Temme v. Temme

• Decision Date: 16 June 1937
• Docket Number: 15568.
• Parties: TEMME v. TEMME.
• Court: Indiana Appellate Court

9 N.E.2d 111

103 Ind.App. 569

TEMME v. TEMME.

No. 15568.

Appellate Court of Indiana, in Banc.

June 16, 1937

Benj. F. Zieg, of Evansville, for appellant.

Edgar D. Durre, of Evansville, for appellee.

WOOD Judge.

The appellant filed a second amended complaint against the appellee in which he sought a decree awarding an absolute divorce from appellee, alleging as cause therefor cruel and inhuman treatment. The record does not show that any answer was filed to this complaint. The appellee filed a cross-complaint against appellant in which she sought a decree awarding her an absolute divorce from appellant with alimony, alleging as cause therefor cruel and inhuman treatment. The record does not show that any answer was filed to this cross-complaint. As the record comes to us, this court will treat the case as though the allegations of the complaint and cross-complaint had been controverted by answer.

Parscouta v. State ex rel. Bakajsa (1905) 165 Ind. 484, 75 N.E 970.

The cause was submitted to the court for trial on the complaint and cross-complaint. Upon such hearing the court made a general finding on which it rendered judgment in words and figures as follows:

"It is therefore ordered, adjudged and decreed by the court that the plaintiff, Arthur Temme, recover nothing of and from the defendant, Helen Temme, on his amended cross-complaint (complaint); to which action of the court the plaintiff at the time excepts; that the bonds of matrimony now existing between the plaintiff and cross-complainant, be and hereby are dissolved, and that the cross-complainant Helen Temme, be and hereby is granted an absolute divorce of and from the plaintiff, Arthur Temme; to which action of the court the plaintiff at the time excepts; that the cross-complainant, Helen Temme, be and hereby is awarded judgment against the plaintiff, Arthur Temme, in the sum of Fifteen Hundred Dollars ($1,500.00) as and for alimony in this cause; that said sum of Fifteen Hundred Dollars ($1,500.00) so decreed, may be paid in installments of Twenty-five ($25.00) each month beginning on the 15th day of July, 1935, until said judgment is fully paid; and said monthly payments to be paid to the Clerk of this court for the use and benefit of said defendant; to which action of the court the plaintiff at the time excepts.

"It is further ordered, adjudged and decreed by the court that a failure to pay any two installments of said alimony as it becomes due, then, in that event, the balance of said judgment so remaining unpaid shall be and become due as of the date of said default.

"It is further ordered, adjudged and decreed by the court that the personal household goods and effects now stored in the Geiger warehouse, in the City of Evansville by order of this court, shall be delivered to the cross-complainant, Helen Temme, and absolute title thereto vested in her; to which action of the court the plaintiff at the time excepts.

"It is further ordered, adjudged and decreed that the carpets, curtains and draperies now situate in the dwelling at 911 East Sycamore Street in the City of Evansville, shall be delivered to the plaintiff, Arthur Temme, the title to the same to vest in said Arthur Temme, absolutely.

"It is further ordered, adjudged and decreed by the court that the cross-complainant, Helen Temme, recover of and from the plaintiff herein, the further sum of Fifty Dollars ($50.00) as and for additional attorney's fees for her counsel, Edgar Durre, said Fifty Dollars ($50.00) to be paid by the plaintiff in installments of Twenty-five Dollars ($25.00) on the 15th day of September, 1935, and Twenty-five Dollars ($25.00) on the 15th day of October, 1935; to which action of the court the plaintiff at the time excepts.

"It is further ordered, adjudged and decreed by the court that the cross-complainant, Helen Temme, be and hereby is restored to her maiden name of Helen Schnarr.

"It is further ordered, adjudged and decreed that the plaintiff, Arthur Temme, pay the costs of this action."

The appellant filed a separate motion to modify the judgment as to the amount of alimony awarded appellee. The appellant also filed a separate motion to modify the judgment, ordering certain household furniture, goods, and chattels delivered to appellee and vesting absolute title therein in her. The appellant also filed a separate motion to modify the judgment ordering him to pay additional attorney's fees to appellee. Each of these motions was overruled. Within due time the appellant filed a motion for a new trial. This motion was overruled and appellant appeals, properly assigning and discussing in his brief as errors for reversal the action of the trial court in overruling each of the motions to modify the judgment and the overruling of his motion for a new trial.

The parties to this action were married November 6, 1932, and separated March 14, 1935. As the fruits of this marriage one child was born to them which died in infancy. The evidence contains charges and counter charges of acts and conduct upon behalf of each of them tending to sustain the allegations in both the complaint and cross-complaint of cruel and inhuman treatment. It clearly shows beyond any question of doubt that during the short period of time, to wit, two years five months and eight days, in which they lived together as husband and wife, their marital relations were continuously tempestuous and unhappy; that as to them marriage was a failure; that this status was not the result of the unilateral conduct of one of the parties, but was the aftermath of the compound of the conduct of both of them. Hence, no complaint is made of that portion of the judgment awarding the appellee an absolute divorce on her cross-complaint, but is confined exclusively to that portion thereof awarding appellee alimony in the sum of $1,500, adjusting property rights and allowing additional attorney's fees in the sum of $50. We will discuss these questions in their inverse order.

The rule is well established by the authorities that in a divorce proceeding the trial court has broad...