Mitchell v. Mitchell, 18727

• Decision Date: 03 April 1956
• Docket Number: No. 18727,18727
• Citation: 126 Ind.App. 377,133 N.E.2d 79
• Parties: Lucy MITCHELL, Appellant, v. John Russell MITCHELL, Appellee.
• Court: Indiana Appellate Court

Page 79

133 N.E.2d 79

126 Ind.App. 377

Lucy MITCHELL, Appellant, v. John Russell MITCHELL, Appellee.

No. 18727.

Appellate Court of Indiana, In Banc.

April 3, 1956.

Mellen & Mellen, Bedford, for appellant.

Ruel W. Steele, Bedford, Taylor Hoffar, Seymour, for appellee.

KENDALL, Judge.

Appellee brought this action in the trial court for divorce alleging cruel and inhuman treatment as a basis therefor. Answer was filed by appellant in two paragraphs, first, in denial; second, that after the grievances complained of, they were condoned.

Trial by court resulted in a judgment favoring appellee in which the court provided for a property settlement between the respective parties.

Appellant's motion for new trial, which was overruled, contended that the decision of the trial court was contrary to law and not sustained by sufficient evidence.

The assignment of error is the overruling of the new trial motion.

In view of the questions raised by appellant, we are required to examine the record to determine whether or not there is evidence of probative value substantiating one or more grounds for divorce as alleged by appellant, and whether or not the appellant sustained her burden of proof as to the affirmative paragraphs of answer of condonation.

The acts which appellee alleged to have constituted cruel and inhuman treatment are that the appellant quarreled and nagged him almost continuously; false accusations of associating with other women, which caused him embarrassment; refusal to sign business papers after agreeing to do so, causing him embarrassment; having him investigated by governmental officials, to his embarrassment; false accusations of illicit and unlawful acts while in military service, and appellant's statement to others that she would have him convicted; appellant's accusations that appellee was insane, and she would have him committed to an institution.

This was the third separation for the parties. The evidence reveals they were married June 21, 1919, and the final separation occurred January 15, 1952; however, appellant was not certain as to whether it was January 15 or about the first of January.

There was evidence that appellant quarreled with appellee for thirty years; however, most of the acts of nagging and quarreling related to a period of six to eight months during the last year; that she demanded appellee to share her bedroom, and, in so doing, she beat upon him with her fists and called him names in a loud voice; that she shook his bed to such an extent that the slats fell out; that she accused him of being insane up until final separation; that they bought a property in joint names, which appellant wanted, and, in so doing, she agreed to sign business papers to secure a loan; that after the loan was approved by the bank, she refused to sign the necessary papers, the last time being January, 1952; that appellant had appellee investigated by the Department of Justice as late as January, 1952, claiming that he had violated the Mann Act. Appellee testified that he agreed with the Immigration Department to be the sponsor of a Miss Koch who was his secretary while a Major in Germany during World War II; that he had helped her enroll in Indiana University, at which time the appellant was with him; that he was willing for the property to be divided and that he could no longer live with her as her husband; that on some occasions appellant was agreeable to his sponsorship of the girl, and on other occasions would quarrel about it in the presence of friends; that appellant knew her while she was in Germany for a short time and met her in Washington, D. C., together with appellee; that appellant had stated she would have appellee sent to Leavenworth for black-market activities while he was in Europe, and that there was no foundation for such charges. A bank executive testified as to appellant's refusal to sign the loan papers. There was evidence that appellant told appellee's parents that he was crazy and that she raved at appellee on one particular occasion in their presence--the appellee not taking any part in such occurrence. This was denied by appellee who testified to the contrary that he was sick. Appellee's brother testified that appellant propositioned him on the two of them getting a room together while on a trip to Florida in 1937 which was not revealed to appellee until about the time of trial; that appellant likewise made statements to appellee's brother of his being crazy; that appellant had made the statements that appellee had a venereal disease.

The appellant's evidence consisted of a categorical denial of appellee's evidence as to statements made to him or about him denying arguing with him or nagging him, denied making any false accusations about Miss Koch or her conduct with appellee. She testified that appellee was nervous and sick and while in Germany he had meningitis of the throat. She denied conversations with appellee's brother and stated that they had sexual relations up until the time of separation, January, 1952, or January 15, 1952; that they had some disagreements as to where they were going to live. The evidence revealed they had lived in Bedford, Indiana, Indian Springs, Florida, Washington, D. C. and Minnesota.

One can readily ascertain that there was a conflict in the evidence before the trial court, and that there is evidence of probative value to sustain the charge of cruel and inhuman treatment by the trial court. This court cannot weigh conflicting evidence, and if there is any substantial evidence in the record to sustain the findings and decisions of the trial court, the judgment must be affirmed. The trial judge, it must be borne in mind, as the trier of the facts, was not bound by the testimony of any single witness or any particular item of evidence. As has been so often and correctly stated, it was the exclusive province of the trial court to determine the credibility of the witnesses, whom he had an opportunity to observe, weight the evidence and determine which of the parties, if either of the, was entitled to a divorce, which decision he made...