Wilson v. Wilson, No. 1--276A18

• Docket Nº: No. 1--276A18
• Citation: 169 Ind.App. 530, 349 N.E.2d 277
• Case Date: June 24, 1976
• Court: Court of Appeals of Indiana

Page 277

349 N.E.2d 277 169 Ind.App. 530 Elizabeth L. WILSON, Appellant (Plaintiff below),
v.
Donald G. WILSON, Appellee (Defendant below). No. 1--276A18. Court of Appeals of Indiana, First District. June 24, 1976.

Page 278

Melville E. Watson, Greenfield, C. Wendell Martin, Bredell, Martin & McTurnan, Indianapolis, for appellant.

Lineback & Lewis, Greenfield, William A. Freihofer, Freihofer & Schmidt, Indianapolis, for appellee.

[169 Ind.App. 531] LOWDERMILK, Judge.

STATEMENT OF THE CASE:

This case is an appeal from the Hancock Superior Court which granted the appellant Elizabeth L. Wilson (Elizabeth) her petition seeking to have her marriage with her husband Donald G. Wilson (Donald) dissolved.

We affirm.

FACTS:

The facts necessary for our disposition of this appeal are as follows: On June 15, 1970, Elizabeth filed a petition seeking temporary support and attorney fees in her action for Separation from Bed and Board against Donald. This petition was granted on or about July 10, 1970, the court awarding Elizabeth $1,000.00 as preliminary attorney fees. (By trial Elizabeth had filed a second paragraph of complaint for absolute divorce on which the decree hereinafter set forth was made.)

The pertinent portions of the decree were as follows:

'Decree for Divorce

Come now Plaintiff, Elizabeth L. Wilson, in person and by her attorneys, C. Wendell Martin and Melville E. Watson . . .

The court, having heard evidence and being otherwise duly advised, now finds that:

5. Defendant should pay to attorneys for Plaintiff, the sum of $6,500.00, as and for total attorneys' fees for services rendered in this matter and said sum is reasonable.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the court that:

4. Defendant shall pay to attorneys for Plaintiff, as and for attorneys' fees for prosecuting Plaintiff's cause of action herein, the sum of $6,500.00 and said sum shall be paid within sixty (60) days from the date of this Decree. Said amount is a reasonable fee for the services rendered by said attorneys to Plaintiff herein.

* * *'

Following the divorce Donald tendered to Elizabeth's attorneys the sum of $5,500.00 believing this was what the court [169 Ind.App. 532] meant by its decree of March 6, 1971, since he had already on July 10, 1970, paid Elizabeth's attorneys a $1,000.00 preliminary fee.

On July 24, 1975, Donald filed a Petition for Interpretation of Decree for Divorce which provided in relevant part the following:

'Donald G. Wilson, by counsel, states that:

1. On March 6, 1971, this court entered a Decree for Divorce in the above styled cause of action.

Page 279

2. Said Decree provided, among other things, that Donald G. Wilson should pay to attorneys for Elizabeth L. Wilson the sum of $6,500.00 'as and for total attorneys' fees for services rendered in this matter.' Said Donald G. Wilson has paid to the attorneys for Plaintiff the sum of $6,500.00.

WHEREFORE, Donald G. Wilson prays that this court set this Petition for Hearing, that the Decree for Divorce heretofore entered herein on March 6, 1971, be construed by the court, that the court make a finding that all attorneys' fees have been paid to or for the benefit of Plaintiff's attorneys, and that the Lis Pendens Notice described in this Petition be ordered satisfied or stricken from the records of the Marion County Clerk, and that Petitioner herein be granted all other proper relief.'

The court on October 9, 1975, entered the following order:

'* * *

The Court now therefore finds, adjudges, decrees and orders that the decree of divorce entered in this cause provided that the sum of $6,500.00 was a reasonable fee for the services rendered to plaintiff by her attorneys in this cause and that such fee as awarded by the decree in this cause was for all services rendered plaintiff by such attorneys during the pendency of this cause. The Court Further finds, adjudges, decrees and orders that defendant has paid plaintiff's attorney in full for the services rendered plaintiff in this cause to and including March 6, 1971.

All of which is found, adjudged, ordered and decreed this 9th day of October, 1975.'

ISSUES:

1. Did the trial court have jurisdiction to entertain Donald Wilson's petition to interpret the divorce decree?

[169 Ind.App. 533] 2. Did the trial court err in allowing Donald credit for the $1,000.00 preliminary attorney fee?

DISCUSSION AND DECISION:

ISSUE ONE:

On March 6, 1971, the Hancock Superior Court ordered the marriage of Elizabeth and Donald Wilson dissolved. On July 24, 1975, Donald filed a petition which sought to have the court construe its judgment and decree tot he effect that he had paid Elizabeth's attorney fees in full. On October 9, 1975, the court granted Donald the relief prayed for in his petition.

Elizabeth contends that the trial court was without jurisdiction to entertain this petition. As authority for this appellant cites IC 1971, 33--1--6--3 (Burns Code Ed.) which provides:

'All...