Woodcox v. Woodcox
Decision Date | 21 July 1964 |
Docket Number | No. 20055,No. 1,20055,1 |
Citation | 136 Ind.App. 275,200 N.E.2d 231 |
Parties | Emogene WOODCOX, Appellant, v. Hubert WOODCOX, Appellee |
Court | Indiana Appellate Court |
James A. Simpson, Wilmer L. McLaughlin, Goshen, for appellant.
Allen & Allen, by J. Chester Allen, South Bend, Mehl, Mehl & Beeson, by R. W. Mehl, Goshen, for appellee.
It appears from the pertinent part of the record now before us in this appeal that the appellant herein, Emogene Woodcox, brought an action for separation a mensa et thoro from the appellee herein, Hubert Woodcox. Thereafter, the appellee filed a cross complaint praying for an absolute divorce from the appellant on the statutory grounds of cruel and inhuman treatment.
After the issues were made by appropriate pleadings, the cause was submitted to the court. The court found against the appellant on her complaint and for the appellee on his cross complaint, and thereafter, entered judgment accordingly.
Appellant asserts that the decision of the court is contrary to law and not sustained by sufficient evidence.
The appellant invites us to weigh the evidence on the grounds that the testimony most favorable to the appellee is such as not to be believe and that it is without substantial probative value. This we will not do as it is the general rule that the weight of the evidence and the credibility of the witnesses are for the trial court and not for the appellate tribunal to determine. See § 2786, Flanagan, Wiltrout & Hamilton's, Indiana Trial and Appellate Practice. Both the Supreme Court and our court have, in many cases, stated, in substance, that the appellate tribunal only has the cold record before it and that the opportunities of the trial court are so vastly superior to those of the reviewing court in that they are able to see the witnesses face to face, to observe their conduct, appearance and demeanor on the witness stand and thus judging all their intelligence, fairness and candor and many other means of weighing evidence that the reviewing court cannot have. See Heckman v. Heckman (1956) 235 Ind. 472, 134 N.E.2d 695.
In reviewing the evidence in the record now before us, we find the evidence is conflicting but does reflect that the parties had been quarreling constantly for some period of time; that there had been previous domestic litigation between the parties; that they had quarreled and bickered over financial problems; that the appellant had nagged, quarreled and found fault with the defendant's conduct of his business, and, on one occasion, had struck the appellee across the head with the fireplace poker and that the appellant had accused the appellee of killing his first wife and other numerous acts upon which we believe the trial court could reasonably draw the inference that the appellant was guilty of cruel and inhuman treatment toward the appellee, and that such unjustifiable conduct on the part of the appellant destroyed the legitimate ends and objects of the marriage. Under our law, this could be cruel and inhuman treatment.
In the case of Van Antwerp v. Van Antwerp (1954) 125 Ind.App. 65, 69, 122 N.E.2d 137, 138, it was said:
Also, in the case of Wingard v. Wingard (1957) 128...
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...credibility of the witnesses is for the trial judge to determine. Caden v. Caden (1972), Ind.App., 283 N.E.2d 804; Woodcox v. Woodcox (1964), 136 Ind.App. 275, 200 N.E.2d 231. Even if the circumstances would have justified a different conclusion than that reached by the trial court, this co......
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...credibility of the witnesses is for the trial judge to determine. Caden v. Caden (1972), Ind.App., 283 N.E.2d 804; Woodcox v. Woodcox (1964), 136 Ind.App. 275, 200 N.E.2d 231. Even if the circumstances would have justified a different conclusion than that reached by the trial court, this co......
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