Sims v. Sims
| Decision Date | 22 November 1957 |
| Docket Number | 18821,Nos. 18794,s. 18794 |
| Parties | Frank Z. SIMS, Appellant, v. Nina G. SIMS, Appellee. |
| Court | Indiana Appellate Court |
Ralph B. Gregg, Arthur H. Northrup, Indianapolis, Ivan D. Pogue, Franklin, Stevenson & Stevenson, Danville, for appellant.
George R. Jeffrey, Pearl Lee Hampton, Indianapolis, Jeffrey & Jeffrey, Kivett & Kivett, Indianapolis, of counsel, for appellee.
After 40 years of married life the parties hereto each sought a divorce from the other in the Marion Superior Court early in 1955. The cause was venued to the Hendricks Circuit Court where, on July 8 of that year, the appellee was granted an absolute divorce from the appellant on her complaint. The court's decree divided certain chattels between the parties, vested in the appellee title to residence property owned by them as tenants by the entirety and awarded appellee alimony in the sum $72,407.93 and $14,051 attorneys' fees. The appellant appealed such judgment to this court and the appellee promptly sought support money and additional attorneys' fees pending such appeal. Upon such application she was allowed $100 per week support money and $1,800 to hire lawyers to defend her judgment. From this order the appellant also appealed to this court and on February 23, 1956, we ordered the two appeals consolidated for briefing, oral argument and final disposition.
At the outset we are confronted with the contention that the Hendricks Circuit Court was without jurisdiction to adjudicate the issues involved in this litigation because it had before it no substantial evidence that the appellee, the plaintiff below, had been a resident of Marion County for six months immediately prior to the filing of her complaint as required by § 3-1203, Burns' 1946 Replacement. This question was not raised in the trial court and unless it goes to the jurisdiction of the Hendricks Circuit Court over the subject matter of the litigation it cannot be urged for the first time in this court. It is the general rule that if the court has jurisdiction of the class of actions to which the particular case under consideration belongs it has jurisdiction of the particular case. Jackson v. Smith, 1889, 120 Ind. 520, 22 N.E. 431; Tucker v. Sellers, 1892, 130 Ind. 514, 30 N.E. 531; State ex rel. Felthoff v. Richards, 1932, 203 Ind. 637, 180 N.E. 596.
The phrase 'subject matter of the action' is sometimes used to refer to the thing involved in a particular case but such is not its meaning when used in the rule regarding jurisdiction. Flanagan, Indiana Pleading and Procedure, § 21. It is not contended that the Hendricks Circuit Court does not have jurisdiction over that 'class of cases' known as divorce actions. The exercise of that jurisdiction, however, is contingent upon proof of the plaintiff's residence in the manner provided by § 3-1203, Burns' 1946 Replacement. If there was a failure of such proof in the present case the question should have been raised in the trial court and not here for the first time.
The appellant's next proposition is that the alimony and attorney's fees awarded by the court to the appellee are excessive considering the amount of his property and the source thereof. The evidence in the record most favorable to the court's adjudication of property rights between the parties tends to establish the appellant's net worth at the time of trial at $250,250. According to the appellant's own figures the cash and tangible property awarded to the appellee by the court's decree aggregates $91,607.93. That is approximately $8,000 over and above what the appellee could have taken despite an unfavorable will had the appellant died. It is true that the great bulk of the appellant's estate was inherited from a cousin, Hazel Hill, less than three years before the divorce suit was filed. The appellant insists that the court had no right to take this inheritance into consideration in fixing alimony and when such inheritance is eliminated from consideration the arbitrary character and unreasonable extravagance of the allowance becomes apparent beyond peradventure. In other words because something over $200,000 of the appellant's wealth was not accumulated through the joint efforts of the husband and wife over a period of 40 years of married life but came to the husband as a testamentary gratuity, due to the accident of birth, and which, of course, he did no more to earn than she did, the appellee, sinned against to the point of divorce, is not entitled to share in such inheritance. This seems to us a rather amazing doctrine. In its support we are referred to Shula v. Shula, 1956, 235 Ind. 210, 132 N.E.2d 612, 614; Temme v. Temme, 1937, 103 Ind.App. 569, 9 N.E.2d 111; Indorante v. Indorante, 1950, 339 Ill.App. 577, 90 N.E.2d 563. In the Shula case the court said: 'The primary factor in fixing the alimony is the existing property of the parties although other factors the court may consider are the source of the property, the income of the parties * * *.' (Our emphasis.) Much of the property involved in the Shula case was held by the parties as tenants by the entirety and as to it the court repudiated the frequently stated rule that the wife should receive such sum as would leave her in as good condition as she would have been as a surviving wife upon her husband's death. See Glick v. Glick, 1927, 86 Ind.App. 593, 159 N.E. 33. The judgment for alimony in the Shula case was reversed because there was no evidence to support it but nowhere in the court's opinion is it even hinted that inherited property, owned by the husband at the time of the divorce, cannot be considered in fixing alimony. In the Temme case the allowance of alimony exceeded the value of the husband's entire net estate which, this court said, was an abuse of discretion requiring a reversal and new trial. Here also not one word is said concerning the propriety of considering the value of inherited property in fixing alimony. The nearest approach to the rule advocated by the appellant is found in the decision of the court in the case of Indorante v. Indorante, supra, wherein the court said: 'Evidence that property held by husband at time of hearing granting him a divorce, had either been inherited by him or had been result of his own efforts and [his] wife had contributed nothing, precluded any claim by wife to interest in such property.' (Our emphasis.) It is apparent at once that this holding is predicated wholly upon the theory that the wife, being the offender, is not entitled to share in property which she had nothing to do with acquiring. That it is inapplicable to the present case is obvious.
The Supreme Court in Shula v. Shula, supra, said: ...
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