Cochran v. Cochran

• Decision Date: 08 November 1894
• Parties: COCHRAN v. COCHRAN ET AL.
• Court: Nebraska Supreme Court

42 Neb. 612

60 N.W. 942

COCHRAN

v.COCHRAN ET AL.

Supreme Court of Nebraska.

Nov. 8, 1894.

Syllabus by the Court.

1. A court of equity will entertain an action brought for alimony alone, and will grant the same, although no divorce or other relief is sought, where the wife is separated from the husband without her fault.

2. The district courts of this state, being courts of general equity jurisdiction, are not limited in the exercise of such jurisdiction by statute.

3. A husband deserted his wife and minor children in the state of Wisconsin, where they resided, took up his abode in this state, and became a citizen thereof, and procured a divorce from his wife on the ground of desertion, obtaining service on her by publication. The wife had no knowledge of the divorce proceedings until after the date of the decree. Two years after the date of the divorce, the wife brought suit in equity against the husband for alimony. Held:

(1) That the action was not brought under nor governed by section 46, c. 25, Comp. St. 1893, nor by section 602 of the Code of Civil Procedure, but was a separate and independent action based on the legal obligation of the husband to support his wife and children.

(2) That the petition stated a cause of action for alimony, although it contained no allegation that the wife and children were in destitute circumstances, or in actual need of support.

4. Our divorce laws are liberal, and should be liberally construed. But they are not designed, and should not be used, to enable designing husbands, without cause, to legally discard their wives, whether domiciled in this or other states, or to escape the performance of their marriage contracts.

5. There is no fixed rule for determining what portion of a husband's estate should be decreed to his wife for alimony. The amount should be just and equitable, due regard being had for the rights of each party, the ability of the husband, the estate of the wife, and the character and situation of the parties.

6. In estimating the value of the husband's property, for determining the amount of alimony that should be awarded the wife, the court should take the value of the husband's estate at the date of the rendition of the decree for alimony.

7. The value of property acquired by a husband after obtaining a decree of divorce from his wife, by exchanging for it other property which he owned at the time of obtaining such divorce, should be taken into consideration by the court in determining the amount of alimony to which the wife is entitled.

8. Smith v. Smith, 28 N. W. 296, 19 Neb. 706,Earle v. Earle, 43 N. W. 118, 27 Neb. 277,Smithson v. Smithson, 56 N. W. 300, 37 Neb. 535,--followed and reaffirmed.

Appeal from district court, Douglas county; Wakeley, Judge.

Suit by Letitia Cochran against Warren Cochran and others for alimony. From a judgment awarding alimony, the parties appeal. Reformed as to plaintiff, and affirmed as to defendants.Bartlett, Crane & Baldridge and Allen, Robinson & Reed, for plaintiff.

W. J. Connell and B. F. Cochran, for defendants.

RAGAN, C.

On the 17th day of December, 1886, Mrs. L. Letitia Cochran, hereinafter called Mrs. Cochran, brought this suit in equity to the district court of Douglas county, against Warren Cochran, Beriah Cochran and wife, Elmer G. Cochran and wife, and Katie Cochran. The substance of Mrs. Cochran's petition was as follows: That she was married to Warren Cochran in the state of Wisconsin, on the 13th of March, 1867, and from that time until November, 1883, they had lived and cohabited together as husband and wife. That as the fruit of such marriage there were born to them two children, a boy and a girl, aged 19 and 17 years, respectively, at the time of the filing of said petition. That in November, 1883, and for several years continuously prior thereto, the residence and domicile of Mrs. Cochran, her husband, and said children was and had been in the city of Oshkosh, in the state of Wisconsin, at which place Mrs. Cochran was in November, 1883, and had been since to the date of filing said petition, engaged in teaching school in the normal school of said state. That in 1883 Warren Cochran left his home in Oshkosh, Wis., for the purpose of visiting the state of Nebraska, and there investing some money in real estate speculations, and visiting his children (by a former wife), then residing in said last-named state. That when Warren Cochran left Mrs. Cochran and her children in Oshkosh in November, 1883, it was simply for a temporary purpose, and with the intention of returning so soon as he had completed his business and visit in the state of Nebraska. That at said time, November, 1883, Mrs. Cochran was under contract as a teacher in the state normal school in the state of Wisconsin, and could not accompany her husband to the state of Nebraska, and he did not solicit her or her children to accompany him, and did not express any desire that they should do so. That after Warren Cochran reached the state of Nebraska he formed the intention of procuring a divorce from Mrs. Cochran in the courts of Nebraska, secretly and fraudulently, and without notice to her. That, in furtherance of said purpose, Warren Cochran, on the 20th of May, 1884, brought a suit in the district court of Douglas county against Mrs. Cochran for a divorce, alleging as grounds therefor that Mrs. Cochran had willfully abandoned him, Warren Cochran, without just cause, for the period of two years immediately preceding said 20th day of May, 1884. That Warren Cochran brought said suit against Mrs. Cochran, designating her by the name of L. Letitia Cochran, and that she had never been known by that name. That she at all times had performed and discharged her duties to Warren Cochran as a dutiful, chaste, obedient, and faithful wife to the best of her ability, and that the allegation made by Warren Cochran in his petition for a divorce against her, namely, that she had willfully abandoned him without just cause, was wholly false, and known by Warren Cochran to be false. That such allegation in said petition was fraudulently made by said Warren Cochran to impose on the jurisdiction of the district court of Douglas county, and secretly and fraudulently to procure a decree of divorce from her, Mrs. Cochran, without affording her any opportunity to appear and defend the same. That in said petition for divorce Warren Cochran alleged that he was at that time, and for more than two years prior thereto had been, a bona fide resident of the state of Nebraska, and for more than six months immediately preceding the filing of said petition had been a resident of said Douglas county, in said state of Nebraska. That such allegations of Warren Cochran were false, and were made for the fraudulent purpose of conferring jurisdiction on the district court of Douglas county to hear and determine the said divorce suit brought by Warren Cochran against Mrs. Cochran. That at the time Warren Cochran brought said divorce suit, and for five years immediately prior thereto, he had been a bona fide resident of, and domiciled in, the state of Wisconsin. That Warren Cochran filed in said divorce suit an affidavit setting forth that Mrs. Cochran was a nonresident of the state of Nebraska, and obtained service on her by publication. That such notice of the pendency of said divorce suit was published in the Nebraska Watchman, a paper then published in the city of Omaha, in said Douglas county, but of limited circulation. That Warren Cochran well knew at that time, and at all times, that Mrs. Cochran resided in the city of Oshkosh, Wis. That such proceedings were had in said divorce suit instituted by said Warren Cochran. That the district court of Douglas county, on the 14th of July, 1884, entered a decree of divorce therein in favor of said Warren Cochran, as prayed for by him in his said petition. That no personal service of summons in said suit was ever made on Mrs. Cochran, and she did not appear in said case in person or by attorney, for the reason that she had no notice of said suit. That by the said decree of divorce no alimony was awarded to Mrs. Cochran, nor any decree made respecting the custody of the two minor children. That, at the date of said decree of divorce, Warren Cochran was the owner of the following described real estate situate in Douglas county, Neb., to wit: Lot 27, being part of the S. W. 1/4 of the S. W. 1/4 of section 21 in township 15 N., range 13 W. of the sixth P. M.,--hereinafter called “Tax Lot 27”; the W. 1/2 of the N. E. 1/4 of the S. W. 1/4 of section 4 in township 15 N., range 13 W. of the sixth P. M.,--hereinafter called the “Twenty-acre Tract”; and lots 3 and 4 in block 19 in the city of Crete, in Saline county, Neb.,--hereinafter called the “Crete Property.” That said real estate was of great value. That, for the purpose of cheating and defrauding said Mrs. Cochran out of her rights in said property, Warren Cochran had caused said real estate to be conveyed to Beriah Cochran and Elmer G. Cochran, his sons by a former wife; and that said sons held said real estate in trust for the said Warren Cochran.

The prayer of Mrs. Cochran's petition was that the said decree of divorce procured by Warren Cochran against her “be set aside, and held fraudulent and void, to the extent, and to the end, that the plaintiff may be restored to her rights of property in all of the estate of the said defendant Warren Cochran”; and she prayed for a judgment for $20,000 against Warren Cochran as alimony, and that the same might be made a lien upon the above-described real estate, and that such real estate be decreed to belong to Warren Cochran, and held in trust by Beriah and Elmer G. Cochran for his use and benefit, and in fraud of her rights. The answer of the defendants, Warren Cochran, Beriah Cochran and wife, and Elmer G. Cochran and wife, so far as material here, admitted the marriage of Warren Cochran and Mrs. Cochran; the procuring of a...