Scott v. Scott

209 N.E.2d 49, 140 Ind. App. 320, 1965 Ind. App. LEXIS 466

• Court: Indiana Court of Appeals
• Decided: July 16, 1965
• Docket: No. 19,935
• Status: Published

Opinions

Bierly, Chief Justice.

— Appellant, Helen Scott, instituted this action in the Hendricks Circuit Court for an absolute divorce from appellee, Robert E. Scott.

Appellant’s complaint for an absolute divorce was predicated upon the statutory grounds of cruel and inhuman treatment. Appellant’s complaint further requested custody of the minor children, a reasonable amount of money for their support, personal property of the parties, and costs of the action. Appellee filed his answer in compliance with Rule 1-3. On the same day appellee filed a cross-complaint in which he requested an absolute divorce from appellant, asserting cruel and inhuman treatment, custody of the minor children and all other proper relief in the premises.

The court entered its decree denying to appellant a divorce and granting appellee an absolute divorce, custody of the minor children and providing for division of the property of the parties.

Subsequent to the court’s decree, the court sustained a motion by appellant to hold the proceedings in abeyance. Upon appellant’s • motion, the court opened the judgment on the motion for a new trial for the purpose of hearing additional testimony. Thereafter, appellant filed her motion for a change of venue from the judge, which motion was overruled by the trial court the same day it was filed. The cause was set for hearing of additional evidence. Final judgment, which contained the same findings as the initial decree, was thereafter rendered.

Appellant complains that manifest error was committed by the trial court in that:

“1. The court erred in overruling appellant’s motion for new trial.

“2. The court erred in overruling appellant’s motion for a change of venue from the Judge.”

Appellant’s motion for new trial asserts error:

“1. That irregularities occurred in the proceedings of the court by which the plaintiff was prevented from having a fair trial;

“2. Than an abuse of discretion by the court occurred during the course of the proceedings by which the plaintiff was prevented from having a fair trial;

“3. That the decision of the court is not sustained by sufficient evidence;

“4. That the decision of the court is contrary to law.”

The first two specifications of error under appellant’s motion for a new trial are not to be reviewed by this court. Specifications of error asserting irregularities in the proceedings and abuse of discretion of the court, thus vaguely stated as causes in a motion for a new trial, will not present error on appeal. It is hot sufficient to allege error merely on the language of the statute; the motion must specifically set forth the error relied upon. The general language of the above two specifications of error is too general to apprise the trial court of appellant’s asserted errors. For this reason this court will not review the above specifications. Ferguson v. Ramsey (1873), 41 Ind. 511; see also Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 1812, Comment 1, Provision 1, p. 379; Ellis v. Auch et al. (1954), 124 Ind. App. 454, 118 N. E. 2d 809; Sheridan v. State (1955), 125 Ind. App. 271, 124 N. E. 2d 701.

However, due to the importance of the question presented by appellant’s belated motion for a change of venue from the judge, we will review this question. Appellant’s belated motion, omitting formal parts, is as follows:

“Comes now the plaintiff, after being duly sworn upon her oath, and respectfully moves the Court grant a change of venue from the Judge for the following reasons:

“1. That the Judge is of kin to the defendant in this cause of action;

“2. That the convenience of witnesses and the ends of justice would be promoted by the change of Judge;

“3. That bias and prejudice exists on behalf of the trial Judge which makes it impossible for the plaintiff to have a fair and impartial trial.

“Affiant further states on her oath that she objects to the presiding Judge of the Hendricks Circuit Court selecting a Judge to try the case, or submitting a list of names from whom a Judge may be selected to try the case, and respectfully moves that the Court certify the facts to the Clerk of the Supreme Court of the State of Indiana as in such cases made and provided.

“Affiant further states on her oath that the reasons assigned for the Change of Venue from the Judge were newly discovered by this affiant after the commencement of this trial and the existence of these grounds for the Change of Judge were not known to the plaintiff prior to the commencement of the case in chief.

“WHEREFORE, affiant respectfully moves the Court grant the motion for Change of Judge in this case and provide for the appointment of a Special Judge as provided by the statute of the State of Indiana in in such cases made and provided.”

Acts 1881 (Spec. Sess.), ch. 38, § 255, p. 240, being § 2-1401, Burns’ 1946 Replacement, provides in pertinent part:

“The court, in term, or the judge thereof, in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one [1] or more of the following causes:

“Second. That the judge is of kin to either party.

“Seventh. When either party shall make and file an affidavit of the bias, prejudice or interest of the judge before whom the said cause is pending.”

Acts 1929, ch. 6, § 1, p. 12, being § 2-1402, Burns’ 1946 Replacement, provides:

“When any matter of a civil, statutory or equitable nature not triable by a jury, is pending, the judge before whom said cause is pending shall change the venue thereof upon the application of either party to such cause, made upon affidavit, of either party or his attorney, showing any one [1] or more of the reasons named in the statutes of this state authorizing changes of venue from the judge in civil actions. And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions.”

The above provision has been found to be applicable to actions for divorce. McDaniels v. McDaniels (1945), 116 Ind. App. 322, 62 N. E. 2d 876.

Rule 1-12B of the Rules of the Supreme Court provides, in part:

“1. In all cases where the venue of a civil action may now be changed from the judge or the county, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney. Provided, however, a party shall be entitled to only one (1) change from the county and only one (1) change from the judge.

“2. In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for a change of judge or change of venue shall be filed not later than ten [10] days after the issues are first closed on the merits.

“8. Provided, however, if the moving party first obtains knowledge of the cause for change of venue from the county or judge after the time above limited, he may file said application, which must be verified personally by the party himself, specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and the ruling of the court may be reviewed only for abuse of discretion.’’ (Our emphasis).

It appears that a brief history of the applicable rules of the Supreme Court is necessary for an understanding of the question presented.

Rule 1-12 as adopted in 1946 provided, in part:

“. . . An application for change of judge as now provided by law, shall be filed at least ten days before the date set for the trial, or if a date less than ten days in the future is set for the trial, the application shall be filed within two days after the setting of the case for trial . .

In the case of State ex rel. Chambers v. Heil .(1951), 229 Ind. 176, 96 N. E. 2d 225, it was held that a general allegation of bias and prejudice and that the affidavit was filed at the first opportunity after the bias and prejudice of the judge was discovered, would suffice to relax that portion of Rule 1-12 set forth above.

Rule 1-12B as adopted in 1955 provided, in part, as follows:

“In all cases where the venue of a civil action may now be changed from the judge or the county, such change shall be granted upon the filing of an unverified application or motion therefor by a party or his attorneys; Provided, however, a party shall be entitled to only one change from the county and only one change from the judge.

“In any action except criminal no change of venue from the county shall be granted except within the time herein provided. Any such application for change of venue shall be filed within ten (10) days after the issues are first closed on the merits, or if the issues are closed without answer by operation of law, or where a cause is remanded for a new trial by the Appellate or Supreme Court, within ten (10) days after the party has knowledge the cause is ready to be set for trial. Any application for change of venue from the county to which the venue is first changed shall be filed within ten (10) days after the moving party has knowledge the cause has reached the county if the issues have already been closed as above provided.

“Provided, however, if the moving party first obtains knowledge of the cause for change after the time above limited, he may file said application, which must be verified personally by the party himself, specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a .change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and the ruling of the court may be reviewed only for abuse of discretion.”

In State ex rel. La Baw, Admr., etc. v. Sommer, J. (1957), 237 Ind. 393, 146 N. E. 2d 420, the Supreme Court held:

“Thus it seems clear that the provision of Rule 1-12B which requires that the application for ‘. . . change after the time above limited, . . . must be verified personally by the party himself, specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before [by] the exercise of due diligence . . .’ is related to taking a change of venue from the county only, and that the limitation recited in Rule 1-12, as construed by State ex rel. Chambers, swpra, is controlling as related to proceedings for change of judge.” See also: State ex rel. Duffy v. Lake Juvenile Ct. et al. (1958), 238 Ind. 404, 151 N. E. 2d 293.

However, Rule 1-12B, as adopted in 1955, was amended in 1958 and is now applicable for change of judge as well as change of venue from the county.

In State ex rel. Kielpikowski v. Murray, Judge, etc. (1960), 240 Ind. 222, 163 N. E. 2d 597, where an application for change of judge was not timely filed, the Supreme Court held:

“The record shows that on September 25, 1959 (three days before the day fixed for trial of this .cause) the relator next filed an application for a change of venue from the judge. This motion was general in character, without any specific allegations therein, as required by the paragraph of Rule 1-12B set out above. The allegations are much in the nature of those used prior to the effective date of Rule 1-12B when, by such verified general allegations, a party could secure a change of venue at any time up to and including the day of the trial. It was the purpose of the rule, as amended, to eliminate such practice by requiring specific allegations with reference to when, where and how the prejudice was discovered and what diligence was used in discovering the same. Even though no counter-affidavit was filed thereto, the motion for a change was so patently insufficient and defective that the trial court had no discretion, and was compelled to overrule the same.” (Our emphasis).

Section 2-1401, supra, affords the right to a change of venue from the judge and enunciates the grounds therefor. The rules of the Supreme Court prescribe the time within which such application should be filed. However, a problem arises when the application is not timely filed. Under prior practice, it was sufficient to file a general affidavit that the application was filed at the first opportunity after such ground for change was discovered. State ex rel. La Baw, Admr., etc. v. Sommer, supra. The cases held that it was necessary to grant a change in these circumstances in order to avoid subjecting a party to a patently unfair trial and destroying an absolute right conferred by the legislature. State ex rel. Chambers v. Heil, supra. However, this resulted in a practice whereby anyone could secure a .change by filing verified general allegations. The Supreme Court, in adopting Rule 1-12B, has placed the burden upon the maker to set forth specific allegations with reference to when, where and how such cause for change of judge was discovered and what diligence was used in discovering the same. This rule further provides that the ruling of the court may be reviewed only for abuse of discretion. The Supreme Court, in adopting Rule 1-12B, has certainly not destroyed this right granted by the legislature, but has placed a burden upon the moving party to set forth in his verified application certain specific allegations. It follows that the Supreme Court considers this a right granted by legislature and one exercised only by the procedure expressly set forth in Rule 1-12B.

Supreme Court Rule 1-12B sets forth explicitly the essential allegations to be included in the belated verified application for change of venue. We do not feel that Rule 1-12B is vague nor does it subject a litigant, with a bona fide ground or grounds for change of venue, to an unreasonable burden.

We do not deny, nor does Rule 1-12B deny, the litigants of this state the right to a fair and impartial trial or tribunal. But we do require that the clear and unambiguous requirements of Supreme Court Rule 1-12B be complied with.

In the case at bar, the appellant’s verified application or motion set forth only general allegations and totally failed to meet the requirements of Rule 1-12B.¹

We refer again to § 2-1401, supra, to clause “Second,” which reads as follows: “That the Judge is of kin to either party,” as a .condition for a change of venue on application of either party by affidavit. We note that this section fails to set up any standard of measurement indicating the degree of kinship which would disqualify the court or the judge from hearing a civil action. Hence, we must look to other applicable statutes, if any, for a determination of this question.

Section 9-1303, Burns’ 1956 Replacement, reads as follows:

“No judge of any court shall preside in or try any criminal cause, where he is related to the defendant by marriage or by blood, within the sixth degree of consanguinity, nor where he has been of counsel in the cause, either for the state or for the defendant; and in either of such cases it shall be the duty of the regular judge to select a special judge to try such cause.”

It seems apparent to us that there would be no legislative intent to prescribe a more limited test for a court or judge to sit in a civil action than is set forth in a criminal case relative to the matter of kinship of court or judge.

We cite, also, clause “Eleventh” of § 1-201, Burns’ 1946 Replacement, entitled, “Statutes, how construed,” as follows:

“When a person is required to be disinterested or indifferent in acting on any question or matter affecting other parties, consanguinity or affinity within the sixth degree, inclusive, by the civil law rules, or within the degree of second cousins, inclusive, shall be deemed to disqualify such person from acting, except by consent of the parties.”

It appears to us that this § 1-201, supra, prescribes the guideline to determine legislative intent of the word “kin” as given in § 2-1401, supra.

According to the record, during the hearing of evidence subsequent to the court reopening the case to hear additional evidence on direct examination of appellant, this exchange occurred between the .court and the appellant:

“The Court: I have one question, Mrs. Scott, for the record, and also for my own knowledge. You have filed an affidavit in this case alleging that the judge is of kin to the defendant. Would you tell me what the relationship is?

“Answer: After the hearing went as it did, the following morning after I saw Barbara Groover and I asked Barbara what relationship Judge Groover was to Betty Groover and she said they were fourth cousins; that Bob’s mother had one sister that died when she was 26 years old. She had a little boy, Billy Groover and Bob’s grandmother raised Billy Groover and they grew up together and you would be a relative of the family.

“The Court: What relative would you say that would be?

“Answer: Fifth cousin, would that be?

“The Court: I want to know from you, you are the one that signed the affidavit.

“Answer: I would say fifth cousin.

“The Court: That is all.”

Then on redirect examination of Helen Scott, appellant, by Mr. Dewester, in reference to her motion for a change of venue, this testimony was given:

“Q. This motion was filed at your request, was it not?

“A. Yes.

“Q. And I personally advised you against filing the motion for a change of judge, at that time?

“A. Yes.

“Mr. Dewester: That is all.”

We think that the affidavit for change of judge filed by appellant was not appropriate and the attempt by her to establish a disqualification of the judge is lacking in essential elements!

Hence, on the basis of the foregoing reasons and upon the strength of State ex rel. Kielpikowski v. Murray, J., supra, it is our opinion that the verified motion for change of judge was so patently insufficient that the trial .court had no discretion but to overule the same.

Appellant next complains that the decision of the trial court is not sustained by sufficient evidence. As the decision of the court was negative to appellant, she is unable to attack the sufficiency of the evidence in this court.

Lastly, the appellant complains that the decision of the court is contrary to law. In Bone v. Bone (1962), 132 Ind. App. 630, 179 N. E. 2d 584, this court held:

“We shall consider the evidence most favorable to appellee to determine whether or not the evidence and all reasonable inferences deductible therefrom support the finding that appellant was guilty of cruel and inhuman treatment toward appellee. If there is any substantial evidence of probative value to sustain the finding and decision of the trial court, the judgment must be affirmed. Mitchell v. Mitchell (1956), 126 Ind. App. 377, 133 N. E. 2d 79; Poore v. Poore (1955), 125 Ind. App. 392, 125 N. E. 2d 810.”

Having carefully considered the testimony of the parties and witnesses in this case, we feel it is sufficient to say that, at best, the evidence is conflicting therein. By the very nature of a divorce proceedings, a great deal of weight must be placed upon the credibility and demeanor of the parties and witnesses. The trial court had ample opportunity to observe and study the credibility and the demeanor of the parties and witnesses. Considering the evidence most favorable to the appellee, we are unable to find reversible error.

The appellant having failed to establish reversible error, the judgment of the trial court is hereby affirmed.

Prime, P. J., Carson and Mote, JJ., concur; Smith, J., dissents with opinion, in which Hunter J., concurs. Paulconer, J., concurs in result.

1 . The belated affidavit in the case at bar contains the same general infirmities, as to conforming to Rule 1-12B, as in the affidavit filed in State ex rel. Kielpikowski v. Murray, Judge, (1960), 240 Ind. 222, 163 N. E. 2d 597.