Mathews v. Mathews

• Decision Date: 08 February 1972
• Docket Number: No. 471A61,471A61
• Court: Indiana Appellate Court
• Parties: Mildred MATHEWS, Defendant-Appellant, v. Elvin MATHEWS, Plaintiff-Appellee.

Page 325

278 N.E.2d 325

151 Ind.App. 70

Mildred MATHEWS, Defendant-Appellant, v. Elvin MATHEWS, Plaintiff-Appellee.

No. 471A61.

Court of Appeals of Indiana, First District.

Feb. 8, 1972.

John C. Mowrer, Danville, for defendant-appellant.

Robert B. Railing, Scottsburg, Frank E. Spencer, Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

This action was instituted by the plaintiff-appellee against the defendant-appellant for an absolute divorce and a division of their property. After trial by the court a divorce was granted plaintiff and a division of the parties' property ordered. Plaintiff's complaint, omitting the allegation of residence requirements, alleged that the parties were duly married on the 15th day of February, 1943 and separated on December 20, 1967; that there was one child, now over 21 years of age and emancipated; that the defendant was guilty of cruel and inhuman treatment and had associated with vile and lewd characters.

The complaint further alleged ownership of certain real estate in Scott and Jennings Counties, all of which was acquired through the efforts of the plaintiff and which he alleges should be set over to him and that he owns certain personal property which the defendant had no interest in. The prayer of the complaint was for a divorce and all other proper relief.

Afterward, a restraining order was issued against defendant-appellant from going about the appellee's home.

The defendant-appellant filed her answer, cross-complaint, application for support and suit money, for her attorney's fees and a petition for temporary restraining order. The answer was one of admission and denial under the old Supreme Court Rules.

Defendant's cross-complaint, with the permission of the court, was later withdrawn by her.

Following a hearing on the defendant's petition for restraining order, support and suit money and attorney fees, the court issued a restraining order against the plaintiff-appellee, restraining him from molesting defendant-appellant at any time or place pending the action. The court further ordered the plaintiff to pay to defendant for her support pending the litigation the sum of $10.00 per week for ten weeks, payable not later than the day of final hearing for the divorce. The court further allowed and ordered paid the sum of $200.00 for defendant's attorney, the same to be paid $100.00 within thirty days and $100.00 on or before the trial date.

On October 2, 1969, the defendant filed with the court her petition to modify the interlocutory order and after a hearing the court entered the following order, omitting caption and signature:

'The Court having, heretofore, taken under advisement, defendant's petition to Modify Interlocutory Order and now being duly advised, finds that the Interlocutory Order, heretofore entered be modified in that the Plaintiff should be ordered to pay the $100.00 support, heretofore ordered, immediately, and Plaintiff should be ordered to pay additional total of $100.00 support on or before the 4th day of November, 1969, and in all other respects the Interlocutory Order, heretofore entered on the 16th day of January, 1968, should remain in full force and effect.'

On May 26, 1970, trial was had and there was conflicting evidence that the wife had been unfaithful, had not taken care of her house, and had been something less than a pleasant and enjoyable person to live with. There was conflicting evidence that the plaintiff, husband, had drunk, beaten his wife, refused to take care of her in a proper way, and also was something less than a perfect person to live with. Evidence as to the value of real estate owned by the parties was admitted and testimony was heard to how that real estate had been acquired. The evidence indicated that the husband had procured all of the real estate out of his own funds, the wife had not worked except the last few years. After having heard all the evidence and taken the matter under advisement the court entered its judgment on August 27, 1970.

The court decreed that the marriage was dissolved and the plaintiff was granted an absolute divorce from the defendant.

The court further decreed that the 18 acres of real estate in Scott County, Indian, heretofore owned by the parties as tenants by entireties be, and the same is, set over to Mildred Mathews, defendant, as her sole and separate property.

The court further decreed that the defendant, Mildred Mathews, recover of and from the plaintiff the sum of $10,000 alimony, the same to be paid $5,000 on or before January 1, 1971 and the sum of $5,000 on or before the first day of July, 1971, and all to be paid without interest.

The court further decreed that the real estate owned by the plaintiff and located in Jennings County, Indiana, shall be and remain the plaintiff's sole and separate property.

The court further decreed that the defendant shall have as her separate property the following personal property located at the former residence of the parties in Jennings County, Indiana, to-wit: gas stove, refrigerator, safe and miscellaneous household effects. The court further decreed that the plaintiff shall have as his sole and separate property the balance of the personal property, household effects, livestock, farm machinery and pick up truck located on the plaintiff's property in Jennings County, Indiana.

The court further decreed that the plaintiff shall pay to the clerk of the Jennings Circuit Court for the use of defendant's attorney, Gordon Medlicott, within 60 days of the date of the decree the sum of $925.00 attorney fees and that the plaintiff pay the costs of the action.

Defendant-appellant timely filed her motion to correct errors with the court, which is in the words and figures as follows, to-wit:

'Comes now the defendant, in person and by her counsel, and moves the Court to correct the errors occurring before the filing of this motion, and as grounds for this motion, the defendant respectfully shows the Court:

'1. That there was an abuse of discretion by the Court in awarding to the plaintiff all of the real property with the exception of eighteen (18) acres held by the parties as tenants by the entireties.

'2. That the decision of the Court is contrary to the evidence in that the defendant, by reason of her marriage to the plaintiff, was entitled to a greater proportion of the properties owned by the parties than that granted to her.

'3. That the decision of the Court is contrary to law in that the amount allowed by the Court as attorney fees is inadequate in view of the uncontroverted evidence submitted thereon.

'4. That there was an abuse of discretion by the Court in awarding the defendant a gas stove, refrigerator, safe and miscellaneous household effects and awarding to the plaintiff herein all of the rest and remainder of said household goods, furnishings and effects.

'5. That there was an abuse of discretion by the Court in awarding an alimony judgment to the defendant in the amount of Ten Thousand Dollars ($10,000.00) for the reason that such award is unconscionable in view of the total assets owned by the parties.

'WHEREFORE, defendant prays that the Court sustain this motion in whole or in part and that the Court grant a new trial herein, and for all other just and proper relief in the premises.'

A memorandum accompanied the motion to correct errors. Afterward the defendant-appellant submitted a petition for funds to prosecute her appeal, which petition was denied by the court.

The defendant-appellant set out five alleged errors in her motion to correct errors. She has actually more accurately and succinctly stated the issues to be reviewed in this appeal in her reply brief, which states:

'The only issues presented to the trial court in the motion to correct errors, argued before the trial court and on this appeal are the inequity of the property division and attorneys fee.'

By this statement of the defendant-appellant the only questions presented for us to pass upon are the question of (1) Did the court err in the division of property? and (2) Did the court err in the award of attorney fees to defendant-appellant's attorney?

The plaintiff-appellee asserts that defendant-appellant and that this court need not and in fact should not decide this case on its merits inasmuch as the appellant has failed to comply with the requirements of Appellate Rule AP. 8.3(A)(5).

We must agree with the plaintiff-appellee that the defendant-appellant has not totally complied with the Appellate Rules in the preparation of her brief.

Plaintiff-appellee points out under the above cited Appellate Rule that the statemen of fact relevant to the issues presented for review with appropriate references to the record was not set out in defendant-appellant's brief. This is true--there is no heading 'Statement of the Facts Relevant to the Issues Presented for Review.' There has been an attempt to comply with this Rule by setting out a 'Statement of the Case.'

There has been almost a complete lack of references set forth in the brief as to the transcript, line and page number.

There has been much duplication of the same argument.

In defendant-appellant's reply brief she attempts to lessen the objection to her failure to comply with the Rule by stating: 'Considering also her exhaustive condensation of the evidence with references to the record, and that of the appellee she is entitled to have this Court consider her case on the merits.' While this court appreciates the condensation of the evidence as much as possible, it is still the rule that the party preparing the brief shall set out the reference to the page and line number of the transcript for the court's convenience in referring to the same and we expect that to be done in the future.

In the case at bar plaintiff-appellee filed a motion to dismiss for failure of the adverse party to comply with the Rules and this court at that time overruled the motion to dismiss. In view of the...