Strawser v. Strawser
Decision Date | 14 July 1977 |
Docket Number | No. 1-277A19,1-277A19 |
Citation | 364 N.E.2d 791,173 Ind.App. 565 |
Parties | Jackie Ray STRAWSER, Appellant (Defendant below), v. Mary D. STRAWSER, Appellee (Plaintiff below). |
Court | Indiana Appellate Court |
James R. Earnshaw, of Harding & Henthorn, Crawfordsville, for appellant.
Don C. Schmidt, Crawfordsville, for appellee.
Jackie Ray Strawser, defendant-appellant, brings this appeal following entry of judgment in favor of Mary D. Strawser, plaintiff-appellee.
The facts most favorable to the judgment indicate that Jackie and Mary were married in 1950. During the next nine years three sons were born to the couple. In 1959, Mary took the three children and moved to Florida. This was done without the consent or prior knowledge of Jackie and he subsequently learned their location.
Approximately two years later Jackie plead guilty to a theft charge and was placed on probation. As a condition of the probation he was required to pay $42 bi-weekly to the clerk of the court for support of his children. At the completion of his six months probation Jackie ceased payment of the support.
In 1966, Jackie filed suit against Mary seeking an absolute divorce. Service was made by publication even though he had knowledge of her whereabouts in Florida. The divorce was granted and no provisions were made for custody or support of the children. All three sons were emancipated in 1973.
In January 1976, Mary filed suit seeking $13,649 reimbursement for funds she had expended upon the children prior to their emancipation. Following a trial to the court, findings of fact and conclusions of law were rendered and judgment was entered in the requested amount.
Upon the above facts, Jackie presents the following issues for our review:
(1) Is the action barred by laches, the statute of limitations, or the statute of frauds?
(2) Is the judgment supported by sufficient evidence?
Appellant initially argues in the alternative that either the equitable doctrine of laches, or the statute of limitations must act as a bar to Mary's action. As a threshold issue, it must be determined whether the nature of her suit lies in law or in equity.
It is the settled law in Indiana that arrearages in support must be taken to a second judgment as they are considered to be a debt. Owens v. Owens (1976), Ind.App., 354 N.E.2d 350; Corbridge v. Corbridge (1952), 230 Ind. 201, 102 N.E.2d 764. While it is true that there was no support decree in the case at bar the nature of the sum requested is in effect an allegation of a debt.
Since the nature of the action is a debt, the suit must be characterized as one at law. Grace v. Quigg (1971), 150 Ind.App. 371, 276 N.E.2d 594; White v. White (1913), 169 Mo.App. 40, 154 S.W. 872. In an action at law, the statute of limitations would be the appropriate bar to Mary's action should she have been found to have failed to initiate an action for too great a period of time.
We must next determine the proper statute of limitations which is applicable to the case at bar. The sums which allegedly are due are in the nature of debt as they are to reimburse Mary for the funds which she expended in support of the three sons. Mary is alleging that she has a right to reimbursement. If this right does exist it is a chose in action. Merritt v. Economy Department Store (1955), 125 Ind.App. 560, 128 N.E.2d 279; In re Plasterer's Estate (1956) 49 WAsh.2d 339, 301 P.2d 539; McGee v. Stokes' Heirs at Law (1956), N.D., 76 N.W.2d 145.
Since the right to the debt is a chose in action it is also a property right. Choses in action are properly characterized as personalty. Merritt, supra; McGee, supra; O'Grady v. Potts (1964), 193 Kan. 644, 396 P.2d 285; City of Holland v. Township of Fillmore (1961), 363 Mich. 38, 108 N.W.2d 840.
The appropriate statute of limitations for suits involving personalty is IC 1971, 34-1-2-2 (Burns Code Ed.) which reads in pertinent part:
This court faced a somewhat analogous situation in Merritt, supra. In that...
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Neffle v. Neffle
...v. McNevin (1983) 2d Dist.Ind.App., 447 N.E.2d 611. It is a property right characterized as personalty. Strawser v. Strawser (1977) 1st Dist., 173 Ind.App. 565, 364 N.E.2d 791. The term in its broadest sense encompasses all rights of action whether they sound in contract or tort. Although o......
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...support arrearages which have not been reduced to a lump-sum judgment. The trial court stated in its judgment that Strawser v. Strawser, (1977) Ind.App., 364 N.E.2d 791, "set the statute of limitations for the collection of back support debts at two years after the accrual of said debt." In......
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...payments. Kuhn, at 72, 402 N.E.2d at 992. More importantly to us, however, the court explicitly distinguished Strawser v. Strawser (1977), 173 Ind.App. 565, 364 N.E.2d 791. In Strawser, the trial court entered a divorce decree in 1966 but did not order the father to pay child support. The m......