Dauer v. Dauer

• Decision Date: 19 November 1926
• Docket Number: No. 25379.,25379.
• Citation: 169 Minn. 148,210 N.W. 878
• Parties: DAUER v. DAUER.
• Court: Minnesota Supreme Court

210 N.W. 878

169 Minn. 148

DAUER v.DAUER.

No. 25379.

Supreme Court of Minnesota.

November 19, 1926.

Appeal from District Court, Brown County; I. M. Olsen, Judge.

Action by Esther Dauer against Fred C. Dauer for a divorce.Findings for defendant, and plaintiff appeals from an order refusing to amend the findings and denying a new trial.Affirmed.

T. O. Streissguth, of New Ulm, for appellant.

Somsen, Dempsey & Flor, of New Ulm, for respondent.

HOLT, J.

Findings were in favor of the husband in this action for divorce brought by the wife on the ground of cruelty.The appeal is from the order refusing to amend the findings and denying a new trial.

We have examined the evidence attentively, and are satisfied that the findings of fact are abundantly sustained, and that the learned trial court wisely concluded that the husband should have the custody and care of the children, even though the wife was also found to be a fit person to care for them.Appellant urges principally two objections to the decision: First, that the custody of the children was awarded the husband; and, second, the support granted her while she elects to live separate is too small.The court found that "plaintiff at this time is opposed to, and refuses to live with, defendant, and could not in her present state of mind live happily with the defendant," and until she should elect to return to her husband, he was ordered to contribute $15 per month to assist in her support.

The parties married in 1912, when plaintiff was 18, and defendant 28, years old.Three children were born to them; the oldest being now 13 and the youngest 10 years old.They were without home or means when they married, and for a time lived with his parents on the small farm of 18½ acres, which he later bought from his father.Both were industrious and frugal, and seem to have got along well until within the last few years, when she has become somewhat neurotic and dissatisfied with him.She has always willingly assisted in the farm labor when help was needed.And, when he worked away from home, as he often had to do, she uncomplainingly attended to all the chores.Only about half of the little farm is tillable.It is worth $2,400 and is mortgaged for $1,400.Besides the farm, defendant owns $600 worth of personal property.Every fall he is able to earn about $200 running an engine during the threshing season.In addition to the odd jobs gotten from neighbors, he has rented parcels of land from near by farmers for planting and cropping.

It is perfectly plain that it is demanding the impossible to require this man to support two separate households with the resources at his command.He should not be asked to attempt it.The record is convincing that he is not to blame for plaintiff's leaving her home and should not be deprived of the companionship of his children to whom he is greatly attached.The evidence, taken as a whole, indicates that plaintiff's aversion to defendant may be only temporary.There is no reason apparent why these parties should not in the near future live reasonably contented as husband and wife.His pleadings with her not to leave him shows that he has an abiding affection for her.She in the past has dominated the family.To this he, in most instances, seems to have meekly submitted.No serious trouble followed her leadership until, with his assistance, she won a Ford in some sale contest.With the ownership of the automobile came a feeling of pride.Her husband's appearance and dress did not comport with the dignity of the vehicle, and he was refused the privilege of accompanying the family in it to social gatherings, though he expressed a strong desire to do so.

As we read the record, the only thing the court could do was to let defendant maintain the home where he could support himself and children, and keep it open for plaintiff whenever she should elect to return.In the meantime the support granted is in our opinion all that defendant can give.Plaintiff is able to work, and has always been accustomed to do so, and we feel, with the assistance ordered, she will have the easier road of the two, so far as obtaining the necessities of life is concerned.

The only legal proposition in the appeal is the contention that the court should not have permitted testimony touching defendant's character, temper, and disposition, and that, if character became an issue, it could be assailed or supported by testimony as to reputation alone, and not by opinion.The general rule is that the character of the litigants cannot be made an issue in civil actions.There are exceptions.The rule with the exceptions, somewhat extended in this...