Welling v. Welling

• Citation: 257 Ind. 120,272 N.E.2d 598
• Decision Date: 03 September 1971
• Docket Number: No. 370S60,370S60
• Parties: Donald F. WELLING v. Norma A. WELLING.
• Court: Indiana Supreme Court

Page 598

272 N.E.2d 598

257 Ind. 120

Donald F. WELLING v. Norma A. WELLING.

No. 370S60.

Supreme Court of Indiana.

Sept. 3, 1971.

John W. Donaldson, Lebanon, Gary Beerbower, Roberts & Church, Noblesville, John H. Baldwin, Indianapolis, for appellant.

Chalmer Schlosser, Jr., Albert W. Ewbank, Indianapolis, for appellee; Christian Waltz, White ,& Klotz, Noblesville, of counsel.

HUNTER, Judge.

This is an appeal from an interlocutory order for the payment of money issued by the Hamilton Circuit Court. The jurisdiction of this court is based upon IC 1971, 33--3--2--7, (Ind.Ann.Stat. § 4--214 (1968 Repl.)).

Although there are several specifications of error, the principal arguments raised on appeal are:

1. That the order was contrary to law in that the Hamilton Circuit Court was without jurisdiction, or

2. if it had jurisdiction, that parts of the award the improper, or 3. if not improper, that parts of the award are of such an amount that is prejudicial and oppressive to the appellant.

Appellee has raised the question whether the right to appeal from an interlocutory order exists under our new Rules of Trial Procedure. We have heretofore recognized the right to appeal from an interlocutory order in Richards v. Crown Point Community School Corp. (1971), Ind., 269 N.E.2d 5.

The present action is the most recent in an almost uninterrupted chain of litigation between these parties which dates back to August 16, 1965. For the purposes of this appeal, the discussion will be limited to the action commencing on November 30, 1966, when appellant, Donald F. Welling, filed his third suit for divorce in the Marion Superior Court. That court issued a pendente lite order allowing appellee, Norma A. Welling, sixty dollars ($60) each week for temporary support and preliminary attorney fees of one hundred fifty dollars ($150). The cause was then venued, on appellee's motion, to the Boone Circuit Court.

The grounds alleged in the action were cruel and inhuman treatment in that appellee had accused him falsely of failing to provide for her, and had attempted to interfere with his employment by making appellant's employer a party defendant to a non-support action filed by her on October 26, 1966. On August 1, 1967, the Boone Circuit Court entered a judgment for appellant, granting him a divoce. Appellee was awarded the house and alimony in the sum of fifteen dollars ($15) each week for two years. The court further ordered appellant to pay an additional six hundred dollars ($600) for appellee's attorney expenses incurred during the trial. Appellee's motion for new trial was overruled, and she appealed.

On March 5, 1969, the Appellate Court reversed due to the insufficiency of the evidence. See, Welling v. Welling (1969), Ind.App., 245 N.E.2d 173, cert. den. 396 U.S. 929, 90 S.Ct. 266, 24 L.Ed.2d 227. Subsequently, on June 5, 1969, this court denied transfer. The Appellate Court's decision was then certified to the Boone County Clerk. On July 2, 1969, appellee filed a cross-complaint for separation from bed and board in the Boone Circuit Court. She also filed a motion for change of venue. On July 8, 1969, appellant filed an answer in abatement and notice of an appeal to the Supreme Court of the United States for certiorari to review the decision of the Appellate Court. Thereafter, on August 21, 1969, the Boone Circuit Court sustained appellee's motion to strike appellant's answer in abatement. Appellant then filed his petition for certiorari in the Supreme Court of the United States which was eventually denied on November 17, 1969.

On August 29, 1969, the cause was venued to the Hamilton Circuit Court. The cause was stayed pending the outcome of the petition for certiorari. From what appears to have been an error in docketing, the litigation resumed in the Hamilton Superior Court. It was subsequently transferred to the Hamilton Circuit Court on December 30, 1969. Appellant then filed a motion to dismiss the cross-complaint, contending that the divorce action terminated on March 5, 1969, with the decision of the Appellate Court. He argued that it was impossible for the cross-complaint to exist as such because there was no action pending before the Boone Circuit Court when the cross-complaint was filed. This motion was overruled.

On January 14, 1970, the appellee filed a verified motion for rule to show cause why appellant had not complied with the Marion Superior Court pendente lite order requiring him to pay sixty dollars ($60) each week for temporary support. Appellee also filed a petition for support and attorney fees to recover support and attorney expenses incurred during the previous trial and appeal, and a temporary allowance for the matter now pending before the trial court. This matter was heard on January 30, 1970, and on February 13, 1970, the interlocutory order was issued from which appellant has appealed.

Appellant was ordered to pay the following:

1. Two thousand six hundred fifty-five dollars ($2,655), said sum representing the amount delinquent and owing pursuant to the Marion Superior Court pendente lite order for temporary support;

2. Three thousand eight hundred fifty dollars ($3,850) for attorney expenses incurred in the Boone Circuit Court trial and the subsequent appeals therefrom;

3. Three thousand five hundred ninety-seven dollars ($3,597), said amount representing the necessary living expenses incurred by appellee pendente lite;

4. Five hundred dollars ($500) for a preliminary allowance for attorney fees in the cause now pending in the Hamilton Circuit Court;

5. Thirty dollars ($30) payment each week to appellee for temporary support pending the termination of the Present litigation.

Before deciding the issues raised by this appeal, we must first consider appellee's motion to dismiss or affirm which she has filed with this court. Appellee contends that the orders made with regard to past support and attorney expenses incurred during the previous trial and appeal are final judgments, and therefore, are not appealable as interlocutory orders. Appellee also claims that appellant's bill of exceptions is not in the record since it is not properly authenticated by the clerk.

We will dispose of this latter contention first. Appellee's claim is grounded upon the fact that the clerk's certificate was signed nine days before the bill of exceptions containing the evidence was filed. To support her contention, appellee relies on Finding v. Findling (1963), 134 Ind.App. 661, 186 N.E.2d 892. However, in that case there was no evidence that the bill of exceptions was ever filed with the clerk. There was no file mark nor date affixed to any of the certificates. In the present case, the judge's certificate to the bill of exceptions was signed February 23, 1970; the clerk's certificate to the transcript was signed March 4, 1970. Both certificates bear the file mark of March 13, 1970. The file mark contains the date, signature and title of the Hamilton Circuit Court Clerk. This court believes that the above certifications sufficiently incorporate, identify and authenticate appellant's bill of exceptions, and therefore it will properly be considered as part of the record.

A more difficult question is presented by appellee's assertion that the orders relating to past support and attorney fees are final orders. If they are final, they are not appealable directly to this court, nor may an appeal be taken therefrom in the absence of a motion for new trial having been filed. Appellee relies on Bahre v. Bahre (1964), 245 Ind. 522, 198 N.E.2d 751.

Bahre v. Bahre, supra, dealt with three orders which resulted from petitions filed at the outset of a new trial which had been ordered by the Appellate Court. The Appellate Court had affirmed a decree of divorce, but had reversed that part of the judgment relating to alimony and support payments with instructions to grant a new trial on those issues alone.

One of the orders in dispute required payment of expenses, suit money and attorney fees for post trial procedures and appellate review. The appellant in that case, believing the order to be interlocutory, took an appeal directly to this court. In sustaining appellee's motion to dismiss, this court held that the order was a final judgment for a fixed sum following a decree of divorce.

We concede that the question presented in the instant case is very similar to the one we decided in Bahre v. Bahre, supra. One distinction exists, however, and this distinction is critical. In Bahre v. Bahre, supra, the order followed a final decree of divorce, while in the present case no divorce has been granted. In Cirtin v. Cirtin (1928), 199 Ind. 737, 739, 164 N.E. 493, 494, we stated:

'An interlocutory judgment, order, or decree is one made before the final hearing on the merits. 2 Watson's Rev. of Works' Practice § 2244; 1 Hogate, Pleading and Practice § 739; 1 Freeman on Judgments (5th Ed.) § 38. An order of the court, made in the progress of the cause, requiring something to be done or observed, but, not determining the controversy, is an interlocutory order, and is sometimes called an interlocutory judgment. Pfeiffer v. Crane (1882) 89 Ind. 485, 487; Western Union Tel. Co. v. Locke (1886) 107 Ind. 9, 11, 7 N.E. 579.'

Cirtin v. Cirtin, supra, has been cited with approval in Bahar v. Tadros (1954), 234 Ind. 302, 123 N.E.2d 189; Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243; and, significantly, Bahre v. Bahre, supra.

Since no final judgment has been rendered in the present controversy, we find that the order appealed from is interlocutory, and is properly before this court. Appellee's motion to dismiss must be denied.

Appellant contends that the divorce action terminated with the March 5, 1969, reversal by the Appellate Court. Therefore, he argues, appellee's cross-complaint should not have been permitted as no action was pending in the Boone Circuit Court.

The conclusion of the Appellate Court's opinion is found...