Buck v. Zimmerman

• Decision Date: 05 May 1944
• Docket Number: 31732.
• Citation: 14 N.W.2d 335,144 Neb. 719
• Parties: BUCK v. ZIMMERMAN.
• Court: Nebraska Supreme Court

14 N.W.2d 335

144 Neb. 719

BUCK v. ZIMMERMAN.

No. 31732.

Supreme Court of Nebraska

May 5, 1944

Syllabus by the Court.

1. On appeal, error will not be presumed; it must affirmatively appear from the record.

2. In the absence of a bill of exceptions it will be presumed that an issue of fact raised by the pleadings was supported by evidence, and that such issue was correctly determined.

3. If there is no bill of exceptions, questions which require an examination of the evidence cannot be determined on appeal.

J T. Keefe, North Platt, and Johnson & Johnson, of Broken Bow, for appellant.

Allen F. Black, of Broken Bow, for appellee.

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

CARTER Justice.

This is an appeal from an order placing the custody of Larry Dean Zimmerman, a minor child, with his father in accordance with the terms of an original divorce decree. From the adverse order, Pearl Zimmerman Buck, the mother of the boy, seeks a review in this court.

The record shows that on November 17, 1941, Pearl Zimmerman, now Pearl Zimmerman Buck, obtained a decree of divorce from Homer H. Zimmerman, wherein it was determined in accordance with an agreement by the parties that one should have the custody of the child during the school year of 1942-1943 and thereafter to alternate such custody each nine-months' term of school, the one not having his custody during the school term to have him during the summer vacation period.

On June 10 1943, Homer H. Zimmerman filed his application praying for the custody of the child, alleging that Pearl Zimmerman Buck took the custody of the child on July 22, 1942, and has retained the child since that date. The application alleges further that Homer H. Zimmerman is a member of the armed forces, stationed in North Africa, and prays that the child be placed in the care of Violet E. Zimmerman, the child's paternal grandmother, during the father's absence.

On June 22 1943, the order from which this appeal was taken was duly entered. The order states that the parties were present by counsel, a hearing had and evidence taken. The court further found that Violet E. Zimmerman is a proper and competent person with whom said child may be kept and cared for on behalf of the father during his right of custody, and that Pearl Zimmerman Buck is not entitled to the custody of the child until the end of the 1943-1944 school year as...