Habeck v. Habeck
| Decision Date | 19 July 1927 |
| Docket Number | No. 5894.,5894. |
| Citation | 51 S.D. 455,214 N.W. 846 |
| Parties | HABECK v. HABECK. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.
Action by Minnie Habeck against Julius Habeck for divorce, in which defendant interposed a cross-complaint. From a judgment for plaintiff, and an order denying defendant's motion for new trial, defendant appeals. Affirmed.J. M. Berry, of Ipswich, for appellant.
A. L. Beardsley, of Ipswich, and McNulty, Williamson & Smith, of Aberdeen, for respondent.
The respondent, Minnie Habeck, began this action for a divorce, custody of one child, and alimony. The complaint alleges certain acts of defendant which are relied upon as constituting extreme cruelty entitling plaintiff to a divorce.
In his original answer the defendant denied the allegations of acts of cruelty contained in the complaint and as a cross-complaint alleged acts of adultery and of cruelty on plaintiff's part and prayed for a divorce from plaintiff on the ground of such acts. In an amended answer and cross-complaint served and filed by the defendant the allegation of adultery was omitted, but an act which might be termed indiscreet behavior on plaintiff's part was alleged as constituting cruelty entitling defendant to a divorce, and a decree of divorce, with custody of two boys, issue of the marriage, was prayed for.
After hearing the evidence the trial court found the facts to be as follows: The parties were married in Minnesota, April 29, 1915, and lived together as husband and wife until July 25, 1923. They have resided in Edmunds county, S. D., since the fall of 1918. The defendant owns a section of land in Edmunds county, worth $32,000, and personal property of the value of about $4,000. There are three living children, issue of the marriage of the plaintiff and defendant, to wit, two sons aged seven years and five years, respectively, and a daughter aged two years.
Since the marriage of the parties the defendant has continuously treated the plaintiff in a cruel and inhuman manner. He has continuously cursed the plaintiff and called her vile names. He has permitted his mother to live in the home of plaintiff and defendant almost continuously since the marriage, without plaintiff's consent, and has permitted his said mother to interfere with the plaintiff's household duties. The defendant and his mother have continuously insulted and abused the plaintiff and have almost wholly failed to treat her as a member of the family. The plaintiff has been in ill health for the past five years, and has been unfit to perform hard work, but, notwithstanding that fact and the fact that defendant is financially able to hire farm labor, he has compelled plaintiff to do outdoor farm labor of all kinds, to the injury and impairment of plaintiff's health. In April, 1919, defendant struck the plaintiff and threw her to the ground, which made plaintiff sick and caused her to be confined to her bed. At two different times when plaintiff was sick and weak defendant wholly failed to give her any medical care or attention or any personal assistance, care, or attention, but left her alone and uncared for, in one instance for a period of about three days. The defendant falsely and without justification accused the plaintiff of infidelity. And these acts of the defendant caused the plaintiff to suffer great mental anguish and pain and have greatly impaired her health.
From these findings the trial court concluded that plaintiff is entitled to a decree of absolute divorce, to the custody of the two year old daughter, and to alimony in the sum of $9,000, payable in five years at 6 per cent. interest and secured by mortgage on a half section of defendant's land. And judgment was entered accordingly leaving the two boys in the custody of the defendant. Defendant moved for a new trial on the grounds of newly...
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