Yost v. Yost

• Decision Date: 13 June 1895
• Docket Number: 17,263
• Citation: 41 N.E. 11,141 Ind. 584
• Parties: Yost v. Yost
• Court: Indiana Supreme Court

41 N.E. 11

141 Ind. 584

Yost v. Yost

No. 17,263

Supreme Court of Indiana

June 13, 1895

From the Cass Circuit Court.

Judgment reversed, with instructions to grant appellant's motion for a new trial upon all issues, and for further proceedings in accordance with this opinion.

R Magee and G. W. Funk, for appellant.

M. D Fansler, M. F. Mahoney, G. S. Kistler and F. M. Kistler, for appellee.

OPINION

Jordan, J.

This was an action by appellant against appellee for a divorce and alimony upon the grounds of cruel treatment. Appellee appeared and filed his answer in denial, and also a cross-complaint whereby he sought a divorce from appellant his wife, for alleged cruel treatment. Upon the issues joined a trial was had, which resulted in the court finding in favor of appellant and granting to her a divorce, and awarding her $ 100 alimony.

There was a finding against appellee upon his cross-bill. Appellant thereupon moved for a new trial, and, among other things, assigned as a reason therefor that the finding of the court as to the amount of alimony fixed is not sustained by the evidence; and that the same is contrary both to the law and the evidence, and is insufficient in amount. That the finding of the court in refusing to allow the appellant a sum sufficient to cover reasonable expenses, in the prosecution of her action, and in refusing to allow her any sum for attorney's fees in the prosecution of her petition, is contrary to the law and the evidence. This motion was overruled and excepted to, and a judgment rendered in favor of appellant upon the finding. Appellant then moved the court to modify that part of the judgment awarding her $ 100 alimony, and render the same for an amount in excess of that sum, and also to allow and order that the defendant pay the sum of seventy-five dollars to plaintiff on the account of attorney's fees incurred by her in the prosecution of her action. This motion was overruled and the proper exception was reserved.

The errors assigned and argued by the learned counsel for appellant are, the overruling of the motion for a new trial, and of that to modify the judgment. In fact, the only questions presented by her counsel, in their brief, are those relative to the insufficiency of alimony and the action of the court in refusing to allow attorney's fees. It appears from the evidence in the record that the parties had been married and lived together as husband and wife for a period of nine years; that the wife is 65 years of age, and the husband 68; that at the time of their marriage appellant was a widow and appellee a childless widower; and that no children were born unto them by virtue of said union. It also appears that the married life of these parties was not, strictly speaking, happy or congenial.

There is evidence tending to show that the appellant was actuated upon her part in accepting the appellant as her husband through pecuniary motives, and appellee, upon his part in taking appellant as his wife, was induced by his desire to obtain a housekeeper or servant. At the time of their marriage he had property, but she had no property or means whatever. The evidence also shows cruel treatment upon the part of appellee, and a neglect or refusal to discharge the conjugal duties incumbent upon him as a husband. Upon one occasion appellee choked and otherwise maltreated the appellant and compelled her, at a late hour at night, to leave his home and seek refuge with friends.

The evidence also establishes that the appellee is the owner, in fee simple, of real estate improved and unimproved, situate in the city of Logansport, Indiana, ranging in value from $ 2,200 to $ 3,750, and on one piece of this realty there is situated a business building, the rental value of which appears to be about $ 375 per annum. All of this property was accumulated by the appellee before he and appellant were married. The latter has no means or property whatever, and has to support herself by doing washing and performing other domestic work. Appellee introduced a witness who was an attorney at law, at the bar of the Cass Circuit Court, who fixed as a reasonable attorney's fee for the prosecution of the action, the sum of $ 100. There was no evidence contradictory to that given by this witness. After the commencement of the suit, and before the trial, the court upon application of appellant ordered and required appellee to pay the sum of $ 25 to appellant. This was all the allowance made in said cause. The question arises upon the evidence before us, did the trial court exercise a sound discretion in awarding the appellant but $ 100 as alimony, and upon decreeing the divorce in her favor, refusing to allow her any sum to defray her reasonable expenses, including her attorney's fees? Section 1057, R. S. 1894; 1045, R. S. 1881, provides "that the court shall make such decree for alimony in all cases contemplated by this act, as the circumstances of the case shall render just and proper." By the first clause, section 1054, R. S. 1894; 1042, R. S. 1881, it is provided that, pending a petition for a divorce, the court or judge may make such orders relative to the expenses of such suit as will insure to the wife an efficient preparation of her case, etc. The second clause of this section provides: "And on decreeing a divorce in favor of the wife, or refusing one on application of the husband, the court shall, by order to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition when such divorce has been refused."

The temporary allowance authorized by the first clause in the above section is commonly denominated "suit money," and is for the purpose of insuring to the wife an efficient preparation of her case and a fair and impartial trial thereof. Davis v. Davis, 141 Ind. 367, 40 N.E. 803; Musselman v. Musselman, 44 Ind. 106; Harrell v. Harrell, 39 Ind. 185.

In the case last cited this court said: "It is made the imperative duty of the court in decreeing a divorce to the wife, or in refusing one to the husband, to make an allowance sufficient to cover all reasonable expenses of the wife in the prosecution or defense of the action. The language of the statute is, that the courts shall make such orders, etc." The court, however, in making this final allowance to the wife, should take into consideration any other allowances that were made to her during the pendency of the action under the first clause of this section. Harrell v. Harrell, supra. The evidence of the witness to which we have referred, fixed as a reasonable attorney's fee for the prosecution of this action $ 100, or $ 75 after deducting the $ 25 paid by appellee pending the action.

This was not contradicted by appellee, and his failure to do so ought to be regarded as an admission on his part that the amount of the attorney's fee, as stated and fixed by the witness, was reasonable. Musselman v. Musselman, supra.

The "reasonable expenses" of the wife include her attorney's fees....