Poppe v. Poppe

• Decision Date: 19 January 1944
• Docket Number: 17170.
• Citation: 52 N.E.2d 506,114 Ind.App. 348
• Parties: POPPE v. POPPE.
• Court: Indiana Appellate Court

52 N.E.2d 506

114 Ind.App. 348

POPPE v. POPPE.

No. 17170.

Appellate Court of Indiana, in Banc.

January 19, 1944

George Sands, of South Bend, for appellant.

Charles W. Bingham, of Mishawaka, for appellee.

CRUMPACKER Chief Judge.

In this action issues were joined in the court below on the appellant's complaint and the appellee's cross-complaint, by which respective pleadings each of the parties hereto seeks an absolute divorce from the other. A trial was had to the court as the result of which there was a general finding for the appellee on her cross-complaint and judgment rendered decreeing a divorce and giving her custody of the minor child of the parties until further order. Said judgment also establishes ownership in the appellee of all household equipment and furniture in possession of the parties, grants alimony to the appellee in the sum of $1,850, and orders the appellant to pay $15 per week for the support of said minor child. By proper motion the appellant sought the modification of this judgment in respect to the ownership of the household goods the amount of the alimony, and the weekly allowance for the support of the child. Upon the overruling of this motion the appellant asked for a new trial which motion was also overruled and thereupon this appeal was taken assigning as error: (1) The overruling of his motion to modify the judgment in reference to the ownership of the household goods; (2) The overruling of said motion in reference to the support money; (3) The overruling of said motion in respect to the amount of alimony; and (4) The overruling of his motion for a new trial. The motion for a new trial assigns the same error charged in specifications (1), (2), and (3) above together with the additional allegations that the decision of the court is not sustained by sufficient evidence and is contrary to law. It will be noted that no question is raised as to the propriety of the court's action in decreeing a divorce and, as the first alleged error, assigned both independently and in the motion for a new trial, has been specifically waived, the appellant's position in this appeal resolves itself into the sole contention that in view of his financial status and ability to earn money, as disclosed by uncontroverted evidence, both the alimony and weekly allowance for the support of his minor child are so grossly excessive as to amount to an abuse of judicial discretion.

Sec 3-1219, Burns' 1933, § 928, Baldwin's 1934, provides that, "The court, in decreeing a divorce, shall make provision for the guardianship, custody, support and education of the minor children of such marriage," and in reference to alimony the statutory law is as follows "The court shall make such decree for alimony, in all cases contemplated by this act, as the circumstances of the case shall render just and proper; * * *." Sec. 3-1217, Burns' 1933, § 926, Baldwin's 1934. Judicial construction of these statutes over a period of many years has throughly committed the courts of Indiana to the rule that the determination of the amount of alimony to be allowed to a wife and the amount a father shall be required to pay for the support of a minor child rests in the sound discretion of the trial court, and the trial court's judgment in that regard will not be disturbed on appeal unless an abuse of such discretion is clearly shown. Dissette v. Dissette, 1935, 208 Ind. 567, 196 N.E. 684; Cornwell v. Cornwell, 1940, 108 Ind.App. 350, 29 N.E.2d 317; Ralston v. Ralston, 1942, 111 Ind.App. 570, 41 N.E.2d 817; Radabaugh v. Radabaugh, 1941, 109 Ind.App. 350, 35 N.E.2d 114; Miller v. Miller, 1929, 90 Ind.App. 359, 168 N.E. 881; Watson v. Watson, 1906, 37 Ind.App. 548, 77 N.E. 355; Gussman v. Gussman, 1894, 140 Ind. 433, 39 N.E. 918.

The Supreme Court in Yost v. Yost, 1895, 141 Ind. 584, 41 N.E. 11, 13, specifically designates the proper elements in a case for divorce to be considered by a trial court in arriving at a just decree in the following language: "For the purpose of determining what amount, if any, shall be adjudged against the husband, in a particular case, the court has a right, and it is its duty, to require into the condition of each party to the action, and ascertain the amount of property owned and held by the husband at the time; the source from whence it came; how accumulated; and whether or not the wife, by her industry and economy, has contributed to the accumulation of the same; the ability of the husband to pay, by reason of his financial status; his income, his ability to earn money, or inability to do so, by reason of old age, ill health, or other causes,--and upon a full investigation of these matters, and others that may arise and are germane to the issue, make such an allowance as will be just and proper."

It has also been held that in fixing the amount of alimony, the court may consider the misconduct of the husband and the wrongs perpetrated by him on his wife. Ifert v. Ifert, 1868, 29 Ind. 473; Gussman v. Gussman, supra; Rariden v. Rariden, 1904, 33 Ind.App. 284, 70 N.E. 398, 104 Am.St.Rep. 252; Glick v. Glick, 1927, 86 Ind.App. 593, 159 N.E. 33; Miller v. Miller, supra.

It is obvious that in considering the present case on the question of an alleged abuse of judicial discretion by the trial court a review of the evidence is necessary. In support of its decision the court had before it evidence of the following...