Terry v. Terry

• Decision Date: 28 June 1974
• Docket Number: No. 472A169,472A169
• Citation: 313 N.E.2d 83,160 Ind.App. 653
• Parties: Anamaria TERRY, Appellant (Defendant Below), v. Stephen W. TERRY, Jr., Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 83

313 N.E.2d 83

160 Ind.App. 653

Anamaria TERRY, Appellant (Defendant Below), v. Stephen W. TERRY, Jr., Appellee (Plaintiff Below).

No. 472A169.

Court of Appeals of Indiana, First District.

June 28, 1974.

Rehearing Denied Aug. 12, 1974.

Charles W. Ardery, Jr., Payne, Ardery & Weiland, Indianapolis, for appellant.

Alvin E. Meyer, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Anamaria Terry (Anamaria) appeals from a judgment granting a divorce to plaintiff-appellee Stephen W. Terry, Jr., (Stephen).

Five issues are presented for review:

(1) Whether this appeal should be dismissed due to Anamaria's failure to file a timely brief.

(2) Whether the trial court abused its discretion by awarding an inadequate amount of alimony to Anamaria.

(3) Whether the trial court abused its discretion in denying Anamaria's motion to reopen the evidence.

(4) Whether the awarding of a divorce to Stephen rather than to Anamaria was contrary to the evidence and contrary to law.

(5) Whether Anamaria was denied a fair trial because her attorneys did not request continuances or subpoena certain witnesses.

On December 17, 1964, Stephen filed his petition for a divorce in Marion Superior Court. After the cause was venued to Hancock Circuit Court on Anamaria's motion, she filed a cross-complaint on October 9, 1970. Trial was held on various dates between March 25, 1971 and July 2, 1971. At the time set for final argument, Anamaria's newly employed counsel moved to reopen the evidence. The motion was overruled. On July 21, 1971, the trial court entered judgment, awarding a divorce to Stephen upon his complaint, denying Anamaria's cross-complaint, and awarding custody of the child of the parties to Anamaria. Stephen was ordered to pay $100 per week for child support and $200 per month for 10 years and one month to Anamaria, provided that she remain unmarried and retain custody of the child. The decree also awarded Anamaria alimony in the sum of $10,000 to be paid in two installments of $5,000 each in 1976 and 1981. The decree further included provisions for visitation of the child and provided that Stephen assume the child's medical expenses and the cost of her college education, together with other provisions for disposition of various items of both real and personal property.

ISSUE I.

Appellee contends that this court should dismiss this appeal because it lacks jurisdiction since appellant's brief was not timely filed.

Appellee argues that appellant originally filed her brief on the last day, May 10, 1973, which brief was rejected by this court because it grossly failed to comply with Ind. Rules of Procedure, Appellate Rule 8.3. However, on the basis of various affidavits by appellant this court extended her additional time within which to file another brief.

In the process of obtaining this extension of time appellant made various affidavits charging that she could not properly prepare her brief because appellee had stolen the transcript and had beaten her up within the preceding three weeks. Appellee contends that appellant's affidavits were false and her accusations absurd. He points out that on May 7, 1973, this court had refused to grant any further extension of the May 10 deadline. Notice of this ruling was received by appellant on May 8, 1973, and with only two days to file her brief, the 'lost' transcript suddenly reappeared. On May 9, one day before the brief was due, the transcript was back in the hands of her lawyer.

Although some of appellant's statements in this regard strain our credulity, this court nevertheless, in good faith, and on the basis of these statements granted the extension. We cannot at this time weigh the truth of the affidavits. The extension having been granted, we feel obligated to proceed to consider the questions raised in this appeal on their merits.

ISSUE II.

Anamaria makes numerous contentions that the trial court grossly abused its discretion in fixing the amount of alimony awarded. She argues that an award of $5,000 in approximately five years and another $5,000 five years later, with no payment in between, is a gross abuse of discretion considering the assets of the parties, their income and earning capacities, including her ill health and incapability of earning money and other relevant factors. She argues that the property awarded her was of little net value and actually was a financial burden upon her. She further contends that the husband had earned a high income, for instance $48,000 admittedly in 1970 and more probably $58,000, and that his income from the practice of law, as a partner in a large metropolitan law firm, would continue to increase. Appellant further asserts that the assets of her husband were substantially greater than indicated by his testimony at trial and that his bank deposits revealed excess money which was previously contributed by her and that he had hidden assets held in the names of his parents. She further contends that the payments of $200 per month conditioned upon her custody of the minor child, cannot be considered in computing alimony, because of the conditions attached.

A landmark case, Bahre v. Bahre (1962), 133 Ind.App. 567, 181 N.E.2d 639, enumerates five factors to be considered by our courts in computing the amount of alimony to be awarded a wife. Although the Bahre case can be distinguished from the case at hand, since in Bahre the wife was awarded the divorce, the principles set forth therein are nevertheless applicable. In Bahre the court said:

'It is a well-settled rule that the question of the amount of alimony to be decreed in any case is a matter of judicial discretion within the province of the trial court. This court will not interfere with the exercise of that discretion unless it is apparent that the discretion has been abused. * * *

'There are no hard and binding rules, nor is there any single test, which may be followed for the guidance of the court in its award of the sum which the husband shall pay to his wife whom he has injured by reason of the wrongs and grievances of which she had complained and which she has sustained by the evidence upon trial. * * * However, in determining the amount of alimony in a particular case, our courts have stated that certain factors must be investigated and considered. They are (1) the existing property rights of the parties, * * * (2) the amount of property owned and held by the husband and the source from which it came, * * * (3) the financial condition and income of the parties and the ability of the husband to earn money, * * * (4) whether or not the wife by her industry and economy has contributed to the accumulation of the husband's property, * * * (5) the separate estate of the wife, * * *.' (Citations omitted.)

The five factors in Bahre, supra, have been repeated many times in recent Indiana decisions. For example, see Plese v. Plese (1970), 146 Ind.App. 545, 257 N.E.2d 318; Northup v. Northup (1972), Ind.App., 290 N.E.2d 501; Miller v. Miller (1970), 146 Ind.App. 455, 256 N.E.2d 589; and Weiss v. Weiss (1974), Ind.App., 306 N.E.2d 120.

Other recent decisions have supplemented the body of law upon this subject. In Dunbar v. Dunbar (1969), 145 Ind.App. 479, 251 N.E.2d 468, it was held:

'The trial court has a duty to determine the property rights of the parties and its determination will not be disturbed on appeal in the absence of an abuse of discretion. This court is required to consider the evidence most favorable to the Appellee Dunbar and all reasonable inferences in his favor.' See also, Chaleff v. Chaleff (1969), 144 Ind.App. 438, 246 N.E.2d 768.

It is generally conceded that the weight of the evidence and the credibility of the witnesses is for the trial judge to determine. Caden v. Caden (1972), Ind.App., 283 N.E.2d 804; Woodcox v. Woodcox (1964), 136 Ind.App. 275, 200 N.E.2d 231.

Even if the circumstances would have justified a different conclusion than that reached by the trial court, this court is not warranted in substituting its judgment for that of the trial court. Buckner v. Buckner (1958), 128 Ind.App. 654, 152 N.E.2d 97; Boshonig v. Boshonig (1971), 148 Ind.App. 496, 267 N.E.2d 555.

Equally well settled is the proposition that the trial court's determination of alimony will not be disturbed on appeal unless there has been an abuse of discretion. Smith v. Smith (1960), 131 Ind.App. 38, 169 N.E.2d 130. In Miller v. Miller, supra, this court, quoting Judge Cooper in Grant v. Grant (1967), 141 Ind.App. 521, 230 N.E.2d 339, phrased it:

'. . . Therefore, the exercise of a trial court's discretion is not reviewable on appeal. It is only the abuse of the power of discretion which is reviewable on appeal and the presumption in favor of the correct action of the trial court is one of the strongest presumptions applicable to the consideration of a case on appeal.' See also, Shula v. Shula (1956), 235 Ind. 210, 132 N.E.2d 612.

The case at bar is typical in that conflicting evidence at trial has given rise to contradictory arguments based upon this evidence. Appellee emphasizes that in addition to the child support of $100 per week and the $200 per month payable to the wife for ten years and one month, the wife received other assets which far exceeded the value of the property retained by the husband. In his brief, appellee presents the following break-down:

In addition to the above, appellee contends that his wife, after separation, purchased a residence at 4321 Washington Boulevard in Indianapolis, paying $7,500 down which she apparently obtained from some source or other. The court awarded her the equity in this property in addition to the former residence of the parties located at 3228 Washington Boulevard. Appellee reminds us that she has also been awarded almost all of the household furnishings of the parties.

Appellee further points out that he has not received some of the property which the court...