Hild v. Hild
| Decision Date | 10 March 1939 |
| Docket Number | 30540. |
| Citation | 284 N.W. 730,135 Neb. 896 |
| Parties | HILD v. HILD. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. " Whether a divorce from bed and board or an absolute divorce shall be granted is a question vested in the sound discretion of the trial court." Phillips v Phillips, 135 Neb. 313, 281 N.W. 22.
2. The trial court, in exercising its sound discretion to allow or refuse to allow permanent alimony, will consider the respective ages of the parties to the marriage, their earning ability, the duration of, and the conduct of each during, the marriage, their station in life, the circumstances and necessities of each, as well as their health and physical condition, whether the property was accumulated before or after the marriage, and all other circumstances pertinent to the case.
3. Record examined and held to support the findings and decree of the trial court.
Appeal from District Court, Douglas County; Rhoades, Judge.
Action by Marie E. Hild against George M. Hild for separate maintenance, wherein the defendant filed a cross-petition seeking a divorce. From a judgment and decree in favor of the defendant, the plaintiff appeals.
Judgment and decree affirmed.
In wife's action for separate maintenance, wherein husband filed a cross-petition seeking a divorce, wife's evidence was insufficient to establish that when mortgage was made with her name and her husband's name as the mortgagees the husband intended to make a gift of an interest in the mortgage to her.
Wm. R Patrick, of Papillion, for appellant.
Johnsen, Gross & Crawford, of Omaha, for appellee.
Heard before SIMMONS, C. J., and ROSE, PAINE, CARTER, and MESSMORE, JJ.
Plaintiff brought an action for separate maintenance, charging defendant with extreme cruelty. Defendant denied the allegation of cruelty and, by cross-petition, charged the plaintiff with extreme cruelty. The reply was a general denial.
The defendant, a man 62 years of age, previously married and divorced and the father of grown daughters, and the plaintiff, a woman 54 years of age, twice previously married and once divorced, and the mother of a grown daughter, were married April 7, 1937. At the time, plaintiff was a widow living in Oklahoma City, operating a boarding and rooming house, and met the defendant through her sister, a resident of Omaha. The defendant went to Oklahoma City, proposed marriage to plaintiff, and they were married in Papillion, Nebraska, and went to Omaha, where they lived in a three-room apartment. The evidence is in sharp conflict and a detailed statement thereof would unnecessarily lengthen this opinion. We will, therefore, state the substance of the claims of the respective parties.
The evidence of plaintiff and her witnesses, her daughter, brother-in-law, sister and mother, shows excessive drinking of beer and whisky by defendant and drunkenness two or three times weekly; that he always had a case of beer and some whisky in the home; that his conduct was intolerable, his personal habits vile; he was unclean about his person and in his bed failed to properly attend to the wants of nature; that previous to his marriage he had lived in his own home in Plattsmouth, Nebraska, having a housekeeper to care for it. Two letters appear in the record showing rather close and intimate relations between the housekeeper and the defendant. Plaintiff received one letter and had full knowledge of another to her husband. Plaintiff states that the letters caused her much anxiety concerning the previous moral conduct of her husband and lessened her trust in him; that his attitude changed immediately after receipt and discussion of the letters; that he would leave the apartment and remain away all day, was difficult to get along with, and stated: " Well, there is going to be a hell of a change before we get along." Plaintiff testified that defendant wanted to purchase a saloon in South Omaha and have her assist him in the business and live over the saloon, which she refused to do.
Defendant and witnesses in his behalf testified in substance: Plaintiff told defendant that she wanted a divorce, that she could not live with him and did not want to ruin her life or his, which he claims affected him mentally and physically. Very shortly after the marriage the plaintiff, in playing cards with some neighbors, and on many other occasions, stated that she did not intend to live with the defendant, and that when all of her debts were paid she intended to leave. Plaintiff did not bring her furniture to Omaha; most of it had been stored, except what she sold, receiving therefor about $75, and she stated that she was able to start operation of her boarding and rooming house any time. She sought the services of a school-teacher, with whom she had played cards and gone riding, to follow her husband, the teacher refusing. She advertised for, but did not employ, a detective for such purpose. She complained that defendant failed to provide for her adequate and proper food, when, in fact, she had been furnished ample food and milk, according to defendant's witnesses. All of the evidence of each party is vigorously denied by the other.
The trial court granted a decree of divorce to the defendant upon his cross-petition, finding that plaintiff should pay her own witness fees, and that the defendant should pay the costs and an attorney's fee fixed at $100. Plaintiff appealed.
Nebraska cases hold generally that the trial court is vested with sound discretion in determining whether a divorce from bed and board or an absolute divorce shall be granted, and in a majority of the cases an absolute divorce is to be preferred, depending upon the facts and circumstances of each case. See Phillips v. Phillips, 135 Neb. 313, 281 N.W. 22; Sutherland v. Sutherland, 132 Neb. 558, 272 N.W. 549; McKnight v. McKnight, 5 Neb., Unof., 260, 98 N.W. 62.
The instant case is one of that class of cases in which an opportunity to both hear and see the witnesses as they testify places the trial court in a much better position to know the weight and credibility that should be given to the testimony than a reviewing court can possibly be from reading a transcript thereof. This court tries this case de novo, and yet we have said that, where the testimony of witnesses upon the vital questions involved is conflicting, this court will consider the fact that an experienced trial judge observed the witnesses and their manner of testifying and accepted one version of the facts rather than the other. In the instant case, we think the trial court had a very definite...
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