Rariden v. Rariden

• Decision Date: 15 March 1904
• Parties: RARIDEN v. RARIDEN.
• Court: Indiana Appellate Court

33 Ind.App. 284

70 N.E. 398

RARIDEN

v.RARIDEN.^*

Appellate Court of Indiana, Division No. 1.

March 15, 1904.

Appeal from Circuit Court, Newton County; C. W. Hanley, Judge.

Action by Esther B. Rariden against Elliott Rariden for a divorce. Divorce granted to defendant on his cross-complaint, and judgment against him for alimony and attorney's fees. From the judgment for alimony and attorney's fees alone, he appeals. Dismissed.

Davidson & Boulds, for appellant. Hanly & Woods, for appellee.

ROBINSON, J.

Appellee sued for divorce. Appellant answered in denial, and filed a cross-complaint asking a divorce. Appellee answered the cross-complaint in denial. Upon a trial the court denied appellee's petition, and granted appellant a divorce upon his cross-complaint, and gave judgment against him in appellee's favor for alimony, and an allowance for attorney's fees. Appellant's motion to modify the judgment by reducing the amount of alimony and allowance was overruled, and exception taken. His motion for a new trial upon the question of alimony and allowance only was overruled. He has assigned as error the court's refusal to modify the judgment as to alimony and allowance, and the refusal of a new trial. Appellee moves to dismiss the appeal upon a showing that, since the submission of the cause, appellant remarried, and that he and the woman he married are now living together as husband and wife.

“Alimony,” as here used, is purely incidental to a divorce proceeding, and is an allowance out of the divorced husband's estate made to the divorced wife for her support and maintenance. In this state it has no existence as a separate and independent right. It must be adjudged, if at all, in the divorce proceedings, and cannot be the subject-matter of an independent suit. The court is required to make such decree for alimony as the circumstances of the case shall render just and proper. Burns' Rev. St. 1901, § 1057. The court bases its decree for alimony upon all the facts and circumstances disclosed in the divorce proceedings, including all matters of property which have transpired between the parties. Muckenburg v. Holler, 29 Ind. 139, 92 Am. Dec. 345. “In adjudging alimony,” said the court in Hedrick v. Hedrick, 28 Ind. 291, “all the evidence in the case ought to be considered and acted upon, and then the subject is often a difficult one. It is not yet controlled by definite rules, and the determination of each case must therefore depend upon its own circumstances and an enlightened sense of justice and public policy.” And it has been held that the appellate tribunal cannot say that alimony in a case is excessive, in the absence of the testimony on which the divorce was granted. Ifert v. Ifert, 29 Ind. 473. In Hedrick v. Hedrick, 128 Ind. 522, 26 N. E. 768, it was held that, in determining the amount of alimony, the court may “inquire into the circumstances of the parties, ascertain the amount of property owned by the husband at the time, the source from whence it came, the ability of the husband to pay, by reason of his financial circumstances, his income, and his ability to earn money, as well as his inability to earn money on account of ill health; and, upon a full investigation, it is the duty of the court to make such an allowance for alimony as is just and proper.” In fixing the amount of the alimony, the court may consider the conduct of the husband, and the wrongs perpetrated by him upon the wife. Gussman v. Gussman, 140 Ind. 433, 39 N. E. 918. In all the authorities the fact is emphasized that alimony is an incident of the divorce. While it is, in a sense, a separate judgment, and may be in a particular case modified or disallowed by the appellate tribunal without in any way affecting the decree of divorce, yet, in another sense, it is in no manner a judgment separate and apart from the decree of divorce, as a reversal of the...