Powell v. Powell

Decision Date02 May 1974
Docket NumberNo. 2--773A155,2--773A155
Citation160 Ind.App. 132,310 N.E.2d 898
PartiesMartha Jean POWELL, Defendant-Appellant, v. Ralph E. POWELL, Plaintiff-Appellee.
CourtIndiana Appellate Court

Sherwood Blue, Indianapolis, for defendant-appellant.

Tom R. White, Noblesville, Howard J. DeTrude, Jr., Indianapolis, for plaintiff-appellee; Christian, Waltz, White & Klotz, Noblesville, Kightlinger, Young, Gray & DeTrude, Indianapolis, of counsel.

HOFFMAN, Chief Judge.

This is an appeal by defendant-appellant Martha Jean Powell from a judgment granting a temporary injunction enjoining her from going into, upon or about the residence of her husband, plaintiff-appellee Ralph E. Powell, and from accosting, annoying or molesting her husband either at such residence or at any other time and place pending a final hearing on the husband's complaint for an absolute divorce or until further order of the court.

The issue presented for review is whether the trial court abused its discretion in granting such temporary injunction.

The record discloses that on May 22, 1973, Ralph E. Powell filed a complaint for absolute divorce against his wife Martha Jean Powell. The complaint alleged, inter alia, that the plaintiff and defendant were married on or about July 20, 1968; that they lived and cohabited together as husband and wife until on or about July 16, 1970; and that on July 16, 1970, they separated, and since have not lived together as husband and wife. The complaint further alleged that prior to the separation, the defendant (wife) was guilty of cruel and inhuman treatment toward the plaintiff (husband).

The record further reveals that on May 22, 1973, the husband filed an application and affidavit for restraining order which alleged, inter alia, that the defendant had struck the plaintiff; that on or about May 15, 1973, while the plaintiff was absent from his residence, the defendant broke into and moved out all of the personal property belonging to the plaintiff's daughter; and that thereafter, without the consent or knowledge of the plaintiff, the defendant had all of the locks changed on the plaintiff's residence. The application and affidavit also alleged that the plaintiff feared that unless restrained by an order of the court, the defendant would harm the plaintiff and attempt to occupy his residence.

On the same day, the court entered an order, without notice and without bond, pendente lite restraining the defendant Martha Jean Powell 'from going about the residence of the plaintiff * * * and from accosting, annoying or molesting the plaintiff * * *.' The court further ordered that the defendant appear and show cause why a temporary injunction should not issue 'enjoining the * * * acts set out above during the pendency of this action.'

On June 12, 1973, a hearing was conducted pursuant to the restraining order. Before the hearing had commenced, the court ruled that the defendant was required to present her evidence first by reason of the fact that the order to show cause placed upon her the burden of proof. During the subsequent presentation of defendant's evidence, both the defendant and the plaintiff were called to testify; and at the close of the defendant's case in chief, the plaintiff moved for judgment on the evidence. The court sustained plaintiff's motion and found plaintiff to be entitled to a temporary injunction. Thereafter, this appeal was perfected.

In determining whether the trial court abused its discretion in granting a temporary injunction, we note that the plaintiff, in order to obtain the relief sought, is not required to present such a case as would entitle him to relief in all events.

Rather, it is necessary only that the pleadings and evidence be such as to present a case for proper investigation in equity and disclose that the granting of the relief sought is necessary in order to maintain the status quo and prevent conflict between the parties pending the final disposition of the case. See: Guidone's Food Palace v. Palace Pharmacy (1969), 252 Ind. 400, 248 N.E.2d 354; The Ind. Annual Conf. Corp. et al. v. Lemon etc. (1956), 235 Ind. 163, 131 N.E.2d 780. Moreover, the exercise of discretion in this regard on the part of the trial court will not be interfered with unless it is shown that the trial court acted arbitrarily or that the action in question constituted a clear abuse of discretion. See: Rosenberg et al. v. Village Shopping Center, Inc., et al. (1968), 251 Ind. 1, 238 N.E.2d 642.

Upon the evidence contained in the record in the case at bar, we are, however, unable to find any abuse of discretion or arbitrary action on the part of the trial court.

On appeal, appellant, in general, asserts that the trial court erred in issuing the immediate temporary restraining order without notice and without hearing.

However, appellant's arguments with regard to the issuance of such order have been rendered moot by reason of the ruling of the trial court which followed the subsequent hearing. The resolution of any such questions arising prior to the hearing in this cause would not, therefore, serve any useful purpose and will not be considered in this appeal.

Appellant next contends that the trial court should have dismissed the action sua sponte when, as she asserts it became apparent from the evidence that the husband's complaint for divorce was prematurely filed. Appellant points to evidence of cohabitation on the part of the parties at the time the husband filed his complaint and further contends that this evidence constitutes proof of condonation.

An examination of the record as a whole does not, however, reveal that the husband's suit was prematurely instituted. Moreover, while any existing evidence of cohabitation may well support the wife's defense of condonation, the question of condonation is properly one for determination by the trial court on the merits of the divorce action and is, therefore, a question with which we are not here concerned.

It is also asserted that the trial court erred in requiring appellant to present her evidence initially during the hearing on the temporary injunction. However, no such argument appears in her assignment of errors and this question may not, therefore, be considered to be a subject properly before this court by reason of Ind. Rules of Procedure, Trial Rule 59(G). The following discussion has, nevertheless, been included in order to clarify questions which may arise with regard to the procedure followed by the trial court.

The ruling of the...

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    ...Corp. v. Lemon, supra, 235 Ind. at 167, 131 N.E.2d at 782; Rees v. Panhandle Eastern Pipe Line Co., supra; Powell v. Powell (1974), 160 Ind.App. 132, 310 N.E.2d 898. Thus, Inter-Ocean was merely required to show that Harvest's breach of the noncompetition covenant justified a court-ordered ......
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    ...JJ. dissenting); Rees v. Panhandle Eastern Pipe Line Co. (1978) 2d Dist., 176 Ind.App. 597, 377 N.E.2d 640; Powell v. Powell (1974) 3d Dist., 160 Ind.App. 132, 310 N.E.2d 898. In my view, the majority's imposition of a "reasonable likelihood of success" test, in the context of the case befo......
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    ...the case; it is not necessary that the plaintiff present such a case as would entitle him to relief in all events. Powell v. Powell, (1974) 160 Ind.App. 132, 310 N.E.2d 898. On appeal from an interlocutory order granting an injunction, the Court of Appeals does not consider the final merits......
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