Oertle v. Oertle

• Court: Nebraska Supreme Court
• Writing for the Court: WENKE, J.
• Citation: Oertle v. Oertle, 146 Neb. 746, 21 N.W.2d 447 (Neb. 1946)
• Decision Date: 25 January 1946
• Docket Number: 32048.
• Parties: OERTLE v. OERTLE.

21 N.W.2d 447

146 Neb. 746

OERTLE v. OERTLE.

No. 32048.

Supreme Court of Nebraska

January 25, 1946

Syllabus by the Court.

1. To review errors of law occurring upon the trial of an equity case, a motion for new trial is necessary.

2. Whether accusations of infidelity made by one spouse against the other constitute extreme cruelty within the meaning of the statute must be determined by the facts of each particular case. In no case will they be given that effect unless they are shown to be either unfounded or malicious.

3. A decree of divorce from the bonds of matrimony should only be granted when the evidence brings the case within the definition of the statute providing for such relief.

4. Any unjustifiable conduct on the part of either the husband or wife which so grievously wounds the mental feelings of the other or so utterly destroys the peace of mind of the other as to seriously impair the bodily health and endanger the life of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes 'extreme cruelty' as defined in section 42-302, R.S.1943, although no physical or personal violence may be inflicted or even threatened.

Hoagland, Carr & Hoagland, of North Platte, for appellant.

Beatty Clarke & Murphy, of North Platte, for appellee.

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

WENKE Justice.

Edith Oertle brought this action for divorce in the district court for Lincoln County. She appeals from a decree finding generally for the defendant, denying her a divorce and dismissing her petition.

Appellant contends the trial court erred in not permitting her to amend her petition during the trial of the case. This proposition likewise involves the trial court's ruling on her offer of testimony. She cites in support thereof our holding in Stratton v. Wood, 45 Neb. 629, 63 N.W. 917, as follows 'The right to allow amendments which do not materially change the original claim of plaintiff is expressly recognized in the provisions of section 144 of the Code of Civil Procedure. (Now section 25-852, R.S.1943.)' See also, Undeland v. Stanfield, 53 Neb. 120, 73 N.W. 459.

However, the appellant failed to file a motion for new trial and under our holdings these matters are not properly here for determination. As stated in Bowers v. Raitt, 96 Neb. 460, 148 N.W. 93, 94: 'It is contended that no motion for a new trial is necessary in equity causes, * * * but this court has held that a motion for a new trial is necessary in such cases, if it is desired to review alleged errors of law occurring at the trial. Farmers Loan & Trust Co. v. Joseph, 86 Neb. 256, 125 N.W. 533; Brady v. McGinley, 94 Neb. 761, 144 N.W. 780.' And as stated in Pitman v. Henkens, 125 Neb. 621, 251 N.W. 282, 283: 'To review errors of law occurring upon the trial of an equity case, a motion for new trial is necessary. Farmers Loan & Trust Co. v. Joseph, 86 Neb. 256, 125 N.W. 533; Hall v. Bowers, 117 Neb. 619, 222 N.W. 40, 225 N.W. 49; State v. Banking House of A. Castetter, 118 Neb. 231, 224 N.W. 21.' See, also, State ex rel. Spillman v. Citizens State Bank of Chadron, 115 Neb. 271, 212 N.W. 616.

The appellant calls attention to language used by the appellee on the occasion of an incident several years ago when a boarder was present. She was on that occasion assisting the boarder in his endeavors to return to their home from a dance. As stated in Sample v. Sample, 82 Neb. 37, 116 N.W. 953: 'Whether accusations of infidelity made by one spouse against the other constitute extreme cruelty within the meaning of the statute must be determined by the facts of each particular case. In no case will they be given that effect unless they are shown to be either unfounded or malicious.' We will not discuss the incident in detail but it cannot be said that under the circumstances that such remarks were either entirely unfounded or malicious. The appellee has apologized many times for having made them and under the circumstances we do not think they constitute any evidence of extreme cruelty.

The principal question involved is whether the evidence is sufficient to constitute extreme cruelty, for as stated in Brown v. Brown, 130 Neb. 487, 265 N.W. 556, 558: 'A decree of divorce from the bonds of matrimony should only be granted when the evidence brings the case within the definition of the statute providing for such relief.'

We have held that: 'Any unjustifiable conduct, on the part of either the husband or wife, which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other, as to seriously impair the bodily health and endanger the life of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes 'extreme cruelty's as defined in section 7, c. 25, Comp.St., although no physical or personal violence may be inflicted, or even threatened.' Ellison v. Ellison, 65 Neb. 412, 91 N.W. 403. See, also, McNamara v. McNamara, 93 Neb. 190, 139 N.W. 1045; Peckham v. Peckham, 111 Neb. 340, 196 N.W. 628; Schmidt v. Schmidt, 120 Neb. 596, 234 N.W. 402; Brown v. Brown, 130 Neb. 487, 265 N.W. 556.

The record discloses that the parties were married on January 3, 1933, and are living in North Platte, Nebraska. He is now...