Radabaugh v. Radabaugh, No. 16441.

• Docket Nº: No. 16441.
• Citation: 35 N.E.2d 114, 109 Ind.App. 350
• Case Date: June 30, 1941
• Court: Court of Appeals of Indiana

109 Ind.App. 350
35 N.E.2d 114

RADABAUGH
v.
RADABAUGH.

No. 16441.

Appellate Court of Indiana, in Banc.

June 30, 1941.

Appeal from Fulton Circuit Court; Robert R. Miller, Judge.

Divorce action by Elmer W. Radabaugh against Alvina C. Radabaugh, who filed a cross-complaint for divorce and alimony. From the judgment, the defendant appeals.

Reversed with instructions.

[35 N.E.2d 115]

Arthur Metzler, of Rochester, and Reed & Reed, of Knox, for appellant.

Floyd Jellison, of South Bend, and Lutz, Johnson & Lutz, of Indianapolis, for appellee.

FLANAGAN, Judge.

Appellee brought this action against appellant for divorce and appellant filed a cross-complaint asking for a divorce and alimony.

The court upon request found the facts specially, filed its conclusions of law and rendered a decree granting appellant a divorce, adjudging rights to certain real and personal property and denying appellant alimony.

[1] Appellant excepted to the conclusions of law, filed a motion for a new trial which was overruled and a motion to modify the judgment which was also overruled. Reasons set forth in the motion for a new trial are (1) that the decision of the court is not sustained by sufficient evidence, (2) that the decision of the court is contrary to law and (3) that the court omitted to find certain essential facts.

An examination of the evidence discloses sufficient to sustain the court's finding, and while the facts, which appellant asserts were omitted by the court, might properly have been found, they are not in our opinion essential to a determination of the issues involved. No other alleged error is pointed out by appellant in connection with its motion for a new trial and we find no error in the overruling of that motion.

The court's conclusion of law number 4 is to the effect that of a certain mortgage loan of $3,500 appellant shall own $632 and appellee $2,868. Appellant contends that she is the owner of one-half of this mortgage loan.

The finding of the court is that $632 of money inherited by appellant and $2,868 of money earned by appellee during the period of the marriage was loaned to one Clarendine Brucker, a brother of appellant, who executed his note to both appellant and appellee in the sum of $3,500 and secured the note by a real estate mortgage which was taken and duly recorded. The court further found that appellant worked for several years prior to her separation from appellee and prior to the making of the loan in question and that her wages were either used in the maintenance of the family or deposited in the account from which the $2,868 was withdrawn to make the loan. There is no finding of any agreement, understanding or arrangement between appellant and appellee as to the proportionate interest each should have in the loan in question.

The court also found that appellant and appellee had purchased real estate which they had deeded to themselves as tenants by entireties.

[2] When a note and mortgage is made payable to a husband and wife, it is the general rule that they own each an undivided one-half interest, even though the consideration for the note and mortgage is the separate...