Novak v. Novak

• Decision Date: 17 April 1956
• Docket Number: No. 18767,18767
• Citation: 126 Ind.App. 428,133 N.E.2d 578
• Parties: Helene NOVAK, now Helene Gemberling, Appellant, v. Harry (A.) NOVAK, Appellee.
• Court: Indiana Appellate Court

Page 578

133 N.E.2d 578

126 Ind.App. 428

Helene NOVAK, now Helene Gemberling, Appellant, v. Harry (A.) NOVAK, Appellee.

No. 18767.

Appellate Court of Indiana, In Banc.

April 17, 1956.

Oscar C. Strom, Charles K. Whitted, Gary, for appellant.

Mark Storen, Michigan City, for appellee.

KENDALL, Judge.

Appellant and appellee were formerly husband and wife. On August 15, 1951, in divorce proceedings instituted by appellant against appellee, the LaPorte Superior Court granted appellant a divorce and found inter alia, that appellant was the owner of certain real estate and a dwelling house located thereon, acquired by her prior to her marriage to appellee; that during their marriage, appellee 'rendered considerable services and furnished part of the necessary material in the remodeling of the old dwelling house situated' on said real estate, by reason of which 'the value of plaintiff's (appellant's) property has been substantially increased' (these being no finding as to the character or nature of said services and materials nor the amount and value thereof); that 'in order to do equity between the parties' said real estate should be divided '65% in value to plaintiff (appellant) and 35% in value to defendant (appellee)' subject to an outstanding mortgage, and each of the parties 'shall have a lien' for his or her respective interest therein.

No appeal from the judgment in said cause was taken by either party and the record discloses no motion by either party attacking or seeking to modify either said finding or the judgment therein. Thereafter, on April 26, 1952, appellant married again. No further action was taken relative to said finding and judgment in said divorce proceeding until this action was commenced on July 13, 1953.

Appellant instituted the present action to quiet her asserted title to said real estate. Appellee filed a counter-claim alleging the divorce finding and decree, that the real estate on the date of said finding and decree was of the 'approximate value' of $12,000 and that thirty-five (35%) per cent thereof 'would be' the sum of $4,200; that said $4,200 was a lien on the property and is unsatisfied; and praying that the court determine his lien and interest in the property to be in the amount of $5,000. The court made special findings of fact and stated two conclusions of law thereon, (1) that the law is against the plaintiff (appellant) on her complaint and with the defendant (appellee) on his answer; (2) that by virtue of the 'judgment' of the LaPorte Superior Court (the divorce decree) the defendant (appellee) acquired 'an interest' in appellant's real estate. The judgment was that appellant take nothing by her complaint, and that appellee take nothing by his counter-claim. There was no evidence as to the value of the real estate as alleged in the counter-claim.

The errors presented by appellant's motion for a new trial and the assignments of error are that the decision of the court is contrary to law and that the court erred in each of said conclusions of law.

it is worthy to note, in view of appellant's contentions, that within due time after the decree was rendered in the divorce proceedings referred to herein, appellant filed her motion for new trial, which was overruled. Thereafter, she did not pursue any further action regarding the divorce case insofar as an appeal was concerned. Almost two years after the overruling of the new trial motion in the divorce case, which was tried in the LaPorte Superior Court, the appellant then filed this action in the LaPorte Circuit Court to quiet title to the real estate referred to in the divorce case. Appellant, as a part of her evidence in chief, introduced into evidence the special findings of fact and conclusions of law and the decree. The record does not reveal any evidence being introduced as to the value of the real estate in the respective interests of the parties as adjudged by the trial court in the divorce case. It is evident, therefore, that the trial court correctly found against appellee on his counter-claim. In the absence of any evidence to sustain the allegations in the counter-claim that the property was of the 'approximate value of $12,000.00', the court could make no finding or adjudication of appellee's asserted lien and interests thereon.

On the other hand, appellant's evidence revealed the judgment of a court of competent jurisdiction, having jurisdiction of the parties in the divorce proceedings wherein appellant was awarded a divorce from appellee and which judgment made by the trial court in the divorce case, provided as follows:

'* * * that in order to do equity between the parties herein plaintiff's real estate should be divided in the following manner and proportions, to-wit: 65% in value to plaintiff and 35% in value to defendant, subject to outstanding mortgage and debts thereon, if any. And each of them shall have a lien on the above described real estate of plaintiff for her or his respective interest thereon.'

It is evident that on the face of the judgment in the divorce case, from which there was no appeal, even if the same be considered erroneous, as appellant maintains, appellee was undoubtedly awarded by the trial court a record interest in appellant's...