Nuss v. Nuss

• Decision Date: 23 May 1947
• Docket Number: 32181.
• Citation: 27 N.W.2d 624,148 Neb. 417
• Parties: NUSS v. NUSS.
• Court: Nebraska Supreme Court

27 N.W.2d 624

148 Neb. 417

NUSS v. NUSS.

No. 32181.

Supreme Court of Nebraska

May 23, 1947

Syllabus by the Court.

1.A decree of divorce shall not be granted solely on the declarations, confessions, or admissions of the parties, but the court shall require other satisfactory evidence of the facts constituting grounds for divorce.

2.A divorce from the bonds of matrimony may not be granted unless the evidence as to the grounds for divorce is corroborated.

3.A litigant may not voluntarily accept payment of the part of a judgment or decree which is in his favor and thereafter prosecute an appeal from the part which is against him.

4.The retention, or acceptance of the return, of money by a husband under a decree of court which was in custodia legis but which belonged to the husband, may not be considered such voluntary acceptance of payment of the part of a judgment or decree in his favor as will prevent his prosecution of an appeal from the part of the judgment or decree which was against him.

George I. Craven, of Lincoln, for appellant.

J Jay Marx, of Lincoln, for appellee.

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

YEAGER Justice.

This is an action for divorce by plaintiff and appellee against defendant and appellant.In the action plaintiff was granted a divorce from defendant; custody of the minor child of the parties, $450 from the savings of the parties and all household goods of the parties as alimony; $125 as an attorney's fee; and $30 a month until the further order of the court for child support.There was a balance of savings in the amount of $375.This was ordered paid to the clerk of the district court and out of it all court costs were ordered paid and the balance to be applied monthly on the payments for child support.

From the decree the defendant has appealed.He seeks a reversal of the decree in its entirety and a dismissal of plaintiff's petition.As grounds for reversal he sets forth numerous assignments of error but for the purposes of this opinion it becomes necessary to consider only two, namely that the decree is contrary to the evidence and that it is contrary to law.

The allegations of the petition upon which plaintiff relied as grounds for divorce were that defendant had been guilty of cruelty.The specific allegations are that on several occasions he assaulted her; that he nagged her; that he threatened her; and that he falsely and unjustly accused her of infidelity.

By answer the defendant denied the allegations of cruelty charged against him, and prayed for a dismissal of the petition.

The record discloses that the parties were married August 17, 1941.One child was born of the marriage.The child was born August 9 1944.The parties lived together in Lincoln, Nebraska, from the date of the marriage until January 1944 when the defendant was inducted into the armed services of the United States.Defendant returned from service in December 1945 and thereafter the parties resumed living together again in Lincoln, Nebraska.

To support the charges of cruelty contained in her petition plaintiff gave testimony of numerous instances of physical violence; threats; abusive and neglectful treatment; and nagging of, upon, and toward her by the defendant.She also gave testimony of attempted sexual perversion by defendant upon and toward her.This charge was not made in her petition.Her testimony as to incidents involved in her charge of cruelty covered the entire period of the married life of the parties and one instance antedated the marriage.

Significantly the plaintiff adduced no evidence either directly or inferentially supporting or corroborating her charges of violence, threats, nagging, or sexual perversion.

There is no evidence outside of the testimony given by plaintiff, except one instance testified to by defendant, that defendant ever struck, threatened, or nagged plaintiff.This incident was an occasion in 1942 when plaintiff was out with a party and came home after one o'clock a.m. Plaintiff got out of a taxicab with a soldier who accompanied her to the door.He testified that the next day he questioned plaintiff about the incident.She then flew into a rage and scratched him whereupon he slapped her and then held her hands so that she could do no more scratching.

There is no evidence whatever that defendant falsely and unjustly accused plaintiff of infidelity.There is no evidence of accusation at all.Though defendant made no accusation of infidelity he could not well have been criticised for so doing had he done so in the light of plainti...