McCormick v. Collard

• Decision Date: 03 November 1937
• Docket Number: No. 15530.,15530.
• Citation: 10 N.E.2d 742,105 Ind.App. 92
• Parties: McCORMICK v. COLLARD.
• Court: Indiana Appellate Court

105 Ind.App. 92

10 N.E.2d 742

McCORMICK

v.COLLARD.

No. 15530.

Appellate Court of Indiana, in Banc.

November 3, 1937.

Appeal from Parke Circuit Court; Howard L. Hancock, Judge.

Action by Edna Mae Collard McCormick against James Walter Collard. From a judgment for defendant, plaintiff appeals.

Reversed, with instructions.Miller & Causey and Charles S. White, all of Terre Haute, for appellant.

McFaddin & McFaddin, of Rockville, and Clay A. Phillips, of Terre Haute, for appellee.

BRIDWELL, Chief Judge.

On the 24th day of April, 1922, appellant and appellee were husband and wife and the parents of a child five years of age. On that day in a divorce proceeding then pending in the superior court of Vigo county No. 2, a divorce was granted to appellant from appellee, and she (appellant) was awarded the “care, custody and education” of their minor child. In such proceeding the court found that appellant was “entitled to an allowance for the support of said child,” and it was decreed, among other things, that appellee “pay into the clerk's office of this court for the support of said minor child the sum of $6.00 per week payable on the 15th and 30th of each month.” By subsequent orders the amount of the payments to be made for the support of the child was reduced, and, eventually, on September 26, 1925, the “custody, care, education and control” of the child was awarded to appellee. When this order was made, appellee had not fully complied with the prior orders of court relative to the payment of money to the clerk of the court for the support of the child, but there was due and owing under such orders the sum of approximately $683.

The judgment from which this appeal is prosecuted was rendered in an action instituted by appellant against appellee to recover an amount equal to the unpaid installments of the support money ordered paid for the benefit of their child by said superior court of Vigo county. In substance the complaint, in addition to alleging the facts hereinbefore stated, further averred that during all the time the child was in her custody she supported and maintained it, and expended more for that purpose than the amount due from appellee under the orders of court entered in the divorce proceeding. The issues were closed by an answer of general denial to the complaint. Trial by court was had, and resulted in a decision and judgment in favor of appellee. Appellant duly filed her motion for a new trial, asserting as causes therefor that the decision of the court is not sustained by sufficient evidence, and that such decision is contrary to law. Upon the overruling of this motion she excepted,consummated this appeal, and assigns here as error the court's action in the overruling of such motion.

[1][2][3] The facts averred in the complaint are proven without any conflict in the evidence in respect thereto, thus leaving it for this court to determine as a matter of law whether unpaid installments of “support money” awarded by a court for the benefit of a minor child and ordered to be paid by the father to a third person (in the instant case to the clerk of the court granting the divorce decree) can be recovered in an independent action brought for that purpose by the person to whom the care and custody...