Wallace v. Wallace, 18354

• Decision Date: 20 February 1953
• Docket Number: No. 18354,18354
• Citation: 123 Ind.App. 454,110 N.E.2d 514
• Parties: WALLACE v. WALLACE.
• Court: Indiana Appellate Court

Page 514

110 N.E.2d 514

123 Ind.App. 454

WALLACE v. WALLACE.

No. 18354.

Appellate Court of Indiana, in Banc.

Feb. 20, 1953.

Rehearing Denied March 23, 1953.

Walter Nowicki, Edward J. Raskosky and George Kohl, Hammond, for appellant.

Wagner & Malo, Hammond, for appellee.

ROYSE, Chief Judge.

Appellee brought this action for divorce against appellant on the grounds of cruel and inhuman treatment. In his complaint he asked that the respective property rights of the parties be settled. Appellant filed her answer of admission and denial under the rules. She also filed her cross-complaint for divorce on the grounds of cruel and inhuman treatment and asking for $10,000 alimony.

The trial court, at the conclusion of all the evidence, found for the appellee on his complaint and against appellant on her cross-complaint. As to the property rights of the parties the court made the following findings:

'The Court further finds in settlement of the respective property rights of the petitioner and defendant that the petitioner is entitled to the real estate commonly known as 821 Merrill Street, Hammond, Indiana, now owned by the petitioner and defendant as tenants by the entireties and more fully described as follows: (Here described); the Court further finds that the petitioner is entitled to all household furniture and effects of the parties now located at 821 Merrill Street, Hammond, Indiana; the Court further finds that petitioner is entitled to the automobile described as a 1950 Tudor Ford Sedan.

'The Court now finds that the defendant is entitled to One Thousand ($1,000.00) Dollars as and for alimony and in settlement of all property rights.' (Our emphasis.)

Judgment in accord with the findings. The error assigned here is the overruling of appellant's motion for a new trial. The specifications of that motion are that the decision is not sustained by sufficient evidence and is contrary to law.

In her brief appellant states:

'The only part of the Court's finding and judgment which appellant is challenging in this Court is that part which relates to the finding and order that the appellant convey her interest in the entireties property to the appellee.

'The appellant concedes that the One Thousand ($1,000.00) Dollars alimony judgment is a fair and equitable adjustment of the personal property owned by the appellee and appellant, whereby appellant was awarded One Thousand ($1,000.00) Dollars alimony, and the appellee was awarded all of the personal property in the way of furniture, household effects and appliances, and 1950 Tudor Ford Sedan automobile as his sole and separate property.'

In support of her contention appellant in her brief says:

'Although there was evidence of cruel and inhuman treatment and adultery on the part of appellant, there is a total lack of evidence of any fraudulent or inequitable conduct by appellant.'

Therefore, she asserts that in the absence of an allegation of fraud and evidence thereof the trial court was without authority to order appellant to convey her interests in the entirety property. She asserts the effect of this portion of the court's judgment is to give the husband alimony, and in the absence of statutory authority alimony may not be allowed the husband. For the reasons hereinafter stated we cannot agree with these contentions.

The parties agree that an estate by entireties becomes an estate in common upon a decree of divorce if no order is otherwise made adjudicating such property rights.

Appellee contends that the court has the power to deal with all the property of the parties; that the court can take into consideration separate property of either spouse in considering whether or not alimony should be awarded and if so the amount of the alimony; and where property is owned by the husband and wife together the court can adjudicate the ownership of that property.

In considering the question before us, it is well to keep in mind the unique features of title by the entireties. In the case of Sharpe v. Baker, 1912, 51 Ind.App. 547, 553, 96 N.E. 627, 629, 99 N.E. 44 (transfer denied), this court, in a well-reasoned opinion, after a thorough review of the cases on this subject, said:

'By reason of the common law fiction heretofore mentioned, the husband and wife, being one person in law, were each incapable of holding any separate interest in an estate so acquired. They could not take by moieties, they were each seized of the whole, and neither was seized of any divisible part, and so, as a consequence of the unity of their persons, they were said to hold such estate per my et non per tout. 2 Blackstone's Comm.

Page 182

The right of the survivor to take the whole estate is common, both to estates in joint tenancy and estates by entireties; but the right by which the survivor holds in each is not the same. If a joint tenant dies during the existence of the joint tenancy, his moiety goes to the survivor by the jus accrescendi, or right of survivorship; but when a tenant by entirety dies, the survivor holds the entire estate, not by virtue of any right which he acquires as survivor, but by virtue of the original grant or devise. On the vesting of an estate by entireties, both tenants, by reason of the unity of their person by marriage, become seized of the whole estate, and neither is seized of any divisible part thereof; and therefore on the death of one, the survivor, being already seized of the whole, can acquire no new or additional interest by virtue of his survivorship.'

In other words, entirety property is held by the entity created by marriage. It is not the separate property of either.

It is well established in this state that a court having jurisdiction has the right and duty to settle and determine the property rights of the parties. As a general rule all such questions, unless excepted therefrom, are settled by the decree and the parties are precluded thereby unless it is set aside in a proper proceeding. Walker v. Walker, 1898, 150 Ind. 317, 325, 50 N.E. 68; Murray v. Murray, 1899, 153 Ind. 14, 53 N.E. 946; Wagner v. Treesh, 1919, 71 Ind.App. 551, 554, 125 N.E. 242; Radabaugh v. Radabaugh, 1941, 109 Ind.App. 350, 35 N.E.2d 114; Kuhn v. Kuhn, 1947, 117 Ind.App. 463, 73 N.E.2d 359; Davis v. Davis, 1951, 229 Ind. 414, 99 N.E.2d 77.

In the case of McHie v. McHie, 1939, 106 Ind.App. 152, 177, 16 N.E.2d 987, 998 (transfer denied), this court said:

'The rule is well established by the authorities in this state that in a divorce proceeding, the trial court under our statutes has broad powers in adjusting the property rights of the parties, and that its action in such matters will not be disturbed on appeal, unless it is apparent that there has been an abuse of discretion.'

Appellee also contends authority for the decree of the trial court in reference to the property involved in this action is found in § 3-1218, Burns' 1946 Replacement (1951 Supp....