Opinion
No. 16,796.
Filed March 24, 1942.
1. DIVORCE — Effect of Judgment — Estate by Entireties Converted into Tenancy in Common. — An absolute divorce terminates an estate held by the parties by entireties and converts it into an estate as tenants in common. p. 61.
2. DIVORCE — Appeal — Harmless Error — Disposition of Property — Error in Appellant's Favor. — A wife who was granted an absolute divorce could not complain of the action of the court, in setting off to her the household goods, on the ground that there was no evidence that they belonged to her, since the error, if any, was in her favor. p. 62.
3. DIVORCE — Alimony — Amount — Discretion of Trial Court. — The amount of alimony, if any, to be allowed rests largely within the discretion of the trial court, and the Appellate Court will not interpose on appeal, unless there is an abuse of discretion. p. 62.
4. DIVORCE — Alimony — Refusal to Grant — Evidence — Abuse of Discretion Not Shown. — Where, in action for divorce, it was shown that the parties had been married about twelve years, that at the time of the marriage the husband had about $500 which was used to buy furniture; that both parties worked and pooled their surplus earnings in a joint bank account, using them to buy additional furniture and real estate; that the wife kept the $100 to $200 remaining in the joint bank account at the time of the separation, and the court set off the household goods to the wife, an automobile valued at $250 to $300 with an indebtedness against it of $60, to the husband, and adjudged them to be owners as tenants in common of the real estate, the court did not abuse its discretion in refusing to grant alimony to the wife. p. 62.
From the Marshall Circuit Court; John W. Kitch, Judge.
Action by Harry Gibble against Thelma Gibble for a divorce. From a judgment granting defendant a divorce on her cross-complaint but denying her alimony, defendant appealed.
Harry E. Vernon, of Goshen, for appellant.
Max Buntman, of South Bend, for appellee.
Appellant was granted a divorce from appellee on her cross-complaint, and the court adjudged appellant to be the owner of the household goods, appellee the owner of an automobile, and the parties to be tenants in common of certain real estate which they had owned as tenants by the entireties.
Appellant's motion for a new trial and motion to modify the judgment challenged the correctness of the property division and the failure to award alimony. Both motions were overruled, and these rulings of the trial court are assigned as error here.
Appellant contends that it was error to adjudge that the parties were tenants in common of the real estate which they had owned as tenants by the entireties. Under the law of this 1. State, an absolute divorce terminates an estate by entireties and converts it into an estate as tenants in common. Kiracofe v. Kiracofe (1924), 80 Ind. App. 656, 142 N.E. 21. This part of the court's judgment was merely declaratory of the law and could not be harmful to appellant.
Appellant next contends that the court erred in setting off to appellant the household goods because there was no evidence to show that they belonged to her. If 2. any error was so committed, it was in appellant's favor and she has no cause for complaint.
Appellant finally contends that she should have been awarded alimony.
There is evidence that the parties to this action were married approximately twelve years; that at the time of their marriage appellee had about $500 which was used to buy furniture; 3, 4. thereafter both parties worked and put their surplus earnings in a joint bank account from which account money was withdrawn to buy additional furniture and the real estate in question. When they separated there remained between $100 and $200 in the account which appellant kept. At the time of trial they owned the household goods, which were given to appellant, an automobile of the value of $250 or $300 with an indebtedness against it of $60, and the real estate above referred to.
The amount of alimony, if any, to be allowed rests largely in the discretion of the trial court, and this court will not interpose upon an appeal except where there is an abuse of discretion. Radabaugh v. Radabaugh (1941), 109 Ind. App. 350, 35 N.E.2d 114; Yost v. Yost (1895), 141 Ind. 584, 41 N.E. 11. Under the circumstances of this case, considering the property division made by the court, we cannot say it abused its discretion in not granting alimony.
Judgment affirmed.
NOTE. — Reported in 40 N.E.2d 347.