Price v. Price

• Decision Date: 18 January 1906
• Docket Number: 14,099
• Citation: 106 N.W. 657,75 Neb. 552
• Parties: BELLZORA PRICE, APPELLANT, v. DANIEL E. PRICE, APPELLEE
• Court: Nebraska Supreme Court

106 N.W. 657

75 Neb. 552

BELLZORA PRICE, APPELLANT, v. DANIEL E. PRICE, APPELLEE

No. 14,099

Supreme Court of Nebraska

January 18, 1906

APPEAL from the district court for Hamilton county: BENJAMIN F. GOOD, JUDGE. Reversed with directions.

Reversed and remanded, with directions.

O. A Abbott, for appellant.

Stark & Grosvenor, contra.

OLDHAM C. AMES and LETTON, CC., concur.

OPINION

OLDHAM, C.

This was an action for support and maintenance instituted by the plaintiff wife against the defendant husband. The petition alleges the marriage between plaintiff and defendant in the city of Grand Island, Nebraska, April 12, 1900; that after the marriage plaintiff and defendant lived together as husband and wife in the village of Phillips, Hamilton county, Nebraska, until the latter part of August, 1900, when, by mutual agreement, plaintiff removed to the city of Grand Island with her children by a former marriage; that after plaintiff's removal to Grand Island defendant continued to visit and cohabit with her as her husband until the month of June, 1901, when defendant abandoned the plaintiff, and refused and neglected to further provide for her support and maintenance. The petition prayed for a reasonable allowance from defendant's income for plaintiff's support. The answer admitted the marriage, and denied each and every other allegation contained in the plaintiff's petition, and by way of cross-bill asked for a divorce from the plaintiff on the grounds of wilful abandonment without just cause for more than two years. On issues thus joined, there was a trial to the court and a judgment dismissing both the petition of the plaintiff and the defendant's cross-bill, and taxing each of the parties with their own costs. To reverse this judgment plaintiff has appealed to this court.

There is very little conflicting testimony in the record, the contest mainly depending upon the presumptions arising from undisputed or clearly established facts, which may be briefly summarized as follows: At the time of the marriage, plaintiff was a widow and the mother of four children by her former marriage, the oldest one being a son about 18 years of age, and the younger ones being daughters, ranging in age from 9 to 16 years. Defendant was a middle-aged man, a widower, who was the father of 3 children, all girls, ranging in age from 7 to 13 years. Each of the parties were of high moral and social standing. The defendant husband resided in the village of Phillips, about 9 miles distant from the city of Grand Island, where the plaintiff wife resided at and before the marriage. After the marriage plaintiff and her 3 younger children resided with defendant and his children in the village of Phillips until the latter part of August, 1900. Plaintiff, at the time of the marriage, was the owner of a home in Grand Island of the value of about $ 800, and also had $ 1,000 loaned at interest, which she had received from her first husband. It fairly appears from the record that, by mutual agreement between the husband and wife, the wife returned with her children to her home in Grand Island for the purpose of sending them to school there during the years 1900 and 1901. While there is some suggestion in the record that this arrangement was without the approval of the husband, yet his conduct toward plaintiff after her removal to Grand Island shows that he acquiesced in her conduct, for he testifies that he visited her from time to time at her home in Grand Island, and co-habited with her at the time of such visits, and contributed small sums of money for her support during the school year of 1900 and 1901. It is fairly suggested by the evidence that there existed some dissatisfaction between plaintiff and defendant during their residence in Phillips, on account of the interference of relatives of the two families of children in the management and government of the children.

When the school year had ended, defendant wrote to plaintiff stating his inability to maintain the two families in the two places, and inquired her intention as to returning to live with him at Phillips. While the oral testimony shows that plaintiff had objected to going back to Phillips to live with defendant, yet she answered his letter, saying that she would return to live with defendant at Phillips when he provided a home there for her. Defendant owned no real estate and very little personal property at that time, and relied on renting property to provide a home. He answered her letter, telling plaintiff, in substance, to inform him when she intended to come to Phillips, that he might prepare...