules of Procedure, IC 1971, 34--5--1--1. When he appeared in court for a hearing on his motion to compel on May 11, 1972, Robert Kujaca learned that the regular trial judge had continued the hearing on his motion to May 17, 1972. He was served with a contempt citation for violation of the April 3, 1972 support order. Both the motion to compel and the citation for contempt were heard on May 17, 1972. Prior to the hearing, an attorney was appointed for Robert Kujaca by the trial court. Robert Kujaca refused to cooperate and assist the appointed counsel with his defense upon the contempt citation or assist him on the previously filed motion to compel. The court appointed counsel advised the court of his dilemma, and Robert Kujaca proceeded pro se. After a hearing on the motion to compel, the trial court denied the motion. Lenore Kujaca withdrew her petition for contempt. The trial court in the presence of Robert Kujaca, as shown by the record, announced that the final hearing on the divorce complaint would be heard at 9:30 o'clock A.M. on May 31, 1972. Robert Kujaca was the only one wo failed to appear in court on May 31, 1972 at 9:30 o'clock A.M. He did file sometime during the day of the trial an unverified application to set visitation rights. Lenore Kujaca was granted an absolute divorce by the court and given the custody of her two year old daughter. Robert Kujaca was ordered to pay support in the sum of $20.00 per week and granted reasonable visitation with his minor daughter.
Robert Kujaca's motion to correct errors presents these issues for our consideration on appeal:
We find no merit in any of the above contentions of error and affirm the judgment of the trial court.
Robert Kujaca contends that he was entitled to written notice of the final divorce hearing on May 31, 1972 and that failure of the trial court to give such written notice is a denial of due process. He relies on Rule TR. 72(D) of the Indiana Rules of Procedure.
Robert Kujaca was present before the court at the hearing on May 17, 1972 and proceeding pro se. The record before us clearly shows that all parties to this divorce action and their attorneys were present when the trial judge announced from the bench that the final hearing on the divorce would be set for May 31, 1972 at 9:30 o'clock A.M. Everyone present at the May 17, 1972 hearing appeared on May 31, 1972 except Robert Kujaca. Rule TR. 72(D) does provide for written notice and also provides:
'. . . Service by mail upon any attorney who is present at the time the entry is made of record shall not be required if such fact is noted in the record or is noted in the docket by the clerk.'
Robert Kujaca does not come within the provisions of the written notice provided in Rule TR. 72(D). He was present at the time that the court made the entry as the record clearly shows. 1
Robert Kujaca signed and filed an unverified 'Application for Setting Visitation' sometime during the day of May 31, 1972. This filing strongly indicates that Robert Kujaca understood the oral notice from the bench by the trial judge. Further written notice of the final hearing was not necessary.
Mr. Smulevitz, Robert Kujaca's court appointed attorney, who had withdrawn his appearance after the May 17, 1972 hearing, did appear on May 31, 1972 at 9:30 o'clock A.M. He testified at a hearing on Robert Kujaca's motion to correct errors held September 21, 1972 as follows:
'Q. No (Now) do you recall that in the afternoon all parties returned to this court, including yourself, at which time you informed the Court that the defendant absolutely refused to cooperate with you?
'A. That's correct.
'Q. No (now) do you recall, Mr. Smulevitz, as his then acting attorney, by appointment of the Court, that the Court instructed the defendant after the ruling on his motion for sanctions on the interrogatories, to be prepared to try this matter on May 31st at 9:30 A.M. Do you recall that?
'A. Yes.
'Q. And do you recall this Court, Judge Egan, instructed the defendant to be here at that time?
'A. Yes.
'Q. And you were so informed. Did you inform the defendant to be here at that time?
'A. I don't recall whether I informed him. I do recall a conversation in which I believe he did state that he knew about the time.
'Q. He know about the time?
'A. He was informed by the Court. I don't recall whether I had repeated it to him.
'Q. You repeated it to him?
'A. I don't recall. I know he was informed...
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