*1 True, May 1, on 1916. sustained itself is demurrer shown, transcript not but the recital filing accepted.” be as its must to entry showing filing reply The book of a order court, in lower have been corrected should changes necessary in therein entries must Appellate procured. Elliott, Pro there See cedure, 194, p. 167. § any manner, appellant did not in
In case the orally by pleading, call the court’s attention the speak truth, not that its record did
fact although actually filed, reply had been April 30, 1948; appellant, filed on shown judgment pleadings, asked on for a its motions reply solely file his appellee’s judgment on failure have cor 19, could been The record 1947. June Eggers rel. ex court. See State rected in the lower N. E. 653. Branaman reply court showed entry of the lower Since no error closed. There was filed, there were the issues plead- overruling motions ings.
Judgment affirmed.
NOTE.—Reported in 91 E. 2d 180. v. Bitner.
Bitner Rehearing 28,641. Filed March 1950. [No. April denied 1950.] *2 Gilkison, J., part opinion. dissents in with Young, J., Emmert and participating. J.
Perry O’Neal, Patrick Smith and Michael J. L. Fansler, Indianapolis, appellant. all of for Emmett Cox,
J. McMa/namon and Earl R. both of Indianapolis, appellee. for appeal J. This isan from an interlocutory
Starr, support order appellee pending for final determina- tion of a divorce action appellee wherein the is the plaintiff appellant and the is the defendant. hearing appellee’s
After on application verified for attorney allowance and fees the trial court made and entered an order for allowance which was modified on appellant. motion of the The order of the court as modified, omitting parts, formal reads as follows: “Hearing petition interlocutory on order con- of the children con- Temporary custody cluded. plaintiff
tinued in until further Defendant order. cross-complainant permitted to visit and to
have children at all reasonable times. cross-complainant “Defendant and ordered of his two pay county support to the clerk for the upkeep children of the home in which they by living mother,—a are now with their tenant entireties,—the ninety sum of dollars ($90.00) a week. pay plaintiff’s “Defendant is ordered to attor- neys partial days thirty fee of within or $1500.00 before trial. “No order is made at this time for back hospital medical and bills which have accrued in past.” It is from this appeal order that this By was taken. proper assignment appellant of error ques- calls in tion whether or not this order is sustained sufficient evidence and contrary it whether to law. undisputed
The
evidence
appellee
discloses that
is the owner of
preferred
675 shares of
stock of an
Indianapolis
corporation
radio station
which stock has
$67,500;
appellee
value of
that
6,750
also owns
shares of
corporation
the common stock of said
which
$300,000;
appellee
has a value of
1,600
also owns
corporation
shares of the common stock of another
appellee
which
received dividends in 1948 in the sum
$3,220.
appellee
The
also
evidence
discloses that
paid
thinks that dividends were
in 1949
last
on this
mentioned stock but does not know the amount
she
inquiry.
has made no
The evidence further discloses
that this last mentioned stock
value;
has a substantial
appellee
Mercury
also owns a
convertible auto-
mobile, and has the sum
approximately
$100
*4
cash. The evidence further discloses that
from these
properties during
year
various
appellee
1949
had
$6,230.85
only
an income of
as a minimum. The
in-
appellee
by
debtedness of
disclosed
that
evidence is
grocery and food
she
her
except
bills
owes
for current
$8,000. There
that
is no evidence
not to exceed
father
purpose
for the
appellee
credit sufficient
has not
support.
present
and her
defense
of her
appellant had a
further discloses
The evidence
year
$26,562.50
con-
in the
which
of
income
total
dividends from
compensation for services and
sisted
the same amount
stocks;
property consists of
that his
corporation as is owned
radio
said
of stock
appears from the evidence
appellee.
It also
$17,200.
approximately the sum
appellant owes
3-1216,
Replacement, provision
By
Burns’ 1946
§
“Pending
divorce,
petition
court,
made that
vacation,
judge
may make,
thereof in
or the
. . .
disposition
persons,
for the
such orders
may
parties
property
children of the
as
and
right
proper and
orders
and
such
relative to
deemed
attorney
and
expenses of
suit
fees
will
such
preparation
her
an efficient
case
to the wife
insure
Independently
impartial
trial
thereof.”
a fair
held that
the trial court in
it has been
this statute
power
inherent
to make
proceedings has the
divorce
pend
attorney
of the wife
fees
orders
(1942),
Ind.
ing
v. Crowell
the action. Crowell
law that
E. 2d
It
is also
39 N.
602.
proceeding if the wife has either
divorce
funds or
purposes
her
sufficient for
defense and
credit
present support
improper
it
for the court
her
money
pur
require
to furnish
for such
the husband
litigation.
poses pending
Kenemer
Kenemer
v.
Snider
Although
objection
the form of this
is made as to
no
pro
attorney
note that
the same
fees we
order as to
*5
paid
plaintiff’s
that
are
vides
these fees
to
to
attorneys.
proper.
Such an order
See
Superior
ex
McNabb v. Allen
Court
State
rel.
Waiving
No. 2
We of order payment per which has to do with the of week for $90 support provision support for temporary custody minor children whose had appellee. been awarded been have We any unable to find decision our court which deter mines whether or not in an action for divorce a wife adequate who has support means for the of herself and children is entitled to an allowance from her hus support band pendente her minor children lite custody where she has the of them. From ex an amination of the question law we find this has been differently decided jurisdictions. in different See 17 Jur., Am. Separation, Divorce and 546, p. 439. From § reading 3-1216, of said Replacement, Burns’ 1946 § empowers which the trial disposition court to make parties children pendente lite seem it would to us the trial empowered court was to make this order support as to the of the children. It is our also opinion ample there was evidence to portion of the order. given,
For the reasons portion heretofore provides the order which payment attorney hereby fees is reversed the trial court is ordered portions to vacate the same. The other of the said hereby approved. order are
Gilkison, J., dissents as to the reversal and vacation portion allowing fees, of that attorney of the order approval to the concurs as of the balance of the order. *6 Young, J., participating.
Emmert and J. not DISSENTING OPINION part opinion I concur in that J. of the GILKISON, allowing custody support the two children in appellee. no doubt But there should be cast of allowance, though duty make the court to such even of indicate that should the wife and her the evidence support duty them. The a are able to of relatives expressed support has been well his children father to Publishing Bridwell, Denning by in Star Co. J., 685, 687, N. E. App. thus: provide duty of a father to for the “The mainte- principle minor children of natural nance of his law. The is. obligation progenitors support of to their universally acknowledged. offspring To dis- charge duty primal instinct is a of human na- by duty imposed early law at least as
ture. The child and continues thereafter at birth of a as until (authorities) legally . . . terminated deprived cannot be of “Children their natural by rights support par- of dissensions their thereto, ents; parties misconduct, and, they are if hus- band, possible by makes it his own marriage dissolved, bonds for his wife to have decree, not, any divorce he does duty support. This his own himself from relieve unchanged.” (authorities). duty remains defining apr of the law as approve this statement I supporting respect children duty to his pellant’s with there- action and during pendency of the divorce relationship, duty father in the This is inherent after. en- precedent justify its child, and needs no and cares appellee lives with The fact forcement. appellant from his way in relieves the children no caring for the mother is duty support them. Since contemplated eat with them, that she will it must be in which of the home in the comforts them share earning capacity Considering wealth, they live. standing parties the allow- apparent of the social children is temporary ance made for reasonable, of discretion. and is not an abuse fees, attorneys’ question allowance
On properly consider court could evidence which the trial as follows: Appellant testified he lives at the Columbia Club Indianapolis. appellee He is co-owner with of a County upon at home Second Street Marion W. *7 unpaid mortgage $10,000. Ap- which there is an general manager pellant president and of Radio Inc. and is a director of two incor- Station W.F.B.M. Michigan. porated radio in He owns between stations corporation. and of the W.F.B.M. His sal- 13% 14% ary $15,000 year paid in 1949 from was a W.F.B.M. semi-monthly; $5,000 year he received a from the $1,500 year Michigan corporations from radio and a in Corporation. in Trevit From his stock W.F.B.M. yearly $5,062.50; total he in dividends received divorce $26,562.50 for 1949. Since income of nothing paid for the appellant has action filed was appellee the children. support and care Appellee testified she owns of W.F.B.M. 12%% possession stock. This stock is in the of her father approximately has loaned her $8,000 who thereon. She owns some stock in John W. Eshelman Inc. but was uncertain as to the It, too, exact amount.
possession of her father.
Appellee patient became a hospital in a at Phila- delphia, Pennsylvania February 15, 1949, and re- patient mained an “in” or “out” year. most of that Appellant paid expenses her there until March paid 1949. After that she them herself out of her money money own borrowed from her father and mother. expended
She of her own funds in the medical care of herself and children 1949 more than $8,000. approximately
She testified it takes $740 $750 household, including month-to maintain pay- mortgage $2,000 ments on the paid on the house. She federal income tax in 1949. Her income in 1949 was $7,082.50 received in dividends from W.F.B.M.
John W. Eshelman Inc. At the had date of trial she grocery and she owed two $100 bills.
There is evidence in the record that a reasonable preliminary attorneys’ $2,500. fee would be
It is an established jurisdiction rule in this appellate an court will not conflicting evidence to determine preponderance where the duty lies. That wholly peculiar within the province jury of the trial and the trial court. Russell v. (1855), Drummond 216, 218; Hoosier Chemical Works Brown (1929), 535, 538, 200 Ind. 323; 165 N. E. Cottrell et al. v. Shadley (1881), 348, 353; 77 Ind. et al. Gallimore v. Blankenship Isler v. et al. 390, 391; 99 Ind. Bland (1889), 303; 117 Ind. 20 N. E. Craw et al. Anderson ford
268 314; (1895), 354, 356, N. E. Deal v. State 140 Ind. 358, 39 E. 930. N. conjecture,
If there is some evidence more than a naturally logically flowing or some inference and from court, support the lawful evidence heard the trial ing finding judg each element essential to the McCarty rendered, ment or order this court will affirm. 223, 224, (1891), 665, Ind. . State 127 26 N. E. v v. Babb cited; (1919), Davis, cases Exr. 190 Ind. 403; 179, (1895), 173, v. 125 E. Deal State 140 Ind. N. supra; 354, 359, 360, 930, 39 N. E. Glick v. Hunter v. 51, 54, 232; (1920), 53, E. Rush 190 Ind. 129 N. 529, 536, 931; (1940), 24 E. 2d Hunziker 216 Ind. N. 561, 564, (1937), App. Parson 103 Ind. 9 Glover v. (1939), 109; Town Frankton N. E. 2d Closser v. 216; 193, 201, App. E. 2d Workman v. 20 N. 107 Ind. 245, 268, App. E. 2d (1943), Ind. 46 N. Workman 113 Admire v. (1942), App. 718; et al. 112 Ind. Brewer v. 662; (1944), 92, 97, Ashman Studebaker 41 E. 2d 73, 78, App. 56 N. 2d 674. 115 Ind. weigh court will not
The rule that this the evidence preponderance may ap determine where lie is appeals plicable interlocutory matter of in the from (1886), Naylor 179, al. v. Sidener et 106 orders. Ind. 345; (1901), 185, 577, Mead Burk 6 N. E. 156 Ind. 338; Chicago, 582, Kenney etc. N. E. R. Co. v. 81, 26; (1901), 62 N. E. Hammond 159 Ind. The Gregory (1935), et al. atrical Ind. Co. v. 631; Henderson Henderson
194 N. E.
316, 319, 11 N. E.
432.
Discussing
deciding
proposition
in Henderson
v
Henderson
11 N. E.
.
J.,
court,
432, supra, Howk
for this
said:
“The rule of this court
it will not
evidence,
nor reverse the
below
might
preponderance
to be the
seem
what
*9
chancery
appeals in
or
evidence, applies as well to
appeals in other cases. This
suits, as to
divorce
court will
finding
give
respect
same
the evidence
to the
the
equity,
upon
in
in
a suit
court
the trial
alimony,
it has
divorce and
a suit for
or
always
finding
given
jury or the
verdict of a
to the
Erie,
R.
Lake
etc.
court,
at law.
in an action
aof
Where, in a suit
Griffin,
Typical of the rule the courts in the statements are follows: cases above ,; conflicting “Besides, evidence was . . case it is well settled that will in such given evidence, whether the same (authorities). or otherwise.” affidavits (1898), 149 McCue N. E.
McCue supra. *10 say, to think for us as we we “It will suffice fairly safely do, tends may the evidence to findings facts, every special the of on mate- sustain rial case, point. as we have often In such de- findings disturb of trial cided, we will not decree, judgment court, nor its and reverse might weight to be the of evidence. what seem rule of decision have been that we need reasons for this The cases; given often, reported in our so tenaciously to repeat adhere them here. We not this equity.” or in cases, rule in all whether at lato (authorities) Ry. Lake Etc. The Erie Co. v. et al. (1886), Griffin 450, supra. E. Ind. 8 N. 107 good position court is not in as “This to decide who question as was the court truth below. The told for port any Is there sup- decision here is: evidence to judgment? weigh This cannot con- flicting evidence in order to set aside the decision (authorities). the trial court.” “The same rule of equity applies alimony in in suits divorce by jury in those tried in an action at law.” public (authority). “No service tvould be subserved (My italics). by a review the evidence.” of 626, App. Ind. Wise v. Wise N. supra. Supreme equity, is bound in Court “In a suit finding respect the trial give to the the same to jury given the verdict of the court that is (author- finding ities). an at law.” a court in action 92, 97, 41 App. Brewer Admire v. supra. E. 2d assignment only question presented “The sufficiency waived, errors, concern the and not of of the evidence decision the court’s sustain legality thereof. question governed, approach to this “Our course, ana, and settled rule in Indi- by the well-known equity cases, the evidence that where even in partly controversy respect consists to matters in weighed not be testimony the evidence loill oral of and cision to the de- only evidence as such favorable any' considered, there is evi- can be if supports its the decision in dence whatever which n essential particulars, must stand re- such decision (author- contrary.” any to the gardless evidence ities) purely equitable cognizance “In cases of the stat- ute, permits assign- Burns’ 1933 . . 2-3229 . an § against clearly ment error that the weight requires thereby of the evidence and ‘carefully courts of error to evidence,’ consider and many but the above cases and others application hold this statute has no to conflict- ing testimony.” (authorities). oral “This is the rule even when the evidence is docu- mentary if the force and depends effect thereof part testimony.” (My (authority). oral *11 italics). (1944), 78,
Ashman v. App. 73, 115 Ind. Studebaker 674, supra. 56 N. E. 2d proposition quote
As to the same I from later cases as follows: finding “Appellant’s de- contention that the by
cision of the court is not sustained sufficient contrary requires evidence and is to law a review of the evidence. “It is well settled that cannot conflicting and, any evidence if there is substantial finding evidence in the record to sustain the court, judgment decision trial must be In this affirmed. connection it must be borne in judge, mind that the trial was facts, as the trier of testimony any single bound wit- of particular any or ness item It evidence. was his of province judge exclusive determine witnesses, credibility weigh the evidence, . . . We have examined the record and find the evidence conflicting and that there is substantial evidence Upon to sustain the decision of the trial court. appeal this court cannot substitute its weight to the the evidence the trial (My italics). court.” 322, (1945), McDaniels v. McDaniels App. 116 Ind. 331, (1947), 62 N. 2d 876. Adkins E. See also v. Adkins 750; App. 117 Ind. 70 2d Waid v. Waid (1946), App. 8, 907; 4, 2d 117 Ind. 66 N. E. Stinson (1947), App. 662, Stinson 117 Ind. E. 2d 74 N. 745; App. Adams Adams 69 N. E. 2d 632. governing
The rule the courts on the matter of granting pendente allowances lite in divorce cases by Cox, well stated J. in Snider v. Snider 583, 588, 590, 32, pertinent 102 N. E. parts of which are as follows: right alimony pendente “The whether lite or permanent obliga- founded the common law
tion the husband to his wife and was recognized Subject ecclesiastical law. to certain conditions, is, divorce, the wife in suits for absolute plaintiff whether she defendant, entitled application temporary alimony where no statute provides may for it. And it be awarded notwith- standing give statutes which her control of her *12 separate property and the benefit of her own earn- although materially ings, force of the reason in such case the allowance such statutes lessen the upon granted, which it is not made so much as a appear It be made to as matter of course. must one upon conditions of the essential which the wife allowance, granted the that she has not will be sufficient adequately provide her means to for own expenses pay properly and to defending prosecuting preparing and or the action. pay ability of the to should also The husband be (authorities). appear.” made to necessity exists, the allowance “Whether ability pay, the husband to as and the well as the be toithin allowed is the sound discre- amount court to determine the trial tion of facts judicial is, true, discretion it it. This before appeal, subject but to review it will be inter- only clear when a abuse it by ivith fered unfair arbitrary action (authorities). is shown.” “Although prop- the fact the wife has some by erty determining to be considered is a matter court in made, an whether allowance shall be it, still, the amount of if it is suffi- well as not support her and at the properly to same time cient an the means secure her efficient her afford a fair trial preparation of her case and without resources, exhausting an allowornee is own her . . The the court. law does the discretion . within not op- shall contemplate the husband allowance, does by neither it intend pressed ample shall are the court his means that where weigh of an in ‘the scales awarded the amount and intends sum means apothecary.’ The statute preparation and a efficient an to insure sufficient wife to sufficient what And trial. fair court, all the under facts results these obtain and determine. case, must particular each circumstances alimony temporary suit or an allowance “That having property some some money to wife necessarily discretion on an abuse of credit is by this decided has been part trial court italics). (My court.” withstanding
Noth substantially fact that all the fully law supports in Indiana the action of the trial making partial attorneys the allowance for fees, majority opinion ignores the law which always this court has *13 considered bound, itself in- gives correctly governing the rule trial the court making such allowances as that stated Kenemer Kenemer 332, quoting Ind. the from majority opinion, thus: “If the wife has either funds or credit sufficient purpose present for the her sup- defense and her port improper require it for the court to the hus- money band furnish purposes pending to for such litigation.”
the governing the appeal. as law this court on The state- by Ray, ment in the as made J. Kenemer case is thus: “If the “had she” wife either funds credit present for her her support, sufficient defense and improper have been it would quire for the court to re- money to her husband furnish pur- for such litigation.” pose, pending Ray, undisputably In these J. made it words known government that is the rule for the this of the trial Changing only. the been” verb from “would have quotation appear makes it to “is” in this is governing appeal. rule this court on In it is fact majority opinion. rule in the In the followed temporary al- Kenemer case the trial court refused a weigh evidence, lowance, court did not and this and affirmed trial court. majority opinion
The cites Snider Snider supporting right supra, 179 its to Among things, opinion evidence. other in that page at case states thus: for of counsel to be contention “It seems trial court has action a appellant in a divorce temporary ali- authority grant money or suit only that she when it shown mony to the wife properly with which or credit means neither
has trial, for and that when or defense prepare her suit or credit an some means allow- appears she has it will which this court of discretion an ance is review. abuse our not the either under stat- law Such law." or the common ute law, ably con- judge then discussed learned
The cluding page thus: at temporary alimony or suit allowance an “That having property or some some
money credit is the court.’ wife to a necessarily of discretion on an abuse decided part court has been trial ’ (authorities). rely appellant upon the case of “Counsel (1866), 26 Ind. as sus- v. Kenemer Kenemer taining case, appellant in this their contention of what consideration was we think a careful but *14 shows that it not.” decided does there involved and say neither the that Kenemer we must in this case So opinion. contrary the supports On the case nor Snider they support this dissent. of Crowell the case Crowell
In 602, opinion, long 472, 2d cited the it 39 N. E. was 2-3229, that under Section Burns’ 1946 Re believed duty appellate it a of this and the placement, was appeal equity weigh evidence on the cases court documentary. State was all evidence where Life 23, 17, 214 Ind. Co. v. N. Insurance Cast Thompson (1905), 609, 705; 164 Ind. Parkison 2d v. only case the evi E. 109. In Crowell applica verified court by the trial was heard dence temporary and attor allowance the wife tion of by the husband. filed fees, affidavit neys the counter and cited eases statute may under the above be that It good this position court it inferred that was in as a weigh evidence, as was the trial court. How ever, theory (Parkinson fully exploded that has been Thompson, supra.) It, too, quoted weighing authority Kenemer case the evi shown, dence. As before the Kenemer case does not support position wholly and the Crowell case is unsupported by authorities.
I think the rationale all the Indiana cases on the subject is: proper application
aWhen has been in proper made pending trial court in a divorce case for a temporary expenses allowance to a wife for the of the suit and attorneys agreeable fees with the first sentence of 3-1216, upon proper hearing, Section the court grants petition agreeable and makes allowances petition statute, with the appeal and an is taken interlocutory made, from the order so this court proper assignment may of errors review the evidence purpose ascertaining for the sole whether there is some or support evidence reasonable inferences to is, petition. essential averments If there order be must affirmed. We cannot the evi- solely duty dence. That is a for the trial court. We weight cannot substitute our as to the the evidence for that of the trial court. The error pronounced the trial be court must so it amounts may to an error of law before interfere. In other words there must be entire evi- an absence of proposition dence to valid- some essential to the ity of the order. In that event order would arbitrary, capricious corrupt.
No such defect can be found in the order of the instant case. It should be affirmed in toto.
Note.—Reported E. 2d 169.