Klinger v. Klinger

• Decision Date: 28 June 1961
• Docket Number: No. 9875,9875
• Citation: 79 S.D. 182,109 N.W.2d 633,90 A.L.R.2d 742
• Parties: , 90 A.L.R.2d 742 William KLINGER, Plaintiff and Appellant, v. Emily KLINGER, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 633

109 N.W.2d 633

79 S.D. 182, 90 A.L.R.2d 742

William KLINGER, Plaintiff and Appellant, v. Emily KLINGER, Defendant and Respondent.

No. 9875.

Supreme Court of South Dakota.

June 28, 1961.

Henry C. Mundt, Sioux Falls, George W. Wuest, Danforth, Bleeker & Carlson, Mitchell, for plaintiff and appellant.

Shandorf & Slocum, Mitchell, for defendant and respondent.

ROBERTS, Judge.

This is an appeal from a judgment dismissing the husband's complaint and granting the wife's counterclaim for divorce. Plaintiff sought a divorce on the grounds of desertion and extreme cruelty. To the counterclaim plaintiff filed a reply alleging that defendant had obtained a judgment of separate maintenance and that such judgment was a bar to the present action.

The parties were married at Chamberlain, South Dakota, on November 1, 1955. Plaintiff, 59 years of age, was a resident of Hanson County, this state, and defendant, 49 years of age, was a resident of California. It was his fifth and her fourth marriage. The trial court found that plaintiff was possessed of real and personal property valued at about $42,000; that at the time of marriage defendant had property of the net value of $29,000; and that at the date of the divorce decree such value had diminished to about $20,000. The trial court awarded the defendant wife $4,280.17 to reimburse her for damages to certain personal property, the value of personal property in possession of plaintiff and belonging to the defendant, advancements and money expended in connection with the farm home of the plaintiff and money contributed by her toward the living expenses of the parties while residing in this state. The court awarded the further sum of $1,000 as alimony. It was decreed that the parties retain their respective properties except as the decree otherwise provides.

In the action brought by the wife for separate maintenance the judgment was entered July 28, 1958. The judgment based on a finding of extreme cruelty granted the wife the right to live separate and apart from her husband and directed the payment to her of alimony in the amount of $100 a month. There was no appeal from that judgment. The wife in her counterclaim in the present action alleges as a basis for divorce the same facts of cruelty as alleged in the action for separate maintenance and also subsequent conduct of the husband. The court found the issue of extreme cruelty in accordance with the decree in the separate maintenance action. SDC 14.0727 provides: 'Though judgment of divorce is denied, the court may in an action for divorce provide for maintenance of the wife and her children, or any of them, by the husband. An action for separate maintenance may be maintained without request for divorce, upon any grounds which would be grounds for divorce, and in such cases the court shall have power to award temporary alimony, suit money, and permanent support for the wife and her children, or any of them, by the husband.' An absolute divorce terminates the marriage relation. SDC 14.0701. A decree of separate maintenance does not dissolve the marital bond. The primary purpose of obtaining separate maintenance is to...