Rosenberg v. Rosenberg

• Decision Date: 30 January 1961
• Docket Number: No. 19357,No. 2,19357,2
• Citation: 171 N.E.2d 829,131 Ind.App. 437
• Parties: Helen ROSENBERG, Appellant, v. Eugene ROSENBERG, Appellee
• Court: Indiana Appellate Court

Page 829

171 N.E.2d 829

131 Ind.App. 437

Helen ROSENBERG, Appellant, v. Eugene ROSENBERG, Appellee.

No. 19357.

Appellate Court of Indiana, Division No. 2.

Jan. 30, 1961.

Samuel M. Terner, Gary, Floyd S. Draper, Sarasota, Fla., F. L. Wiltrout, Elkhart, for appellant.

John Kappos, Albert H. Gavit, Gary, for appellee.

KELLEY, Judge.

Action by appellant against appellee for divorce on ground of cruel and inhuman treatment. Appellee answered the complaint under the rules and filed what is designated as 'Amended Cross-Complaint', which was answered by appellant under the rules. The Complaint prayed for equitable relief without any express prayer for alimony. The 'Cross-complaint', in addition to specific allegations of cruel treatment of appellee by appellant, alleged in substance, that appellee had turned over to appellant his earnings from his employment by the Gary Bedding Company, except $2 per week, for safe keeping with the understanding between them that appellant was to save one-half thereof for appellee and use one-half for the support of the parties and their living expenses; that he also gave his earnings while self-employed to appellant upon the same understanding; that appellant purchased a lot for $400 out of the money given her by appellee and then sold the same for $2,100, without any accounting to appellee; that appellant was worth a specified substantial amount of money; that through appellant's fraudulent and false 'misrepresentation' he was induced to part with his said earnings, relying upon her said representation that she was wealthy and would not need his money and would save it for him, subject to his demand; that he made repeated demands for accounting which she failed and refused to give. Prayer for divorce and a settlement of the property right of the parties and order against appellant for return to him of the money, etc.

Trial resulted in a decree granting appellant a divorce and that appellee recover of appellant the sum of $3,778.91.

Motion by appellant to modify the judgment and for a new trial were overruled and this appeal followed.

The only material question presented for our determination is whether the court abused its discretion in awarding appellee a money recovery against appellant. The affirmative of that proposal is, of course, upon the appellant.

Since the evidence was amply sufficient to sustain the court's award of a divorce to appellant, it becomes unnecessary to belabor the books with a delineation thereof. A reference to the evidence giving rise to appellant's contention herein seems all that is required.

There is evidence tending to show that both the parties herein are of the Jewish faith; that eight or nine months, possibly a year, prior to their marriage on December 31, 1950, appellee came to this country as a refugee from Czechoslovakia with inability to speak English but with ability to speak 'Jewish'; appellant had resided in Gary, Indiana, for some thirty-seven years and at the time of the trial was fifty-nine years of age and appellee was then sixty-three; appellant was the mother of five children by a previous marriage and appellee was the father of children by a previous marriage; the parties lived together as husband and wife until about May 12, 1957, at which time appellee finally left appellant.

Appellant and her son, Leonard, as partners, operated a bedding company in Gary and some two and one-half weeks after said marriage, appellee went to work for said bedding company and remained so employed until some time in April, 1954. At the time of the marriage appellee was unemployed and practically penniless. In the latter part of January, 1951, appellee received his first pay check. He took the check home and appellant and appellee mutually expressed elation, mingled with caresses and osculations.

The evidence, quoted in appellant's brief, of the ensuing conversation between the parties is somewhat difficult to understand and decipher due to the broken English, misapplied gender, incoherence, and stultiloquy employed therein. However, appellant states that for the purpose of this appeal, said evidence, though denied by her, must be taken as showing an agreement by appellant after marriage 'to take one-half of appellee's pay checks for household and living expenses, and to save one-half for him [appellee]'. (Bracketed word is ours for clarity).

During the time appellee was in the employ of the bedding concern operated by appellant and her son, appellee turned over his pay checks to appellant in the total sum of $7,557.83. (Note: computation discloses that the court's recovery award to appellee amounts to one-half of the aforesaid total sum). During his self-employment as operator of the Factory Salvage Company, appellee wrote checks to appellant in the amount of $3,210 and he gave her $1,500 in cash. There is evidence that the parties purchased a lot for $400 and later sold the same for $2,100, appellee receiving no part thereof.

At the time of the marriage appellant owned a three-flat building, 37 to 45 years old, the fair market value of which is not disclosed by the evidence; she had approximately one thousand dollars in the bank; she owned a lot which was sold in 1952 for $1,800; she owned the building in which she and her son, Leonard, carried on the bedding company.

At the time of the divorce, appellant said she had $7,000 to $7,500 in the 'First Federal'; in 1957 her share of the income from the partnership of herself and her son was 'over $25,000.00'; she received $500 a month rent from the building occupied by the partnership and a salary of 'a little over $200 a month.'

Appellee lived in appellant's home without payment of rent or any of the taxes but appellee said he attended to the furnace, cleared the snow, and took care of the building. Appellant says that appellee 'had a home to live in, his food, whiskey, clothes and Blue Cross insurance'. Appellee testified that 'For that $24 a week I have a home to live in, my food, whiskey, and clothes. I paid my laundry. As for insurance, I get paid for Blue Cross, after I go away. She get paid Blue Cross. She paid Blue Cross. * * * I gave her checks more than $25.00, how much I could. * * *.' This is quoted from appellant's brief to disclose the difficulty the court must have encountered in attempting to resolve the many differences and financial situations of the parties. Other evidence on other subjects was equally confusing and we will not further advert to it. We will add, however, that appellant testified that 'My husband didn't make enough money to support me the way I was accustomed to living.' (Our emphasis.)

No request for special findings of fact was made by either party but the court made a more or less particularized finding. Such finding, however, must be considered by us as a general finding, Indiana Trial and Appellate Practice, Flanagan, Wiltrout and Hamilton, Vol. 1, § 1731, p. 349, although we may look thereto to determine 'what matters were actually adjudicated', Gavin v. Miller, 1944, 222 Ind. 459, 464, 54 N.E.2d 277, as well as to the whole record. Gavin v. Miller, supra; Cooley v. Kelley, 1911, 52 Ind.App. 687, 693, 96 N.E. 638, 98 N.E. 653; Merchants National Bank & Trust Company, etc. v. Winston, Ind.App. 1959, 159 N.E.2d 296.

The parts of said finding which are of interest in this appeal are as follows:

'The court further finds that under ordinary circumstances the defendant Eugene Rosenberg would not be entitled to recover on his cross complaint inasmuch as dealings between husband and wife can not be treated as ordinary contracts, nor are they governed by the general rule applicable to persons who are distinct and separate individuals, the husband and wife being one person in legal contemplation under the law of the State of Indiana. That there was, however, an employer-employee relationship between the parties which in the court's opinion makes the disputed dealings between the parties unusual to the extent that they are not governed by the ordinary laws relating to marriage and divorce. This being an equitable cause of action, all difference between the parties should be resolved in one action if it is proper and legally feasible to do so.

'The Court is of the opinion that while the plaintiff is entitled to recover on her complaint and to the restoration of her former name, Helen Alterwitz, defendant and cross-complainant is entitled to his wages less the amount he agreed to contribute to the support of the parties.'

Thereupon, the court entered judgment decreeing a divorce to appellant, with costs and attorneys' fees, and that appellee 'do, have and recover of the plaintiff and cross-defendant, * * *, Three thousand seven hundred seventy-eight and ninety-one hundredths Dollars ($3,778.91).

Appellant vigorously contends that the court, in so adjudicating for appellee, abused its discretion and that its conclusion is clearly against the logic and effect of the facts and circumstances before the court. She asserts that there was no evidence showing that she was indebted to appellee for any wages springing from an employer-employee relationship. We are inclined to agree to said last assertion. We find nothing in the record upon which the court could predicate a recovery by appellee of wages from appellant. And if the determination of this appeal rests exclusively upon that particular base, a reversal must surely result.

But the matter does not allow of such an easy disposition. It must be conceded, of course, that were this simply an ordinary or usual civil action between the parties, unaffected by any considerations of the special principles applicable to actions for the dissolution of the marriage relationship, the evidence adduced below would not authorize a recovery by appellee against appellant for wages.

In a divorce proceedin, the court is not only authorized but it becomes its duty to determine upon and, insofar as the evidence...