Opinion
No. 28,222.
Filed November 8, 1946.
1. PLEADING — Complaint — Sufficiency — Action for Separation from Bed and Board — Allegations Sufficient. — A complaint for separation from bed and board was good as against a demurrer on the ground that it did not allege any cause as specified by the statute, where the facts alleged clearly stated a cause of action within such statute. p. 524.
2. HUSBAND AND WIFE — Actions for Separate Maintenance — Interlocutory Orders — Construction of Statute. — The statute providing for separation from bed and board contemplates the granting of interlocutory orders, including an order requiring the husband to pay the wife's attorney. p. 525.
3. STATUTES — Subjects and Titles — Separation from Bed and Board — Title Sufficiently Broad to Permit Issuance of Interlocutory Orders. — The title of the act providing for separation from bed and board is broad enough to permit the issuance of interlocutory orders for support and for the wife's attorney fee. p. 525.
4. HUSBAND AND WIFE — Actions for Separate Maintenance — Interlocutory Orders — Continuing Jurisdiction of Court. — The court has continuing jurisdiction to make or modify interlocutory orders for child support and the wife's attorney fees pendente lite in an action for separation from bed and board. p. 525.
5. APPEAL — Briefs — Contention Not Supported by Statement of Record — Effect. — A contention that a special judge had no power to act for lack of available court room in which to act due to the fact that at the time he acted the court was in session with the regular judge presiding, could not be sustained, where such contention was not supported by the statement of the record in appellant's brief. p. 525.
6. APPEAL — Presumptions — Improper Constitution of Lower Court not Presumed. — A reviewing court will not assume that the court from which an appeal was taken was improperly-constituted. p. 525.
From the Marion Superior Court, Room No. 3; Walter Myers, Jr., Special Judge.
Action by Pearl Brown against Robert Brown for separation from bed and board. From an interlocutory order requiring defendant to pay a specified sum per week for support of the minor child of the parties and a certain sum as partial fees for plaintiff's attorney, defendant appealed.
Order Affirmed.
Todd Craig, of Indianapolis, for appellant.
Louis Rosenberg, of Indianapolis, for appellee.
Appellee filed a complaint for separation from bed and board under ch. 48, Acts 1903, found in Burns' 1946 Replacement beginning with § 3-1230. The complaint also requested "a reasonable sum for the support of herself, their minor children and with which to pay her attorney." Upon an order to show cause appellant appeared and contended that the court was without jurisdiction to order interlocutory payments in a proceeding of this character. The court however ordered payment of $10.00 per week in support of a minor child. There was a change of judge and another hearing after which the special judge entered an order to pay $10.00 per week for the minor child and also ordered appellant to pay $75.00 as partial fees of appellee's attorney. From the latter order this appeal is taken.
One of the errors assigned is the overruling of appellant's demurrer to the complaint. Apparently this assignment was made on the theory that lack of a good complaint prevents the 1. acquisition of jurisdiction. If this were true, it is sufficient to say that appellant's only objection in the memorandum of the demurrer was "that the complaint does not allege any cause such as specified by statute." The point is not well taken since the facts alleged clearly state a cause of action within clause (c) of § 3-1230, supra.
It is asserted that no interlocutory orders are contemplated by the statute. This contention was made and overruled in 2. Tracy v. Tracy (1943), 221 Ind. 590, 50 N.E.2d 662.
Appellant next contends that the title of the act of 1903 was not broad enough to permit such interlocutory orders. This contention is frivolous as appears from the title itself 3. quoted in the note to § 3-1230, supra.
He urges also that the special judge had no right to pass upon appellee's petition for attorney's fees because it had already been ruled upon by the prior judge. The first order did not 4. pass upon the question of attorney fees, the second made no change in the order as to support for the child. Had it done so there would have been no error for the court has continuing jurisdiction to make or modify such orders pendente lite.
Finally it is argued that "The court (special judge) had no power to act as the judges of the superior court were all in session at the time." If this is intended to mean that 5, 6. there was no court room available or that in Room 3, where the proceeding was pending, court was then in session with the regular judge presiding, it is not supported by the statement of the record in appellant's brief. We shall not assume that the court was improperly constituted.
The order is affirmed.
NOTE. — Reported in 69 N.E.2d 246.