Tomchany v. Tomchany, No. 19600

• Docket Nº: No. 1
• Citation: 134 Ind.App. 27, 185 N.E.2d 301
• Case Date: October 04, 1962
• Court: Court of Appeals of Indiana

Page 301

185 N.E.2d 301 134 Ind.App. 27 Eleanor TOMCHANY, Appellant,
v.
Rudolph J. TOMCHANY, Appellee. No. 19600. Appellate Court of Indiana, Division No. 1. Oct. 4, 1962.

[134 Ind.App. 28] Frank Ryan, Danville, Albert Ewbank, Indianapolis, for appellant.

Scifres & Hollingsworth, Lebanon, for appellee.

COOPER, Presiding Justice.

This matter comes to us from the Boone Circuit Court wherein the trial court granted the appellant herein a divorce upon her amended complaint; also, awarded her certain personal property, alimony and attorneys' fees. As part of the judgment, the trial court also ordered the appellant to convey to the appellee all other jointly-held property, both real and personal, in settling the property rights of the parties.

Thereafter, within the time allowed, the appellant filed the usual motion for a new trial, said motion, omitting the formal caption, reads as follows:

'1. That the decision of the Court is not sustained by sufficient evidence.

'2. That the decision of the Court is contrary to law.

Page 302

'3. That the plaintiff in this cause was entitled to recover alimony, and did so recover, but was awarded substantially less recovery than the facts in evidence, than she was entitled to.

'4. That the Court erred in admitting evidence over the objection of the plaintiff; the evidence by Howard Simmons, who testified as to the value of Lucky's Trailer Court, owned by the parties hereto.'

[134 Ind.App. 29] The error assigned is the overruling of the motion for new trial.

Under the motion for new trial and the assigned error, we believe the appellant has presented three questions for our determination, namely; Did the trial court abuse his discretion in permitting the witness, Howard Simmons, to testify as to his opinion as to the value of the 'trailer court' owned by the parties; also, did the trial court err in adjusting the property rights of the parties without identifying the property specifically, and did the trial court abuse his discretion in determining the particular amount of alimony he awarded to the appellant herein?

A review of the record reveals a concise recital of the partial, pertinent evidence of the said Howard Simmons is: Lives on West Tenth Street in Hendricks County and operates Broad Acres Mobile Home Park. Has had experience in dealing and fixing up such parks since 1946. Has been connected with State Board of Health as chairman of advisory board on mobile home mapping. Tomchany court is one mile south and mile west of his court, and is called Lucky Courts. When Tomchany was on vacation a little over a year ago had occasion to do some work in his park and became familiar with set up and operation. The railroad tracks are at rear, and they have built large switch yard costing 17 million where all cars are switched, and this is at rear of property at south end. The Board of Health regulations are stringent and in order to get license to operate park, regulations must be met, and they will give six months time to qualify and beyond limit they will refuse license and halt operations and one of things noticed about Tomchany court was sewage handling problem which because of terrain it is going to present[134 Ind.App. 30] serious problem because water must go into some stream and there is none in that area. He has no sewage plant, and there must be a sewage plant, a water carrying type. It won't be a matter of development it will be a matter of continuing operation, and he must be equipped to handle sewage. There are...