Laura Blanche Winter v. Winter

• Decision Date: 13 February 1914
• Docket Number: 17,390
• Citation: 145 N.W. 709,95 Neb. 335
• Parties: LAURA BLANCHE WINTER, APPELLANT, v. LEONARD WINTER, APPELLEE
• Court: Nebraska Supreme Court

145 N.W. 709

95 Neb. 335

LAURA BLANCHE WINTER, APPELLANT, v. LEONARD WINTER, APPELLEE

No. 17,390

Supreme Court of Nebraska

February 13, 1914

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Reversed.

REVERSED.

M. O Cunningham, for appellant.

J. L Kaley, contra.

HAMER, J. BARNES, LETTON and SEDGWICK, JJ., not sitting.

OPINION

HAMER, J.

The appellant, Laura Blanche Winter, obtained a decree of divorce from the appellee, Leonard Winter, in the district court for Lancaster county at the October term, 1909. The care, custody and control of Leota Winter, their little child, was given by the district court to the plaintiff.

A default was taken on the 4th day of October, 1909, and subsequently the plaintiff proved up, and the court found generally in favor of the plaintiff and against the defendant; also, that due notice of the filing and pendency of the petition was given the defendant by personal service and a summons to which he failed to answer or demur; that the defendant had been guilty of extreme cruelty to the plaintiff; that the defendant wantonly and cruelly failed, refused and neglected to provide suitable maintenance for the plaintiff; that the issue of said marriage was Leota Winter, a daughter three years of age; that the plaintiff was entitled to a divorce from the defendant, and to the care, custody and education of their child, Leota Winter. The decree annulled the marriage relation. Afterwards at the April term the case came on further to be heard upon the application of the plaintiff to modify the decree so as to provide for the payment of alimony at the rate of $ 15 a month at the date when the decree was entered. There was a decree giving the plaintiff $ 15 a month from the 10th day of January, 1910, until the further order of the court. A transcript of the decree was filed in the office of the clerk of the district court of Douglas county, and an execution was issued to the sheriff of that county commanding him to cause to be levied of the goods and chattels of Leonard Winter the sum of $ 105. There was a return on the 14th day of December, 1910, of no goods and chattels, lands or tenements found in Douglas county upon which to levy and collect the said judgment. Thereupon a garnishee summons was issued upon the application of the plaintiff. The application alleged the amount due on the judgment; that execution had been issued and returned unsatisfied for want of sufficient property belonging to the defendant whereon to levy; and that the plaintiff had good reason to believe that the Bennett Company, a corporation, had property of the defendant and was indebted to him. The Bennett Company was duly served, and the defendant, Leonard Winter, then set up that on the 31st of October, 1910, he was married to Jean McBurney, in the city of Omaha, and that ever since that time he had been living with his said wife in said city of Omaha, Nebraska, and that the defendant therefore was the head of a family; that he had neither lands, town lots, nor a house subject to exemption as a homestead under the laws of the state; and that he and his wife were boarding, and that they had no house-hold furniture or other property, except the defendant's wearing apparel, which was alleged to be of a value not exceeding $ 50. There was a judgment in the district court discharging the garnishee, and finding against the plaintiff and for the defendant, and from this order the plaintiff has appealed.

While it is alleged that the defendant had no notice of the modification of the decree by which the judgment for alimony was rendered against him, he fails to sustain his contention. In the absence of evidence upon the subject, it will be taken that the decree is valid, and that it was rendered in the regular way. Whether the husband by his remarriage may obtain exemption from the liability which he incurred by reason of his first marriage, as set forth in the decree, is to be determined.

In Foster v. Foster, 130 Mass. 189, the court held: "A husband may be lawfully arrested on an execution issued upon a decree for alimony; and, upon his application to take the oath for the relief of poor debtors, charges of fraud may be filed against him by his wife."

In Hoon v. Hoon, 82 Neb. 688, 118 N.W. 563, it was held: "A wife who is a non-resident of the state, and who is separated from her husband without fault on her part, may maintain in the courts of this state an action in equity against her husband for support and maintenance."

In Earle v. Earle, 27 Neb. 277, 43 N.W. 118, it was held: "The law of the land having made it the legal duty of a husband to support his wife and children, courts of equity within this state have the power, in a suit by the wife for alimony and support, to enforce the discharge of such duty, without reference to whether the action is for a divorce or not." In the body of the opinion it is said: "But the authority to grant alimony grows out of the equity powers of the court."

In Galland v. Galland, 38 Cal. 265, it was held: "The provision for alimony, made in the statute concerning divorces, was not intended to be a prohibition to the granting of alimony in other cases. The power to decree alimony falls within the general powers of a court of equity, and exists independent of statutory authority. And, in the exercise of this original and inherent power, a court of equity will, in a proper case, decree alimony to the wife, in an action which has no reference to a divorce or separation."

In Garland v. Garland, 50 Miss. 694, the court said: "Courts of equity in America will always interpose to redress wrongs when the complainant is without full, adequate and complete remedy at law. * * * If a wife is abandoned by her husband, without means of support, a bill in equity will lie to compel the husband to support the wife, without asking for a decree of divorce."

In Rhoades v. Rhoades, 78 Neb. 495, 111 N.W. 122, the question for determination was: Did the district court have jurisdiction upon service by publication to subject the interest of the non-resident husband to the maintenance and support of his wife and child? The court said in the body of the opinion: "And it is clear that the district courts of this state, being courts of general equity jurisdiction, are not limited in the exercise of such jurisdiction by statute. Cochran v. Cochran, 42 Neb. 612, 60 N.W. 942. * * * It is here sought, under the general equity powers of the court, to appropriate property of a non-resident which is situated within the jurisdiction of the court, to the maintenance of his wife and child." It was held that the object sought to be accomplished could be accomplished.

In Cochran v. Cochran, 42 Neb. 612, 60 N.W. 942, the wife had no knowledge of the divorce proceedings until after the date of the decree. Two years after the date of the divorce the wife brought suit in equity against the husband for alimony. Held, among other things: "Our divorce laws are liberal and should be liberally construed; but they are not designed for and should not be used to enable designing husbands, without cause, to legally discard their wives, whether domiciled in this or other states, or to escape the performance of their marriage contracts."

In Smithson v. Smithson, 37 Neb. 535, 56 N.W. 300, it was held by Judge Post: "It is not the object of the code to abolish existing remedies in cases where no provision is made therein for the prosecution of actions. Cases involving substantial rights, which are clearly outside the provisions of the code, may be prosecuted in accordance with the practice previously recognized in courts of common law and equity."

By section 11, ch. 25, Comp. St. 1911, it is provided that a suit (a) "for a divorce shall be conducted in the same manner as other suits in courts of equity;" also, that (b) "the court shall have power * * * to enforce its decrees as in other cases." It will...