Rooney v. Rooney, 28841

• Decision Date: 12 December 1952
• Docket Number: No. 28841,28841
• Citation: 109 N.E.2d 93,231 Ind. 443
• Parties: ROONEY v. ROONEY.
• Court: Indiana Supreme Court

Page 93

109 N.E.2d 93

231 Ind. 443

ROONEY v. ROONEY.

No. 28841.

Supreme Court of Indiana.

Dec. 12, 1952.

Jay E. Darlington, Hammond, for appellant.

Lester Ottenheimer, East Chicago, Harry Long, Gary, Englebert Zimmerman, Jr., Valparaiso, for appellee.

EMMERT, Chief Justice.

This is an appeal from an interlocutory order which awarded the appellee, hereafter referred to as the wife, (1) the use of the family home of the parties and the income from said family home, (2) ordered appellant, hereafter referred to as the husband, to pay to the clerk's office, for the support of the plaintiff the sum of $150 per month, and (3) ordered the husband to pay the wife 'for attorneys' fees the sum of $2,000 within thirty (30) days.'

The evidence on the petition for an interlocutory order was conflicting, ¹ but on appeal this court will not weigh the evidence to determine where the preponderance may lie. Naylor v. Sidener, 1886, 106 Ind. 179, 185, 6 N.E. 345; Mead v. Burk, 1901, 156 Ind. 577, 582, 60 N.E. 338; Chicago, etc., R. Co. v. Kenney, 1901, 159 Ind. 72, 81, 62 N.E. 26; Hammond Theatrical Co. v. Gregory, 1935, 208 Ind. 31, 45, 194 N.E. 631; Henderson v. Henderson, 1887, 110 Ind. 316, 319, 11 N.E. 432. 'The law does not contemplate that the husband shall be oppressed by the allowance, neither does it intend that where his means are ample the court shall weigh the amount awarded in 'the scales of an apothecary." Davis v. Davis, 1895, 141 Ind. 367, 374, 40 N.E. 803, 806.

As was said in Snider v. Snider, 1913, 179 Ind. 583, 588, 590, 102 N.E. 32, 33:

'The right of alimony whether pendente lite or permanent is founded on the common law obligation of the husband to support his wife and was recognized in ecclesiastical law. Subject to certain conditions, the wife is, in suits for absolute divorce, whether she be plaintiff or defendant, entitled upon application to temporary alimony where no statute provides for it. And it may be awarded notwithstanding statutes which give her control of her separate property and the benefit of her own earnings, although such statutes materially lessen the force of the reason upon which it is granted, and in such case the allowance is not made so much as a matter of course. It must be made to appear as one of the essential conditions upon which the wife will be granted the allowance, that she has not sufficient means to provide for her own support adequately and to pay the expenses of properly preparing and prosecuting or defending the action. The ability of the husband to pay should also be made to appear. * * *

'Whether the necessity for the allowance exists, and the ability of the husband to pay, as well as the amount to be allowed is within the sound discretion of the trial court to determine upon the facts before it. This judicial discretion is, it is true, subject to review on appeal, but it will be interfered with only when a clear abuse of it by unfair and arbitrary action is shown. * * *

'Although the fact that the wife has some property is a matter to be considered by the court in determining whether an allowance shall be made, as well as the amount of it, still, if it is not sufficient properly to support her and at the same time afford her the means to secure her an efficient preparation of her case and a fair trial without exhausting her own resources, an allowance is within the discretion of the court. * * * The statute means and intends a sum sufficient to insure an efficient preparation and a fair trial. And what is sufficient for the wife to obtain these results the court, under all the facts and circumstances in each particular case, must determine.

'That an allowance of temporary alimony or suit money to a wife having some property or some credit is not necessarily an abuse of discretion on the part of the trial court has been decided by this court. * * *'

See also Henderson v. Henderson, 1887, 110 Ind. 316, 11 N.E. 432, supra; Hetherington v. Hetherington, 1928, 200 Ind. 56, 160 N.E. 345; Pry v. Pry, 1947, 225 Ind. 458, 75 N.E.2d 909.

When the evidence is viewed most favorable to the wife, the trial court could properly consider as proved the following material facts:

The parties were married October 5, 1920. They had two sons, the oldest being 28 years of age, married and living with his own family. The younger son, Jack, 23 years of age, was living with his mother except when he was attending Indiana University. The husband and wife owned as tenants by the entireties residence real estate worth $23,000 at 4206 Baring Street, East Chicago, in which there were three apartments being rented by the wife, and a 220 acre farm five miles south of Crown Point, worth $57,200, from which the husband was collecting all the landlord's rents and profits. The husband had incorporated the Calument Rental & Realty Company, Inc., of East Chicago, which owned an apartment building at 1021 West 141 Street and an apartment building at 3428 Fir Street, both in East Chicago, which properties were reaponably worth $155,000. These properties were purchased...