Connett v. Connett

• Court: Nebraska Supreme Court
• Writing for the Court: ROOT, C. J.
• Citation: Connett v. Connett, 81 Neb. 777, 116 N.W. 658 (Neb. 1908)
• Decision Date: 21 May 1908
• Docket Number: 15,081
• Parties: MARY CONNETT, APPELLANT, v. ERNEST P. CONNETT, APPELLEE

116 N.W. 658

81 Neb. 777

MARY CONNETT, APPELLANT, v. ERNEST P. CONNETT, APPELLEE

No. 15,081

Supreme Court of Nebraska

May 21, 1908

APPEAL from the district court for Seward county ARTHUR J. EVANS JUDGE. Reversed with directions.

Reversed and remanded, with directions.

Landis & Schick and Ray J. Abbott, for appellant.

Norval Bros. and J. J. Thomas, contra.

ROOT C. FAWCETT, C., concurs.

OPINION

ROOT, C. J.

In 1902 plaintiff was divorced from defendant by decree of the district court for Seward county. Her original petition charged cruelty and adultery; but on the evening of the first day of the trial of said cause the litigants stipulated in writing that plaintiff would file an amended petition charging only a wanton failure to support her, that an absolute divorce should be granted, plaintiff to have the custody of their two children, eight and eleven years of age respectively, and that defendant would pay as alimony to the wife and maintenance for the children $ 10 each month for seven years, and furnish the children clothing, "if such provision for that term is necessary," and so long as plaintiff remained unmarried defendant for five years would provide her with a dwelling, and she to retain all their household furniture, the $ 10 a month to be in lieu of dower and all other claims and demands of plaintiff against defendant. The court acted on the stipulation, and the evidence theretofore taken, and granted a decree upon the amended petition in strict conformity with the terms of the stipulation, and further ordered the reporter not to transcribe his shorthand notes of said testimony for any one. In 1904 plaintiff commenced these proceedings for a modification of said decree and an increase of the allowance therein provided for, because of the alleged fraud in procuring said stipulation and the judgment thereon, her changed circumstances on account of failure of health, the increased cost of living, the insufficiency of the allowance to maintain and educate the children, the failure of defendant to provide clothing for the children, and for other reasons not material, as we view the record. The district court dismissed the petition, and plaintiff appeals.

1. The charge of fraud is very indefinite and totally unsustained by the evidence. It is more than likely that the real reasons for the settlement and the unusual action of the court in seeming to be controlled by the stipulation of the parties do not appear in the record in this case.

2. So far as plaintiff is concerned, we are of opinion that her showing of impaired health will not warrant a modification of the decree for the purpose of increasing her alimony. It is not necessary to, nor do we, determine the defense of res judicata interposed to her personal demand. We do, however, reject that defense so far as it affects the children. The care, custody and maintenance of the litigants' children were considered by the court in the action for divorce. Section 5338, Ann. St. 1907, provides that the court upon pronouncing a decree of nullity or of divorce, either from the bonds of matrimony or from bed and board, may make such further decree as may be just and proper for the care, custody and maintenance of the minor children. The succeeding section provides: "The court may from time to time, afterwards, on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children shall require." In case the court has acted under section 5338, supra, the child becomes in a sense the ward of that court, and to the extent that the decree affects the infant it may be modified or changed by the court at any time during the child's minority. Miner v. Miner, 11 Ill. 43; Hoffman v. Hoffman, 15 Ohio St. 427; Buckminster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652; Miles v. Miles, 65 Kan. 676, 70 P. 631.

The stipulation between the parents will not avail to release defendant from his lawful obligation to support, maintain and educate his children. A bargain, with the possible consideration that the parent's peccadilloes shall not be aired in public, or that the mother may be furnished long withheld and sorely needed funds for her support, will not be considered in adjusting the rights of infants not parties to the arrangement and incapable of assenting thereto. Defendant's duty to his offspring and his liability for their support and education continued as imperative after as before the divorce. Chambers v. Chambers, 75 Neb....