Van Winkle v. Van Winkle

• Decision Date: 30 March 1954
• Docket Number: No. 18507,18507
• Citation: 118 N.E.2d 389,124 Ind.App. 626
• Parties: VAN WINKLE v. VAN WINKLE.
• Court: Indiana Appellate Court

Page 389

118 N.E.2d 389

124 Ind.App. 626

VAN WINKLE v. VAN WINKLE.

No. 18507.

Appellate Court of Indiana, In Banc.

March 30, 1954.

Frederick Crumpacker, Valparaiso, Crumpacker & Schroer, Owen W. Crumpacker, Hammond, for appellant.

James J. McGarvey, Valparaiso, for appellee.

ROYSE, Judge.

Appellee herein commenced this action for divorce in the Porter Circuit Court the 16th day of September, 1952. Her complaint averred the parties were married September 24, 1950 and separated on September 14, 1952. She charged appellant with cruel and inhuman treatment consisting of violent physical attacks; that she was in fear of her life. It was further averred the parties owned real estate as tenants by the entireties. She asked for $10,000 alimony and that her rights in the real estate be set off to her.

Appellant filed answer of denial under the rules and a cross-complaint which charged appellee with cruel and inhuman treatment and asked that he be adjudged the owner of the property. Issues were closed by the answer of appellee and reply of appellant.

On the day appellee filed her action the trial court enjoined appellant from entering or going upon the premises at No. 22 Franklin Street, or any premises contiguous thereto until the further order of the court. It enjoined him from injuring in any manner appellee, members of her family or her associates. It further enjoined him from withdrawing any funds, monies or assets of any kind which he may have in any bank or depository in the State of Indiana or in any United States Post Office, and from giving away, secreting or encumbering any assets of any kind including cash. There were further proceedings in reference to this restraining order which are not pertinent to the question before us.

The venue was changed to the Circuit Court of Starke County. This cause was tried in that court January 16 and 17, 1953. Judgment rendered January 20, 1953. This judgment granted appellee an absolute divorce and $4,000 alimony. It gave appellant title to the real estate and allowed appellee's attorney $1,000.

Thereafter on January 31, 1953 appellee filed her motion for a new trial containing fifteen specifications. On February 18, 1953 appellant filed his motion for a new trial on the ground of newly discovered evidence material to him which he could not, with reasonable diligence, have discovered and produced at the trial. This motion was supported by affidavit of appellant. On March 18, 1953 appellee moved to strike out appellant's motion for a new trial.

The affidavit of appellant in support of the motion for a new trial was amended on two occasions thereafter.

The original affidavit, after averring that with reasonable diligence he had no way of knowing nor could he have discovered or had cause to suspect that the following facts existed, then avers, in substance, that on December 8, 1952 in the Pulaski Circuit Court in cause No. 14097 entitled 'Wm. J. Morris, Plaintiff and Lyda Morris, Defendant', the judge of said court granted said Wm. J. Morris a divorce from Lyda Morris. That the said Lyda Morris named in that action was, is and at all times during the past two years has been the same and identical person as the plaintiff in this case, Lyda Van Winkle.

That in awarding the decree and final judgment of divorce in that case in the Pulaski Circuit Court the court found the parties thereto were husband and wife and had been married for 18 or 20 years prior thereto and remained continuously in the legal relation of husband and wife until December 8, 1952. That by reason of these facts this affiant and Lyda Morris or Lyda Van Winkle never were in fact married. That the purported marriage was a void and illegal marriage because at that time she was the wife and spouse of William Morris. That by reason of these facts the court has no jurisdiction to enter a decree of divorce between the parties hereto because they were never legally married.

On March 18, 1953 appellee filed her verified motion to strike out or deny appellant's motion for a new trial. It averred appellant's motion did not set out or in any way mention the newly discovered evidence, the affidavit accompanying the motion is insufficient, and the statute providing for new trials is not satisfied by this affidavit. (2) The motion and affidavit do not show due diligence, etc. (3) The allegations of appellant's motion are for the most part untrue and he had knowledge of each and all the circumstances referred to therein and for the following reasons:

'(A) Defendant had actual knowledge of plaintiff's leaving Indiana and going to Nevada and procuring a divorce there for defendant loaned her money to do so and visited her while she was a resident of Nevada.

'(B) That defendant well knew that plaintiff had received a divorce from William J. Morris in Nevada on September 1, 1949.

'(C) That defendant thereafter married this plaintiff on February 24, 1950, and thereafter lived with her as husband and wife.

'(D) That the Morris divorce case, in which a decree was granted in Winamac in December, 1952, was filed in Porter Circuit Court, February 25, 1952; that it was filed in Porter Circuit Court in the same court and during the same period in which and during which Porter Circuit Court Cause No. 14920 was pending between the plaintiff and defendant herein.

'(E) That said cause, No. 14920, being the third divorce case between these parties, was dismissed May 19, 1952, but for some weeks previous the parties had been living together as husband and wife and defendant well knew of the existence of the Morris case at that time.

'(F) That this defendant knew of the change of venue of said case to Jasper County and then to Pulaski County and actively counselled the plaintiff and assisted her in connection with that case in regard to the real estate effected thereby and that he did so up until the separation of these parties in the present case.

'(G) That in the meantime, October 27, 1951, the defendant had himself filed a divorce action, being No. 54437 in Las Vegas, Nevada, which was apparently abandoned.

'(H) That on or about May 16, 1952, this defendant, by appropriate deeds, again set up the real estate in Valparaiso under Tenants by the Entireties, all of which was after the filing of the Morris divorce case on February 25, 1952, and at a time when the defendant had full knowledge of the status, condition, proceedings and facts pertaining to all parties mentioned herein.'

The first amendment to appellant's affidavit made a duly certified copy of the final judgment and decree a part of the affidavit as Exhibit A thereto. (This will be set out in substance hereinafter.)

This amendment further avers the above judgment and decree is evidence newly discovered after the trial of this cause. That neither affiant or his attorney had any reason to suspect or believe any such judgment was in existence. That such evidence is material, is not cumulative, is not impeaching and constitutes a complete defense to appellee's action and would certainly change the result. That the clerk of the Pulaski Circuit Court will testify as to the truth and authenticity of said decree and judgment. That because affiant or his attorney had no knowledge of the judgment of December 8, 1952 in the Pulaski Circuit Court until February 16, 1953, which was only three days before his time to file a motion for a new trial in this case would expire, it was not possible for him to procure a certified copy of said judgment and to incorporate the same in the affidavit supporting his motion for a new trial. That this was done as soon as possible.

Appellee, on April 30, 1953, filed her affidavit in opposition to defendant's motion and affidavit which by reference incorporated the averments in her verified opposition to the original motion and affidavit. It then avers the Nevada divorce is in full force and effect and is entitled to full faith and credit in Indiana. That appellant has recognized the Nevada divorce both there and here.

That on October 27, 1951 appellant was a resident of Nevada and filed an action for divorce entitled 'Arthur J. Van Winkle v. Lyda M. Van Winkle' in the 8th Judicial District Court, Las Vegas, Clark County, Nevada, being cause No. 54437. That a copy of the summons in that case sworn to by appellant is by reference made a part of this affidavit. That his counsel in that proceedings was a Howard Cannon and a photostatic copy of a letter to said Cannon is made a part of this affidavit. That the matter referred to by appellant related to the Morris divorce action in Pulaski County.

That the Morris divorce action in Pulaski County was filed in the Porter Circuit Court February 25, 1952. That at that time there was an action for divorce pending between appellant and appellee. That nevertheless they were living together as husband and wife and that appellant had actual knowledge of the service of summons on appellee with whom he was then living. That a week after the filing of the Morris divorce action on March 5th appellant filed his verified motion to dismiss the action for divorce then pending on the grounds these parties had been living together since about January 1, 1952.

That on May 16, 1952 appellant perfected the conveyance by which these parties became owner as tenants by entireties of the property and he knew of the facts concerning these divorce actions. Appellee's affidavit then avers:

'That this plaintiff, at no time, attempted to keep secret the so-called Morris divorce case and the same was common knowledge in the Court House at Valparaiso and was of public record there in all its phases.

'That as plaintiff recalls the evidence, there was no mention made at the trial in Knox of the Winimac case but this was a mere coincidence or happenstance, but also for the further reason that there was no necessity of mentioning the case (or of not mentioning or secreting it) because this defendant knew all of such...