Smith v. Smith, 19251

• Docket Nº: No. 1
• Citation: 131 Ind.App. 38, 169 N.E.2d 130
• Case Date: September 20, 1960
• Court: Court of Appeals of Indiana

Page 130

169 N.E.2d 130

131 Ind.App. 38

Jane W. SMITH, Appellant, v. Edison M. SMITH, Appellee.

No. 19251.

Appellate Court of Indiana, Division No. 1.

Sept. 20, 1960.

C. Ellis Deibel, Jeffersonville, Robert R. Kelso, New Albany, for appellant.

Chester V. Lorch, Basil H. Lorch, Jr., Lorch & Lorch, New Albany, for appellee.

MYERS, Judge.

This is an action for divorce originally filed by the appellee, the plaintiff below, in the Clark Circuit Court, against the appellant, defendant below. On application of the appellee, the cause was transferred to the Floyd Circuit Court on change of venue, where it was tried and determined.

Appellee's complaint prayed that he be granted a divorce from appellant upon the grounds therein alleged. The appellant filed an answer in two paragraphs, the second paragraph being a cross-petition for divorce from the appellee and praying for alimony in the sum of $15,000. An answer was filed to this cross-petition and the matter was at issue. Upon trial the appellant was granted a decree of divorce from appellee upon her cross-petition, and judgment was rendered disposing of property between the parties. Appellant filed her motion for a new trial, based upon the grounds that the decision or finding of the court was not sustained by sufficient evidence and that the decision of the court was contrary to law. This motion was overruled, and the only error assigned is the overruling of the motion for a new trial.

The evidence reveals that both appellant and appellee were residents of Clark County, Indiana. They were married on November 20, 1935, and separated on January 28, 1958. There was evidence of cruel and inhuman treatment on the part of appellee toward appellant. Neither of the parties question the facts upon which the trial court granted the divorce. The main question concerns the property, both real and personal, involved in the case and the court's disposition of it. The parties owned real estate, being a house and two lots in Clarksville, as tenants by the entireties. Appellant placed a valuation of $10,000 on this property, and a real estate appraiser said that its current market value at the time of trial was $11,000, while appellee claimed it was worth $15,000. Furnishings in the house were appraised by appellee at $2,500, while appellant stated they were worth only $500.

Appellee worked for the B. & O. Railroad Company. He was injured at work and laid off for about a year because of his injuries. The railroad company paid him $8,000 as a settlement. With this money appellee bought United States Savings Bonds, registering them in the joint names of him and his wife. They were put into a safety deposit box, but removed by him when they separated. He claimed that the bonds at the time of trial were worth $7,407.20. Appellant claimed that appellee had purchased an additional $1,900 of bonds, which she said he had in his possession. Appellee denied this. They each had paid-up insurance policies in the amount of $1,000. There was a conflict over the amount of his pay for the year 1957, he claiming that it was $5,200 and she claiming that it was $6,200. He admitted that he could make $400 a month. He had a 1951 automobile in his possession.

Appellant contended that the two lots on which their house was built belonged to her before marriage, and that after they were married they each contributed $500 to build the house, she borrowing her $500 from her father, putting up her insurance policy as collateral security. She stated that she borrowed $1,950 from a Savings and Loan Association and used the money to build the house. Later she had the property transferred from her name to their joint names as tenants by the entireties. She likewise claimed that she had provided most of the furnishings which went into the house.

As a result of hearing the evidence and testimony introduced at the trial, the court made the following findings and decree on May 28, 1958:

'Comes now the plaintiff in person and by his Attorneys, Lorch and Lorch, and comes also the defendant in person and by her Attorney, C. Ellis Deibel. The defendant by her attorney files her cross-complaint herein, which reads as follows: (here insert). And the plaintiff by his attorneys files his answer to said cross-complaint, which reads as follows: (here insert). And it appearing to the Court that this cause has been and remained upon the Civil Docket of this court for more than sixty days last past and being set for a day is now submitted to the court for hearing and trial without the intervention of a jury. And the Court having heard the evidence and being duly advised in the premises finds that the allegations of the defendant's cross-complaint are true and that she is entitled to a decree of divorce from the plaintiff on her said cross-complaint.

'The Court further finds that the property rights of the plaintiff and defendant should be settled in the following manner:

'1. The plaintiff is to pay the defendant the sum of Thirty-seven Hundred and Three and 60/100 Dollars ($3703.60), which represents one-half of the amount of the United States Savings Bonds now in the plaintiff's possession.

'2. The defendant is to be declared the owner of the household furniture and furnishings now in her possession.

'3. The defendant is to retain a paid up life insurance policy in her name.

'4. The defendant is to pay an outstanding account at Stewart's Dry Goods Company in Louisville, Ky.

'5. The plaintiff is to retain and be declared the owner of certain United States Savings Bonds now in his possession after the payment to the defendant of the sum of Thirty-seven Hundred and Three and 60/100 Dollars ($3703.60).

'6. The plaintiff is to retain the proceeds of his paid up life insurance policy.

'7. The plaintiff is to retain the automobile now in his name and personal effects and tools now in defendant's residence.

'8. The real estate owned by the parties at No. 109 South Oak Street in Clarksville, Clark County, Indiana, is declared held as tenants in common, and the Court appoints Keith Briscoe as appraiser, the defendant appoints James W. Applegate as appraiser and the plaintiff appoints Donald E. McCartin as appraiser who are to appraise the said real estate and submit their appraisals to the Court within thirty days from the date hereof. After the appraisals are submitted either the plaintiff or defendant shall have the right to buy or sell his or her interest to the other party. The parties shall divide the cost of the appraisal fifty-fifty. If the parties cannot agree then the court will appoint a Commissioner to sell the real estate at public sale for an amount equal to the average of the three appraisals mentioned above, and the net proceeds, after expenses are paid, to be divided one-half each to the plaintiff and defendant.

'IT IS, THEREFORE, CONSIDERED, ADJUDGED AND DECREED BY THE COURT that the bonds of matrimony existing between the plaintiff and defendant be dissolved and that the defendant be granted an absolute divorce from the plaintiff on her cross-complaint herein.

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the plaintiff pay to the defendant the sum of Thirty-seven Hundred and Three Dollars and Sixty Cents ($3703.60), which represents one-half of the amount of the United States Savings Bonds now in the plaintiff's possession.

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the defendant be declared the owner of the household furniture and furnishings now in her possession.

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the defendant retain a paid up life insurance policy in her name.

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the defendant pay an outstanding account at Stewart's Dry Goods Company in Louisville, Kentucky.

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the plaintiff be declared the owner of certain United States Savings Bonds now in his possession after the payment to the defendant of the sum of Thirty-seven Hundred and Three Dollars and Sixty Cents ($3703.60.)

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the plaintiff retain the proceeds of his paid up life insurance policy.

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the plaintiff retain the automobile now in his name and personal effects and tools now in defendant's residence.

'IT IS FURTHER CONSIDERED AND ADJUDGED BY THE COURT that the real estate owned by the parties at No. 109 South Oak Street in Clarksville, Clark County, Indiana, is declared held as tenants in common, and the Court appoints Keith Briscoe as appraiser, the defendant appoints James W. Applegate as appraiser and the plaintiff appoints Donald E. McCartin as appraiser who are to appraise the said real estate and submit their appraisals to the court within thirty days from the date hereof. After the appraisals are submitted either the plaintiff or defendant shall have the right to buy or sell his or her interest to the other party. The parties shall divide the cost of the appraisal fifty-fity. If the parties cannot agree then the court will appoint a Commissioner to sell the real estate at public sale for an amount equal to the average of the three appraisals mentioned above, and the net proceeds, after expenses are paid, to be divided one-half each to the plaintiff and defendant.

'IT IS FURTHER ORDERED BY THE COURT that the plaintiff pay the costs of this action, which costs the court finds have been paid.'

In her argument appellant claims error based on three points. First, appellant claims that the court erred by failing to award her alimony. She argues that the trial court made an attempted property settlement, but did not see fit to make an award of alimony to appellant, and that such was an abuse of discretion. Appellant claims that she had devoted her time during the marriage in caring for her home and family; that she never worked during this time outside her home and family; that...