Lippincott v. Lippincott

• Decision Date: 17 March 1944
• Docket Number: 31729.
• Citation: 13 N.W.2d 721,144 Neb. 486
• Parties: LIPPINCOTT v. LIPPINCOTT.
• Court: Nebraska Supreme Court

13 N.W.2d 721

144 Neb. 486

LIPPINCOTT v. LIPPINCOTT.

No. 31729.

Supreme Court of Nebraska

March 17, 1944

Syllabus by the Court.

1. A party to an action may, in good faith, make a motion together with a showing in support thereof for a change of venue or the disqualification of the trial judge.

2. A judge, in the exercise of his discretion, may view the premises, or a part thereof, without the consent of the parties. In doing so it is better practice to inform the parties and their counsel that he intends to do so and, in so far as it is practical, make such inspection in their presence or with an opportunity for them to be present.

3. The transcript imports absolute verity, and cannot be impeached. If incorrect, or if it fails to speak the truth the correction must be made in the district court and not here.

4. In a divorce suit, where the court has jurisdiction of the parties, it has power to adjust all their respective property interests.

5. In fixing the amount of permanent alimony the court will take into consideration the estate of each party at the time of the marriage, their respective contributions since, the duration of the marriage, the wife's loss of her interest in the husband's property by virtue of the divorce, the social standing, comforts and luxuries of life which the wife would probably have enjoyed except for the enforced separation, the conduct of the parties leading up to the divorce and to which party the divorce is granted, their age and condition of health, and all other facts and circumstances, and award an amount in alimony which appears to be fair and equitable between the parties.

Dryden & Jensen, of Kearney, and J. L. Grimm, of Gering, for appellant.

James G. Mothersead, of Scottsbluff, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

WENKE Justice.

This divorce action was commenced in the district court for Scotts Bluff county by Ena F. Lippincott, as plaintiff against Harvey R. Lippincott, as defendant. From a decree in favor of the plaintiff, the defendant appealed to this court where the decree of divorce was affirmed but the case was returned to the district court with directions to determine the amount of permanent alimony. Lippincott v. Lippincott, 141 Neb. 186, 3 N.W.2d 207, 140 A.L.R. 901.

The mandate of this court directed the "district court to take additional evidence as to the fair value of all of the property owned by the parties as of the date of the decree (March 11, 1941), the sources from which it came, the assistance plaintiff rendered in the accumulation thereof, and to determine the legal claims of other relatives upon the property of the defendant Harvey R. Lippincott, and to award such permanent alimony as the law and the evidence warrant."

Further hearing was had in the lower court pursuant thereto and from the award of permanent alimony and the allowance of attorneys' fees, the defendant has again appealed to this court. For the purpose of this opinion the appellee will be referred to as the plaintiff and the appellant as the defendant.

While the case was returned to the trial court for the purpose of taking additional evidence to determine and award such permanent alimony as the law and the evidence warrant, however, the defendant has raised certain legal questions which must necessarily be disposed of before a discussion of the facts.

Upon return of the case to the district court the defendant made a motion for change of judge or venue together with a showing in support thereof and claims the trial court abused its discretion in failing to sustain this motion. That the defendant may, in good faith, make such a motion is without question. LeHane v. State, 48 Neb. 105, 66 N.W. 1017. However, the showing made fails to come within the provisions of section 27-315, Comp.St.1929, as to the disqualifications of judges, nor is it sufficient to entitle the defendant to a change of venue under section 20-410, Comp.St.1929. There is also a reason why the matter is immaterial here. This is an action in equity and under our statutes is tried de novo in this court.

It appears from the decree of August 14, 1943, that the court inspected the lands located in Scotts Bluff county. The defendant claims this to be an abuse of discretion on the part of the trial court in view of the fact that it was done without the knowledge or consent of the parties or their counsel, and because the court examined only a part of the premises involved. A judge, in the exercise of his discretion, may view the premises, or a part thereof, without the consent of the parties. In doing so it is better practice to inform the parties and their counsel that he intends to do so and, in so far as it is practical, make such inspection in their presence or with an opportunity for them to be present. However, a failure to do so will not necessarily constitute an abuse of discretion. Carter v. Parsons, 136 Neb. 515, 286 N.W. 696; Taxpayers' League v. Wightman, 139 Neb. 212, 296 N.W. 886. Under the facts of this case we do not find that the court would have abused its discretion even though it had made such inspection without notice to the parties or their counsel. However, the record shows the defendant to be in error as to this contention. The journal of the court's order in overruling defendant's motion for new trial states that the judge had, in open court, announced his intentions to view the premises. "The transcript imports absolute verity, and cannot be impeached. If incorrect, or if it fails to speak the truth, the correction must be made in the district court, and not here." Ford v. State, 46 Neb. 390, 64 N.W. 1082, 1083.

The defendant further contends the court was without jurisdiction to transfer real estate. Under the provisions of section 42-321, Comp.St.1929, it is in the discretion of the court to award to the innocent party a share or interest in the real estate of the guilty party. Gaster v. Estate of Gaster, 92 Neb. 6, 137 N.W. 900. As stated in Maxwell v. Maxwell, 106 Neb. 689, 700, 184 N.W. 227, 231: "It is too firmly established in the jurisprudence of this state to be questioned that in a divorce suit, where the court has jurisdiction of the parties, it has power to adjust all their respective property interests." See, also, Bigelow v. Bigelow, 131 Neb. 201, 267 N.W. 409; Resnick v. Resnick, 137 Neb. 256, 288 N.W. 816.

The principle contention of the defendant is that the amount of alimony awarded and the attorneys' fees allowed are excessive. The history of the marriage relationship of the parties and the nature of the causes of their marital troubles are sufficiently set forth in Lippincott v. Lippincott, supra, and will not be repeated in this opinion. They have necessarily been reviewed in this proceeding in a study of the whole record in order to determine the rights of the parties. The matter of fixing the amount of alimony in a divorce action is always to be determined by the facts of each case. As stated in Phillips v. Phillips, 135 Neb. 313, 281 N.W. 22, 26: "*** the court will take into consideration the estate of each party at the time of the marriage, and their respective contributions since, the duration of the marriage, the wife's loss of her interest in the husband's property by virtue of the divorce, the social standing, comforts and luxuries of life which the wife would probably have enjoyed except for the enforced separation, the conduct of the parties leading up to the divorce, and to which party the divorce is granted, their age and condition of health, and all other facts and circumstances, and award an amount in alimony which appears to be fair and equitable between the parties." See, also, Swolec v. Swolec, 122 Neb. 837, 241 N.W. 771. And in considering the matter of alimony we will take into consideration all properties acquired by the parties during their marriage. DeVore v. DeVore, 104 Neb. 702, 178 N.W. 621; Nathan v. Nathan, 102 Neb. 59, 165 N.W. 955.

The record discloses that the defendant came to Lyman, Nebraska, with his parents in 1916. The father had purchased an improved 80 acres, being the north half of the northeast quarter of section 1, township 22, range 58, in Scotts Bluff county, Nebraska, in 1915. In 1916 he purchased the south half of the northwest quarter of section 6, township 22, range 57. This farm became the family homestead. On October 30, 1921, the defendant, then having arrived at the age of 21 years, was married to the plaintiff, who was then 18 years of age. They made their home with the defendant's family which then consisted of his father, mother, who at the time was ill, and a younger brother and sister. The mother died on June 2d of the following year. The plaintiff, from the time of the marriage, took charge of the household and did the household work necessary in the operation of the farm and helped carry on other work of the defendant. She was, during the entire period that they lived together, a capable and industrious wife who helped in every way possible in acquiring the property which they accumulated.

In the fall of 1922 the defendant, having acquired some $2,000 to $2,500 of personal property, entered into a partnership with his father. The father put in all the property he then owned and the son whatever property he had. The son was to take charge of and operate the farm and they were to share the...