Eicher v. Eicher
| Decision Date | 04 April 1947 |
| Docket Number | 32163. |
| Citation | 26 N.W.2d 808,148 Neb. 173 |
| Parties | EICHER v. EICHER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Condonation is forgiveness for the past upon condition that the wrongs shall not be repeated. It is dependent upon future good conduct. The repetition of the offense revives the wrong condoned.
2. Where condonation is relied upon as a defense, it should be pleaded. Where a repetition of the wrong condoned is relied upon, it should be pleaded.
3. Where it is clear that all of the evidence to sustain or defeat an issue was adduced by the respective litigants in an equitable action in the district court, it is competent on appeal for this court in the interests of justice to permit amended pleadings to be filed so as to conform to that proof.
4. Under the provisions of section 25-852, R.S.1943, power is given the court to conform the pleadings to the proof, when the amendment does not substantially change the claim or defense. A judgment based upon such proof will not be reversed for the reason that such amendment has not actually been made. If the evidence, admitted without objection clearly proves a claim or defense, the pleading will upon appeal be considered amended accordingly.
5. Where the record in a divorce case discloses that the wife's attorney has been allowed an adequate fee for services in the trial court; where the wife appeals and the husband has been required to pay the costs of the appeal and support the wife during its pendency; and where no reasonable justification for the appeal appears, an allowance of a fee to the wife's attorney will be denied in this court.
Max Kier, of Lincoln, for appellant.
McKillip Barth & Blevens, of Seward, for appellee.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
This is a divorce action which resulted in a decree for the plaintiff. Defendant appeals. The errors assigned and discussed are that the trial court erred in finding that defendant had committed acts of extreme cruelty; that plaintiff was entitled to a divorce; that the cause, if it existed, had not been condoned; in dismissing defendant's petition for separate maintenance; in failing to make proper orders relating to the custody of minor children; and in the alimony granted. We affirm the judgment of the trial court.
The parties were married in 1928. They have lived all their married life at Seward. Two children were born to the marriage who at the time of the trial were 17 and 8 years of age. The parties lived together in apparent harmony until about 1942. About that time an uncle of the defendant, and the defendant's mother came to live with them. Discord followed. The uncle died in August or September 1945. The mother moved out of the home in March 1945.
At least as early as 1943, defendant committed a battery on the plaintiff. These plaintiff testified continued with some regularity as occasion prompted. Plaintiff left the home.
On June 29, 1945, plaintiff filed petition for divorce, alleging extreme cruelty, the presence in the home of members of defendant's family over his objection, and the impairment of his health.
In August 1945, the plaintiff, defendant and their children went on a vacation to Colorado. Marital relations were resumed. Shortly after returning home, if not at the time, plaintiff again left the home.
On September 13, 1945, defendant filed an answer, consisting largely of a general denial, and a cross-petition in which she alleged, in effect, condonation by the resumption of marital relations on the trip to Colorado, and plaintiff's refusal to live with defendant thereafter. Defendant further alleged cruelty on the part of the plaintiff and nonsupport, and prayed for a divorce from bed and board, custody of the children, and child support.
Thereafter, and in September 1945, the parties and their attorneys met at the court room, presumably for a trial of the case. A conference was had in the court's chambers. The defendant told plaintiff she was pregnant. It later developed that she was not. Plaintiff decided he should return home and did so. Thereafter, trouble again occurred. In January 1946, defendant objected to plaintiff leaving the home one evening, and rather severely battered the plaintiff. He fell, injuring his back. He then again left the home.
On March 28, 1946, the matter came on for trial on the pleadings as above recited. Defendant secured permission and then amended her cross-petition by an allegation that subsequent to the filing of her cross-petition plaintiff had asked the resumption of marital relations, had promised to conduct himself properly, had failed to do so, had continued his cruel conduct toward her, and that the parties had not lived together since February of 1946.
At the trial the story of the troubles of the parties was related to the court. There is no need here to recite the details of the evidence. The batteries were fully proved and in part admitted by defendant. There is medical evidence that plaintiff has an 'anxiety neurosis,' a 'depressive melancholy' that is a direct result of his marital situation. This has improved during the separations and become worse during the periods of resumed relations. Both parties expressed opposition to further continuance of the marriage relation.
We are in accord with the finding the trial court made granting the plaintiff a divorce, and in denying defendant a decree of divorce from bed and board, unless the decree should be denied because of either condonation or the situation presented by the pleadings.
Condonation is forgiveness for the past upon condition that the wrongs shall not be repeated. It is dependent upon future good conduct. The repetition of the offense revives the wrong condoned. Heist v. Heist, 48 Neb. 794, 67 N.W. 790; Anderson v. Anderson, 89 Neb. 570, 131 N.W. 907, Ann.Cas.1912C, 1; McNamara v. McNamara, 93 Neb. 190, 139 N.W. 1045; Riddick v. Riddick, 112 Neb. 813, 201 N.W. 557; Wetenkamp v. Wetenkamp, 140 Neb. 392, 299 N.W. 491. It is clear that there was a condonation of the cruelty upon which the petition of plaintiff was based. It is also clear that there was a repetition of the offense of cruelty, to wit, the battery in January 1946. That repetition revived the wrong previously condoned. There is no evidence upon which a finding of condonation thereafter can be based. Accordingly, we find no merit in defendant's contention that a divorce should be denied because of condonation.
However, we are confronted with a question of pleading which we raise on our own motion. There was a condonation after plaintiff filed his petition. He filed no supplemental petition alleging events occurring subsequent thereto. The defendant pleaded condonement by her cross-petition and by the amendment. Her first allegation of condonation went to plaintiff's cause of action. Her amendment was an allegation that she had condoned plaintiff's alleged wrongful acts, and that he had thereafter repeated them. Plaintiff made no answer to the defendant's cross-petition.
It is obvious from an examination of this record that the trial court was fully advised as to all the facts, and the parties proceeded upon the theory that condonation and a repetition of the offenses reviving the wrongs were considered as issues, and were tried out and determined.
We do not approve this procedure, although an examination of the record in some of our decisions indicates that this practice has not been questioned heretofore. Plaintiff should have answered the cross-petition if he desired to take issue on the material allegations contained therein. But, even if treated as a default by plaintiff, it is not claimed here that defendant's evidence was sufficient to sustain a decree on her cross-petition. It is obvious that it was known to the parties that there would be evidence of a condonation and a repetition of the offense by the defendant, all occurring subsequent to the filing of the petition and answer and cross-petition. All of the evidence relating to these matters was without the pleadings, and admitted and considered without objection. The parties should have asked leave to amend their pleadings if either desired to rely upon these matters. Where condonation is relied upon as a defense, it should be pleaded. Where a repetition of the wrong condoned is relied upon, it should be pleaded. When this situation became apparent, the trial court should have required the parties so to plead in order that the record reflect the issues tried and to be determined. As this record stands, the pleadings do not reflect the obvious fact basis of the decree.
However, this appeal brings the case here for trial de novo under the provisions of section 25-1925, R.S.1943. Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429. By the statute we are to reach an independent conclusion 'under the pleadings and all the evidence' of the findings of fact 'complained of upon the evidence preserved in the bill of exceptions.'
Section 25-852, R.S.1943, provides: ...
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Eicher v. Eicher
...148 Neb. 17326 N.W.2d 808EICHERv.EICHER.No. 32163.Supreme Court of Nebraska.April 4, Appeal from District Court, Seward County; Landis, Judge. Action by Walter W. Eicher against Mattie Eicher for divorce, wherein the defendant filed a cross-petition seeking a divorce from bed and board. Fro......