33 Ind. App. 284 | Ind. Ct. App. | 1904
Appellee sued for divorce. Appellant-answered in denial, and filed a cross-complaint asking a divorce. Appellee answered the cross-complaint in denial. Upon a trial the court denied appellee’s petition, and
Appellee moves to dismiss the appeal upon a showing that, since the submission of the cause, appellant remarried, and that he and the woman he married are now living together as husband and wife.
“Alimony,” as here used, is purely incidental to a divorce proceeding, and is an allowance out of the divorced husband’s estate made to the divorced wife for her support and maintenance. In this State it has no existence as a separate and independent right. It must be adjudged, if at all, in the divorce proceedings, and can not be the subject-matter of an independent suit. The court is required to make such decree for alimony as the circumstances of the case shall render just and proper. §1057 Burns 1901. The court bases its decree for alimony upon all the facts and circumstances disclosed in the divorce proceedings, including all matters of property which have transpired between the parties. Muckenburg v. Holler, 29 Ind. 139.
“In adjusting alimony,” said the court in Hedrick v. Hedrick, 28 Ind. 291, “all.the evidence in the case ought to be considered and acted upon, and then the subject is often a difficult one. It is not yet controlled by definite rules, and the determination of each case must, therefore, depend upon its own circumstances and an enlightened sense of justice and public policy.” And it has been held that the appellate tribunal can not say that alimony in a case is excessive, in the absence of the testimony on which the divorce was granted. Ifert v. Ifert, 29 Ind. 473.
In fixing the amount of the alimony the court may consider the conduct of the husband and the wrongs perpetrated by him upon the wife. Gussman v. Gussman, 140 Ind. 433. In all the authorities the fact is emphasized that alimony is an incident of the divorce. While it is, in a sense, a separate judgment, and may be in a particular case modified or disallowed by the appellate tribunal without in any way affecting the decree of divorce, yet, in .another sense, it is in no manner a judgment separate and apart from the decree of divorce, as a reversal of the decree of divorce, in and of itself, sets aside the judgment for alimony. And while the appellate tribunal, upon an appeal for that purpose only, may make srteh modifications of the allowance of alimony as right and justice require, it may also, upon an appeal by the party who secured the divorce and who questions only the allowance of alimony, reverse the decree of divorce and remand the case for the trial court to hear and consider the entire case de novo.
In Yost v. Yost, 141 Ind. 584, appellant was granted a divorce and was awarded $100 alimony, and appealed, and questioned only the amount of alimony and the court’s .refusal to allow any sum as attorney’s fees in the prosecution of her petition. It was held that the trial court, as to these matters, did not exercise a proper judicial discretion ; and the case was reversed both as to the decree of divorce and as to the alimony, and a new trial ordered
Whether, upon the whole record in this particular case, justice would or would not require that the trial court should consider the entire case de novo, is not material, as it is necessary that a general rule should be declared. Under the above authority it might he necessary in any case to reverse that part of the judgment and decree granting the divorce. But by his marriage, by which he has accepted the benefits of that part of the decree, he has made it impossible for the court to do what the justice of the ease might require that it should do. He has accepted the benefits of a particular part of a judgment, which might or might not be permitted to stand upon an adjudication of the question he is urging by his appeal, and by so doing has waived his right to prosecute his appeal. See Garner v. Garner, 38 Ind. 139; Stephens v. Stephens, 51 Ind. 542; Sterne v. Vert, 108 Ind. 232; McGrew v. Gray
The appeal is dismissed.