Shula v. Shula, 29402

• Docket Nº: No. 29402
• Citation: 132 N.E.2d 612, 235 Ind. 210
• Case Date: March 13, 1956
• Court: Supreme Court of Indiana

Page 612

132 N.E.2d 612 235 Ind. 210 Joseph Edward SHULA, Appellant,
v.
Bertha Mona SHULA, Appellee. No. 29402. Supreme Court of Indiana. March 13, 1956.

[235 Ind. 212]

Page 613

George Sands, South Bend, for appellant.

Harold T. Miller, Harry Taylor, South Bend, for appellee.

ACHOR, Judge.

This is an appeal from a judgment granting appellee a divorce, custody of two minor children with an order for their support, and the real estate held by the parties in entireties, the furnishings and fixtures in their home and a money judgment of $3,000.

[235 Ind. 213]

Page 614

The error assigned is the overruling by the court of appellant's motion for a new trial, which motion specified that the decision is not sustained by sufficient evidence and is contrary to law, and that the alimony awarded was excessive.

The conflicts in the evidence raises considerable doubt as to whether or not grounds for divorce existed prior to the condonation which was effected during the period of September, 1950 to October 9, 1951, and also as to whether appellant's abuse of the appellee on and after October 9, 1951 may not have been the result of her own provocation. However, it is not within the province of this court to weigh the evidence. That responsibility rested solely with the trial court. The rule is well established that we are permitted to consider only the evidence most favorable to the appellee. We find this evidence sufficient to establish cause for divorce prior to the period of condonation--when appellee 'had forgiven all'--and also, under such rule, we find that appellant's abusive treatment of appellee after condonation was sufficient to abridge the fact of condonation and reactivate the prior grounds for divorce as though such condonation had not existed. Conduct may be sufficient to nullify the fact of condonation if it is of such character and force as to constitute a breach of the covenant of condonation. It need not be sufficient to constitute grounds for divorce in itself, but such conduct subsequent to condonation may be considered as cumulative with prior conduct in determining the right of a party to a divorce.

Under the facts before us, we are not at liberty to disturb the judgment for divorce. No issue is raised as to the custody and support of the two children.

We next consider the judgment for alimony. First: we find that the court awarded the furniture and fixtures[235 Ind. 214] of the parties valued at '$1,547.45' to the appellee. There is no evidence in the record as to the value of this property, therefore the judgment relative thereto was not sustained by sufficient evidence and is contrary to law. De Witt v. De Witt, 1951, 120 Ind.App. 704, 96 N.E.2d 351. Second: The court awarded the appellee the residence of the parties valued at $22,000, subject to an unpaid mortgage of $1,547.46, 'to be assumed by the plaintiff,' and that 'the defendant shall be relieved of any liability thereon.' The court was without authority to make an order which 'relieved' appellant of liability on the mortgage without the consent of mortgagee or its having been made a party to the action. 27 C.J.S., Divorce, § 302, p. 1161; § 2-222, Burns' 1946 Repl., Acts 1881, Spec.Sess., ch. 38, § 24, p. 240. Third: we consider the overall judgment for alimony. The parties owned property of the net value of approximately $39,000. Of this amount the court awarded appellee the sum of $25,000 in property and cash, leaving appellant $14,000.

We are not able to determine upon what factual foundation or rule of law the above decree is based. Alimony is awarded in Indiana for the purpose of making a present and complete settlement of the property rights of the parties. It does not include future support for the wife, nor is it...