Spencer v. Spencer, 33503

• Decision Date: 07 May 1954
• Docket Number: No. 33503,33503
• Citation: 158 Neb. 629,64 N.W.2d 348
• Parties: SPENCER v. SPENCER.
• Court: Nebraska Supreme Court

Page 348

64 N.W.2d 348

158 Neb. 629

SPENCER v. SPENCER.

No. 33503.

Supreme Court of Nebraska.

May 7, 1954.

Syllabus by the Court.

1. In an action in equity this court is required to try the issues de novo and to reach an independent conclusion as to what findings are required under the pleadings and evidence without regard to the conclusions reached by the district court.

2. Any unjustifiable conduct on the part of a husband or wife which destorys the legitimate ends and objects of matrimony may constitute extreme cruelty.

3. In determining the question of alimony or division of property as between the parties the court will consider the respective ages of the parties to the marriage; their earning ability; the duration of the marriage; the conduct of each party during the marriage; their station in life, including the social standing, comforts, and luxuries of life which the wife would probably have enjoyed; the circumstances and necessities of each; their health and physical condition; and their financial circumstances as shown by the property they owned at the time of divorce, its value at that time, its income-producing capacity, if any, whether accumulated or acquired before or after the marriage, the manner in which it was acquired, and the contributions each has made thereto. From these elements and all other relevant facts and circumstances, the court will determine the rights of the parties and make an award that is equitable and just.

Miles N. Lee, Broken Bow, for appellant.

Evans & Evans, Broken Bow, W. C. Heelan, Valentine, for appellee.

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

YEAGER, Justice.

This is an action for divorce by Leona Spencer, plaintiff and appellant, against William Clayton Spencer, defendant and appellee. A trial was had to the court at the conclusion of which a decree was entered denying the divorce. A motion for new trial was filed which was overruled. From the decree and the order overruling the motion for new trial the plaintiff has appealed.

The parties were married on December 24, 1940, and lived together as man and wife until June 25, 1952, when the plaintiff left the home of defendant. Three children were born of the marriage. Their names are and their ages at the time of the separation were Sally, age 10, Betty Lou, age 9, and John, age 8.

As grounds for divorce the plaintiff charged that the defendant had been guilty of extreme cruelty toward her and that he was an habitual drunkard. The court found by its decree that the charges had not been sustained.

As grounds for reversal the plaintiff assigns numerous errors but basically the grounds for reversal are that the charges were fully and amply sustained and that the court erroneously found otherwise. This therefore calls upon this court to try the issues of fact de novo and to reach an independent conclusion as to what findings are required under the pleadings and evidence without regard to the conclusion reached by the district court. Section 25-1925, R.R.S.1943; McNamee v. McNamee, 154 Neb. 212, 47 N.W.2d 383; Cain v. Killian, 156 Neb. 132, 54 N.W.2d 368; Budde v. Anderson, 156 Neb. 812, 58 N.W.2d 204; Mason v. Mason, 157 Neb. 279, 59 N.W.2d 365.

To review in this opinion the evidence adduced at the hearing on the charges made could serve no useful purpose. It appears sufficient to say that it has been conclusively shown that the defendant has been an habitual and at least occasionally excessive user of intoxicating liquors for many years. The plaintiff charged and testified in substance that in the late period before the separation the excess became so great and so continuous that a continuance to the marriage relation became intolerable. Her evidence in this respect received substantial corroboration by witnesses on her behalf. At least by inference substantial corroboration flowed also from the testimony of the defendant's witnesses.

While the defendant denied that he was an habitual drunkard he did not deny that he habitually used intoxicating liquors and at times to excess. He sought to excuse his conduct on the ground that his habits were known to plaintiff before the marriage and that on account thereof she was estopped to make complaint, and also that plaintiff was addicted to the use of intoxicants and supplied them to defendant.

As to plaintiff's use of intoxicants there is no evidence of any occasion when plaintiff took more than two drinks. As to furnishing liquor to defendant the reasonable conclusion is that she did nothing more than to comply with defendant's demands.

On the strict charge of cruelty there was evidence of conduct in connection with drinking which if true ought to be regarded as too offensive to be endured. Also there was evidence of two shooting episodes. One of these took place before and one after the separation. Both were before the court under the pleadings as a basis of the charge of cruelty. As to the first the defendant denied that the shooting had any relation to plaintiff. His explanation was that he was only trying to shoot the legs off a beetle. As to the second he gave no testimony whatever. Moreover when plaintiff's attorney sought on cross-examination to inquire into the second incident objection was made on the ground that the matter had not been inquired into on direct examination, which objection was sustained.

Whether or not the evidence of plaintiff if accepted as true places the defendant within the category of habitual drunkard we think we do not need to decide. The evidence in all of its aspects taken together however is clearly sufficient to sustain plaintiff's charge of cruelty.

It is a well-established rule of law that any unjustifiable conduct on the part of a husband or wife which utterly destroys the legitimate ends and objects of matrimony may constitute extreme cruelty. See, Myers v. Myers, 88 Neb. 656, 130 N.W. 254; Green v. Green, 148 Neb. 19, 26 N.W.2d 299; Kroger v. Kroger, 153 Neb. 265, 44 N.W.2d 475.

The defendant substantially asserts that plaintiff has been guilty of conduct the effect of which would be to defeat any right to obtain a divorce from the defendant.

There is evidence of two slight indiscretions on her part neither of which was anything more than bare indiscretion even if the evidence be accepted as true. Neither is corroborated. Moreover when the facts and circumstances are considered it must be said that plaintiff's denials of this testimony and that of her witnesses is entitled to more weight than that of her accusers.

Taking into consideration all of the evidence and considering it as this court must, de novo, the conclusion is that the plaintiff has sufficiently proved her charge of extreme cruelty against the defendant and that the district court erred in refusing to grant her a divorce from the defendant.

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