Shafer v. Shafer

• Citation: 6 N.W. 768,10 Neb. 468
• Parties: DOROTHEA SHAFER, APPELLEE, v. WILLIAM H. SHAFER, APPELLANT
• Decision Date: 28 September 1880
• Court: Supreme Court of Nebraska

6 N.W. 768

10 Neb. 468

DOROTHEA SHAFER, APPELLEE, v. WILLIAM H. SHAFER, APPELLANT

Supreme Court of Nebraska

September 28, 1880

APPEAL by defendant from a decree of the district court of Cass county. Tried below before POUND, J.

Decree reversed in part and affirmed in part.

T. M Marquett and Sam. M. Chapman, for appellant.

In this case there has been no pretense that plaintiff comes within that class of litigants, living separate and apart from her husband, without an income competent for her support and the maintenance of the suit. She did not ask for alimony pendente lite. Her own testimony shows her ample estate and means of support, and ability to manage the same. The true rule of the law seems to be, that while the courts will, as a rule, allow a defendant wife temporary alimony during the pendency of a suit for divorce, it is not done unless she shows upon oath or otherwise that she has a valid defense. Osgood v Osgood, 2 Paige, 621. Wood v. Wood, 2 Paige, 108. Worden v. Worden, 3 Edw., Ch., 387. Lewis v. Lewis, 3 John. Ch., 519. O'Haley v O'Haley, 31 Texas, 502. Angelo v. Angelo, 81 Ill. 254. Newman v. Newman, 60 Ill. 167. And in order to authorize a decree for alimony for the wife it must be proved that the separation was caused by misconduct of the husband. Wallingsford v. Wallingsford, 6 Har. and J., 483. And even in cases where the conduct of the husband was such as to cause separation, if the violence complained of was induced by provocation upon the part of the wife, she is not entitled to alimony. Boyd v. Boyd, 1 Harp. Ch., 144. And alimony will not be decreed where a wife has abandoned her husband. Boggess v. Boggess, 4 Dana 307.

Thomas B. Stevenson and George S. Smith (Edwin J. Murfin with them), for appellee.

1. The allowance for permanent alimony is a question resting in the discretion of the court. As it is a judicial and not an arbitrary discretion to be exercised we do not say there may not be an appeal therefrom, but we do insist that the power must, however, be shown to have been arbitrarily exercised, otherwise the law does not contemplate a review of such decision in this court. Forrest v. Forrest, 25 N.Y. 518. Petersine v. Thomas, 28 Ohio St. 599. And this discretion will be exercised in view of all the circumstances of the case, in such form as will best meet the condition of the parties, and make the provision a sure reliance, it will be made in proportion to the wants of the party asking it, and the ability of the person who is to pay it. Wheeler v. Wheeler, 18 Ill. 39. Bergen v. Bergen, 22 Ill. 187. Foote v. Foote, 22 Ill. 425. Joliff v. Joliff, 32 Ill. 527.

2. The wife's separate estate is not to be taken into consideration or account, for it was the husband's duty to support her irrespective thereof. He was not compelled to appropriate anything from the separate estate to her own support. Hence the position of appellant--that because respondent may be in good circumstances and estate she should not have alimony--is erroneous. If husband was bound to furnish her, independent of her estate, then, likewise, alimony should be granted her. 4 Barb. 546. 1 Johns. Ch., 450, 458. 3 Johns. Ch., 77. 17 Johns., 548, 593.

OPINION

MAXWELL, CH. J.

In January, 1877, the plaintiff commenced an action against the defendant, in the district court of Cass county, for a divorce and alimony. The defendant, in answer to the plaintiff's petition, denies the material facts therein stated, except the marriage, and prays for a divorce on the ground of abandonment.

On the trial of the cause the court found that plaintiff Dorothea Shafer has failed to sustain the allegations of her said bill, etc., "and the court does further find upon the testimony adduced that said plaintiff has been guilty of abandoning defendant without sufficient cause for more than two years prior to the commencement of the said action. * * Wherefore it is ordered, adjudged, and decreed by the court that said Wm. H. Shafer be granted a divorce from the said Dorothea Shafer, and that the bonds of matrimony heretofore existing between said parties be annulled and set aside, and that Wm. H. Shafer pay to the said plaintiff the sum of one thousand dollars in lieu...