81 Ind. 469 | Ind. | 1881
The court below decreed a divorce to appellant on a charge of cruel treatment by appellee. The day after the divorce was decreed appellant filed a motion to require appellee to pay her necessary expenses, in the sum of two hundred dollars, in the prosecution of the divorce suit; the motion or petition was verified by appellant, and the affidavits of her two attorneys were filed in connection therewith, stating that she had agreed to pay them two hundred dollars as attorney fees, for prosecuting the divorce case. Upon which the court allowed her $25, and made an order that appellee pay the same.
Appellant excepted, for the reason that the court did not allow enough.
On the third day after the divorce was decreed, appellant filed a motion asking the court to allow and adjudge to her alimony in the sum of $2,000, which motion was overruled by the court. The appellant then filed a motion for a new trial as to the alimony, which was also overruled and exceptions reserved.
The following errors have been assigned in this court:
1st. Overruling motion for a new trial.
2d. Overruling motion for alimony.
3d. In only allowing $25 for expenses.
At the time of the trial, April, 1880, appellant was thirty-six years old, and appellee eighty. They were married January, 1876, and separated December, 1879. Atthetime of the marriage, appellee had considerable property; appellant had none. There were no children by this marriage, but appellee had a family of children by a former marriage.
Before the separation, appellee had deeded to appellant the-house and lot described in Anderson, worth some $1,200; the house was afterwards burned, and left the lot worth some $400. He had given her $100, with which she had bought another lot, upon which he built her a house, at a cost of $535; he had bought for her an organ, at a cost of $200; he had given her a note, secured by a mortgage, for $125; he had given her another note, not secured, for $45; had surrendered, cancelled and destroyed a note on her father for $25, at her request. At another time, had given her $100 in money; when they separated he gave to her $40 in money and the household furniture. He afterwards had given to her $25 at one time and $10 at another time.
Thus she had received all the property provided for in the the antenuptial contract but the $700, but in the place of which she had received some $1,500 in money and other property. She had, however, surrendered to him a note for $300, which he had executed to her before marriage in compromise of a suit for a breach of marriage contract, which she had brought against him.
That no additional property was accumulated during the marriage relation between them, and that his property was worth some $10,000, which remained undistributed as advancements to his children.
Considering the great disparity between the ages of the parties, appellant could not very flatteringly hope for many years of social enjoyment with appellee, and that it required some other considerations than love and affection to create much congeniality between the parties. Too often such considerations bring about unfortunate matches. Since this appeal, the appellee has departed this life, and the name of his executor, Edward R. Carman, has been substituted.
In actions of divorce, the question of alimony must necessarily be left largely to the discretion of the court below, and unless there has been a clear abuse of the exercise of that discretion, this court will not interfere. Powell v. Powell, 53 Ind. 513; Conn v. Conn, 57 Ind. 323.
Upon an examination of the facts and circumstances in this case, as developed by the evidence, we do not see any sufficient equitable reason for coming to the conclusion that the court below had abused its discretionary powers in relation to the alimony that should be allowed appellant. She not only got as much, but more than she contracted for in the marriage, and the rule of the law established in this State by precedents, that when the property has been accumulated by the joint efforts, care and diligence of both the parties, the wife ought to have about the same share that she would be entitled to at the death of her husband, all things being considered, does not apply in this case. The question of the accumulation of the property is out of the case.
There was no error in the court’s overruling the motion for alimony, or the overruling of the motion for a new trial, as to the claim for alimony.
As to the motion to require appellee to pay appellant’s expenses in the prosecution of the divorce suit, that was also addressed to the sound discretion of the court. No agreement that she could make with her attorneys could have any binding force as to how much should be allowed. While the sum seems small, we can not overlook the fact that the court had cognizance of all the facts and circumstances of the case, and we can not say that the court erred in the amount allowed. The judgment below should not be reversed for this reason. We see no error in this record. The judgment below should be affirmed.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment below be and the same is in all things affirmed, with costs.