O'Donnell v. O'Donnell

• Citation: 7 N.W.2d 647,142 Neb. 706
• Decision Date: 15 January 1943
• Docket Number: 31520.
• Parties: O'DONNELL v. O'DONNELL.
• Court: Supreme Court of Nebraska

7 N.W.2d 647

142 Neb. 706

O'DONNELL v. O'DONNELL.

No. 31520.

Supreme Court of Nebraska

January 15, 1943

Syllabus by the Court.

1. Demand for physical examination of a party should be made before the commencement of a trial, so that the proceedings may not be delayed thereby.

2. If a demand for physical examination of a party is first made during the trial, it is addressed to the sound discretion of the trial court, and unless such discretion has been abused the denial thereof will not constitute reversible error.

3. Section 20-1206, Comp.St.1929, on privileged communications forbids any physician or surgeon giving testimony in relation to confidential matters entrusted to him by his patient in his professional capacity. This law would also apply to the hospital records made by a physician or surgeon, or under his direction.

4. "In fixing the amount of alimony, the court will take into consideration the estate of each party at the time of marriage, their respective contributions since marriage as well as the duration of the marriage, and the conduct of each party leading up to the divorce." Phillips v. Phillips 135 Neb. 313, 281 N.W. 22.

Hubka & Hubka, of Beatrice, for appellant.

Jack & Vette, of Beatrice, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, and YEAGER JJ.

PAINE Justice.

This is a divorce action, in which the court granted a divorce to the wife upon her cross-petition, with alimony of $4,000 and attorney's fees of $200. Husband appeals.

In his amended petition plaintiff alleged that he and the defendant were married February 27, 1939, and are residents of Wymore that no children have been born to the union; that plaintiff has at all times conducted himself as a true and faithful husband, but that defendant has been guilty of gross mental cruelty towards plaintiff, as follows: That within two weeks after they were married defendant left the home of plaintiff and went to her home, and that since that time she has lived for much of the time at her own home, refusing to live with plaintiff, notwithstanding the fact that plaintiff had a good home in which he wanted her to live, and thereafter bought another home and offered to furnish it, but in which she refused to live and chose to rent so that she might collect the rents therefrom.

The petition further states that there is to the credit of plaintiff and defendant jointly in the State Savings & Loan Association of Beatrice an account of $1,163.40, with right of survivorship; that said money was actually earned by plaintiff, and he asks the court to decree the same to be the money of plaintiff. In addition, there stands of record in the names of plaintiff and defendant a lot in the city of Wymore, which property was actually bought and paid for by plaintiff. Plaintiff prays for an absolute divorce, that the account in the State Savings & Loan Association of Beatrice and the real estate in Wymore be decreed as the sole property of plaintiff.

The defendant in her answer admitted the marriage, and that about October, 1940, plaintiff and defendant resided at a hotel in Fairmont; charged that plaintiff had for a long time acted without love or affection towards defendant; admitted the account in the State Savings & Loan Association of Beatrice of $1,163.40, which money was the result of the savings made by defendant; that the lot in Wymore standing of record in the names of plaintiff and defendant, was purchased with savings made by defendant, and defendant denies each and every allegation set out in the amended petition not specifically admitted.

Defendant admits that much of the time since her marriage to plaintiff has been spent at the residence of her parents, but that such arrangement did not arise from her choice, but because plaintiff failed to furnish her a home; that when plaintiff and defendant were married plaintiff was stationed at Nebraska City and did not desire to establish a residence there, and for several months defendant spent part of the time at the home of plaintiff's mother, and went with her to Nebraska City as often as possible to see the plaintiff; that about July 4, 1939, they established a residence at Edgar, and resided there until about March 1, 1940, with the exception of a period of about three weeks; then the plaintiff, a locomotive fireman, was transferred to Wymore, and for about a month defendant spent a part of the time in the home of plaintiff's mother and a part of the time at her parents' home. After that plaintiff was transferred to Fairmont, and until October, 1940, plaintiff provided no home whatever for defendant, but in the beginning of said period would occasionally come to Wymore and take her and leave her at her parents' home, and the only opportunity defendant had to see the plaintiff then was when she would get a chance to go with plaintiff's mother to Fairmont, and before long plaintiff's mother made trips to Fairmont without giving defendant any chance to go along. The automobile which plaintiff's mother used was one purchased by plaintiff but licensed in the name of his mother. Plaintiff carried life insurance with his mother named as beneficiary, and declined to change any of said insurance to name defendant.

About the first week in October defendant went by train to Fairmont, out of which town plaintiff was working, but plaintiff failed to provide any place for them to live at Fairmont, and defendant obtained employment at the hotel where he was staying, paying part of the room rent and for all of her own board, and this continued until early in April, 1941, when plaintiff was transferred again to Wymore, and shortly thereafter to Table Rock, and plaintiff took defendant to her parents' home and left her there, and has never offered to provide a home for her since that time, although repeatedly requested to do so.

The defendant alleges that she has conducted herself toward plaintiff as a faithful, chaste and obedient wife, but plaintiff has been guilty of extreme cruelty toward defendant in that he has failed to provide a home for her. Defendant alleges that, in addition to the real estate hereinbefore mentioned, which is of the approximate value of $1,200, plaintiff is the owner of a quarter-section of land in Gage county, Nebraska, and of 80 acres of land in Washington county, Kansas, and although the two tracts appear of record in the name of plaintiff's mother the fact is that said real estate is the property of plaintiff, was acquired and paid for by him, and reconveyance deeds from his mother to him have been made and delivered, and said tracts of real estate are of the fair value of at least $16,000.

Defendant claims that, aside from her interest in the lot and residence at Wymore and in the State Savings & Loan account, she has no other property of her own, that she has no trade or profession and is dependent upon the charity of her parents for support; that plaintiff is 42 years of age, in good health, and earning approximately $200 a month. Defendant asks for separate maintenance, and in the alternative that she be granted a decree of divorce and reasonable alimony.

Plaintiff's reply denied all of the charges of extreme cruelty, and denied that he has any right, title or interest in the real estate described in defendant's answer, which stands in the name of his mother, all of which was told to defendant prior to their marriage.

The court dismissed the amended petition of plaintiff, and granted an absolute decree of divorce to defendant, with permanent alimony in the sum of $4,000, which plaintiff is directed to pay as follows: The amount in the joint account in the State Savings & Loan Association of Beatrice to be assigned in writing by plaintiff to defendant concurrently with defendant executing and delivering a quitclaim deed to plaintiff for lot 4, block 12, Wymore's addition to the city of Wymore. It was decreed that the balance of the alimony, or $2,836.60, should be paid as follows:...