Chambers v. Chambers

• Citation: 106 N.W. 993,75 Neb. 850
• Decision Date: 22 February 1906
• Docket Number: 14,107
• Parties: MABEL CHAMBERS, APPELLANT, v. WILLARD E. CHAMBERS, APPELLEE
• Court: Supreme Court of Nebraska

106 N.W. 993

75 Neb. 850

MABEL CHAMBERS, APPELLANT, v. WILLARD E. CHAMBERS, APPELLEE

No. 14,107

Supreme Court of Nebraska

February 22, 1906

APPEAL from and error to the district court for Douglas county ALEXANDER C. TROUP, JUDGE. Affirmed.

AFFIRMED.

Frank Heller and Hall & Stout, for plaintiff in error.

Baldrige & De Bord, contra.

ALBERT C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

On the 3d day of March, 1904, Mabel Chambers filed her petition in the district court for Douglas county against Willard E Chambers, in substance, as follows: That on the 5th day of August, 1901, the plaintiff filed a petition in said court against the defendant, praying a decree of divorce, and the care and custody of a minor child, now about 9 years old; that the defendant appeared personally in said cause, and after due hearing thereof the plaintiff was granted a divorce as prayed, but no order was made with respect to the child; that at the time the decree was obtained it was agreed between the parties to the suit, that the defendant would pay the plaintiff, from time to time, a sum sufficient for the support of herself and the said minor child, and that for some months afterwards the defendant paid her various sums, averaging about $ 35 a month, but that some months ago the defendant ceased to make further payments to the plaintiff, and she is now without property of her own and without means of support; that the defendant enjoys a considerable income, but as to the amount of which the plaintiff is not informed, is possessed of a considerable amount of real and personal property, and capable of supporting plaintiff; that for some time subsequently to the said decree of divorce she had the care and custody of the child, but that some months ago the defendant, without authority, took and still retains the custody of the child, and wrongfully deprived the plaintiff of her society. The prayer is as follows: "Wherefore, the plaintiff prays that defendant pay her the sum of thirty-five dollars ($ 35) a month alimony, and reasonable attorney's fees for prosecuting this proceeding, as well as fifty dollars ($ 50) suit money, and that she have the care and custody of the minor child, Halcyon, and that said original decree be modified in this respect, and such other and further relief as may be just and equitable."

The defendant answered, admitting that the plaintiff obtained a decree of divorce at the time stated in her petition, but avers that her petition in the suit for divorce contained no allegations nor demand for alimony, and that the final decree therein contains no finding of fact or determination by the court touching, or in any manner relating to, alimony or the custody of the child, nor any order regarding the same, or either of them, and that the questions of alimony and the custody of the child were not reserved by the court for further consideration; that at the time the said decree was entered the defendant owned no property, real or personal, otherwise than household goods of the value of $ 500, and was not in receipt of any income, save sufficient to meet the current expenses; that said household goods were given by the defendant to the plaintiff, who accepted the ownership and possession thereof, and that since the decree of divorce the defendant has at all times supported and maintained the minor child at his own expense, expending for that purpose about the sum of $ 20 a month, and that it is his purpose to continue to do so. Then follows certain averments justifying his removal of the child from the custody of her mother, and which it is not necessary to set out in detail. The reply admits, among other averments of the answer, that no order was made in the divorce proceedings touching the question of alimony, or the custody of the child.

The court dismissed the claim for alimony, and made an order respecting the minor child to the effect that during the school year, with the exception of vacation times, it should be kept at school in Council Bluffs, Iowa, and that her tuition and board at said school, and all expenses incident to her instruction and education therein, should be paid by the defendant; that the plaintiff should have the care and custody of the child from the date of the decree until the 25th day of August, 1904, and that the defendant should have the custody and control of her from that date until the 12th day of September, 1904, which is the opening of the school year; that thereafter the plaintiff should have the care and custody of the child during the first half of her vacation periods, and that the defendant should have the care and custody of her during the latter half of such periods. Each of the parties were given permission to visit the child at school. It was further ordered that the defendant should pay the plaintiff the sum of $ 3 a week for the maintenance and support of the child, covering the period that she would be in the custody of the plaintiff, and $ 5 a month, payable on the first day of each month, until the further order of the court, commencing on the first day of August, 1904, to enable the plaintiff to purchase clothing for the child. Then follows this further order: "It is further ordered that the defendant pay the costs of this suit, for which execution is hereby awarded, and $ 100 attorney's fees to the firm of Baldrige & De Bord for their services in this cause, and it is ordered that said Baldrige & De Bord shall have and recover of and from the defendant herein the said sum of $ 100, for which execution is hereby awarded." The defendant prosecutes error, and the plaintiff appeals from the decree dismissing her claim for alimony.

It is not thought necessary, in order to dispose of the plaintiff's appeal, to pass on the question whether a wife who has obtained a decree of divorce a vinculo without alimony, may, at a subsequent term, maintain an application for a supplemental decree allowing alimony, because, while there is some conflict of authorities on that question, our attention has been called to no case, nor have we been able to find one, holding that such application could be maintained without a showing of sufficient ground for not asking and taking a decree for alimony in the original suit. It has been held that an application for a change in the...