Lain v. Lain

189 N.E.2d 838, 134 Ind. App. 557, 1963 Ind. App. LEXIS 188
CourtIndiana Court of Appeals
DecidedApril 30, 1963
DocketNo. 19,640
StatusPublished
Cited by1 cases

This text of 189 N.E.2d 838 (Lain v. Lain) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lain v. Lain, 189 N.E.2d 838, 134 Ind. App. 557, 1963 Ind. App. LEXIS 188 (Ind. Ct. App. 1963).

Opinion

Kelley, J.

In this action, duly commenced by appellee against appellant, the former was granted an absolute divorce from the latter. Appellee was awarded the custody of the minor child of the parties. The court, as a part of its findings and decree, made an adjudication of the property rights and interests of the parties and rendered a judgment for alimony in favor of the appellant and against the appellee.

Appellant’s sole assignment of error is that the court erred in overruling his motion for a new trial containing only the specified grounds that the decision of the court was not sustained by sufficient evidence and that said decision is contrary to law.

No issue is presented or argued by appellant pertaining to the action of the court in decreeing the absolute divorce .to appellee and awarding her the custody of the minor child of the parties. The appellant contends only that the court “abused its discretion” in its adjustment of the property rights and interests of the parties “in giving to the appellee most, of the real and personal property of the appellant without providing for the payment to appellant of a fair and equitable sum to compensate him therefor.” Appellant proposes that the issue is twofold, viz: “1. What is the value of the property of these parties?; and 2. To what portion of such total value is appellant entitled ?”

Appellant next states that the value of the property is a “fact issue” and the portion thereof to which appellant is entitled is a question of law. As to the asserted fact issue of the value of the property of the parties, appellant engages upon evidence which was in conflict as- to the valuation of [559]*559the different items of said property. We must, therefore, accept only the evidence favorable to appellee as to such valuations. It follows that the answer to appellant’s said first query is found in the “appellee” column of appellant’s own recapitulation in his brief of the valuations placed on the “assets” by appellant and by appellee. No reversible error has been established by appellant under his said “fact issue” as to the valuation of the property of the parties.

Under his said second “issue,” which appellant has designated in question form as “To What Portion of the above Assets are each of the Parties entitled?”, appellant lists six points, each seemingly intended to declare a principle or rule of law which, appellant says, applied “to Facts of Present Case.” Of course, it is incumbent upon the appellent to do more than just set forth what he considers the pertinent correct rules or principles of law. He must demonstrate that the trial court erred in some manner in respect to the given rules.

Appellant’s Point 1 to the effect that the award by the trial court of alimony in a divorce action “must be just and proper under all the evidence” is not at all applied to the evidence. No part of the evidence is referred to, and there is made no contention or argument that the appealed from award of the court was not “just and proper.” Thus, this point is deemed waived by appellant. Point 2, as asserted by appellant, is a general statement that the “fault or misconduct” of the wife should be considered in awarding her alimony. In the instant action, the court found for appellee on her complaint for divorce and against appellant on his “cross-complaint” therefor. This finding of the court “establishes the appellee’s innocence of any such [560]*560wrong-doing as might mitigate her claim for alimony.” Sims v. Sims (1957), 128 Ind. App. 408, 415, 146 N. E. 2d 111. Therefore, there is no efficacy to appellant’s said Point 2.

By his said Point 3, appellant states that “in awarding alimony to an innocent and injured wife, the general rule is that she should receive approximately the amount she would receive on the husband’s death.” The appellant follows this declaration with the assertion that the trial court went beyond the limits of what is “just and proper” in “awarding her (appellee) 85% of the property owned by the parties.” Said assertion is wholly unpremised, unexplained, and unapplied by appellant to the record facts pertaining to the property referred to. We are left to seek out for ourselves the pertinent factual evidence (some of which appellant has omitted from the condensed recital thereof in his brief), search therein for the facts as to the ownership, method of acquirement, devolution of title, transfers, source of the purchase money, and other controlling factors relating to said property, and then endeavor some sort of computation in an effort to determine whether appellant’s stated percentage thereof was in fact awarded by the court to appellee. Upon the accomplishment of that prodigious task, we would be expected to sift through the whole of the evidence and the permissible inferences therefrom for a basis of determination of appellant’s submitted proposal that the court abused its discretion in making its adjudication of the property rights and interests of the parties. It is the burden of appellant to establish error by the record and this burden cannot be evaded by an attempted placement thereof in the lap of this court.

[561]*561Appellant’s Point 4 alleges that “the court has a duty to take into consideration the value of the property and financial condition of the parties. This is followed by reference to some of the evidence which was favorable to appellant with a sprinkling of appellant’s conclusions relative thereto. For instance, appellant concludes: that the trial court “completely ignored” the evidence of the “financial condition” of the parties; that appellee “forced out” the appellant from his work at the Lain Business College; that the court’s decree took appellant’s “livelihood” from him “without adequate compensation” and this was “Hardly a fair and equitable settlement” considering the facts of the case; that appellant, at age sixty (60), is “forced” into another business or job for which “he may not be suited.” (Emphasis supplied). Plowever, appellant does not allude to the fact that the evidence was in conflict nor does he assert or claim that the referred to evidence was undisputed. In short, appellant entirely fails to establish that the court did not consider the “value of the property and financial condition of the parties” in arriving- at its adjustment of the property rights and interests of the parties.

As Point 5, appellant declares that “In the adjustment of property rights of the parties to a divorce action the court may allot to one spouse property previously settled on the other.” Following that declaration appellant makes no showing of any kind nor any reference to any evidence to show that he “settled” any property on the appellee. Here, in pertinent substance, is appellant’s complete statement under his Point 5: “Whatever the reason for the transfer of property from appellant to appellee . . . , there is no dispute that appellant did transfer to ap[562]*562pellee two-thirds of the business, two-thirds of the real estate of the business and the entire interest in the home property. Under all of the circumstances the lower court could and should have returned a part of that property or a reasonable cash judgment to appellant, which it failed to do.” (Emphasis supplied). The entire statement amounts to no more than appellant’s own conclusion as to the matter.

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Cite This Page — Counsel Stack

Bluebook (online)
189 N.E.2d 838, 134 Ind. App. 557, 1963 Ind. App. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lain-v-lain-indctapp-1963.