Wingard v. Wingard

• Decision Date: 15 November 1957
• Docket Number: No. 18877,18877
• Citation: 145 N.E.2d 733,128 Ind.App. 44
• Parties: Mary A. WINGARD, Appellant, v. Keith L. WINGARD, Appellee.
• Court: Indiana Appellate Court

Page 733

145 N.E.2d 733

128 Ind.App. 44

Mary A. WINGARD, Appellant, v. Keith L. WINGARD, Appellee.

No. 18877.

Appellate Court of Indiana, In Banc.

Nov. 15, 1957.

Louis M. Hammerschmidt, Richard D. Bonewitz, South Bend, for appellant.

George Sands, South Bend, for appellee.

COOPER, Presiding Judge.

Action by appellant for separation a mensa et thoro from appellee. The latter filed therein cross-complaint for absolute divorce from appellant on the ground of cruel and inhuman treatment of him by appellant. The issues made by appropriate pleadings were submitted to the court, without jury. The court found against appellant on her complaint and for appellee on his cross-complaint and entered judgment accordingly. Appellant asserts that the decision of the court is contrary to law, and, in support thereof, specifically urges that there was no evidence of probative value to sustain the allegations of the cross-complaint.

The evidence was conflicting and in a large measure of unsavory character. There is evidence, favorable to appellee, tending establish that for periods of time appellant refused to talk or speak to appellee; that without just cause, she accused appellee of 'going around with another woman' and that appellee's clothing bore 'spots' upon them, the inference being that the 'spots' were of an incriminatory nature; that she persistently nagged at him and goaded him with false accusations of marks of lipstick on his face and shirt; that there were disagreements and lack of cooperation by appellant in relation to a certain financial obligation due appellee; that appellant took possession of government bonds purchased with appellee's savings prior to their separation and refused to tell him the whereabouts thereof, other than to state that they were safe.

The evidence also reflects that the parties had been quarreling constantly since 1948, and that the appellee herein, by reason thereof, inquired as to whether or not the appellant wanted to continue to live with him; that he was fed up and bothered and couldn't take it any longer and that the appellant's conduct towards him worried him and made him unhappy and that it affected his sleep. There is other evidence, but it is of a character deemed inappropriate for public utterance.

In effect, appellant invites us to weigh the evidence on the ground that the testimony of appellee is such as not to be believed and that it is without substantial probative value. We know of no set formula or factual definition as constituting cruel and inhuman treatment within the statutory meaning thereof. Each case stands or falls upon its own circumstances as shown by the evidence. Our Supreme Court, in the recent case of Heckman v....