Prosser v. Prosser, 33287

• Decision Date: 27 February 1953
• Docket Number: No. 33287,33287
• Citation: 57 N.W.2d 173,156 Neb. 629
• Parties: PROSSER v. PROSSER.
• Court: Nebraska Supreme Court

Page 173

57 N.W.2d 173

156 Neb. 629

PROSSER v. PROSSER.

No. 33287.

Supreme Court of Nebraska.

Feb. 27, 1953.

Syllabus by the Court.

1. Under the provisions of section 42-318, R.R.S.1943, the earnings of a husband and his ability to earn are proper elements to be taken into consideration in determining the amount of alimony to be awarded in a suit for divorce.

2. Although the statute provides that the wife shall be allowed alimony out of the husband's estate in such an amount as the court shall deem just and reasonable, having regard to the ability of the husband, his earning capacity is an element to be considered and, in a proper case, the allowance of permanent alimony may exceed the value of the husband's estate at the time the marriage is dissolved.

3. The amount of alimony to be granted a wife is not to be determined alone from the property possessed by the husband. Many other factors enter into the determination such as the husband's age, health, earning capacity, future prospects, and social standing.

Jean B. Cain, Falls City, for appellant.

Paul P. Chaney, Falls City, for appellee.

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

CARTER, Justice.

Plaintiff, Naomi E. Prosser, brought a suit for divorce against the defendant, Ernest J. Prosser. The trial court granted a divorce to the plaintiff, and made a division of property and an allowance of alimony to the wife. Plaintiff appeals.

The only question involved in this case is the correctness of that part of the trial court's decree dividing the property and fixing the alimony. The parties were married on April 29, 1946. The wife was 21 and the husband 23 years of age. There are no children. The wife at the time of her marriage was earning approximately $200 a month as a comptometer operator for the Missouri Pacific Railroad Company. Shortly before the marriage the husband had been discharged from the army and had worked as a filling station attendant and as a railroad employee for a matter of weeks only. On being displaced on the railroad the parties mutually agreed that the defendant husband should attend the University of Nebraska. He was graduated with honors at the end of 3 years.

The record shows that plaintiff worked at the Norden Laboratories in Lincoln during the time defendant was attending the University. She earned and contributed the following amounts to their joint support during this period: 1946, $1,528.57; 1947, $1,657.37; 1948, $1,847.66; and 1949, $1,481.14. In 1950 and 1951 her earnings and contributions were $1,158.38 and $2,949.57, respectively. In addition to this the evidence shows that she assisted the defendant in many ways with his studies and work at the university. She helped him with his job of grading papers and keeping records. She helped him with his lessons when she could, by preparing his statistics and drawing statistical maps for him.

During the same period of time the defendant earned and contributed the following to the family income: 1946, $14.80; 1947, $375.82; 1948, $874.80; 1949, $725.95; 1950, $4,120.88; and 1951, $5,856.26. He received in addition thereto $3,243 subsistence allowance under the G. I. Bill of Rights. The evidence shows that defendant became a fourth partner in the accounting firm of Glenn, Roberts, Philpot & Prosser on October 1, 1949, and subsequently he became the owner of a one-third interest in Glenn, Roberts & Prosser. It will be noted that the major portion of defendant's earnings were made in 1950 and 1951 after his education had been completed and he had qualified as an accountant. At the time of trial defendant's annual income was estimated at $7,000 a year.

At the time of the trial the parties owned the following property: Furniture that originally cost $2,042.38; government bonds in the amount of $1,225, $925 of which belonged to plaintiff and $300 of which were purchased after the marriage; an automobile costing $3,600 upon which there was a mortgage of $1,500; the amount paid on one-third interest in partnership, $2,720; and cash on hand in savings and loan association, $2,106.03. The record does not disclose the value of the furniture, automobile, or the interest in the partnership at the time of the trial.

The evidence shows that plaintiff was called by the Missouri Pacific Railroad Company on March 26, 1952, for work in Omaha. She declined the work in order to maintain her home with her husband in Falls City. As a result of so doing she lost her seniority rights with the railroad company. At the time of trial, however, she was again employed by the Missouri Pacific Railroad Company at approximately $278 a month. That plaintiff is a competent stenographer and comptometer operator is established by the record.

The decree of the trial court awards the divorce to plaintiff and restores her maiden name, awards the furniture, silverware, dishes, bedding, and linens to plaintiff, awards the saving account of $2,103.06 to plaintiff, awards the $1,225 in government bonds to her, and finds that she is entitled to $500 as alimony. The automobile and the partnership interest are given to the defendant.

The general rule governing a division of property and the allowance of alimony in a divorce action is well settled in this state. It is adequately stated in Waugh v. Waugh, 154 Neb. 325, 47 N.W.2d 859, and McNamee v. McNamee, 154 Neb. 212, 47 N.W.2d 383. The division of the property appears to have been made in the only practicable way possible when all the circumstances are considered. The question for determination, therefore, is the adequacy of the alimony award.

The conclusion to be drawn from the facts in the case is plain. The plaintiff had a good position at the time of the marriage. The defendant had...