Birth v. Birth, 34135
| Decision Date | 05 July 1957 |
| Docket Number | No. 34135,34135 |
| Citation | 165 Neb. 11,84 N.W.2d 204 |
| Parties | Barbara BIRTH, Appellee, v. Melvin E. BIRTH, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A decree of divorce from the bonds of matrimony should only be granted when the evidence brings the case within the definition of the statute providing for such relief.
2. Section 42-335, R.R.S.1943, means that corroborative evidence other than the declarations, confessions, or admissions of the parties is required of the acts or conduct asserted as grounds for a divorce.
Maupin, Dent, Kay & Satterfield, William E. Morrow, Jr., North Platte, for appellant.
Beatty, Clarke, Murphy & Morgan, Donald W. Pederson, Frank E. Piccolo, Jr., North Platte, for appellee.
Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
Plaintiff, Barbara Birth, sought an absolute divorce from defendant, Melvin E. Birth, together with custody of their 3-year-old daughter, an allowance for child support, and an adjustment of their financial and property rights. Plaintiff's alleged grounds for divorce were that defendant was guilty of extreme cruelty because at all times since the marriage on August 1, 1952, he had brutally made grossly excessive demands upon plaintiff for sexual relations which had so affected her physical and mental health as to make it impossible to continue the marriage relation. After a temporary order had been entered giving plaintiff custody of the child and allowing her $65 a month as child support, together with use of their home and $40 attorney's fees, defendant filed an answer and cross-petition. Therein he denied generally and sought an absolute divorce together with custody of their child. His alleged grounds of divorce were that plaintiff was guilty of extreme cruelty such as to destroy the legitimate objects of matrimony by refusing to live in their home and cohabit with defendant since about March 3, 1956.
After a hearing on the merits a decree was rendered, finding and adjudging the issues generally in favor of plaintiff upon her petition and against defendant upon his cross-petition. The judgment awarded plaintiff an absolute divorce and custody of their child, together with $35 a month for child support, and the use of their home upon prescribed conditions until the child reached majority. It denied defendant a divorce and dismissed his cross-petition. Costs were taxed to defendant and each party was required to pay his own attorneys' fees. The judgment also made an adjustment of their financial and property rights and interests in a manner which is unimportant here in view of our conclusion that for want of sufficient corroboration of their respective allegations and evidence neither party was entitled to a divorce.
Defendant's motion to vacate and set aside the judgment and for new trial was overruled, after the judgment had been modified with relation only to their property rights and a limitation of defendant's right of visitation with his child. Therefrom defendant appealed, assigning insofar as important here that the trial court erred in granting plaintiff a divorce, in dismissing defendant's cross-petition, and in refusing to grant him a divorce. We conclude that the trial court erred in granting plaintiff a divorce, but properly dismissed defendant's cross-petition and denied him a divorce. As we view it, the sole question upon which decision depends is whether or not the evidence adduced by the parties was sufficient to support the awarding of a decree of divorce to either plaintiff or defendant. We conclude that it was not.
Section 42-302, R.R.S.1943, provides in part: 'A divorce from the bonds of matrimony * * * may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by other means; * * *.' In that connection, section 42-335, R.R.S.1943, also provides in part: 'No decree of divorce * * * shall be made solely on the declaration, confessions or admissions of the parties, but the court shall, in all cases, require other satisfactory evidence of the facts alleged in the petition for that purpose.' Those sections are applicable and controlling here.
In Smith v. Smith, 160 Neb. 120, 69 N.W.2d 321, 323, referring to section 42-302, R.R.S.1943, we reaffirmed that: 'A decree of divorce from the bonds of matrimony should only be granted when the evidence brings the case within the definition of the statute providing for such relief.'
In that opinion we said:
In construing and applying section 42-335, R.R.S.1943, that opinion said: "This statute means that corroborative evidence is required of the acts or conduct asserted as grounds for a divorce.' Pestel v. Pestel, supra.
'In this regard we said in Pestel v. Pestel, supra: "It is impossible to lay down any general rule as to the degree of corroboration required in a divorce action, as each case must be decided on its own facts and circumstances.' Schlueter v. Schlueter, supra (158 Neb. 233, 62 N.W.2d 871).' See, also, Hines v. Hines, 157 Neb. 20, 58 N.W.2d 505.'
Also, in Robinson v. Robinson, 164 Neb. 413, 82 N.W.2d 550, 553, this court said: ...
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...on appeal to this court in a divorce action the cause is tried de novo. See, Pestel v. Pestel, 158 Neb. 611, 64 N.W.2d 299; Birth v. Birth, 165 Neb. 11, 84 N.W.2d 204. A general rule in the determination of whether or not a ground for divorce has been established is that acts asserted as gr......
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Humann v. Humann, 36154
...the evidence is sufficient to bring the case within its purview.' (Emphasis supplied.) This statement was reiterated in Birth v. Birth, 165 Neb. 11, 84 N.W.2d 204. The requirement of corroboration is a matter of legislative policy and has remained unchanged in this state for a century, orig......
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Schwarck v. Schwarck
...relations after the alleged breach of marital duty.' Definitive of what is meant by corroboration, this court said in Birth v. Birth, 165 Neb. 11, 84 N.W.2d 204: 'Section 42-335, R.R.S.1943, means that corroborative evidence other than the declarations, confessions, or admissions of the par......