Abel v. Abel

• Decision Date: 01 May 1959
• Docket Number: No. 34586,34586
• Parties: Pauline ABEL, Appellee, v. Robert ABEL, Appellant.
• Court: Nebraska Supreme Court

Page 276

96 N.W.2d 276

168 Neb. 488

Pauline ABEL, Appellee, v. Robert ABEL, Appellant.

No. 34586.

Supreme Court of Nebraska.

May 1, 1959.

Syllabus by the Court

1. The court in determining the amount of alimony or in making a division of property in a divorce case will consider the age of the parties, their earning ability, the duration of and the conduct of each during the marriage, their station in life, the circumstances and necessities of each, the physical condition of each, the property owned by them and whether or not it was acquired by their joint efforts, and any other pertinent facts.

2. Upon the granting of an absolute divorce the trial court has a legal right to assign the property, both real and personal, acquired during the marriage by the joint efforts of the parties, between the parties as the equities require.

Wright, Simmons & Harris, Scottsbluff, for appellant.

Neighbors & Danielson, Scottsbluff, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is a divorce action brought by Pauline Abel, plaintiff, in the district court for Morrill County, against Robert Abel, defendant. The plaintiff filed her petition on February 24, 1955. On September 21, 1955, a default decree was rendered by the trial court granting the plaintiff an absolute divorce from the defendant on the ground of extreme cruelty, and due to the excessive use of intoxicating liquor by the defendant. On December 27, 1955, the defendant filed a petition to vacate and set aside the decree of divorce. On June 21, 1956, the defendant filed a supplemental petition to vacate and set aside the decree of divorce granted the plaintiff. On February 1, 1957, the trial court set aside that portion of the decree providing for the division of property, and ordered the question of child support and property division to be determined by further hearing with or without additional pleadings as counsel would be advised. On March 14, 1957, the trial court awarded the custody of Eleanor Abel, minor child of the parties, to the exclusive custody of the plaintiff, and awarded each party the automobiles which were registered in each of their names. The trial court in its decree granted the plaintiff two options relating to the division of the property of the parties. It appears that in exercising one of the options the plaintiff elected to keep the restaurant, together with the fixtures, equipment, and inventory located therein, and the residence of the parties located in Bridgeport, together with all household furnishings and equipment located therein; to support the minor child, Eleanor Abel; and to pay the defendant the sum of $3,800 as follows: $2,500 in cash within 90 days from the date of the decree, $1,000 on or before 15 months from the date of the decree and $300 on or before 21 months from the date of the decree.

The defendant filed a motion for new trial which was overruled, and defendant perfected appeal to this court.

The defendant predicates error on the following: The trial court erred in awarding the defendant less than half of the net properties accumulated by the parties during their marriage; the trial court erred in its method of dividing the property accumulated by the parties during their marriage; and the trial court erred in its order involving attorney's fees.

The record discloses that the plaintiff and defendant were married at Bayard, Nebraska, on July 2, 1933, and that three children were born to this union, Robert Walter Abel, 20 years of age at the time the plaintiff filed her petition for divorce, Loretta Joan Woznick who was married, and Eleanor Katherine Abel, 16 years of age when the plaintiff commenced her divorce action. At the time of the marriage, the plaintiff had no property. In the fall of 1933, the plaintiff and defendant rented a place and started farming. The defendant's father bought them furniture and gave them some farm equipment to work with. According to the defendant's testimony, they went out of the business of farming in 1944. At that time they had enough money to purchase the furniture and fixtures and lease a building in Bridgeport where they operated the Broadway Cafe. A year or so later they purchased the building. The restaurant building and the furniture and fixtures therein were all paid for prior to the time the plaintiff instituted her proceedings for divorce. The parties also owned a home in Bridgeport which was subject to a mortgage. They both worked in the restaurant to provide for the support and maintenance of their family.

This case is here for trial de novo upon the issues presented on appeal, as in other equity actions.

Inasmuch as this appeal involves only the division of property owned by the parties, we deem the following to be applicable.

In Hoffmeyer v. Hoffmeyer, 157 Neb. 842, 62 N.W.2d 138, 139, it was held: 'The court in determining the amount of alimony or in making a division of property in a divorce case will consider the age of the parties, their earning ability, the duration of and the conduct of each during the marriage, their station in life, the circumstances and necessities of each, the physical condition of each, the property owned by them and whether or not it was acquired by their joint efforts, and any other pertinent facts. * * * Upon the granting of an absolute divorce the trial court has a legal right to assign the property, both real and personal, acquired during the marriage by...