Languell v. Languell, 1067A82

Decision Date13 June 1968
Docket NumberNo. 1067A82,1067A82
Citation143 Ind.App. 24,237 N.E.2d 587
PartiesGlenda L. LANGUELL, Appellant, v. Wilson LANGUELL, Appellee.
CourtIndiana Appellate Court

Courtney W. Kerwin, Max C. Shirley, Kokomo, for appellant.

Daniel J. Gamble, Ellis & Gamble, Fred G. Osborn, Hodson & Osborn, Kokomo, for appellee.

FAULCONER, Judge.

Appellant filed suit against appellee for absolute divorce. Appellee filed a cross-complaint against appellant also requesting an absolute divorce. After trial by court appellee was granted an absolute divorce on his cross-complaint. Appellant's motion for new trial was overruled and is assigned as error on this appeal.

The main issue in this appeal is appellant's contention that the trial court abused its descretion in the division of the property of the parties.

It appears generally from the evidence that the parties were married for 27 years and raised two children to adulthood who are now themselves married. Appellee was employed during the marriage, and for the last 16 years thereof the appellant operated a beauty salon in a garage, converted for that purpose, which was attached to their house. At the time of trial the parties owned as tenants by entireties, the house and lot appraised at $25,000, furnishings appraised at $2,209, a 1964 Pontiac automobile appraised at $1500, beauty shop equipment appraised at $1,285, $4,000 in a credit union account and $166 in a checking account. Their liabilities consisted of a mortgage on the real estate in the amount of $5,200.

The trial court awarded appellant the personal property in her possession, the beauty shop equipment, one three piece bedroom set and $500 in cash. The appellee was awarded the real estate and all other personal property 'as set out in said appraisal.' Appellant testified that appellee agreed that she (appellant) would receive one-half of the money in the credit union consisting of $4,000. However, we cannot determine from the evidence, finding or judgment to whom such money was awarded. Neither the balance of $166 in the checking account, nor the money in the credit union, is listed in the appraisal referred to in the finding and judgment of the trial court. However, it does appear from the argument section of the respective briefs that the amount in the credit union account is considered as part of the property awarded to appellee-husband.

Excluding the amounts in the credit union and checking account it would appear that appellant received property of the total value of approximately $1,885, while the appellee received property of the total net value of approximately $23,400. Adding thereto the amount in the checking account and the credit union, the total amount received by appellee would be approximately $28,000. Appellant so lists such amount in her brief which is not challenged or contradicted by appellee in his brief.

The trial court under our statutes has the right and duty to settle and determine the property rights of the parties in an action for divorce. In this respect the trial court has broad judicial discretion and its action in the adjustment of property rights will not be interfered with unless an abuse is clearly shown. Von Pein v. Von Pein (1964), 136 Ind.App. 283, 286, 200 N.E.2d 230; Tomchany v. Tomchany (1962), 134 Ind.App. 27, 32, 185 N.E.2d 301; Draime v. Draime (1961), 132 Ind.App. 99, 103, 173 N.E.2d 70 (Transfer denied); McHie v. McHie (1939), 106 Ind.App. 152, 177, 16 N.E.2d 987 (Transfer denied).

'The question of whether or not there was an abuse of discretion must be apparent on the face of the record, and it is incumbent upon the appellant to show that there has been such an abuse of discretion.' Holst v. Holst (1966), Ind.App., 212 N.E.2d 26, 28.

Appellee relies upon Proctor v. Proctor (1955), 125 Ind.App. 692, 125 N.E.2d 443, wherein this court affirmed a judgment granting the husband a divorce against his wife and awarding to appellee-husband all of their property including that held as tenants by the entirety. The distinguishing facts in the Proctor decision, in our opinion, are that the trial court found the wife was guilty of gross misconduct and also found that their equity in the premises was only $2,642.00 and that such equity was accumulated chiefly through the efforts of the husband.

In Wallace v. Wallace (1953), 123 Ind.App. 454, 110 N.E.2d 514, 111 N.E.2d 90, also relied upon by appellee, we affirmed a judgment in which the husband was granted the divorce and awarded to the husband real estate owned by them as tenants in common. A careful reading of that decision shows that the ground for divorce was that the husband had contacted a venereal disease from the wife; that they had at the time of divorce an equity in the real estate of about $1,800.00; that she had used all of her earnings for her own purposes except for a suit of clothes and a camera she gave appellee; that he used all of his savings and earnings for the home and living expenses; and that the court awarded her the sum of $1,000.00. It is obvious from these decisions that the fault of the wife was not the only circumstance considered by the trial court or upon which it based its judgment.

This court and the Supreme Court have, in several decisions, set forth the factors that a trial court should consider in determining the amount of alimony to be awarded an innocent party in a divorce suit. Among such factors are the existing property rights of the parties; the amount of property owned and...

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6 cases
  • Zagajewski v. Zagajewski
    • United States
    • Indiana Appellate Court
    • July 31, 1974
    ...abuse of discretion which neither evidence nor argument dispels, the judgment as to the property must be reversed. Languell v. Languell (1968), 143 Ind.App. 24, 237 N.E.2d 587. On remand, unless the parties can agree on the terms of a new judgment which meets the approval of the trial court......
  • Dunbar v. Dunbar
    • United States
    • Indiana Appellate Court
    • October 16, 1969
    ...Appellee's one-half interest in a commercial lot on Brookville Road in Indianapolis. Appellant relies primarily upon Languell v. Languell, Ind.App., 237 N.E.2d 587 (1968), which is factually very dissimilar from the present case. In that case the parties had been married 27 years, had accum......
  • Chaleff v. Chaleff, 568A86
    • United States
    • Indiana Appellate Court
    • April 29, 1969
    ...that inheres in Burns' Ind.Stat.Ann., § 3--1219. It was not abused in Dorman and it was not abused here. Likewise, Languell v. Languell, Ind.App., 237 N.E.2d 587 (1968), is not in point. In that case the husband was granted a divorce on his cross-complaint. This court held that it was an ab......
  • Boshonig v. Boshonig, 270A21
    • United States
    • Indiana Appellate Court
    • March 22, 1971
    ...even though the trial court did not assign a dollar amount to it. The appellant further relies upon the case of Languell v. Languell (1968), Ind.App., 237 N.E.2d 587, in that the award, at least from a percentage standpoint, was similar to the case at bar. The distinguishing characteristic ......
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