McNamee v. McNamee, 32958

• Decision Date: 12 April 1951
• Docket Number: No. 32958,32958
• Citation: 154 Neb. 212,47 N.W.2d 383
• Parties: McNAMEE v. McNAMEE.
• Court: Nebraska Supreme Court

Page 383

47 N.W.2d 383

154 Neb. 212

McNAMEE v. McNAMEE.

No. 32958.

Supreme Court of Nebraska.

April 12, 1951.

Syllabus by the Court.

1. An appeal lodged in this court from a decree rendered in a divorce action brings the case here for trial de novo on the record made in the district court.

2. This state is constructively a party to a divorce action, and children involved in such action are wards of the court.

3. The proper rule in a divorce case, where the custody of minor children is involved, is that the custody of the child is to be determined by the best interests of the child, with due regard for the superior rights of fit, proper, and suitable parents.

4. In deciding the question of alimony or division of property as between the parties the court, in exercising its sound discretion, will consider the respective ages of the parties; their earning ability; the duration of and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances as shown by the property they owned at the time of the divorce, and whether the property was accumulated before or after the marriage; and any and all other circumstances bearing upon the question; and from all of such elements determine the rights of the respective parties.

5. After a decree of divorce has been granted if the circumstances of the parties shall change or if it shall be to the best interests of their children the court may on its own motion revise or alter the decree so far as it concerns the care, custody, and maintenance of the children, or any of them.

Hubka & Hubka, Beatrice, for appellant.

Sackett, Brewster & Sackett, Beatrice, for appellee.

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

MESSMORE, Justice.

This is an action for divorce brought by Ruth B. McNamee, plaintiff, against John C. McNamee, defendant. At the conclusion of the evidence and argument of counsel, defendant's counsel moved to amend his answer and file a cross-petition instanter, praying for a divorce from the plaintiff and for the custody of Jerry John McNamee, a minor son of the parties. The trial court granted the motion. The trial court entered its decree finding generally in favor of the defendant and against the plaintiff; granted the defendant a divorce from the plaintiff on his cross-petition; awarded to the plaintiff the custody and control of two minor children of the parties, Norma Jean McNamee and Jerry John McNamee; awarded an amount to be paid by the defendant for the support of the minor children; and made a property settlement between the parties.

The defendant, cross-petitioner, filed a motion for new trial alleging the decision of the court was contrary to the evidence and the law. He objected to the property settlement on the ground that it was excessive under the evidence, and further objected to the amount awarded the plaintiff for child support as being excessive and unreasonable based upon the earning capacity of the defendant. Upon the hearing on the motion for new trial, the trial court altered and modified the original decree with reference to the property settlement, and overruled the motion. The defendant, cross-petitioner, appeals.

For convenience we will refer to the parties as designated in the district court.

The plaintiff contends that because of the failure of the defendant to raise the question of the custody of the minor child, Jerry John McNamee, in his motion for new trial, the custody of the child is not a matter to be considered and determined by this court. We are not in accord with the plaintiff's contention in such respect.

An appeal lodged in this court from a decree rendered in a divorce action brings the case here for trial de novo on the record made in the district court. See, § 25-1925, R.R.S. 1943; Lippincott v. Lippincott, 141 Neb. 186, 3 N.W.2d 207, 140 A.L.R. 901; Nickerson v. Nickerson, 152 Neb. 799, 42 N.W.2d 861.

The record discloses that the plaintiff was previously married, and by that marriage had a child, Wayne D. Hurtie. She divorced her first husband in 1929. She married the defendant on September 10, 1930, at Burchard, Nebraska. Her child at that time was three years of age. The plaintiff and defendant have three living children, Evelyn Ruth Miller, married to Carlton Miller on March 20, 1948; Norma Jean, born August 28, 1934; and Jerry John, born July 17, 1947.

The plaintiff has been employed by the Nebraska State Home for a year and a half. Her net salary is $117.90 a month. She lives in a rented apartment with the two children. She has no source of income or interest in property except what she may be found to be entitled to in a property settlement. The defendant has been employed in highway construction, the building of ponds, and general work in removing dirt. His pay averages $140 to $145 a month.

In 1937, the parties moved to Beatrice, and have lived in various houses there. They purchased a home on North Fifteenth Street which they sold, and with the proceeds and by a loan, built a new home into which they moved about the middle of January 1950, and lived there until plaintiff filed suit for divorce on March 8, 1950. This home was sold. The mortgage and certain indebtedness of the defendant were paid, and the balance of the proceeds of the sale is in the custody of the clerk of the district court until the final adjudication of the cause.

The plaintiff testified that the defendant struck her with his fist in February 1949, she having returned late the night before after she had taken the children to a picture show. On this occasion he broke her arm. She further testified that in October 1949, he tried to choke her, that he threatened her on occasions with a butcher knife, and used vulgar and profane language toward her. He falsely accused her of being unfaithful without cause or provocation. He mistreated her son by a former marriage, stating that he was too dumb to learn to handle a tractor and road machinery. He used vile and vulgar language toward his daughter Norma Jean. He forced her to sell the house on North Fifteenth Street by threatening her with a butcher knife.

The evidence in behalf of the defendant is a denial of the plaintiff's testimony with reference to threatening her with a butcher knife. This evidence is corroborated by his eldest daughter and son-in-law who lived with the parties part of the time in the North Fifteenth Street house and in the new house, having a basement apartment in the latter. When the parties lived in the North Fifteenth Street house the plaintiff required the defendant to sleep in a small anteroom off the kitchen. At other places where they resided she required him to sleep in the basement on a cot, with mover's blankets for bed convering. She denied him the privilege of using the bathroom facilities. He prepared his own breakfasts, ate his lunch downtown, and at times had his supper at home. During the period they lived in the new house he was served 24 evening meals. His meals were served to him in the basement by his son-in-law or his daughter Norma Jean. The plaintiff denied him the privilege of using the upstairs rooms of the house, and on occasions during the past three years when he did, he was required to remove his shoes and wash his feet. All of the family were required to remove their shoes when in the home. When he asked to come upstairs the door was held against him or blocked in such manner that he could not enter. The difficulties between the parties have been over a period of ten years, but more pronouncedly since 1946, when the plaintiff was pregnant with Jerry John. After the birth of the child she had no family relations with the defendant for the reason that, she stated, he had lost his manhood and was incapable of carrying on marital relations. She made reference to him in this respect by the use of vulgar language.

The evidence is in preponderance that the plaintiff, in the presence of her eldest daughter, her son-in-law, and the two minor children, quarreled with the defendant, called him profane, vile, and vulgar names, and nagged at him until he would retaliate and curse her. The plaintiff does not deny that she referred to her husband in such manner. This was a constant occurrence. He denied that he broke her arm or attempted to assault her by striking her, but testified the plaintiff was the aggressor and he sought to stop her from fighting with him and endeavored to make up with her, but without success. The daughter, Norma Jean, made reference to her father in a profane manner, showing lack of affection and respect for him on her part. There is no complaint that the defendant did not support his family and furnish them with necessities of life to the best of his ability.

We deem further statement of the facts on this phase of the case unnecessary.

This brings us to that part of the court's decree awarding the custody of Jerry John McNamee to his mother, the plaintiff.

This...