Shomaker v. Shomaker

• Citation: 88 N.W.2d 221,166 Neb. 164
• Decision Date: 28 February 1958
• Docket Number: No. 34305,34305
• Parties: Eleanor C. SHOMAKER, Appellee, v. William Lawrence SHOMAKER, Appellant.
• Court: Supreme Court of Nebraska

Page 221

88 N.W.2d 221

166 Neb. 164

Eleanor C. SHOMAKER, Appellee, v. William Lawrence SHOMAKER, Appellant.

No. 34305.

Supreme Court of Nebraska.

Feb. 28, 1958.

Syllabus by the Court

1. Any unjustifiable conduct by either the husband or wife which destroys the legitimate ends and objects of matrimony constitutes 'extreme cruelty' as defined in section 42-302, R.R.S.1943.

2. A decree of divorce cannot be granted solely on the declarations, confessions, or admissions of the parties. There must be corroborative evidence of the facts necessary to be establish, as required by section 42-335, R.R.S.1943.

3. It is impossible to lay down any general rule as to the degree of corroboration required in a divorce action, as each case must be decided on its own facts and circumstances.

4. In a divorce suit, where the court has jurisdiction of the parties, it has power to adjust all their respective property interests.

5. The division of property and the allowance of alimony and support money in divorce actions are always to be determined by the facts in each case relating to and in accord with the many factors and elements heretofore announced by this court.

6. A divorce from bed and board is in the nature of a conditional decree, leaving the legal status of the parties unchanged in many respects, but relieving both parties from all obligations and rights to cohabitation while an adjustment of their respective property interests and the amount of support thereafter are determined and fixed by the decree.

7. Where a party has prayed for a divorce from bed and board and has adduced sufficient proof duly corroborated in support thereof, and in the same action the other party has prayed for an absolute divorce but has not adduced sufficient proof duly corroborated in support thereof, then the trial court has no discretion in granting the remedy, but must grant a divorce from bed and board as prayed.

8. Where the evidence in a divorce suit sustains a finding of cruelty on the part of the husband towards the wife, and is corroborated as required by law, the action of the district court in granting a divorce to the wife is proper and ordinarily will not be interfered with by this court on appeal.

9. The fee allowed for the service of an attorney for a wife in a divorce suit should be sufficient to adequately compensate for the service necessary to be performed.

10. On appeal in a divorce suit from the amount of the fee allowed to the wife for services rendered by her attorney, wherein there is no direct evidence of the value thereof other than the record of the proceedings, this court will interfere only to correct a patent injustice resulting from an allowance which is clearly excessive or insufficient.

11. On appeal in a divorce suit from any other allowance made to the wife for necessary expenses of investigation and carrying on the litigation, the same must be supported by competent evidence appearing in the bill of exceptions.

Fitzgerald, Hamer, Brown & Leahy, Omaha, Marti, O'Gara, Dalton & Sheldon, Lincoln, for appellant.

Hotz & Hotz, Omaha, for appellee.

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

CHAPPELL, Justice.

Plaintiff, Eleanor C. Shomaker, brought this action against defendant, William Lawrence Shomaker, alleging extreme cruelty and seeking a divorce from bed and board, custody and control of their three minor sons, support allowances together with a fair disposition of the assets and liabilities of the parties, and such additional relief as the court deemed just. Defendant, by answer and cross-petition denied generally and, alleging extreme cruelty by plaintiff, sought an absolute divorce and dismissal of plaintiff's petition. He also sought to have the court determine custody and control of their children and award a reasonable allowance for their support if they remained with plaintiff, together with a reasonable amount of alimony to plaintiff, a reasonable allowance of attorneys' fees for her attorneys, and the granting of such additional equitable relief as might be necessary.

After a trial on the merits during all or parts of February 6, 7, 8, 14, 15, and 26, 1957, the cause was taken under advisement. Subsequently, a judgment was rendered which granted plaintiff a divorce from bed and board; awarded her the custody and control of their three minor sons then 17, 16, and 9 years of age, with right of reasonable visitation by defendant; determined and ordered allowances to be paid by defendant for the support, maintenance, and education of their children and the support of plaintiff; fixed and disposed of the assets and liabilities of the parties; and dismissed defendant's cross-petition. All costs were taxed to defendant, including an allowance of attorneys' fees for plaintiff's attorneys, together with claimed necessary expenses of investigation and carrying on the litigation.

Thereafter, defendant's motion for new trial was overruled and he appealed, assigning substantially that the trial court erred as follows: (1) In dismissing defendant's cross-petition and refusing to grant him an absolute divorce; (2) in granting plaintiff a divorce from bed and board; and (3) in awarding plaintiff an excessive and disproportionate amount of the property accumulated during the marriage, and allowing excessive attorneys' fees for plaintiff's attorneys, together with excessive expenses for investigation and carrying on the litigation. We conclude that the assignments have no merit, except for the allowance of such expenses.

Preliminary to a discussion and disposition of the assignments, we point out certain rules of law which are applicable and controlling. In that connection, it has long since become elementary that such cases are triable de novo upon appeal to this court and that any unjustifiable conduct by either the husband or wife which destroys the legitimate ends and objects of matrimony constitutes 'extreme cruelty' as defined in section 42-302, R.R.S.1943.

In Workman v. Workman, 164 Neb. 642, 83 N.W.2d 368, 370, this court held: 'A decree of divorce cannot be granted solely on the declarations, confessions, or admissions of the parties. There must be corroborative evidence of the facts necessary to be established as required by section 42-335, R.R.S.1943.

'It is impossible to lay down any general rule as to the degree of corroboration required in a divorce action, as each case must be decided on its own facts and circumstances. * * *

'In a divorce suit, where the court has jurisdiction of the parties, it has power to adjust all their respective property interests.

'The division of property and allowance of alimony in divorce actions are always to be determined by the facts in each case.'

Such opinion also set forth the elements which should generally be considered in making a division of property and allowing alimony and support money in divorce cases. See, also, Spencer v. Spencer, 158 Neb. 629, 64 N.W.2d 348; Prosser v. Prosser, 156 Neb. 629, 57 N.W.2d 173.

This court has concluded that a divorce from bed and board is in the nature of a conditional decree, leaving the legal status of the parties unchanged in many respects, but relieving both parties from all obligations and rights to cohabitation while an adjustment of their respective property interests and the amount of support thereafter are fixed by the decree. We have also concluded that where a party has prayed for a divorce from bed and board and has adduced sufficient proof duly corroborated in support thereof, and in the same action the other party has prayed for an absolute divorce but has not adduced sufficient proof duly corroborated in support thereof, then the trial court has no discretion in granting the remedy, but must grant the divorce from bed and board as prayed. The foregoing principles and rules were announced, discussed, and applied in Yost v. Yost, 143 Neb. 80, 8 N.W.2d 686.

Also, as stated by this court in Robinson v. Robinson, 164 Neb. 413, 82 N.W.2d 550, 553, and reaffirmed in Birth v. Birth, 165 Neb. 11, 84 N.W.2d 204: 'A divorce or legal separation must be ground on a legal fault within the grounds enumerated in the statutes and proved in the manner therein provided. One party may not create the grounds that will sustain him or her in maintaining such a suit. It is not the province of the courts to grant such decrees for sociological reasons. The policy of the state relative to marriage is fixed by the Legislature. It is not for this court to do what it deems best for the parties. The only relief that may be granted is that provided by statute when the evidence is sufficient to bring the case within its purview.'

In Prosser v. Prosser, supra, [156 Neb. 629, 57 N.W.2d 174] this court held: '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.

'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.

'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.'

In that connection, also, section 42-313, R.R.S.1943, provides in part: '* * * also upon every divorce from bed and board, the wife shall be entitled to the immediate possession of all her real estate in like manner as if her husband were dead.' Further, section 42-314, R.R.S.1943,...