Sidebottom v. Sidebottom, 20360

• Decision Date: 27 April 1967
• Docket Number: No. 1,No. 20360,20360,1
• Citation: 140 Ind.App. 657,225 N.E.2d 772
• Parties: Earl Winfield SIDEBOTTOM, Appellant, v. Elaine Ruth SIDEBOTTOM, Appellee
• Court: Indiana Appellate Court

Page 772

225 N.E.2d 772

140 Ind.App. 657

Earl Winfield SIDEBOTTOM, Appellant, v. Elaine Ruth SIDEBOTTOM, Appellee.

No. 20360.

Appellate Court of Indiana, Division No. 1.

April 27, 1967.

Rehearing Denied June 19, 1967.

Pogue & Young, Franklin, for appellant.

Richard L. Gilliom, Murray, Stewart, Irwin & Gilliom, Indianapolis, Richard L. La Grange, La Grange & Fredbeck, Franklin, for appellee.

CARSON, Judge.

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 tractormower, 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 assigned as error the overruling of the motion for a new trial. The only issue which the appellant argues is the amount of alimony awarded the appellee.

The record discloses that the appellee filed a motion to dismiss of affirm on the theory that the appellant had accepted part of the benefits of the judgment rendered in the trial court. 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. We must dispose of the motion to affirm before proceeding to consider the grounds in the appellant's motion for a new trial.

This case is a recognized exception to the rule that acceptance of the benefit of a judgment constitutes a waiver of the right to appeal by the person accepting the benefits. This is particularly true in divorce action where the part of the decree from which the appeal is taken would not be affected by action of the Appellate Tribunal in disposing of the appeal. The general rule and its exception in divorce actions is set out in 4 Am.Jur.2d, Appeal & Error, § 259, p. 754.

The exception has been generally recognized in Indiana in other cases than divorce actions. In the case of City of Indianapolis v. Statz Motor Car Company of America (1932), 94 Ind.App. 211, 180 N.E. 497, the court said:

'The rule is well settled that one cannot accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot possibly be affected by the reversal of the judgment. (Citing authorities.) We must be careful not to ignore an important qualification to the general doctrine. Where the reversal of the judgment cannot possibly affect the appellant's right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. * * * It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from that defeats his right to appeal. Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from.'

The above case as cited with approval by the Supreme Court of Indiana in State ex rel. Jackson, Attorney General v. Middleton et al. (1939), 215 Ind. 219, 19 N.E.2d 470, 20 N.E.2d 509, and the Supreme Court said:

'The statute (§ 2--3201 Burns 1933, § 471 Baldwin's 1934) is merely declaratory of the common law rule that a party cannot accept the benefit of an adjudication and yet allege it to be erroneous. 4 C.J.S., Appeal and Error, § 216, p. 416. But, like most general rules, this has its exceptions and it is accordingly recognized that an acceptance of an amount to which the acceptee is entitled in any event does not estop him from appealing from or bringing error to the judgment or decree ordering its payment. City of Indianapolis v. Stutz Motor Car Co., 1932, 94 Ind.App. 211, 180 N.E. 497. The facts upon which the court below rendered judgment against the appellees for $249.33 were stipulated by the...