Proctor v. Proctor

• Decision Date: 30 March 1955
• Docket Number: No. 18639,18639
• Citation: 125 N.E.2d 443,125 Ind.App. 692
• Parties: Azzie Lee PROCTOR, Appellant, v. James PROCTOR, Appellee.
• Court: Indiana Appellate Court

Page 443

125 N.E.2d 443

125 Ind.App. 692

Azzie Lee PROCTOR, Appellant, v. James PROCTOR, Appellee.

No. 18639.

Appellate Court of Indiana, In Banc.

March 30, 1955.

Anderson, Hicks & Anderson, F. Lawrence Anderson, Sr., F. Lawrence Anderson, Jr., Gary, for appellant.

L. C. Holland, Gary, for appellee.

ROYSE, Presiding Judge.

Appellee brought this action for divorce against appellant. She filed a cross-complaint and sought alimony. Upon proper request the trial court made its special findings of fact and stated its conclusions of law thereon in favor of appellee. Judgment granting appellee a divorce, the care and custody of the minor children of the parties, and awarding him all of the property, real and personal, of the parties including the home which was owned by the parties as tenants by the entireties.

The errors asigned here are that the trial court erred in each of its eight conclusions of law, and in overruling appellant's motion for a new trial. The specifications of the motion for a new trial are, that the decision is not sustained by sufficient evidence and is contrary to law.

At the opening of the argument portion of her brief appellant says:

'While appellant believes the trial court erred grievously in granting her husband a divorce, she recognizes that on this issues the evidence was conflicting and cannot here be weighed.

'Accordingly, she must and does limit this argument to the error of the trial court with respect to its disposition of the property accumulations of the parties.'

She then proceeds to treat assigned errors four and six and the alleged error in overruling her motion for a new trial together.

Conclusion of Law No. 4 is as follows:

'That the home of the parties is now occupied by the plaintiff, their two minor children and a housekeeper; and, is owned by the parties, as tenants by the entireties. Their equity in the premises, over and above encumbrances, is the sum of Two Thousand Six Hundred Forty-two ($2,642.00) Dollars, which equity was accumulated chiefly through the efforts of the plaintiff.'

No. 6 is as follows:

'That the defendant has destroyed the marriage of the parties by her willful misconduct; that she is not entitled to alimony nor to any part of the parties' real and personal property. That the defendant should be ordered to execute and convey by a proper deed, within ten (10) days, her interest to the plaintiff, in the following described real estate: (Description).

'That upon the failure of the defendant to execute such deed, Fritz W. Alexander should be appointed Commissioner, to execute and convey by a proper deed, said realty from the defendant to the plaintiff, on or before ten (10) days from the date of the decree herein.'

Appellant contends Conclusion No. 4 is not sustained by either the findings or the evidence. In our opinion this so-called Conclusion is a finding of fact cast among the Conclusions of Law and cannot be considered.

She next contends the trial court had no authority to order a conveyance of the real estate owned by the parties as tenants by the entireties. In support of this contention she relies on the case of Alexander v. Alexander, 1894, 140 Ind. 560, 40 N.E. 55. There is certain dicta in that case which would tend to support appellant's contention. However, in the case of Mendenhall v. Mendenhall, 1946, 116 Ind.App. 545, 64 N.E.2d 806 (transfer denied), we refused to adhere to such dicta and pointed out the correct rule which should govern such cases was announced in the case of Walker v. Walker, 1898, 150 Ind. 317, 328, 50 N.E. 68. We recognize the factual situation in the Mendenhall case, supra, was entirely different than that in this case.

In the case of Wallace v. Wallace, 1953, 123 Ind.App. 454, 110 N.E.2d 514...