Opinion
Opinion Superseded 281 N.E.2d 82.
Richard D. Bray, Martinsville, Jack Rogers, Rogerss&sRogers, Franklin, for appellant.
Kenneth Barton, Greenwood, for appellee.
ON APPELLEE'S MOTION TO DISMISS APPEAL
PER CURIAM.
This was a cause of action for divorce in the trial court. The matter is now before this Court on the appellee's motion to dismiss the appeal, which alleges as cause therefor that appellant has accepted a material part of the judgment of the trial court by remarrying, and he has therefore waived any further right to appeal.
The appellant asserts that he is not contesting that part of the judgment granting the divorce, but he is only seeking review of that part of the judgment which concerns the property settlement and alimony.
The law in Indiana is firmly settled that the adjudication of property rights between husband and wife in a divorce proceeding is such an integral part of the judgment that in the absence of fraud it cannot be separated from the decree of divorce. Arnold v. Arnold (1933), 95 Ind.App. 553, 183 N.E. 910; Sidebottom v. Sidebottom (1968), 249 Ind. 572, 233 N.E.2d 667.
It is further settled that an appellant, having recognized the validity of a judgment and decree of divorce rendered in a court of competent jurisdiction and having jurisdiction of the persons, by accepting the favorable provisions thereof, whether financial or marital, in the absence of fraud, is estopped from questioning the validity of that judgment or decree from and after the acceptance of such benefits. Sidebottom v. Sidebottom, supra.
The appellant has not raised any issue of fraud either on the part of the trial court or on the part of the appellee which would remove this cause from the application of the general rule.
The appellant cites authorities from other jurisdictions in support of his claimed right to maintain this appeal. Whatever may be the law elsewhere, our Supreme Court has set out the law in Indiana on the subject in Sidebottom, supra, and we are bound thereby.
The appellee's motion to dismiss is sustained, and this cause is dismissed.
STATON, J., dissents with opinion, in which SULLIVAN, P.J., and SHARP, J., concur.
STATON, Judge (dissenting).
I dissent from the ruling of my brethren which gives continuing life and vitality to the doctrine of estoppel and the doctrine of indivisibility. These doctrines have been misapplied for too many years and should be reexamined. Their continued application in cases such as the one here before us can only lead to further injustice compounded by heedlessly following stare decisis. The doctrine of estoppel denies to a husband or wife the right to prosecute an appeal if either has remarried since the divorce judgment. This rule is founded upon the old equity concept that having accepted the benefits, such party is estopped from further questioning the fairness of the transaction. This equity concept was never applied at common law to divorce proceedings since divorce is a creature of statute and not of the common law. The doctrine of indivisibility means in this instance that each part of the court's judgment including marital status, property settlement, alimony and custody of children is of such an integral and inviolate nature to the whole judgment that no part thereof can be considered on appeal without considering the whole. Therefore, remarriage by one of the parties to the divorce judgment completely incapacitates the court on appeal to hear any of the divorce judgment.
My reasons for dissenting are:
1. The equity doctrine of estoppel in its present form and as it is now applied has no basis for ever being the law in Indiana.
2. The classical equitable estoppel doctrine prevented the party who accepted the benefits of the transaction from questioning its validity or correctness. The same equitable result can not always be accomplished when estoppel is applied to pending appeals. If the estoppel doctrine is applied in divorce cases for the original reason given * * * to prevent one of the parties from becoming a bigamist * * * the remarriage of either the husband or wife during the pending of an appeal would be a sufficient cause to invoke the rule. Where cross-errors have been filed, invoking the estoppel doctrine could conclude the right to appeal for both parties. It may be contended that the rule applies only to the party who is taking the appeal, but this application of the rule does not accomplish the result originally intended. For example, if the wife-appellee remarried while the appeal is pending and the husband-appellant is successful on appeal in having the entire cause reversed, the wife-appellee would be a bigamist before the trial court. This would be true even though the only question raised on appeal was alimony. The doctrine of indivisibility which has developed in a parallel fashion since 1904 with the doctrine of estoppel but at a more rapid rate, forecloses the absolute submission of individual issues to the appellate tribunal. The inherent risk of having the entire divorce judgment tried de novo lurks in every submission of one or more issues to the appellate tribunal. This is true even though the parties are not questioning the validity of the marital status.
The doctrine of estoppel and the doctrine of indivisibility are not applicable to the results intended. As Judge Hunter recently stated in O'Connor v. O'Connor (1969), Ind., 253 N.E.2d 250, : "If the result can no longer be justified the doctrine should be struck down regardless of its historical-legal basis."
3. Divorce is not an uncommon or infrequent occurrence in our society today. If a party is penalized for remarrying while his or her appeal is pending on matters other than the validity of their marital status, a restoration to normal and productive living is senselessly postponed. The order and tranquility of our society is ill served by insisting on a semistatic marital relationship during a long drawn out appeal. Marriage and family living is a cornerstone of our civilization. To perpetuate a bitter experience and an abnormal relationship during an appeal serves no purpose to God or man.
4. The doctrine of indivisibility is a step-child of an unimaginative approach which assumes that evidence heard at trial can not be departmentalized upon appeal and retrial. In other words, the same evidence can not be heard in the trial court again for less than all the parts contained in a divorce proceeding. Admittedly, the same evidence may be applied to several parts in the same proceeding. Indivisibility is not true in practice and should not be coveted in theory.
5. TR. 59(G) can not be effectively administered in practice under the doctrine of indivisibility. The pretense of the doctrine should be dealt with now before its extension in the law leads us into one legal fiction after another thereby obliterating its source and reason for being.
The legal concept of estoppel, as applied in the present case has meager and doubtful parentage in Indiana law. This concept is not related to reason. As originally applied, it related to a concern of the court that a reversal of a decree for divorce would render one of the parties on appeal a bigamist. This concern can not exist where the only question raised on appeal is alimony, property settlement or some other question which does not directly affect the validity of the marital status of the parties. Estoppel has been nourished over the years by misapplied evidentary considerations. Evidence considered by the court in arriving at the division of property or determining alimony is sometimes identical in many cases with the evidence necessary to determine whether a divorce should be granted. The pseudo-corollary of trial de novo sprang forth. The corollary of indivisibility was an easy and expected development.
Parentage of Estoppel:
The doctrine of estoppel was born in 1871 to obiter dictum in Garner v. Garner (1871), 38 Ind. 139.
Only the question of alimony was being appealed by the appellant-husband. The appellee-wife who had been granted alimony in the sum of One Thousand Two Hundred Dollars ($1,200.00) moved to dismiss the appeal because appellant-husband " * * * since the rendition of the judgment of divorce, and before the appeal, has married another woman; * * * ". Commenting upon the appellant-husband's brief, the court stated: "The appeal is prosecuted by the appellant under the impression, as we infer from the brief of his counsel, that this court will not, and perhaps cannot, in any case, reverse a judgment granting a divorce; and hence it is only asked that we will reverse or modify the judgment for alimony. In this position counsel are mistaken. This question came before us and was decided in Sullivan v. Sullivan [ (1870) ], 34 Ind. 368." In Sullivan v. Sullivan, supra, the court merely recognized that the doctrine of condonation applies to cruel treatment as well as to adultery and that the Supreme Court may upon appeal reverse the judgment granting a divorce which isn't really a revelation. The only questions on appeal in Sullivan, supra, were: (1) whether the doctrine of condonation applied to cruel treatment as well as to adultery, and (2) whether condonation had to be specially pleaded where the petitioner had set out the condonation and also alleged the violation of its conditions. The court held that: "As the pleadings stood, the court committed no error in hearing the evidence to which objection was made." Sullivan, supra, at 371. The court then proceeded to affirm the lower court. The appellee had raised the question that the court will not reverse a judgment granting a divorce. This contention provoked the declaration of the court that it could reverse a judgment granting a divorce. Neither the appellant nor the appellee in the Sullivan case had remarried during the pendency of the appeal.
In Garner, supra, the court had not been furnished with any authority to support the concept of estoppel urged by the appellee and readily admitted that they had made a limited search. The court further stated that it had found such authority as would lead them to believe that an appeal in such a case could not be prosecuted. The court did not cite any authority for this conclusion. The court espoused for the first time in Indiana the theory of estoppel as it is applied to divorce judgments on appeal.
"If we should reverse the judgment, the effect would be to leave the appellant with two women, each with at least apparent claims to be his lawful wife; the petitioner, because she would be unquestionably his wife after the judgment for divorce was reversed, and the other female, because she had married him while the judgment of divorce was in full force and unreversed, and while he was consequently single and unmarried.
It seems to be the law that a party cannot be relieved from a judgment of divorce after he has used the privileges of the judgment. Having availed himself of the benefits of the decree or judgment he must bear its burdens. This is, we presume, upon the principle of estoppel." Garner, supra, 38 Ind. at 140.
Garner, supra, at 140 then hastened to add: "But without deciding this question, we have examined into the question as to the alimony, and find that this was a second marriage of both parties; that they lived together about two years; and that the husband was worth fifteen or twenty thousand dollars. We think twelve hundred dollars was not too much alimony in such a case. The judgment is affirmed, with five per cent. damages and costs."
Four years later what " * * * we presume, upon the principle of estoppel * * ", in Garner, supra, became a fully grown authoritative rule of law. In 1875, Stephens v. Stephens (1875), 51 Ind. 542, met the obiter dictum in Garner, supra, and they were joined together. The appellant and appellee had submitted their cause for appeal by agreement but the appellee had submitted his brief ninety-three (93) days after the submission, instead of sixty (60) days as required by Rule 14. The court held that the case stood dismissed for not filing a brief within sixty days after the submission. In answer to a plea in estoppel made by the appellee that the appeal be dismissed for the reason that the appellant had since the divorce decree married another woman, the court said: "To this plea the appellant, by way of reply, makes his affidavit, that since the decree of divorce he has married again, and is living with the woman last married as his wife; but he asks this court to determine whether the appellee was properly and legally divorced from him. This we will not do. By his marriage after his divorce, in contemplation of law, he admitted that he was legally divorced from his former wife." For authority, the court cites Garner v. Garner, supra. The court reasoned that: "If we reversed the decree, then the appellee is the wife of the appellant, and his present wife is not such, but is living in adultery with him." Garner, supra, 51 Ind. at 543. The appeal in Stephens, supra, was dismissed by operation of Rule 14. Nothing further needed to be said by the court. It did not need to comment on the appellee's: " * * * plea * * * in estoppel * * * ". It is not clear that this was the basis of the court's dismissal.
Obiter dictum continues.
It was Rariden v. Rariden (1904), 33 Ind.App. 284, 70 N.E. 398, which enlarged upon the doctrine of estoppel used in Garner, supra, and Stephens, supra. In addition to estoppel, it introduced the concepts of trial de novo and indivisibility. In Rariden, supra, the appellant had made a motion to modify the judgment in the court below by reducing the amount of alimony and allowance of attorney fees which had been overruled. The appellant only assigned as error the refusal of the lower court to modify the judgment. The court stated: " 'Alimony,' as here used, is purely incidental to a divorce proceeding, and is an allowance out of the divorced husband's estate made to the divorced wife for her support and maintenance. In this state it has no existence as a separate and independent right. It must be adjudged, if at all, in the divorce proceedings, and cannot be the subject-matter of an independent suit." Rariden, supra, at 285, 70 N.E. at 398. The court did not cite any authority for the foregoing statement. Having some second thoughts on the illogical approach taken and in an attempt to qualify its "separate and independent" position taken earlier the court in Rariden, supra, continued: "While it [alimony] is, in a sense, a separate judgment, and may be in a particular case modified or disallowed by the appellate tribunal without in any way affecting the decree of divorce, yet, in another sense, it is in no manner a judgment separate and apart from the decree of divorce, as a reversal of the decree of divorce, in and of itself, sets aside the judgment for alimony. And while the appellate tribunal, upon an appeal for that purpose only, may make such modifications of the allowance of alimony as right and justice require, it may, also, upon an appeal by the party who secured the divorce, and who questions only the allowance of the alimony, reverse the decree of divorce, and remand the case for the trial court to hear and consider the entire case de novo." Rariden, supra, at 286, 70 N.E. at 399. As authority for the foregoing statement the court cites Yost v. Yost (1895), 141 Ind. 584, 41 N.E. 11. In the last quoted phrase of the Rariden, supra, opinion, the court seems to be saying that alimony is a separate judgment which may be allowed or disallowed in a particular case by the appellate tribunal but then espouses an entirely different and irreconcilable position that the question of granting the divorce or the validity of the marital status is always a question before the court on appeal whether complained of as error below or not and " * * * a reversal of the decree of divorce, in and of itself, sets aside the judgment for alimony." Rariden, supra, 33 Ind.App. at 286, 70 N.E. at 399. Does this mean that all matters in a divorce judgment must be appealed if any part of the judgment is to be considered on appeal? In deciding that the appeal should be dismissed for the reason that the appellant had remarried since the judgment for divorce and during the pending appeal, the court again enunciated the estoppel doctrine stating: "But by his marriage, by which he has accepted the benefits of that part of the decree, he has made it impossible for the court to do what the justice of the case might require that it should do." Rariden, supra, at 287, 70 N.E. at 399. (Emphasis Ours).
IC 1971, 31-1-22-2, Ind.Ann.Stat., § 3-1232 (Burns' 1968). "Separation from bed and board--Alimony, sale of property, children.--Upon decreeing a temporary separation, the court may grant alimony and make such further decrees as it shall deem just and expedient concerning the estate and maintenance of the parties, or either of them. The court may decree that the guilty party shall temporarily forfeit all right to participate in the property and income of the other, and it may authorize the sale of property belonging to either party, without the other party joining in the conveyance: Provided, That the rights of either party in the property so sold shall not be less than the rights now provided by law where sales are made on execution. As regards the custody, care and maintenance of the children in such family, the court can make [such] provisions as justice and expediency require. From time to time afterwards, on the petition of either party, the court may revise and alter such decrees regarding property and income, and concerning the care, custody and maintenance of the children, as the altered circumstances of the parents and the benefit of the children may require." See also Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412 (1948).
In Yost v. Yost, supra, the trial court granted alimony of only $100.00 and refused to make any allowance at all for attorney fees. The court found such a gross abuse of discretion by the trial court that it ordered the entire proceeding tried de novo. It did not cite any authority for having the entire proceeding tried de novo.
This would be in direct conflict with the spirit and purpose of TR. 59(G).
Since 1904, the estoppel doctrine has grown steadily. In reviewing and analyzing the above cases, the source of the estoppel doctrine in Indiana, Garner v. Garner, supra, did not decide the question of estoppel nor did it cite any authority for its obiter dictum. Its remarks were merely commentary on the appellant's brief which apparently questioned the court's right to reverse a divorce decree or judgment of divorce. Later, in Stephens v. Stephens, supra, one of the questions which may have been before the court was: " * * * whether the appellee was properly and legally divorced from him." Here the court quoting Garner, supra, may have applied the estoppel doctrine which was not applied in Garner, supra. The court cited as its only authority Garner v. Garner, supra, which had no authority for the doctrine in the first instance nor did it decide the question, for which it was cited. What the court really decided in Stephens v. Stephens, supra, is not entirely clear since there was a failure to conform with Rule 14 which by its own operation would dismiss the appeal. It is very doubtful that Stephens, supra, decided the question of estoppel any more than Garner, supra. Therefore, I think that it is fair to say that the parentage or the source of the estoppel doctrine as well as the authority for it is somewhat in question.
It is really the case of Rariden v. Rariden, supra, which presents the impasse in the present case. Citing Garner v. Garner, supra, and Stephens v. Stephens, supra, as its authority, it went far beyond the doctrine of estoppel. The appellant in Rariden, supra, had sought only to modify the judgment as to alimony and allowance for attorney fees. These were the only two questions that the appellant was attempting to appeal. Upon a motion to dismiss for the reason that the appellant had since remarried, the court went far beyond the questions presented using broad, general statements. The court unnecessarily stated that alimony is purely incidental to a divorce proceeding and that it has no existence as a separate and independent suit. This language gave rise to the concept of indivisibility which seems to have locked the door on any further rethinking of the matter by the courts. This enlargement by Rariden, supra, upon a legal principle which had little, if any beginning, was to be further complicated by the introduction of trial de novo. For this profound statement the court cited Yost v. Yost, supra, which cited no authority for hearing an entire divorce proceeding de novo. In Yost, supra, there was an abuse of discretion by the trial court, a grossly inadequate sum of alimony to the wife of One Hundred Dollars ($100.00) and refusal to grant the appellant-wife any sum for attorney fees in the prosecution of her petition for divorce. In the light of this abuse of discretion by the trial court, the reasoning of the court appears to hinge on the apparent inability of the trial court to hear evidence on alimony and attorney fees without reconsidering its ruling on granting a divorce:
This would include Sidebottom v. Sidebottom (1968), 249 Ind. 572, 233 N.E.2d 667. The Sidebottom court relies on Garner v. Garner, supra; Rariden v. Rariden, supra; Arnold v. Arnold, supra; State ex rel. Balsley v. St. Joseph Superior Court (1948), 226 Ind. 372, 81 N.E.2d 373; Davis v. Davis (1951), 229 Ind. 414, 99 N.E.2d 77; Smith v. Smith (1955), 125 Ind.App. 658, 129 N.E.2d 374; Finke v. Finke (1963), 135 Ind.App.65, 191 N.E.2d 516; and Hedgecoth v. Hedgecoth (1966), 139 Ind.App. 162, 217 N.E.2d 630.
"As this court, in the exercise of appellate jurisdiction, has the power to so mould its judgments and mandates as to secure the proper relief or justice to the party or parties entitled thereto, we should much prefer to exercise that power, in order to provide a way by which this result might be obtained without disturbing that part of the decree divorcing the parties. But as the value of the property owned by appellee may have changed since the judgment was originally rendered, and likewise the circumstances and conditions of both parties, it will be proper and right, and better, perhaps, we think, subserve the ends of justice, for the lower court to hear and consider the entire case de novo." Yost, supra, 141 Ind. at 592, 41 N.E. at 13.
This is the same reasoning as found in Rariden, supra. If the value of the property and other material circumstances of the parties have changed since the evidence first heard by the trial court, it does not necessarily follow as a corollary that the divorce should not have been granted. The evidence considered for granting a divorce is static. There can be no condonation after the divorce is granted.
The doctrine of estoppel in Indiana reached full maturity in 1933. In Arnold v. Arnold (1933), 95 Ind.App. 553, 183 N.E. 910, the appellee-husband was given the custody of the children; the appellant-wife was granted an absolute divorce. There was an adjudication of the property rights between the parties. The appellant-wife appealed. The appellee husband filed a verified motion to dismiss for the reason that the appellant-wife had remarried and accepted the benefits of the judgment rendered in the Hancock Circuit Court. In Arnold, supra, the court not only reaffirmed the equitable estoppel doctrine that upon remarriage during an appeal the appellant is estopped from prosecuting the appeal, but reaffirmed the indivisibility dicta in Rariden, supra, by stating that: "The adjudication of the property rights between a husband and wife in a divorce proceeding is such an integral part of the judgment as that, in the absence of fraud, it cannot be separated from the decree for divorce." Arnold, supra, 95 Ind.App. at 555, 183 N.E. at 911. The court cited as authority for this reasoning Stephens v. Stephens, supra; Garner v. Garner, supra; and Rariden v. Rariden, supra. The latest enunciation and extension of the estoppel doctrine is found in Sidebottom v. Sidebottom (1968), 249 Ind. 572, 233 N.E.2d 667. A careful review of all the cases which have dealt with the problem of remarriage during the prosecution of an appeal and its effect on the right to appeal either the alimony or the property settlement, shows that all of the cases have their roots in the cases of Garner v. Garner, supra, and Stephens v. Stephens, supra.
The court in Sidebottom v. Sidebottom, supra, enunciated a very broad and sweeping doctrine of estoppel: "The overwhelming weight of authority is to the effect that an appellant having recognized the validity of a judgment and decree of divorce rendered in a court of competent jurisdiction * * * by accepting the favorable and/or beneficial provisions thereof, financial and/or marital, * * is estopped from questioning the validity of such judgment or decree * * * " Sidebottom, supra, at 579, 233 N.E.2d at 672.
See footnote 4.
There is no sound reasoning which would justify imposing equitable estoppel where the only questions before the court relate to property settlement, alimony or custody. The same evidence to determine whether or not the marital status should be changed may also be the same evidence which is necessary to determine alimony, property settlement and custody, but this is not a reason for having a trial de novo when the question of divorce is not before the court on appeal.
Rariden v. Rariden, supra, and Yost v. Yost, supra, as well as the authorities which rely on them to support the doctrine of estoppel and the concept of indivisibility of a divorce judgment are in direct conflict with the Indiana Rules of Procedure TR. 59(G): "Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court." (Our emphasis). Under TR. 59(G), a party after remarriage should be permitted to appeal any question other than the validity of the divorce or marital status without having the doctrine of equitable estoppel applied to the prosecution of the appeal. The concept of indivisibility of a divorce judgment is in direct conflict with the spirit and purpose of TR. 59(G). Rariden v. Rariden, supra; Yost v. Yost, supra; Arnold v. Arnold, supra; and Sidebottom v. Sidebottom, supra, cannot, in actual practice, be properly applied to cases on appeal so long as TR. 59(G) stands as a rule of Indiana Procedure. In a recent decision by our Supreme Court, Indiana State Personnel Board v. Wilson (1971), Ind., 271 N.E.2d 448 , the court held: "The above sub-section (G) provides the only exclusions when a motion to correct errors shall not be required. Said sub-section also explicitly provides that issues which could be raised by a motion to correct errors must be so raised in order to be considered upon appeal." Indiana State Personnel Board, supra, would be an additional reason for laying to rest once and for all the trial de novo doctrine and indivisibility doctrine as originally set forth in Rariden, supra, and Yost, supra. If these cases ever had any validity or were ever rooted in any reason, it is quite clear that such reason no longer exists and the result is no longer justified.
In Estin v. Estin (1948), 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412, the wife had been granted maintenance and support of $180.00 per month under a New York separation decree. Several years later the husband obtained an absolute divorce in Nevada. When the wife brought an action to obtain a judgment on the support arrearage, the husband appeared and moved to eliminate the support provision of the separation decree by reason of the Nevada Divorce Decree. The husband failed in his attempt to eliminate the support provision. The Supreme Court stated that: "The result in this situation is to make the divorce divisible--to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony."
The doctrine of estoppel attempts to reach an antiquated and illusory result-- avoidance of bigamy. If the question of a valid divorce proceeding is raised on appeal, the ends of justice are not served by permitting either party to render the question moot without first dismissing the appeal. If the doctrine is applied as originally intended in its classical form, an appellant could be denied an appeal by the remarriage of the appellee. Moreover, in practice, the validity of the divorce is seldom the question raised on appeal. The questions raised most often on appeal as illustrated by the cases cited here are concerned with alimony, property settlement, support, custody, and attorney fees. To deny an appeal on the grounds that one of the parties has remarried when the question of marital status is not in issue is not logical or realistic. Such a rule is not based on reason but upon arbitrary and questionable authority.
I would respectfully suggest that it should not be the law in Indiana.
For the reasons set forth above, the appellee's motion to dismiss should be overruled.
SULLIVAN, P.J., and SHARP, J., concur.
However, State ex rel. Balsley, supra, relies on Arnold v. Arnold, supra. Davis v. Davis, supra, relies on State ex rel. Balsley, supra. Finke v. Finke, supra, relies on Smith v. Smith, supra, and Arnold v. Arnold, supra, and Smith v. Smith, supra, and Hedgecoth v. Hedgecoth, supra, rely on all of the previous cases already referred to.
However, Judge Hunter in O'Connor v. O'Connor (1969), Ind., 253 N.E.2d 250, has taken a more limited view of the application of the estoppel doctrine after questioning the soundness of such sweeping statements: "It is the considered opinion of this court that to constitute an acceptance of the benefits of divorce * * * the benefits 'accepted' must be of such a nature as to clearly indicate an intention on the part of that spouse to be bound by the divorce decree * * *. Factors to be considered are the very nature of the 'benefit' and its relation to the parties of the divorce, the likelihood that such 'benefits' will be dissipated and the use to which such 'benefits' are put by the spouse to which they are awarded."