*1 672 major alleged by Bank is directed error
The second judgment states legal sufficiency trial court’s defendant Johnson.” finds “The Court judgment agree defective that the form the is We specific uncertainty. is no mention of There Coughlin (1944), 222 Ind. Kist See v. the Bank. sum due mentioned party-defendant Neither is N.E.2d 199. 57 Johnson), nor (Mary, wife of judgment Stanford in the fees, requested attorneys any, as if mention there Judg generally: prayer for relief. I.L.E. See the Bank’s 34, pp. 165 and 168. ments 31 § § appeal portion directed to the suffi- reverse judgment applies ciency defendant Stanford in- for further action Johnson, remand this cause opinion. consistent re- judgment affirmed in and reversed part.
manded Lybrook, JJ., concur. Lowdermilk Reported 378. Note. — Nancy B. Brown. A. Brown
James September 27, Rehearing 1973. denied October [No. 2-473A90. Filed February 26, Transfer denied 1974.] *2 Hunger, Lafayette, appellant. for Thomas W. Lafayette, Burgett, appellee.
John M. brought case involves action for J. This Sharp, Superior Appellant-husband by Appellee-wife in the County. Tippecanoe Court of lengthy,
The facts are but summarized follows: Appellee married were sons 1952. Two marriage, Mark in were born to the Michael in 1958 and Michael, decree, the time of enter at about was college. Appellant degree a bachelor science English major years approximately Theater and three degree engineering. toward a bachelor electrical science marriage, Appellant At the of their an enlisted was Army. During man in the United y% States 9 months fol- discharge lowing army 1953, Appellant his worked months, mostly years, as an For electrician. the next four 21/2 army base, earning $5,000.00 he a civilian instructor at an per year. From 1958 to he was a full-time student *3 University. 1963, Appellant From quit Purdue when before degree requirements, completing Appellant until his 1967 attempt Appellant to find did not or In work work. part-time present job per (26 started his as a clerk hours engineer’s consulting week) per firm hour. $2.50 per year.) (Approximately $3,380.00 continuously employed been since their mar- Appellee has progressed salary teacher has in over riage. to is a She Appellee per year. was residence awarded the $13,000.00 approximately $25,000.00 which at has valued encum- is readily $20,000.00. apparent It is the over brances of findings the work entered the detailed predominant Appellant’s phi- of not ethic was losophy. question only appeal: one Whether
Appellant his raises ordering satisfy to at- court erred the trial attorney in plaintiff-wife’s the sum of torney to the fees
67o paid payable and in the event full forthwith $1,800.00 bearing of forthwith, interest the rate 8%. awarding Appellee-
entered in the final wife. brought absent Appellant record is which the here
The arguments though involve whatsoever even evidence his only the questions. factual The record contains here findings judgment pleadings, of therein court. All of the factual inferences must light Appellee. This most favorable to the considered sufficiency especially of evidence here where true findings record such has not been asserted. This Stypczynski Kaiser quite similar to that in this case Corporation Jeep App. (1973), inadequate permit us to determine held record where we inadequacy record of makes issue. here the basic While prefer difficult, raised determination of the issue most we points on of than to reach the merits rather decide cases procedure. appellate turns outcome here on whether the
The abused determination of amount discretion in the manner attorney. payment Appellee-wife’s fees for the scope inquiry may since be further narrowed Appellant’s Brief or nowhere in does the show attempt $1,800.00 specifically to show is an unreasonable light plaintiff-wife only services behalf fee — require it is pay unreasonable the defendant in full fees with interest. forthwith argument brief, oral and in his took
position that of discretion for the trial court it was abuse any attorney attorney. law allow the wife’s *4 subject appeal. on the is clear review fees on Northup Northup 469, (1972), App. N.E.2d 154 Ind. 504, 501, this court said:
App. [675],
is shown. McDaniel v. McDaniel
201
169 N.E.
“The award of the trial
disturbed
[151]
(1972),
N.E.2d
Ind.
[151]
529;
App. [70],
215;
appeal only
Hardiman v.
Dunn v. Deitschel
App. [26],
278 N.E.2d
820;
where
Hardiman
Mathews v. Mathews
toas
income.” apparent from the record in a most complete orderly fashion inventoried lia- the assets and parties making Special bilities of the well advance of Findings requested by of Fact and Conclusions Law as defendant-appellant. position cites in of his case of O’Con
nor v. O’Connor (1969), 254, 253 Ind. 253 N.E.2d Supreme where our Court of Indiana held: may be “There instances where financial situations of the would fore the effect are husband allowance unjustified. there- be unreasonable There must language proviso read into the of the statute provided court shall make the order timely proper application petition presented if a and justify an facts allowance.” *5 practical effect of decision in this to O’Connor was wife, party, attorney allow the the unsuccessful to recover her authority do deem
fees. not O’Connor here awarding an demonstrate discretion in at abuse of granting torney attorney her the wife’s when a divorce. The decision O’Connor has furnished the court with additional discretion where the court feels that any against allowance the husband would reasonable be justified. by authority action a Such trial court under the “proviso” of clearly operates read be into the statute against strict 31-1-12-11, construction of IC (Burns O’Connor, Repl.). Ann. by Stat. 3-1216 Tested § the record fails to here a situation the award disclose where of allowance the husband unreasonable would be unjustified. ability of well-edu able-bodied and cated certainly part male work earn are a “financial situations” of the
properly regard consider of its exercise discretion premises award of underlying fees. One O’Connor duty is the common law husband to his wife. Neither O’Connor statutory nor certain recent re visions of the divorce duty laws have eroded that remains a viable of our law. imperative Appellant-husband to recall too
sought by filing cross-complaint relief affirmative and that plaintiff-wife cross-complaint forced to defend that sought defendant-appellant, wherein the defendant-husband alimony $10,000.00 addition to division wife property. days plus The trial involved of trial 4% hearings pre-trial pleadings, professional services. and other people not rather does involve wealth but case obligations people their income whose consume as it is received by might by appear them. While the income received the wife substantial, quickly by standards it is consumed some tax, insurance, by payments two income deductions for on residence, bills, taxes utility real estate mortgage on the maintaining expenses of like, to mention the auto teenaged boys clothing for herself and two food and upkeep. Appellee from and of itself
The divorce in has relieved supporting particularly burdens, that of certain more two husband, “dependent” herself and addition child regard, children. court found *6 by Appellant-husband support paid in final ordered supporting educat- pay of the cost of “will less than 20% consequently ing Appellee-wife the children” that the “will certainly come more of said It must bear than cost.” 80% required to in life a shock this late to be responsibility way aspect by some face whether by way attorney ordered order or of the modest part- certainly concern him him. must that his job longer help may no be sufficient meet full him requirements life. of adult right consider total had circum- court regard parties in total to its This trial decree.
stances fought admirably long, so court did hard protracted trial. The trial court discretion has broad grant regard the award fees when ing exercising discretion, to a wife. In strictly present trial court is not limited to the economic parties ability but circumstances of consider the engage gainful employment earn of the and to comply adequate the court’s The record income with order. replete with inferences which we have present ability chosen not has such and has to use such. We reference by do not deem the to “economic situations” our Supreme Court in O’Connor to restrict the broad discretion court cases such as this. We do not deem technical, “economic situations” is meant to be term. narrow beyond proper the trial court do believe went In “economic here. boundaries of situations” decision short, proper the trial court did not violate the boundaries of its discretion. very reluctant with the
We are to interfere exercise do trial court decline to discretion this case and to demonstrate reversible so. has failed error the decision of court. we therefore affirm the trial Judgment affirmed.
Hoffman, C.J., concurs.
Staton, J., opinion. concurs in result with an
Concurring
Opinion
ability
party
coupled
J. —The
of a
to earn must be
Staton,
opportunity
earn before
deter-
can
earning power
mine
as a
situation.
financial
Otherwise,
earning
present
trial court is limited to
capacity
present case,
evidence which
it.
before
opportunity
there
no lack of
The trial
evidence.
inferred from the evidence that a man with the education
part-time
of James A. Brown could earn
than a
more
clerk.
justified.
inference
*7
Reported at
State September 27, Rehearing 2-672A18. Filed denied November [No. 7, 1973.]