2. The general policy of our law is against disturbing divorces granted.— McJunkin v. McJunkin, 3 Ind. 30; McQuigg v. McQuigg, 13 id. 294. 1031. Petition for divorce-Residence-Affidavit. 7. Divorce may be decreed by the Superior and Circuit Courts of this State, on petition filed by any person who, at the time of the filing of such petition, is and shall have been a bona fide resident of the State for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately preceding the filing of such petition; which bona fide residence shall be duly proven by such petitioner, to the satisfaction of the Court trying the same, by at least two witnesses who are resident freeholders and householders of the State. And the plaintiff shall, with his petition, file with the Clerk of the Court an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has been a resident of the State, and stating particularly the place, town, city, or township in which he has resided for the last two years past, and stating his occupation, which shall be sworn to before the Clerk of the Court in which said complaint is filed. 1. The residence of the plaintiff determines jurisdiction in divorce; and such jurisdiction is retained, notwithstanding a subsequent change of residence.- Waltz v. Waltz, 18 Ind. 449; Ewing v. Ewing, 24 id. 468; Bailey v. Schrader, 34 id. 260. 2. The domicile of the husband is presumed to be the domicile of the wife, unless a separate actual residence be shown by her.-Jenniss 7. Jenniss, 24 Ind. 355. 3. There must be proof of bona fide residence, as required in this section, to support a decree of divorce.- Powell v. Powell, 53 Ind. 513; Maxwell v. Maxwell, id. 363. 1032. Causes for divorce. 8. Divorces may be decreed upon the application of the injured party, for the following causes and no other: First. Adultery, except as hereinafter provided. Second. Impotency, existing at the time of the marriage. Third. Abandonment for two years. Fourth. Cruel and inhuman treatment of either party by the other. Sixth. The failure of the husband to make reasonable provisions for his family for a period of two years. Seventh. The conviction, subsequent to the marriage, in any country, of either party, of an infamous crime. 1. As to facts constituting cruel treatment, see Shores v. Shores, 23 Ind. 546; Ruby v. Ruby, 29 id. 174; Powell v. Powell, 53 id. 513; Small v. Small, 57 id. 568. 1033. When not granted for adultery. 9. Divorces shall not be granted for adultery in any of the following cases: First. When the offense has been committed with the connivance or consent of the party seeking the divorce. Second. When the party seeking the divorce has voluntarily cohabited with the other, with knowledge of the fact; or has failed to file his or her petition for two years after he or she had discovered the same. Third. When the party seeking the divorce has also been guilty of adultery under such circumstances as would have entitled the opposite party, if innocent, to a decree. 1. Adultery is a good defense to a petition or cross-petition, and may be given in evidence, under general denial, as such defense.-Armstrong v. Armstrong, 27 Ind. 186. 2. This is merely declaratory of the common law.-Christianberry v. Christianberry, 3 Blackf. 202; Phillios v. Phillips, 4 id. 131; McCafferty v. McCafferty, 8 id. 218. 3. Misconduct in either party may be condoned; but that does not operate where the subsequent acts of the offender show that there was no repentance.-- Armstrong v. Armstrong, 27 Ind. 186; Sullivan v. Sullivan, 34 id. 368. 4. A divorce should not be granted while cohabitation continues between the parties. Separation must be alleged and proved. Condonation will be presumed from subsequent cohabitation, and cohabitation from living together of husband and wife.Burns v. Burns, 60 Ind. 259. 1034. Causes, how specified. 10. A petition for divorce shall specify the causes therefor with certainty to a common intent. 1. If adultery be charged as a cause, the time and place of commission must be al leged. Christianberry v. Christianberry, 3 Blackf. 202. 1035. Summons and service. II. The Clerk of the Court in which such petition is filed shall issue a summons for the defendant to appear and answer said petition; which summons shall be personally served on said defendant, if a resident of the State, either by reading or leaving a copy thereof at his or her usual place of residence; such usual place to be the residence of such defendant at the time the copy is so left. [1879 S., p. 124. In force May 31, 1879.] 1036. Notice by publication - Copy, when mailed. 12. If it shall appear by the affidavit of a disinterested person that the defendant is not a resident of this State, the Clerk shall give notice of the pendency of such petition, by publication for three successive weeks in some weekly newspaper of general circulation, published in such county, or if there be no such paper, then in one published in this State nearest to the county seat of such county: Provided, That the plaintiff shall, in case such notice is to be given by publication as aforesaid, before the same is given, file his or her affidavit with the Clerk, stating therein the residence of the defendant, if such residence be known to the plaintiff; and if such residence be unknown to the plaintiff, such affidavit shall so state; and in case such affidavit state the residence of the defendant, the Clerk shall forward, by mail, to such defendant the number of the paper containing such notice, with the notice marked. 1. The record in a decree by default must contain the notice and the proof thereof.— Cochnower v. Cochnower, 27 Ind. 253. 2. A petition, if it state a cause of action, may be good, as a complaint, to annul a marriage, though not good for divorce.- Tefft v. Tefft, 35 Ind. 44. [1873, p. 107. In force March 10, 1873.] 1037. Issue and trial. 13. The cause shall stand for issue and trial at the first term of the Court after the summons has been personally served upon the defendant ten days, or publication has been made thirty days, before the first day of such term. 1. The notice required by law, when shown to be given, confers jurisdiction to adjudge and decide upon the matters alleged in the petition.—McFarland v. McFarland, 40 Ind. 458. 2. A change of Judge, after verdict and before decree, does not affect the proceed. ings. Hedrick v. Hedrick, 28 Ind. 291. 3. The Supreme Court may reverse a decree for divorce, but not at the instance of an appellant who has married again.― Sullivan v. Sullivan, 34 Ind. 368; Garner v. Garner, 38 id. 139, Stephens v. Stephens, 51 id. 542. 4. A reversal of a decree refusing a divorce will only be made in a very clear case.Ruby v. Ruby, 29 Ind. 174. 5. There can be no proceedings to review a judgment in divorce.- Willman v. Willman, 57 Ind. 503; McFarland v. McFarland, 40 id. 438. 6. The proceedings in divorce are so far special, as to allow all the provisions of the Act full force, unaffected by the Code.- Ewing v. Ewing, 24 Ind. 468. 7. Sections 396 and 563, and sections concerning change of venue, are not applicable to divorce suits.- Id.; Musselman v. Musselman, 44 Ind. 106. 8. Jury trial is not demandable as of right, in divorce.- Morse v. Morse, 25 Ind. 156; Leffel v. Leffel, 35 id. 76. 9. The finding of a jury, when one is had, is not conclusive, and on the final hearing may be reviewed or set aside by the Court.- Rice v. Rice, 6 Ind. 100; Lewis v. Lewis, 9 id. 105. 10. When a divorce is decreed to the husband upon his own petition, he may be adjudged to pay costs.- Hedrick v. Hedrick, 28 Ind. 291. 1038. When Prosecutor to resist. 26. Whenever a petition for divorce remains undefended, it shall be the duty of the Prosecuting Attorney to appear and resist such petition. 1. The failure of the Prosecuting Attorney to appear can not be assigned for error, on appeal.- Green v. Green, 7 Ind. 113. 2. An attorney may take a lien upon a judgment for alimony for his fees due from the wife. Id. 1039. Answer-Proofs required. 14. The defendant shall answer said petition under oath, if required so to do by the petitioner; but no decree shall be rendered on default without proof, nor shall any admissions made in said answer be used as evidence in any other case against said defendant; nor shall the denial under oath, by the defendant, of the facts alleged in the petition render necessary any other or further proof by the complainant than would have been necessary if such denial had not been under oath. 1. The law favors marriage, and will not sanction or enforce contracts intended to promote its dissolution.- Muckenburg v. Holler, 29 Ind. 139; Ruby v. Ruby, id. 174. 2. A divorce must be granted for the fault of one of the parties: it can not be granted upon the whole case generally. McCoy v. McCoy, 3 Ind. 555; Rourke v. Rourke, 8 id. 427; Gullett v. Gullett, 25 id. 517. 1040. Cross-petition and proceedings thereon. 15. In addition to an answer, the defendant may file a cross-petition for divorce; and when filed, the Court shall decree the divorce to the party legally entitled thereto. If the original petition be dismissed after the filing of the cross-petition, the defendant may proceed to the trial of the cross-petition without further notice to the adverse party; and the case upon such cross-petition shall in all things be governed by the same rules applicable to a case on an original petition. 1. A non-resident defendant may file a cross-petition, and have the same determined in a case pending here.- Jenniss v. Jenniss, 24 Ind. 355. 2. The dismissal of the petition does not affect proceedings under the cross-petition. -Musselman v. Musselman, 44 Ind. 106. 3. General reputation is evidence of marriage, and if it took place in another State, it will be presumed valid at common law.- Trimble v. Trimble, 2 Ind. 76. 1041. Witnesses - Depositions. 16. Witnesses may be examined in Court, or depositions taken and used as in other civil actions, at the option of the party offering the testimony; but this section shall not be construed to authorize the taking of depositions where the witnesses can be compelled to attend and testify as provided by law in other cases, unless the Judge, for good cause shown, shall otherwise direct. 1042. Interlocutory orders, how enforced. 17. Pending a petition for divorce, the Court, or the Judge thereof in vacation, may make, and by attachment enforce, such orders for the disposition of the persons, property, and children of the parties as may be deemed right and proper, and such orders relative to the expenses of such suit as will insure to, the wife an efficient preparation of her case and a fair and impartial trial thereof. And on decreeing a divorce in favor of the wife or refusing one on the application of the husband, the Court shall, by order to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition when such divorce has been granted or refused: Provided, That such orders shall be made under the same rules and regulations, and upon such notice as restraining orders and injunctions are granted in other civil actions, except that no bond shall be required of either party. 1. A temporary allowance may be made on the application of the wife, under the first clause of this section, upon a proper showing, to enable her to prepare and try her case and for her maintenance during its pendency. Horrell v. Horrell, 39 Ind. 185; Musselman v. Musselman, 44 id. 106. This allowance is discretional, but the allowance, upon the success of her application, of her reasonable expenses, is impera. tive.- Id. 1043. Misconduct of husband-Rights as to realty. 18. A divorce granted for misconduct of the husband shall entitle the wife to the same rights, so far as her real estate is concerned, that she would have been entitled to by his death. 1. This gives no rights to a divorced wife in the real estate of a deceased husband. Lash v. Lash, 58 Ind. 526. 1044. Misconduct of wife - Rights as to realty. 19. A divorce decreed on account of the misconduct of the wife shall entitle the husband to the same rights, so far as his real estate is concerned, as he would have been entitled to by her death. 1045. Alimony. 20. The Court shall make such decree for alimony, in all cases contemplated by this Act, as the circumstances of the case shall render just and proper; and such decree for alimony, heretofore made or hereafter made, shall be valid against the husband, whether asked for in the petition or given by the Judge on default. 1. Upon a judgment for alimony, there is no exemption of property from execution.Menzie v. Anderson, 65 Ind. 239. 2. The decree for alimony will not be reviewed above, unless granted indiscreetly. -Conn v. Conn, 57 Ind. 323. 3. Alimony is an incident of divorce, and can be obtained only on the decree of the Court granting it. Upon an agreement to pay alimony outside of the decree, no action lies.- Moon v. Baum, 58 Ind. 194. 4. A decree for alimony is conclusive upon all parties, and can not be attacked collaterally.- Ayers v. Harshman, 66 Ind. 291. 5. The decree for alimony is an absolute personal judgment of the wife, collectible by execution: is in lieu of her interest in the estate of her husband, in case of his death; and should be in such sum as his pecuniary circumstances may make proper. -Cox v. Cox, 25 Ind. 303; Garner v. Garner, 38 id. 139; Musselman v. Musselman, 44 id. 106. 6. Objections to the amount of alimony as excessive must be taken by motion for new trial or for modification of the judgment.— Bradley v. Bradley, 45 Ind. 67. 7. In adjusting alimony, all questions of property between the parties are considered and settled.- Muckenburg v. Holler, 29 Ind. 139. 8. Alimony may be allowed to the wife on her application, though the divorce, for her fault, is granted to the husband.-Cox v. Cox, 25 Ind. 303; Coon v. Coon, 26 id. 189; Hedrick v. Hedrick, 28 id. 291. 9. A personal judgment for alimony can not be rendered against a non-resident defendant, constructively summoned.— Beard v. Beard, 21 Ind. 321; Lytle v. Lytle, 48 id. 200. 1046. Custody of children. 21. The Court in decreeing a divorce shall make provision for the guardianship, custody, support, and education of the minor children of such marriage. 1. In granting a divorce, the Court has the power to decree the custody of the minor children, and to make provision for them.- Bush v. Bush, 37 Ind. 164. 2. The order granting the custody of children is binding upon the parties, can not be disregarded in habeas corpus, and remains in force until modified by the Court making it. Williams v. Williams, 13 Ind. 523; Bailey v. Schroder, 34 id. 260. 3. An award of a minor child to the mother frees the father from all liability to her for its support.-- Husband v. Husband, 67 Ind. 583; Conn v. Conn, 57 id. 323. 1047. Decree for alimony, how payable. 22. The decree for alimony to the wife shall be for a sum in gross, and not for annual payments; but the Court, in its discretion, may give a reasonable time for the payment thereof, by installments, on sufficient surety being given. And in all cases where alimony has been thus given by installments, or may hereafter be given, and the security required shall not be given within thirty days from the date of such decree, then the whole amount of such alimony shall become due and payable the same as if no such installments had been mentioned in the decree. 1048. Effect of divorce. 23. The divorce of one party shall fully dissolve the marriage contract as to both. I. A divorced wife is not the widow of the deceased husband.-Billan v. Hercklebrath, 23 Ind. 71; Chenowith v. Chenowith, 14 id. 2. 1049. Divorce granted in another State. 24. A divorce decreed in any other State, by a Court having jurisdiction thereof, shall have full effect in this State. 1. The legal effect of a divorce is determined by the law in force when it was granted.— Whitsell v. Mills, 6 Ind. 229. 2. A judgment for alimony rendered in another State, upon constructive service, without appearance, and which does not show that the defendant was a resident therein, is of no force here.- Middleworth v. McDowell, 49 Ind. 386. 3. A decree of divorce granted in another State, showing therein that neither of the parties were residents thereof, is invalid here.- Hood v. State, 56 Ind. 263. 4. A divorce here may be granted for a cause originating in another State.-Wilcox v. Wilcox, 10 Ind. 436. |