McCarthy v. McCarthy, 571A97

Decision Date31 December 1971
Docket NumberNo. 571A97,No. 1,571A97,1
Citation150 Ind.App. 640,276 N.E.2d 891
PartiesJoseph Clark McCARTHY, Appellant (Defendant Below), v. Adele Marianne McCARTHY, Appellee (Plaintiff Below)
CourtIndiana Appellate Court

John D. Clouse, Evansville, for appellant.

Edward B. Wallis, Evansville (Bamberger, Foreman, Oswald & Hahn, Evansville, of counsel), for appellee.

SULLIVAN, Presiding Judge.

This is an appeal from the Vanderburgh Superior Court. The original action was brought by plaintiff-appellee to enforce alimony payments arising out of a foreign divorce decree and to enforce provisions of a settlement agreement.

Plaintiff-appellee and defendant-appellant were residents of Torrington, Connecticut, appellant having been engaged in the practice of medicine in that state. On July 10, 1969, appellee was granted a divorce from her husband, appellant herein, by the Superior Court for Litchfield County, Connecticut. Pursuant to the divorce decree, appellant was ordered to pay as alimony the sum of $165 per week plus child support. It was further adjudged by that court that if appellant's taxable income should exceed $20,000 in any year, he should pay 25 per cent of the excess to appellee as additional alimony. Following the divorce, appellant moved to Indiana.

On August 6, 1970, appellee filed suit against appellant in the Vanderburgh Superior Court. In her complaint she alleged, among other things, that under the provisions of the Connecticut decree, appellant was in arrears on his alimony payments in the amount of $1,320, including $165 due each week since June 15, 1970. Appellee further alleged that even though notice of default and demand for payment had been made, appellant failed to pay. She alleged in addition that appellant and appellee entered into a binding settlement agreement on May 16, 1969, which appellant has violated by refusing to supply appellee with a copy of his 1969 income tax returns.

Thereafter, appellee moved for summary judgment pursuant to Trial Rule 56 on the grounds that the pleadings and her accompanying affidavit showed there was no genuine issue of material fact to be litigated. In opposition thereto, appellant's affidavit stated he had at all times conformed to the provisions of the divorce decree and settlement agreement until appellee denied him visitation rights with his children, the latter having been guaranteed to appellant by the terms of said agreement. Appellant stipulated further that only after such breach by appellee did he cease to make alimony payments; but that he did continue to pay child support. Appellant also stated that because Indiana law does not provide for alimony, that provision of the Connecticut decree is not enforceable in Indiana, nor is it entitled to full faith and credit because it is repugnant to the public policy of this state.

In appellant's supplemental affidavit opposing the motion for summary judgment, he alleged that prior to the execution of the settlement agreement he had obligated himself to discontinue the practice of medicine in Connecticut and move to Indiana to resume the practice. In this regard, appellant stated that he was threatened by appellee's representative in that if he refused to sign the settlement agreement, he would be enjoined from leaving the State of Connecticut. Appellant argued, therefore, that said agreement was entered into as a result of duress and thus cannot be given effect by this state.

Subsequently, appellant filed a motion to dismiss pursuant to Trial Rule 12(B), alleging that the trial court lacked jurisdiction over both the subject matter of the litigation and the person of appellant, and that appellee's complaint failed to state a claim upon which relief could be granted.

On January 11, 1971, appellant's motion to dismiss was denied and summary judgment was entered for appellee. The trial court held that the Connecticut divorce decree was entitled to full faith and credit, an that the Superior Court for Litchfield County, Connecticut, had jurisdiction over the appellant. It was then ordered that appellee recover $4,950 in delinquent alimony at $165 per week since June 15, 1970, plus future child support and maintenance.

Appellant's motion to correct error having been timely filed, he brings this appeal and raises the following questions:

(1) Did the trial court err in overruling appellant's motion to dismiss? This depends upon whether the Vanderburgh Superior Court had jurisdiction over the subject matter and the person of appellant and whether appellant's complaint sufficiently stated a complaint upon which relief can be granted.

(2) Did the court err in granting appellee's motion for summary judgment? In other words, was there any material issue of fact to litigate?

(3) Did the trial court lose jurisdiction of the cause by failing to rule upon the motion to dismiss and the motion for summary judgment within thirty days after argument thereon?

Appellant contends under the initial question posed that: First, the Vanderburgh Superior Court was an unconstitutional and illegal court and thus lacked proper jurisdiction. Secondly, to force appellant to pay alimony would be to subject him to unconstitutional, involuntary servitude.

TO ATTACK THE CONSTITUTIONALITY OF A STATUTE, ONE MUST FIRST SHOW THAT HIS RIGHTS HAVE BEEN ADVERSELY AFFECTED

In essence, appellant asserts that although the legislature of this state has the power and right to create new courts, it does not have the power or right to remove a judge from an abolished court before expiration of his term and place that judge in a newly created court, as in the instant case. Prior to the filing of this cause, the 1969 session of the Indiana General Assembly abolished the Superior Court of Vanderburgh County and removed the Honorable Benjamin E. Buente, the presiding trial judge herein, to the newly established Vanderburgh Superior Court. IC 1971, 33--5--43--30, 31, being Ind.Ann.Stat. §§ 4--2990 and 4--2991 (Burns' 1968).

It is acknowledged by both parties that the General Assembly has the constitutional authority to abolish old courts and create new ones. Appellant only challenges the authority of the General Assembly to appoint a judge of an abolished court as ex-officio judge of a newly created court. Consideration of this question renders unavailing and unproductive an analysis of the prolific number of constitutional issues raised by appellant because appellant lacks standing to challenge the constitutionality of that court. It is well settled that one cannot attack the constitutionality of a statute unless his rights are adversely affected. State ex rel. Haberkorn v. DeKalb Circuit Court (1968) 251 Ind. 283, 241 N.E.2d 62; State v. Clark (1966) 247 Ind. 490, 217 N.E.2d 588. In the case before us, appellant's rights as a litigant were not affected adversely by IC 1971, 33--5--43--31, supra. That act simply consolidated three courts into one, the newly created court having jurisdiction in the type of cause as here, coterminous with its obsolete predecessor, the Superior Court of Vanderburgh County. Furthermore, the judge was the same Benjamin E. Buente who in this type of action had no greater or no less jurisdiction than he would have had prior to the consolidation. It requires no particular insight to conclude that appellant was not adversely affected by the statute in issue. Thus he is precluded from attacking the constitutionality thereof on this appeal.

APPELLANT'S ASSERTION OF UNCONSTITUTIONALITY OF ALIMONY PROVISIONS IN A FOREIGN DECREE PRESENTS NO QUESTION FOR DETERMINATION BY THIS COURT

Appellant suggests that to force him to pay alimony is to subject him to involuntary servitude. Appellant argues with great zeal that the so-called Women's Liberation movement has led to many changes in law, bringing into focus the proposition of complete civil equality for women. Appellant urges that a natural adjunct of such progression is the abolition of alimony. Although Indiana law does not provide for installment alimony, it is nevertheless proper under full faith and credit for this court to enforce an installment alimony decree obtained in another state. If such were not the law of this state, Indiana would become a virtual sanctuary for ex-husbands attempting to avoid the effect of a foreign decree's alimony provisions. Rogers v. Rogers (1909) 46 Ind.App. 506, 89 N.E. 901. We hold then, in keeping with what we consider to be sound public policy, that appellee is entitled to have the installment alimony provision of the Connecticut decree enforced in Indiana under the 'full faith and credit' clause of Article 4, § 1, of the U.S. Constitution. To further entertain the manifold questions raised by appellant with regard to the constitutional validity of installment alimony would do no more than to clutter this opinion with subject matter for midnight kitchen discussion.

COMPLAINT NEED NOT STATE A DETAILED CAUSE OF ACTION UNDER NOTICE PLEADING NOW EXTANT IN INDIANA

Appellant finally contends under his motion to dismiss that appellee failed to state a claim upon which relief can be granted. He argues specifically that appellee's complaint does not allege performance by appellee of all the conditions required by the settlement agreement to be performed by her. We cannot agree with appellant that performance by appellee need be alleged. Our adoption of notice pleading under Indiana Rules of Trial Procedure contemplates that a complaint need not state a detailed cause of action alleging such specific facts as performance of all the myriad terms and conditions of a settlement agreement. The framers of the new rules went to great pains to circumscribe this practice of paper inundation and have adopted a compact and uncomplicated form of pleading which requires a plaintiff merely to make a clear and concise statement in order to put the defendant on notice that plaintiff has a justiciable claim and is entitled to relief under some...

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