Covault v. Covault, 36550

• Decision Date: 06 October 1967
• Docket Number: No. 36550,36550
• Citation: 153 N.W.2d 292,182 Neb. 119
• Court: Nebraska Supreme Court
• Parties: Dennis O. COVAULT, Appellee, Cross-Appellant, v. Saundra K. COVAULT, Appellant, Cross-Appellee.

Page 292

153 N.W.2d 292

182 Neb. 119

Dennis O. COVAULT, Appellee, Cross-Appellant, v. Saundra K. COVAULT, Appellant, Cross-Appellee.

No. 36550.

Supreme Court of Nebraska.

Oct. 6, 1967.

Syllabus by the Court

1. Where the evidence in a suit for a divorce establishes adultery on the part of one of the parties thereto, the court is required to grant the prayer of the other party seeking a divorce on that ground unless prevented from doing so by applicable statutory provisions.

2. Where a wife is found guilty of adultery she is ordinarily an unfit person to have the care and custody of her minor children as against the husband she has wronged where he is a sit and proper person to have their custody.

3. Where the adultery of a wife is established she is not ordinarily entitled to an award of an attorney's fee or the costs of the suit.

Hal W. Bauer, Lincoln, for appellant.

Kier, Cobb & Luedtke, Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

This is a suit for a divorce. The plaintiff husband sought the divorce on the grounds of adultery and extreme cruelty. The defendant wife cross-petitioned for a divorce on the grounds of extreme cruelty, prayed for the custody of Susan Carole, the 3-year-old daughter of the parties, for child support and alimony, and for attorney's fees and costs. The trial court decreed an absolute divorce to the plaintiff on the ground of extreme cruelty, custody of Susan Carole Covault was given to the husband, a division was made of the personal property of the parties, and the costs of the action, including an attorney's fee of $400, were taxed to the plaintiff.

On the appeal, the defendant wife assigned as error the granting of the custody of the minor child, Susan Carole, to the husband. The plaintiff husband has cross-appealed asserting that the trial court erred in failing to find the defendant guilty of adultery, in taxing the costs, including an attorney's fee, to the plaintiff, and in fixing excessive visitation privileges at plaintiff's expense.

The evidence shows that the parties were married on February 17, 1963. On June 23, 1966, the husband found an unmailed letter written by the defendant addressed to one Michael Lisowsky, a single man, indicating a previous adulterous relationship. The evidence further shows that on June 24, 1966, the wife took a vacation trip to a beach in the State of New Jersey. She was there met by Lisowsky. The evidence shows that defendant and Lisowsky went on a trip through Virginia. Florida, Louisiana, Texas, Mexico, Colorado, and intervening states, occupying the same quarters and otherwise consorting together. The expenses of the trip were paid by the defendant by using credit cards of the plaintiff. The defendant asserts that irrespective of these evidences of unmoral conduct, she committed no act of adultery. We dispose of this evidence by stating that this court is not so naive that it will give credence to the story testified to by the defendant. It is beyond belief. The adultery of the defendant was amply established.

Although an overt act of adultery is not shown, the charge of adultery may be established by evidence of circumstances sustaining a finding of guilt. Cook v. Cook, 141 Neb. 294, 3 N.W.2d 450; Baker v. Baker, 166 Neb. 306, 89 N.W.2d 35; Houghton v. Houghton, 179 Neb. 275, 137 N.W.2d 861.

Where a wife is found...