McHie v. McHie, 15928.

• Citation: 16 N.E.2d 987,106 Ind.App. 152
• Decision Date: 25 October 1938
• Docket Number: No. 15928.,15928.
• Parties: McHIE v. McHIE.
• Court: Court of Appeals of Indiana

106 Ind.App. 152
16 N.E.2d 987

McHIE
v.
McHIE.

No. 15928.

Appellate Court of Indiana, in Banc.

October 25, 1938.

Appeal from Superior Court, Lake County; John F. Cody, Judge.

Suit by Sidmon McHie against Isabel D. McHie for an absolute divorce on the ground of cruel and inhuman treatment. Judgment for plaintiff, and defendant appeals.

Affirmed.

[16 N.E.2d 988]

James S. McCarthy, of Whiting, and Felix M. Buoscio, of Chicago, Ill., for appellant.

Crumpacker & Friedrich and J. E. Darlington, all of Hammond, and Walter Myers, of Indianapolis, for appellee.

WOOD, Judge.

The appellee brought suit against the appellant for an absolute divorce on the ground of cruel and inhuman treatment. Appellee filed an amended complaint in one paragraph. Appellant's motion to make this paragraph of complaint more specific and her demurrer thereto for insufficiency of facts were both overruled. Appellant then filed an answer in three paragraphs. The first paragraph, even though it takes up five pages of appellant's brief, is designated by her counsel as a general denial. The second and third paragraphs of answer did not allege affirmative facts, but were in the nature of legal arguments. Appellee filed a separate demurrer to the second and third paragraphs of answer for failure of fact sufficient to state a defense to appellee's cause of action as alleged in his amended complaint. These demurrers were sustained. The cause was tried upon the amended paragraph of complaint and the first paragraph of answer thereto. Upon request, the court found the facts specially and stated its conclusions of law thereon. These were in favor of appellee, and judgment was rendered in accordance therewith, awarding appellee an absolute divorce from appellant and adjusting property rights between the parties. The appellant filed a motion for a new trial which was overruled, and she appeals.

[1] Appellant has assigned thirty-nine separate specifications of error for reversal of the judgment from which she appeals. In her motion for a new trial she has alleged ninety causes therefor. In his answer brief, appellee has called our attention to certain omissions in the preparation of the transcript and failure of the appellant to comply in several details with the rules of this court in the preparation of her brief. The omissions in the preparation of the transcript which appellee has pointed out have, by leave of this court, been supplied since the filing of appellee's brief. The several alleged defects in the preparation of appellant's brief will be noticed and disposed of as we proceed with this opinion. Many of the specifications of error for reversal, set out in appellant's assignment of error, have been waived because of failure to discuss them in her brief, while some of those discussed are not proper assignments of error for reversal. The same criticisms apply equally to many of appellant's alleged causes for a new trial. For the purpose, therefore, of determining what questions are properly presented for consideration by the assignment of errors, we have examined the record, and, by a process of elimination, have determined that the following specifications of error were proper and require consideration, unless waived by appellant, namely: number one, error of the court in overruling appellant's motion to make

[16 N.E.2d 989]

appellee's amended complaint more specific; number two, error of the court in overruling appellant's demurrer to appellee's amended complaint; number three, error of the court in sustaining appellee's demurrer to appellant's second paragraph of answer; number four, error of the court in sustaining appellee's demurrer to appellant's third paragraph of answer; number twenty-one, error of the court in its conclusion of law number one; number twenty-two, error of the court in its conclusion of law number two; number twenty-three, error of the court in its conclusion of law number three; number twenty-four, error of the court in its conclusion of law number four; number twenty-five, error of the court in its conclusion of law number five; number thirty-six, error of the court in overruling appellant's motion for a new trial; number thirty-seven, error of the court in overruling appellant's motion to modify the judgment.

[2] The amended complaint on which the cause was tried was predicated upon the theory of cruel and inhuman treatment. After alleging the marriage of the parties, their respective place of residence, and their separation, the complaint alleged the following acts of cruel and inhuman treatment toward the appellee by the appellant, and words and figures as follows, to wit: “defendant at the time of said separation and for some time prior thereto had a violent and ungovernable temper, threatened plaintiff with bodily harm, continually nagged and upbraided him, embarrassed him before his friends, and failed and refused to exercise toward him that courtesy, kindness and consideration which was due him from her; that as a result of the aforesaid acts plaintiff's peace of mind was continually disturbed, and his health became impaired, and it became impossible for him to continue living any longer with the defendant; that the aforesaid acts and conduct of the defendant occurred on the day preceding said separation, and continued at frequent intervals over a period of many months preceding the separation; that said acts were so often repeated that it is impossible for him to specify the precise dates on which they occurred, but the dates and nature of said acts are as fully known to the defendant as to him; that the defendant's aforesaid attitude toward him continues down to the present time, and she has from the time of said separation down to recent months indulged in further acts of cruel and inhuman treatment toward the plaintiff which consist, among other things, of the following, to-wit: sending unkind and defamatory letters and telegrams to plaintiff, both personally and through his counsel, and also sending unkind and defamatory letters and telegrams concerning plaintiff to numerous third persons; that the exact time and nature of said occurrences are best known to the defendant; that because of said cruel and inhuman treatment occurring since the separation it has been and still is impossible for plaintiff to live with defendant; that said state of affairs is permanent, and there is no possibility of a reconciliation between the parties; that by reason of the aforesaid occurrences the continuance of said marriage aggravates the differences and difficulties that have long existed between the parties and is detrimental to the health and welfare of both of them, and that said marriage should be dissolved.” The complaint alleged further, that upon the 22nd day of March, 1926, the appellant and appellee entered into a postnuptial contract in which it was recited that differences had arisen between them and that it was no longer possible for them to live together as husband and wife; that they were each the owner of certain tracts of real estate, stocks, bonds and other securities; that for the purpose of adjusting their property rights, they were entering into said contract, and by the terms thereof would make and agree upon a division of their property and release each other from any rights they might have therein as husband or wife. The contract also provided that the appellee would pay to the appellant the sum of $1,000 per month for her support and maintenance during the balance of her natural life, on condition however, that if the parties to the contract divorced and the appellant re-married, in such event this payment should cease. This contract was made a part of the complaint as an exhibit thereto. The amended complaint further alleged that since entering into said contract, the appellee had met with financial reverses and that it was no longer possible for him to pay to the appellant said sum of $1,000 per month for her support and maintenance; that he was willing and desired to carry out the terms of the contract in so far as it related to the division of the property as therein provided. The amended complaint

[16 N.E.2d 990]

closed with a prayer asking that the appellee be granted an absolute divorce from the appellant; that the court assume complete jurisdiction over the present and future support and maintenance of the appellant by appellee as an incident to the divorce action and that the court make all necessary and proper orders and decrees for the purpose of fixing the present and future obligation of the appellee for the maintenance and support of the appellant and that any provisions so made by the court's order or decrees should be decreed to supersede the condition in the contract requiring appellee to pay appellant $1,000 per month for her support and maintenance.

The allegations of the amended complaint, together with the terms and conditions of the post-nuptial contract between the parties, when considered in their entirety are sufficient to fully inform the appellant of the character and nature of the various acts and conduct of the appellant which the appellee alleged constituted cruel and inhuman treatment toward him and upon which he relied as causes for a divorce upon the ground of cruel and inhuman treatment; furthermore, from an examination of the facts pleaded in appellant's first paragraph of answer, which her counsel were pleased to call a general denial, it is clear that her knowledge and information concerning the various charges of cruel and inhuman treatment directed against her by the appellee was as full and complete as that which he possessed, and that appellant was not deprived of any substantial rights by the courts ruling on her motion to make the amended complaint more specific. Adams Express Company et al. v. Welborn, 1915, 59 Ind.App. 330, 108 N.E. 163, 109 N.E. 420.

[3] Since the court found the facts specially and stated its conclusions of law thereon, the overruling of...