McGuire v. McGuire

• Decision Date: 26 June 1953
• Docket Number: No. 33305,33305
• Citation: 157 Neb. 226,59 N.W.2d 336
• Parties: McGUIRE v. McGUIRE.
• Court: Nebraska Supreme Court

Page 336

59 N.W.2d 336

157 Neb. 226

McGUIRE v. McGUIRE.

No. 33305.

Supreme Court of Nebraska.

June 26, 1953.

Syllabus by the Court

1. Where the marriage relation is being carried out without the husband and wife being separated or living apart from each other a wife may not successfully maintain a suit in equity against her husband for maintenance.

2. The practice in this state is to allow attorney fees only in such cases as are provided for by statute, or where the uniform course of procedure has been to allow such recovery. Where there is no legal basis for an action, an allowance of attorney's fees is erroneous and not authorized.

Mark J. Ryan, South Sioux City, Charles E. McDermott, Wayne, for appellant.

H. D. Addison, Wayne, for appellee.

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

MESSMORE, Justice.

The plaintiff, Lydia McGuire, brought this action in equity in the district court for Wayne County against Charles W. McGuire, her husband, as defendant, to recover suitable maintenance and support money, and for costs and attorney's fees. Trial was had to the court and a decree was rendered in favor of the plaintiff.

The district court decreed that the plaintiff was legally entitled to use the credit of the defendant and obligate him to pay for certain items in the nature of improvements and repairs, furniture, and appliances for the household in the amount of several thousand dollars; required the defendant to purchase a new automobile with an effective heater within 30 days; ordered him to pay travel expenses of the plaintiff for a visit to each of her daughters at least once a year; that the plaintiff be entitled in the future to pledge the credit of the defendant for what may constitute necessaries of life; awarded a personal allowance to the plaintiff in the sum of $50 a month; awarded $800 for services for the plaintiff's attorney; and as an alternative to part of the award to made, defendant was permitted, in agreement with plaintiff, to purchase a modern home elsewhere.

The defendant filed a motion for new trial which was overruled. From this order the defendant perfected appeal to this court. For convenience we will refer to the parties as they are designated in the district court.

The record shows that the plaintiff and defendant were married in Wayne, Nebraska, on August 11, 1919. At the time of the marriage the defendant was a bachelor 46 or 47 years of age and had a reputation for more than ordinary frugality, of which the plaintiff was aware. She had visited in his home and had known him for about 3 years prior to the marriage. After the marriage the couple went to live on a farm of 160 acres located in Leslie precinct, Wayne County, owned by the defendant and upon which he had lived and farmed since 1905. The parties have lived on this place ever since. The plaintiff had been previously married. Her first husband died in October 1914, leaving surviving him the plaintiff and two daughters. He died intestate, leaving 80 acres of land in Dixon County. The plaintiff and each of the daughters inherited a one-third interest therein. At the time of the marriage of the plaintiff and defendant the plaintiff's daughters were 9 and 11 years of age. By working and receiving financial assistance from the parties to this action, the daughters received a high school education in Pender. One daughter attended Wayne State Teachers College for 2 years and the other daughter attended a business college in Sioux City, Iowa, for 1 year. Both of these daughters are married and have families of their own.

On April 12, 1939, the plaintiff transferred her interest in the 80-acre farm to her two daughters. The defendant signed the deed.

At the time of trial plaintiff was 66 years of age and the defendant nearly 80 years of age. No children were born to these parties. The defendant had no dependents except the plaintiff.

The plaintiff testified that she was a dutiful and obedient wife, worked and saved, and cohabited with the defendant until the last 2 or 3 years. She worked in the fields, did outside chores, cooked, and attended to her household duties such as cleaning the house and doing the washing. For a number of years she raised as high as 300 chickens, sold poultry and eggs, and used the money to buy clothing, things she wanted, and for groceries. She further testified that the defendant was the boss of the house and his word was law; that he would not tolerate any charge accounts and would not inform her as to his finances or business; and that he was a poor companion. The defendant did not complain of her work, but left the impression to her that she had not done enough. On several occasions the plaintiff asked the defendant for money. He would give her very small amounts, and for the last 3 or 4 years he had not given her any money nor provided her with clothing, except a coat about 4 years previous. The defendant had purchased the groceries the last 3 or 4 years, and permitted her to buy groceries, but he paid for them by check. There is apparently no complaint about the groceries the defendant furnished. The defendant had not taken her to a motion picture show during the past 12 years. They did not belong to any organizations or charitable institutions, nor did he give her money to make contributions to any charitable institutions. The defendant belongs to the Pleasant Valley Church which occupies about 2 acres of his farm land. At the time of trial there was no minister for this church so there were no services. For the past 4 years or more, the defendant had not given the plaintiff money to purchase furniture or other household necessities. Three years ago he did purchase an electric, wood-and-cob combination stove which was installed in the kitchen, also linoleum floor covering for the kitchen. The plaintiff further testified that the house is not equipped with a bathroom, bathing facilities, or inside toilet. The kitchen is not modern. She does not have a kitchen sink. Hard and soft water is obtained from a well and cistern. She has a mechanical Servel refrigerator, and the house is equipped with electricity. There is a pipeless furnace which she testified had not been in good working order for 5 or 6 years, and she testified she was tried of scooping coal and ashes. She had requested a new furnace but the defendant believed the one they had to be satisfactory. She related that the furniture was old and she would like to replenish it, at least to be comparable with some of her neighbors; that her silverware and dishes were old and were primarily gifts, outside of what she purchased; that one of her daughters was good about furnishing her clothing, at least a dress a year, or sometimes two; that the defendant owns a 1929 Ford coupe equipped with a heater which is not efficient, and on the average of every 2 weeks he drives the plaintiff to Wayne to visit her mother; and that he also owns a 1927 Chevrolet pickup which is used for different purposes on the farm. The plaintiff was privileged to use all of the rent money she wanted to from the 80-acre farm, and when she goes to see her daughters, which is not frequent, she uses part of the rent money for that purpose, the defendant providing no funds for such use. The defendant ordinarily raised hogs on his farm, but the last 4 or 5 years has leased his farm land to tenants, and he generally keeps up the fences and the buildings. At the present time the plaintiff is not able to raise chickens and sell eggs. She has about 25 chickens. The plaintiff has had three abdominal operations for which the defendant has paid. She selected her own doctor, and there were no restrictions placed in that respect. When she has requested various things for the home or personal effects, defendant has informed her on many occasions that he did not have the money to pay for the same. She would like to have a new car. She visited one daughter in Spokane, Washington, in March 1951 for 3 or 4 weeks, and visited the other daughter living in Fort Worth, Texas, on three occasions for 2 to 4 weeks at a time. She had visited one of her daughters when she was living in Sioux City some weekends. The plaintiff further testified that she had very little funds, possibly $1,500 in the bank which was chicken money and money which her father furnished her, he having departed this life a few years ago; and that use of the telephone was restricted, indicating that defendant did not desire that she make long distance calls, otherwise she had free access to the telephone.

It appears that the defendant owns 398 acres of land with 2 acres deeded to a church, the land being of the value of $83,960; that he has bank deposits in the sum of $12,786.81 and government bonds in the amount of $104,500; and that his income, including interest on the bonds and rental for his real estate, is $8,000 or $9,000 a year. There are apparently some Series E United States Savings Bonds listed and registered in the names of Charles W. McGuire or Lydia M. McGuire purchased in 1943, 1944, and 1945, in the amount of $2,500. Other bonds seem to be in the name of Charles W. McGuire, without a beneficiary or co-owner designated. The plaintiff has a bank account of $5,960.22. This account includes deposits of some $200 and $100 which the court required the defendant to pay his wife as temporary allowance during the pendency of these proceedings. One hundred dollars was withdrawn on the date of each deposit.

The facts are not in dispute.

The defendant assigns as error that the decree is not supported by sufficient evidence; that the decree is contrary to law; that the decree is an unwarranted usurpation and invasion of defendant's fundamental and constitutional rights; and that the court erred in allowing fees for the plaintiff's attorney.

While there is an allegation in the plaintiff's petition to the effect that the defendant was guilty of extreme...