Miller v. Miller, 269

• Docket Nº: No. 1
• Citation: 256 N.E.2d 589, 146 Ind.App. 455
• Case Date: March 26, 1970
• Court: Court of Appeals of Indiana

Page 589

256 N.E.2d 589 146 Ind.App. 455 Anna B. MILLER, Appellant,
v.
Cleve MILLER, Appellee. No. 269 A 32. Appellate Court of Indiana, Division No. 1. March 26, 1970.

[146 Ind.App. 456] R. M. Rhodes, Peru, for appellant.

Donald J. Bolinger, Bolinger & Zirkle, Kokomo, for appellee.

LOWDERMILK, Chief Justice.

Appellee, plaintiff below, and appellant, defendant below, were married on May 2, 1950, and the parties lived together as husband and wife until March 9, 1967, when they separated. After the separation appellee brought an action for divorce and appellant filed a cross complaint. Each of these pleadings were answered in compliance with Supreme Court Rule 1--3.

On trial of the cause appellee was granted a divorce on his complaint and appellant denied a divorce under her cross complaint. Appellee was awarded the custody of the four minor children of the parties, all the real estate of the parties and all personal property, except appellant's wearing apparel and a 1967 Chevrolet automobile of the

Page 590

appraised value of $2,500, with a mortgage thereon in the amount of $1,900.

Appellant timely filed her motion for new trial, in which she asserted six specifications of error on the part of the trial court, together with memorandum. However, in the argument portion of the brief and during oral argument appellant states that she would rely only on rhetorical paragraph 3 of her motion for new trial:

'3. The decision of the court is not sustained by sufficient evidence and is contrary to law.'

The motion for new trial was denied and appellant sets out as her sole assignment of error that the court erred in overruling appellant's motion for a new trial.

As has been above set out, the appellant urges rhetorical paragraph 3 only of the motion for new trial, which limits the issue before the court to whether or not there was an abuse of discretion by the trial court in awarding a settlement,[146 Ind.App. 457] claimed to be excessive and unreasonable, to the appellee as compared to what was awarded to appellant.

The facts and testimony in this case are from many witnesses and are quite lengthy and in many instances are contradictory and in direct conflict.

With the full understanding that the Appellate Court is not the trier of facts and does not weigh the evidence, we will, nevertheless, give a short summary of the circumstances that led to the inevitable divorce.

Evidence was presented that the parties owned real estate as tenants by the entireties of the fair market value of $12,500. This was paid for, in part, by appellee out of the funds received from his father's estate in 1958 in the amount of $8,600 and from his mother's estate in 1961 in the approximate amount of $14,000. The farm was purchased in 1963, with a down payment of $11,000.

The parties had accumulated a Volkswagen automobile and some household furniture, and appellee was earning approximately.$99 per week after taxes from his employment with a local corporation.

Appellant had purchased a 1967 Chevrolet automobile of the appraised value of $2,500 at the time of the divorce, and with an unpaid balance of a mortgage thereon in the amount of $1,900.00.

The record before us discloses that the gross value of assets of the parties was $21,290, of which $8,790 was personal property and $12,500 real estate. The court had ordered certain debts assumed by each of the parties, leaving a net division of property on the basis of $950.00 to the appellant and $6,453.40 to appellee.

This was accumulated during the marriage.

The parties had born to them as the fruits of this marriage four children, ranging in age from 17 to 10 years.

The parade of witnesses testifying included the father of appellant, who hesitatingly testified that the appellant was [146 Ind.App. 458] not fit to mother the children and, in his opinion, the minor children should be left to the custody of their father, appellee herein. He and many others testified that the home of the parties was often unkept and maintained in an unsanitary manner. Other witnesses testified that the four minor children were often unclean and hungry, while, at the same time, the appellant seemed to be well clothed and healthy, but seldom at home. The evidence is further that appellant, in the last few years of the marriage, secured employment for herself and all the funds she took in were spent for clothes and a good time for herself, and all to the exclusion of the appellee and their children.

Appellant's father further testified that the children would come to his home and would be fed, and were most generally hungry when they arrived.

Page 591

By agreement of the parties a correspondent was named and there was much evidence of his meeting with appellant at divers times and places, and in one instance a telephone conversation was overheard between appellant and her paramour, when arrangements were made to meet in Logansport where she insisted upon renting a hotel room and the paramour said that would not be necessary; that they could use the automobile like they had done before.

There was further evidence that appellant claimed to be in Chicago at a P.T.A. meeting on a week-end, which P.T.A. meeting could never be verified, and during which time she had left a 9 year old child at home to take care of a 6 weeks old baby.

There was further evidence that appellant ceased to have sexual relations with appellee, which had been the normal pattern between the parties, and would put him off for a month to six months at a time, and finally completely refused the conjugal relation. Her excuse for this was that she had been at the barn and saw him in an act of beastiality. This he denied. Appellant also accused the appellee of incest with [146 Ind.App. 459] their oldest daughter, who was 17 years of age at the time of the divorce, which was denied by the daughter and by the appellee. In spite of this accusation, appellant sought the custody of the three younger children and was willing to permit the custody of this oldest girl to remain with the father.

There is much more evidence that, in our opinion, would constitute cruel and inhuman treatment on the part of the appellant toward the appellee, which we find it unnecessary to state herein.

Needless to say, the divorce in this case was inevitable and at the same time desired by both parties. However, the question of divorce is not before us, but rather, we are concerned only with the property settlement and the custody of the four minor children, as to whether or not there was an abuse of discretion in the trial court's findings.

Appellant insists that since the real estate was owned by the entireties the court erred in not permitting the same to be divided equally between the parties as tenants in common.

Burns' Ind.Stat. § 3--1218, reads in part as follows:

'* * * any property, real, personal or mixed, owned as joint...