Mercer v. Mercer
| Decision Date | 01 November 1968 |
| Docket Number | No. 36928,36928 |
| Citation | 183 Neb. 515,162 N.W.2d 230 |
| Parties | Velma MERCER, Appellant, Cross-Appellee, v. Robert E. MERCER, Appellee, Cross-Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Any unjustifiable conduct which destroys the legitimate ends and objects of matrimony constitutes extreme cruelty.
2. A divorce from bed and board is in the nature of a conditional decree, leaving the legal status of the parties unchanged in many respects but relieving both parties from all obligations and rights to cohabitation while making the necessary adjustments of their property to assure support during the continuance of their relationship. It is a complete and permanent separation of the parties without a legal dissolution of the marriage.
3. Where one party has prayed for a divorce from bed and board and has adduced sufficient proof duly corroborated in support thereof, and in the same action the other party has prayed for an absolute divorce but has not adduced sufficient proof duly corroborated in support thereof, the trial court has no discretion in granting the remedy but must grant the divorce from bed and board as prayed.
4. In a suit for a divorce from bed and board the court will adjust the property rights between the parties only to the extent necessary to provide for the separate maintenance of the party entitled thereto.
Nelson, Harding, Leonard & Tate, Richard H. Williams, Lincoln, for appellant.
Perry, Perry, Sweet & Witthoff, Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH and McCOWN, JJ.
The plaintiff, Velma Mercer, commenced this action to obtain a limited divorce from the defendant, Robert E. Mercer. By cross-petition the defendant requested an absolute divorce. The trial court found against the parties and dismissed both the petition and the cross-petition. Both parties filed motions for new trial which were overruled. The plaintiff has appealed and the defendant has cross-appealed.
The evidence shows that the parties were married in 1945. They had five children, four of whom are living at home. The defendant owns and operates an automobile dealership at Hickman, Nebraska. The parties commenced having difficulties in November 1966. The plaintiff testified that the defendant became nervous, irritable, and very critical of the plaintiff; that the defendant told her that he did not love her any more and that she was mentally inferior to him; that he began staying away from the family home until late at night; and that on their wedding anniversary, April 11, 1967, the defendant asked the plaintiff for a divorce. A trial separation took place in January 1967, and the defendant was away from home again in May 1967. The parties finally separated in August 1967, and this action was filed several days later. There was substantial corroboration of the plaintiff's testimony.
The defendant testified that he was harassed and nagged by the plaintiff and that she interfered with his disciplining of the children. The defendant also testified about alleged unjust accusations made by the plaintiff, but there was no substantial corroboration of his testimony.
The statutes of this state provide that a divorce from bed and board may be decreed for the cause of extreme cruelty. S. 42--302, R.R.S.1943. Any unjustifiable conduct which destroys the legitimate ends and objects of matrimony constitutes extreme cruelty. Scholz v. Scholz, 172 Neb. 184, 109 N.W.2d 156.
A divorce from bed and board is in the nature of a conditional decree, leaving the legal status of the parties unchanged in many respects but relieving both parties from all obligations and rights to cohabitation while making the necessary adjustments of their property to assure support during the continuance of the relationship. Scholz v. Scholz, supra. It is a complete and permanent separation of the parties without a legal dissolution of the marriage. Kehr v. Kehr, 173 Neb. 532, ...
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