Sidebottom v. Sidebottom, 268
| Decision Date | 09 February 1968 |
| Docket Number | No. 268,268 |
| Parties | , 29 A.L.R.3d 1159 Earl Winfield SIDEBOTTOM, Appellant, v. Elaine Ruth SIDEBOTTOM, Appellee. S 20. |
| Court | Indiana Supreme Court |
Pogoe & Young, Franklin, for appellant.
Richard L. Gillion, Indianapolis, and Richard L. LaGrange, Franklin, Murray, Stewart, Irwin & Gillion, Indianapolis, LaGrange & Fredbeck, Franklin, of counsel, for appellee.
This matter comes to us from the Appellate Court by way of Petition to Transfer under Acts 1901, ch. 247, § 10, p. 565; 1933, ch. 151, § 1, p. 800, being § 4--215, Burns 1946 Repl. See Sidebottom v. Sidebottom (1967), 225 N.E.2d 772 for opinion of the Appellate Court.
'This is an appeal from the Johnson Circuit Court of an action in divorce. The case was filed in Marion Superior Court Room Number Three and venued to the Johnson Circuit Court. The issues were formed by the appellee's complaint and the defendant's answer in one paragraph under Rule 1--3. The plaintiff-appellee petitioned for divorce, for custody of the minor children, support money, alimony judgment, attorney's fees and property settlement. The case was tried by the court which granted the plaintiff-appellee an absolute divorce and custody of the five (5) minor children. The appellant-defendant was ordered to pay $650.00 per month for the support of the children; the court allowed $4,000.00 attorney's fees to be paid by the appellant. All of the household goods and furnishings, the real estate, the tractor-mower, and the 1961 Oldsmobile, were awarded to the plaintiff-appellee. The defendant-appellant was ordered to execute all deeds, papers, and documents in order to convey the real estate to the plaintiff-appellee. The defendant-appellant was also ordered to pay an alimony judgment in the sum of $1,000.00 per year in payments of $250.00 each three (3) months for a period of ten (10) years. The payments to begin on the First of January, 1964.
The defendant-appellant was awarded the airplane, all horses and equipment pertaining thereto, certain other items of personal property, the Piper Air-Craft stock, professional equipment and office furnishings and professional accounts receivable, the National Service Life Insurance policy and the Cadillac automobile. The defendant-appellant was also ordered to keep his life insurance policy in force, naming his children as beneficiaries.
The judgment was rendered on November 8, 1963, wherein the court also ordered the defendant-appellant to pay the sum of $1,645.00 support arrearage in payments of $50.00 a month beginning the First of December, 1963. The defendant-appellant filed a motion for new trial alleging five specifications:
'1. The decision of the Court is not sustained by sufficient evidence.
2. The finding of the Court is not sustained by sufficient evidence.
3. The decision or the finding of the Court is not sustained by sufficient evidence.
4. The decision of the Court is contrary to law.
5. The finding of the Court is contrary to law."
The appellant's motion for new trial was overruled on December 29, 1964. The appellant has assigned as error the single specification, . The transcript and Assignment of Errors were filed in the office of the clerk of the Supreme and Appellate Courts on June 25, 1965.
On June 29, 1965, appellee filed in the Appellate Court her Motion to Dismiss Appeal and brief in support thereof, on the theory that appellant had accepted material benefits of the judgment and decree in that he had taken possession of the personal property awarded him and sold part of the same, retaining the proceeds. That by so doing he was estopped from pursuing this appeal. The Appellate Court in its opinion of April 27, 1967, 225 N.E.2d at 774 held as follows: 'This court, by prior action, denied the motion to dismiss and held the action on the motion to affirm in abeyance pending presentation of the case on the merits.' Later on in the opinion the court held: 'We therefore find that the motion to affirm filed by the appellee should be denied and we shall proceed to disposition of the appeal on the merits.'
Appellant's brief, on the merits, was filed August 26, 1965. Appellee's brief, on the merits, was filed September 21, 1965.
On April 24, 1967, appellee filed in the Appellate Court her Second Motion to Dismiss Appeal. Such motion, in pertinent part, reads as follows:
'Appellee for her second motion herein, respectfully moves that the court dismiss this appeal for the reason that appellant, Earl Winfield Sidebottom, adopted and recognized the validity of the divorce decree and judgment below by acceptance of a material part of such judgment in that he remarried on August 20, 1964, and thereby waived any further right of appeal.
Appellee would further show the Court that this was an action for divorce brought by Appellee against Appellant, the same being cause No. 21,377 in the Johnson Circuit Court and entitled Elaine Ruth Sidebottom v. Earl Winfield Sidebottom and that this court has jurisdiction of this appeal and motion by reason of the action below.
Appellee files herewith the reporter's certified partial transcript of a hearing in such cause, held April 10, 1967, before the Honorable Jack Rogers, Special Judge, marked Exhibit A, and her brief in support of this motion to dismiss.'
Attached to such motion was a partial transcript of a hearing in the Johnson Circuit Court on April 10, 1967, in which the witness Earl Winfield Sidebottom testified on cross-examination his second marriage took place August 20, 1964, at Lexington, Kentucky.
Thereafter, on April 25, 1967, the Appellate Court entered the following order:
'The Appellee's 'second motion to dismiss' is hereby denied; said motion presents no question to this Court.'
April 27, 1967, the Appellate Court reversed the judgment and decree of the Johnson Circuit Court and remanded the cause to the trial court for a new trial consistent with their opinion. See: 225 N.E.2d 772. On May 16, 1967, appellee filed her petition for rehearing by the Appellate Court with the clerk of the Supreme and Appellate Courts.
On May 16, 1967, the same day on which she filed her petition for rehearing, appellee filed Appellee's Third Motion To Dismiss Appeal on the theory that by appellant's remarriage subsequent to the judgment appealed from he had adopted and recognized the validity of said divorce decree and judgment by acceptance of a material part of said decree and judgment and had thereby waived any further right to appeal. Attached to said motion were Exhibit A, appellee's affidavit concerning appellant's remarriage; Exhibit B, the reporter's certified partial transcript containing appellant's own testimony of remarriage; and Exhibit C, a certified photostatic copy of Record of Marriage of Earl W. Sidebottom and Memory L. Partlow, from the State Department of Health of the Commonwealth of Kentucky. Appellant made no reply or response to appellee's Third Motion to Dismiss. On the 19th day of June, 1967, the Appellate Court denied appellee's Third Motion to Dismiss and appellee's Petition for Rehearing.
Appellee's Petition to Transfer was filed with the clerk of this Court on July 7, 1967.
Appellee's Petition to Transfer at specifications 5, 6, 9 and 10 alleges the decision and opinion of the Appellate Court contravenes rulings precedent of the Supreme Court as stated in cases cited in each of such numbered specifications.
Appellee's Petition to Transfer at specifications 7 and 11 alleges the Appellate Court failed to give a statement in writing of each substantial question arising on the record and the decision of the Court thereon. Under each of said numbered specifications is a rather lengthy discussion of the questions raised.
Specification No. 8 of appellee's Petition to Transfer alleges that the opinion of the Appellate Court erroneously decides a new question of law. This specification deals with the question of the exception to the rule of law that acceptance of a material benefit of a judgment constitutes a waiver of the right to appeal by the person accepting the benefit.
In arriving at a determination of the issues involved herein it first becomes necessary to dispose of the several motions filed herein by the appellee.
The question presented by appellee's several motions in the case at bar is whether the appellant can maintain the appeal presently before us. The following authorities we think throw sufficient illumination on the problem to provide the answer.
'Upon the question as to whether the appellant can prosecute his appeal after having again married, we have been furnished with no authority. After a limited search for a precedent, we have found such authority as leads us to believe that the appeal cannot, in such a case, be prosecuted. * * *
It seems to be the law that a party cannot be relieved from a judgment of divorce after he has used the privileges of the judgment. Having availed himself of the benefits of...
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