32 N.E.2d 699 | Ind. | 1941
There are only two questions raised by this appeal both arising on conflicting evidence which we are asked to weigh. Divorce was granted to appellee on his complaint.
It is claimed that the trial court did not have jurisdiction because appellee's residence in the state for one year and in Kosciusko county, where the action originated, for at least 1. six months immediately preceding the filing of the action, was not sufficiently proved as required by § 3-1203, Burns' 1933, § 904, Baldwin's 1934. Two householders testified that he had resided in Kosciusko county for more than the six months and two others that he had resided in Indiana for more than the year immediately preceding the filing of his petition which occurred September 21, 1938. The opinions in Coulter v. Coulter
(1937),
The latter case likewise disposes of the only other question, insufficiency of the evidence to sustain the decision. It would serve no good purpose to review the evidence which is quite 2. conflicting. The gravamen of the action was cruel and inhuman treatment and the testimony of appellee alone is amply sufficient, for the court will not weigh the evidence but will affirm the judgment if there was any evidence from which the trial court could reasonably have inferred the ultimate facts necessary to his decision.
But appellant insists that the evidence inescapably points to appellee's adultery so that the principles stated *355
in Eikenbury v. Eikenbury (1904),
The evidence disclosed that appellee and his housekeeper, who was also his secretary, occupied the same apartment with separate sleeping rooms. There was opportunity for misconduct but 5, 6. we find in the record no direct evidence thereof. If such there was, it was incumbent upon appellant to point it out, which has not been done. Living in adultery is a criminal as well as marital offense. The trial court might have inferred an adulterous cohabitation but his conclusion was to the contrary. If it had been otherwise, criminality being involved, appellee could reasonably have contended that the decision was wrong. See Sams v. State (1924),
The judgment is affirmed.
NOTE. — Reported in