Baker v. Baker

• Decision Date: 28 March 1958
• Docket Number: No. 34316,34316
• Citation: 166 Neb. 306,89 N.W.2d 35
• Parties: Dorothy R. BAKER, Appellant, v. Robert F. BAKER, Appellee.
• Court: Nebraska Supreme Court

Page 35

89 N.W.2d 35

166 Neb. 306

Dorothy R. BAKER, Appellant, v. Robert F. BAKER, Appellee.

No. 34316.

Supreme Court of Nebraska.

March 28, 1958.

Syllabus by the Court.

1. Where the evidence in a divorce action establishes adultery on the aprt of one of the parties thereto, the court is required to grant the prayer of the other party seeking a divorce on that ground unless prevented from doing so by applicable statutory provisions.

2. Where a wife is found to be guilty of adultery she is ordinarily an unfit person to have the care and custody of her minor children as against the husband she has wronged.

3. Where adultery by a wife is established, she is not entitled to an award of alimony and ordinarily will not be allowed an attorney's fee or an award of costs.

4. Our holdings in Speck v. Speck, 164 Neb. 506, 82 N.W.2d 540, and Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689, are modified to the extent that they are in conflict with this opinion.

Stewart & Stewart, Lexington, for appellant.

Wagener, Marx & Galter, Lincoln, Lee & Huston, Broken Bow, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL and BOSLAUGH, JJ.

CARTER, Justice.

Plaintiff, Dorothy R. Baker, brought suit for divorce against the defendant, Robert F. Baker. The defendant denied generally the petition of the plaintiff and filed a cross-petition praying that a divorce be granted to him. The trial court denied plaintiff's petition and granted a divorce to the defendant on his cross-petition. The custody of the three minor children was granted to the defendant. A division of the property owned by the parties was made and alimony was denied. From the decree so providing, the plaintiff has appealed.

The evidence shows that the parties were married on June 2, 1946. Three children were born to the marriage: Lesley Jean, a daughter 9 years old, Randall Fred, a son 5 years old, and Robin Rae, a daughter 4 years old. The plaintiff alleged nonsupport and cruelty as grounds for divorce. In his cross-petition the defendant charged the plaintiff with numerous clandestine relations with other men, including adultery, as grounds for divorce. It was upon these issues that the case was tried.

The parties resided in Broken Bow, Nebraska, following their marriage. Defendant was engaged in the business of photography. In May 1955, they sold their home and business and purchased a resort in Minnesota. The venture was not a success and they returned to Broken Bow in October 1955. Being in financial distress they moved in with plaintiff's parents. Each sought and obtained employment. Plaintiff worked in Broken Bow and defendant in Des Moines during the times important here. By an arrangement between themselves each was to make payments on specified obligations of the parties. The defendant did so to the full extent of his means. The relationship of the parties appears to have been very harmonious until April 28, 1956, when plaintiff worte the defendant that she would not live with him again. The charge of nonsupport is not sustained by the record, the funds earned by the defendant having been expended in accordance with the mutual understanding of the parties. The allegations of cruelty are not sustained by the evidence, but even if they were, the evidence shows a condonation of the acts of the defendant alleged to constitute cruelty.

The evidence is sufficient to sustain the granting of a divorce to the defendant. The record shows that plaintiff was drinking intoxicating liquor to excess. She engaged in many indiscretions with other men, particularly with one man named in the record. They are established by the evidence of several reliable witnesses. While there were no eyewitnesses to any act of adultery, a court would be naive, indeed, if it did not conclude from the evidence in the record that plaintiff was guilty of that offense against the marriage relation. A recitation of the lurid facts recited in evidence would serve no useful purpose in this opinion. The trial court found the plaintiff guilty of adultery. No other conclusion could properly have been reached from the evidence in this record.

Under the foregoing findings plaintiff is not entitled to alimony. She has as a matter of fact proclaimed her unfitness to have the care and custody of the minor children of the marriage. Their care and custody was properly granted to the defendnat. The trial court made a division of the property between the parties which was in all respects proper and to which no complaint appears to have been made. The case falls within the rules announced in Speck v. Speck, 164 Neb. 506, 82 N.W.2d 540, and Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689, in the form in which they have been reannounced in this opinion.

The decree of divorce is in all respects correct and it is affirmed. The costs in this court are taxed to the plaintiff.

Affirmed.

YEAGER and WENKE, JJ., participating on briefs.

SIMMONS, Chief Justice (dissenting).

This case presents a quite unusual situation and calls for the exercise of a quite unusual remedy.

Plaintiff sued defendant for divorce on the ground of cruelty.

Defendant denied generally and by cross-petition sought a divorce on the grounds of cruelty and adultery.

The unusual situation to which I refer arises as a result of these facts.

On October 28, 1955, there was filed our opinion in Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689, 691, where (quoting from the syllabus) we stated these three rules:

'9. Where a wife is conclusively found to be occupying an adulterous relationship with a man not her husband, she is an unfit person as a matter of law to have the care and custody of her minor children as against the husband she has wronged.

'10. Where in a suit for divorce adultery on the part of the defendant is conclusively proved, the trial court is required to grant a divorce to the plaintiff on that ground.

'11. Where adultery of a wife is established she is not entitled to an award of alimony or attorneys' fees. The costs of the action in such a case are taxable to the wife.'

Yost v. Yost, supra, stated the rules to guide the trial court when this case was decided. Defendant cites it as controlling authority here.

The court now modifies syllabus point 10 in the Yost case and states the rule as follows:

'1. Where the evidence in a divorce action establishes adultery on the part of one of the parties thereto, the court is required to grant the prayer of the other party seeking a divorce on that ground unless prevented from doing so by applicable statutory provisions.'

As I see it the rule as modified contains error. I shall return to that later herein.

The court now modifies syllabus point 9 of the Yost case and states the rule as follows:

'2. Where a wife is found to be guilty of adultery she is ordinarily an unfit person to have the care and custody of her minor children as against the husband she has wronged.'

This makes the rule conform generally with our holding in Meredith v. Meredith, 148 Neb. 845, 29 N.W.2d 643, wherein we held that a mother, guilty of adultery, should have possession of her child of tender years. The children here are of tender years. The claimed unfitness of the plaintiff arises solely because of the 'indiscretions' and an act of 'adultery' (as in the Meredith case) of which she is found guilty.

The court now modifies syllabus point 11 of the Yost case and states the rule as follows:

'3. Where adultery by a wife is established, she is not entitled to an award of alimony and ordinarily will not be allowed an attorney's fee or an award of costs.'

It will thus be seen that the rules of law applicable to this case have been changed materially since the trial and decision in the district court. The amelioration of the rigors of the rules is favorable to the plaintiff. The court has no way of knowing what the judgment of the trial court would have been had it heard and decided this case under the rules now announced--and yet its decision on every matter is affirmed.

I now return to syllabus point 1 of the court in the instant case. The rule as stated is that where adultery is established the court 'is required' to grant a divorce 'unless prevented from doing so by applicable statutory provisions.' My objection goes to the two quoted matters.

'Required' is a mandatory word meaning commanded. There is no command in the statute. Section 42-301, R.R.S.1943, provides that a divorce 'may be decreed' for any one of seven reasons, one of which is adultery. The permissive 'may' is used also in sections 42-302 and 42-302.01, R.R.S.1943. Neither reason nor authority is given for changing the statutory discretionary rule to a mandatory rule denying all discretion to the trial court save as permitted by the exception. It may be pointed out that the Legislature used the mandatory 'shall' in section 42-304, R.R.S.1943, to which I refer presently.

The exception is 'unless prevented from doing so by applicable statutory provisions.' The exception is an improvement over the all-inclusive mandatory rule as stated in syllabus 10 of the Yost case above quoted. As a statutory provision it permits the court to deny a divorce where adultery is established and (1) where procurement or connivance of the complaining party is shown; (2) where there has been forgiveness or condonation; or (3) where there has been knowledge of the adultery for 5 years before suit is brought. Section 42-336, R.R.S.1943. It permits a trial court to obey the mandatory 'no divorce shall be decreed' of section 42-304, R.R.S.1943.

The rule as now stated permits a trial court to recognize the recrimination rule 'where the party complaining shall be guilty of the same crime or misconduct charged against the respondent.' Section 42-304, R.R.S.1943. It excludes all other application of the recrimination rule.

However, independent of statute, this court has long recognized the recrimination rule and that it was not limited to...