Nygren v. Nygren

• Decision Date: 07 November 1894
• Citation: 42 Neb. 408,60 N.W. 885
• Parties: NYGREN v. NYGREN.
• Court: Nebraska Supreme Court

42 Neb. 408

60 N.W. 885

NYGREN

v.NYGREN.

Supreme Court of Nebraska.

Nov. 7, 1894.

Syllabus by the Court.

1. The supreme court will not disturb a decree granting a divorce, where no question of law is involved, and the finding of the trial court is based upon conflicting testimony.

2. Since the enactment of section 4a, c. 25, Comp. St., a decree for alimony is a lien upon real estate, the same as a judgment at law, and is enforceable in the same manner.

3. The decree of the lower court, in so far as it orders the sale of specific real estate for the payment of alimony, is reversed.

Appeal from district court, Antelope county; Allen, Judge.

Action by Charles Nygren against Katie Nygren for divorce. Defendant answered, and prayed for a divorce on the ground of cruelty. Judgment was rendered for defendant for absolute divorce, and for alimony. Plaintiff appeals. Modified.Simpson & Sornborger, for appellant.

Good & Good, for appellee.

NORVAL, C. J.

The plaintiff and appellant filed in the district court of Antelope county a petition for divorce, which, it is conceded, failed to state a cause of action, and no evidence was offered by the plaintiff to sustain the averments of the petition. The defendant filed an answer and cross petition, setting up numerous specific acts of cruel and inhuman treatment of the defendant by the plaintiff, and praying for a divorce and alimony. The reply was a general denial. The district court found the facts with the defendant, and a decree of divorce was entered. Defendant was restored to her maiden name, and awarded $1,000 alimony. The decree for alimony was made a specific lien upon a quarter section of land in Antelope county, which was ordered sold to pay the $1,000 unless the plaintiff should pay the same within 60 days from the rendition of the decree.

The first contention of appellant is that the decree for divorce is not supported by the evidence. It is not important that we should review the testimony in the case, and it certainly would serve no useful purpose to do so. It is sufficient to state that the defendant's testimony is to the effect that the plaintiff's treatment of her during the time they lived together, which was but a trifle over a year, was cruel and brutal in the extreme; that he committed more than one act of personal violence towards defendant; that in other respects he was cruel and inhuman in his conduct towards her, and called her vile and opprobious names. The defendant's testimony, in part, at least, is corroborated by her mother, Bettie Olson, and one Ingri Hulsted, who testified by deposition. The plaintiff denies, in his testimony, substantially, that he was guilty of any of the acts of extreme cruelty testified to by his wife. The trial court was in a better position to pass upon the conflicting testimony adduced before it than this court can be, from a mere reading of the evidence. Our conclusion from the testimony accords with that of the court below. There is sufficient evidence to sustain the finding that the plaintiff is guilty of the extreme cruelty charged in the defendant's cross petition. The decree granting the divorce, therefore, cannot be molested.

We will now consider whether the court erred in making the amount of alimony allowed the defendant a lien upon specific real estate of the plaintiff, and ordering the land sold for the payment of the sum awarded as alimony. This court, in Swansen v. Swansen, 12 Neb. 210, 10 N. W. 713, and Brotherton v. Brotherton, 14 Neb. 186, 15 N. W. 347, held that a decree for alimony is not a lien upon the real estate of the husband, and that the trial court has no power to make such a decree a lien. But since those cases were decided the state legislature, in 1883, passed “An act to provide additional remedies for enforcement and collection of judgments and orders for alimony or maintenance.” Sections 1 and 2 of said act (the same being sections 4a, 4b, c. 25, Comp. St. 1893) read as follows:

“Sec. 4a. All judgments and orders for payment of alimony or of maintenance in actions of divorce or maintenance shall be liens upon property in like manner as in other actions, and may in the same manner be enforced and collected by execution and proceedings in aid thereof, or other action or process as other judgments.

Sec. 4b. The remedy given by this act shall be held to be cumulative and in no respect take away or abridge any subsisting remedy or power of the court for the enforcement of such judgments and orders; provided, nothing in this act shall...