Thompson v. Thompson

Decision Date29 August 1972
Docket Number471S92,Nos. 271S41,s. 271S41
Citation259 Ind. 266,286 N.E.2d 657
PartiesCatherine THOMPSON, Appellant, v. Field THOMPSON, Appellee. Obelia SMITH, Appellant, v. Clifford D. SMITH, Appellee.
CourtIndiana Supreme Court

David F. Shadel, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., amicus curiae.

Gary R. Landau, William L. Soards, Bowen, Myers, Northam & Soards, Indianapolis, for City of Indianapolis.

DeBRULER, Justice.

These two appeals raise identical questions about the right of indigent persons to get divorces in the courts of this State on the basis of notice to the defendant by publication, when they are unable to pay the cost of serving summons by publication. There are no issues of fact involved. In each case the appellant sought to commence an action for divorce in the trial court and presented a petition to the trial judge requesting an order of court permitting appellant to prosecute her divorce action as a 'poor person' under IC 1971, 34--1--1--3, being Burns § 2--211, and also requesting a waiver of filing fees including the cost of publishing summons pursuant to IC 1971, 33--1--9--2, being Burns § 49--1305b. In each case the trial court determined that appellant was in fact unable to pay court costs and therefore entitled to proceed with her divorce action in Forma pauperis, and further determined that the $25.00 advance filing fee be waived, however, in each case the trial court refused to waive a trial court requirement that $21.00 be paid to the clerk upon filing the complaint to secure the cost of effecting service of summons by publication. The trial judges were of the opinion that they had no jurisdiction or authority to waive costs of publication. The result of the refusal to waive prepayment of the cost of publication was to prevent appellants from commencing their actions and litigating their claims for divorce. From these orders appellants have appealed.

Because of the public importance of the issues raised in these appeals, this Court on its own motion ordered that the City of Indianapolis be made a party appellee to the cases and it was complied by filing a motion to dismiss and brief on the merits. Also in our order, we invited the Indiana Attorney General to file a brief as Amicus Curiae. The Attorney General has responded with a brief on the merits, resisting this appeal.

Appellee and amicus curiae contend in their briefs and in the motions to dismiss the appeals, that the orders of the trial courts determining that appellants were unable to pay court costs but refusing to waive costs of publishing summonses are not 'final judgments' or 'interlocutory orders' from which appeals may be taken pursuant to Rule AP(4). They also argue that if appellants have any remedy at all it is by way of an original action in this Court for extraordinary writ and not by way of appeal. In the Smith case before us, appellant filed a timely motion to correct errors directed to the order refusing to waive costs of publishing summons. In the Thompson case, appellant did not file a motion to correct errors, but followed instead the procedure for appeal from an appealable interlocutory order. We hold that these orders, sought to be reviewed in these cases are final judgments for the purposes of appeal and Rule AP(4), and thus the procedure followed in the Thompson case was technically correct, and the procedure followed in the Smith case was technically incorrect.

As a general rule, a final judgment which is appealable is one which disposes of all of the issues as to all of the parties and puts an end to the particular case. State ex rel. Neal, et al. v. Hamilton Circuit Court (1966), 248 Ind. 130, 224 N.E.2d 55; Von Behren v. Von Behren (1969), 252 Ind. 542, 251 N.E.2d 35; Richards v. Crown Point Community School Corp. (1971), Ind., 269 N.E.2d 5. A final judgment reserves no further question or direction for future determination. Seaney v. Ayres (1958), 238 Ind. 493, 151 N.E.2d 95. The purpose of the final judgment rule is to prevent delay in the trial of lawsuits which would result from limitless intermediate appeals. Lake County Trust Co. v. Indiana Port Commission (1967), 248 Ind. 362, 229 N.E.2d 457; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 82 N.E. 461. In the cases now pending before us, the entire body of issues presented to the trial courts are contained in appellants' petitions. Those issues are whether appellants should be permitted to commence their suits for divorce as poor persons and whether they were entitled to have the costs of publishing summonses waived. Hearings were held on all of these issues, and judgments were rendered which decided all of these issues. No further trial court action was contemplated in the judgments or governing statutes. After these judgments were rendered there was nothing left pending in the trial courts. These cases were at an end following the entry of these judgments. There judgments were not only final, in the sense that they disposed of all the issues pending before the trial courts, but by their express terms they were final in the real and practical sense that they constituted an absolute obstacle to appellants' commencement of their suits. Viewed in this practical sense, our determination that these are final and appealable judgments does not offend our general policy against permitting piecemeal appeals of lawsuits.

In light of our determination that these are final appealable judgments, we reject appellee's contention that the appeals from them should be dismissed because appellants chose not to seek a remedy from them by way of an original action for writ of mandate. An original action before this Court for extraordinary writ does not lie where the remedy at law by way of appeal is adequate. Original Action Rule, Indiana Rules of Court, p. 229.

The motion to dismiss in the Smith case is denied. Although the motion to dismiss in the Thompson case is technically correct, it is also denied in light of our remand order to the trial court to resubmit and rehear the petitions thereby making dismissal of the Thompson appeal and treatment on its merits identical in practical result. A dismissal in the Thompson case would merely have the practical effect or requiring the appellant Thompson to refile her petition with the trial court.

Appellant, Catherine Thompson, was married in 1954 ahd separated in 1965. At the time of filing her motion for waiver of all costs, she was an unemployed dietetic worker, living in public housing with two minor children born of the marriage, and as her sole income was $150.00 per month paid to her by the Marion County Department of Public Welfare. She owned no property of appreciable value and did not know the whereabouts of her husband.

Appellant, Obelia Smith, was caring for her six children at the time she filed her petition for waiver of all court costs, was unemployed, owned no property of appreciable value, and as her sole income was $225.00 per month from the Marion County Department of Public Welfare. She had not heard from her husband for eight months and had unsuccessfully tried to locate him through his relatives.

It is the claim of appellants on appeal that the trial court committed error in refusing to order the costs of publication waived. It is their contention that the trial court should have made this order upon determining that appellants were indigent and unable to pay court costs and further that the authority to make such an order is vested in the courts by statute, Burns §§ 2--211 and 49--1305b, supra, by the due process and equal protection clauses of the Fourteenth Amendment, and by the common law of Indiana.

As part of the insight into this case it is necessary to note that the divorce statute affords the legal right to obtain a divorce. This statute commences with the following familiar language:

'Divorces may be decreed upon the application of the injured party for the following causes, and no other. . . .' IC 1971, 31--1--12--3, being Burns § 3--1201.

In addition, the divorce statute grants the right to a divorce upon the basis of notice to the defendant by publication in the following terms:

'If it shall appear by affidavit of plaintiff that the defendant is not a resident of this state, or the residence of the defendant, upon diligent inquiry, is unknown to plaintiff, which shall be stated in such affidavit, the clerk shall give notice of the pendency of such petition, by publication in a newspaper of general circulation in the county for three (3) successive times, one (1) week apart, as provided by law; and in case such affidavit states the residence of the defendant, the clerk shall forward, by mail, to such defendant the number of the newspaper containing such notice, with the notice marked.' IC 1971, 31--1--12--7, being Burns § 3--1206.

A divorce by publication is contingent in nature in that the party obtaining such a divorce may not remarry for two years. IC 1971, 31--1--12--1, being Burns § 3--1224. These statutory provisions are a clear statement of the decision of our Legislature to afford married persons who otherwise meet the substantive requirements of the statute the legal right to institute and maintain divorce actions and to obtain divorce decrees based solely upon notice to the defendant by publication. Both appellants as part of their sworn statements to the trial courts requesting the waiver of publication costs, stated that they did not know the whereabouts or residence of their husbands. Both had made repeated attempts through various sources, including contacts with relatives, to locate their husbands without success. Both appellants were seeking the remedy of divorce by publication notice granted by our statute.

We now turn to appellants' first claim that the trial courts here were authorized by Burns § 49--1305b, supra, to make the order waiving the costs of publishing summonses, requested of...

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