Ralston v. Ralston, 16869.
Decision Date | 26 May 1942 |
Docket Number | No. 16869.,16869. |
Parties | RALSTON v. RALSTON. |
Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clark County; James L. Bottorff, Judge.
Suit for divorce by Thomas H. Ralston against Dellie Ralston, wherein defendant filed a cross-complaint seeking divorce. From a judgment granting defendant a divorce on her cross-complaint but failing to award her any alimony, defendant appeals.
Judgment affirmed.
L. A. Douglass, of Jeffersonville, for appellant.
Albert Meranda, of Jeffersonville, for appellee.
The appellant and appellee were married on May 11th, 1939, and lived together until January 6, 1940, at which time they separated. The appellee, Thomas Ralston, on February 10, 1940, filed his complaint for divorce alleging cruel treatment; and, on February 16, 1940, the appellant filed her cross-complaint, alleging cruel treatment.
On May 22, 1940, the case was called for trial, and the divorce was granted the appellee. This judgment was subsequently set aside at the insistence of the appellant, and trial was had on November 19, 1940, at which time there was a finding for the appellant, and a divorce granted to her on her cross-complaint. No award of alimony was decreed.
A motion for new trial was subsequently filed and overruled; and this appeal has been perfected. It is the appellant's position on appeal that it was the mandatory duty of the court to award alimony to the appellant, upon granting her a decree of divorce. The appellant relies upon Sec. 3-1217, Burns' 1933, Sec. 926, Baldwin's1934. This statute reads, in part, 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; * * *.”
[1] This statute was before the Supreme Court of Indiana in the case of Glasscock v. Glasscock, 1883, 94 Ind. 163. The court said:
[2] In view of this interpretation of the statute, the question of the allowance of alimony is, of necessity, to be left largely to the discretion of the trial court. Facts may very definitely disclose a relationship which warrants the trial court in refusing alimony, even though a decree of divorce is granted in favor of the wife. Corey v. Corey, 1883, 81 Ind. 469.
The rule, governing such matters, was recently announced by this court in the case of Cornwell v. Cornwell, 1940, 108 Ind.App. 350, 353, 29 N.E.2d 317, 318, in the following language:
The evidence in the case at bar discloses that both parties to this proceeding had been previously married....
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