Stefan v. Stefan

• Decision Date: 12 December 1949
• Docket Number: No. 32655.,32655.
• Citation: 152 Neb. 23,39 N.W.2d 918
• Court: Nebraska Supreme Court
• Parties: STEFAN v. STEFAN.

152 Neb. 23

39 N.W.2d 918

STEFAN

v.STEFAN.

No. 32655.

Supreme Court of Nebraska.

Dec. 12, 1949.

Action by Karl H. Stefan against Helen Ferguson Stefan for absolute divorce in which defendant filed cross-petition for separate maintenance and support money.

The District Court of Sarpy County, Bartos, J., granted plaintiff an absolute divorce, dismissed defendant's cross-petition, allowed defendant alimony, attorney fees and costs, and defendant appealed.

The Supreme Court, Messmore, J., affirmed the judgment holding that evidence of wife's extreme cruelty sustained an award of absolute divorce to husband.

Syllabus by the Court

1. In an action for divorce if the evidence is principally oral and is in irreconcilable conflict, and the determination of the issues depends upon the reliability of the respective witnesses, the conclusion of the trial court as to such reliability will be carefully regarded by this court on a review.

2. In a divorce action in the matter of division of property it is the duty of the court to take into consideration the estate of the parties, if any, at the time of the marriage and their respective contributions since; the duration of the marriage; the wife's loss of her interest in the husband's property by virtue of the divorce; the social standing, comforts, and luxuries of life which the wife would probably have enjoyed; the conduct of the parties leading up to the divorce; to which party the divorce was granted; the age and condition of health of the parties; and all other facts and circumstances, and make an award which appears to be fair and equitable.

3. Record examined and found to support plaintiff's allegations for an absolute divorce.

Lee & Bremers, Omaha, Richard W. Lee, Omaha, for appellant.

Jack W. Marer, Omaha, Norman H. Deneberg, Omaha, for appellee.

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

MESSMORE, Justice.

The plaintiff, Karl H. Stefan, filed this action for absolute divorce in the district court for Sarpy County against Helen Ferguson Stefan, defendant. The plaintiff's petition charged the defendant with general acts of extreme cruelty without cause or provocation on his part which interfered with his ability to carry on his duties as a naval officer and which ultimately destroyed the legitimate ends of matrimony. The defendant's amended answer denied the allegations of extreme cruelty as alleged in the plaintiff's petition. By cross-petition the defendant, in addition to alleging general acts of extreme cruelty on the part of the plaintiff, specifically alleged that the plaintiff was guilty of extreme cruelty toward her in that the plaintiff demanded of her abnormal and perverted acts of sexual intercourse which caused her severe internal injuries requiring medical care, operations, and hospitalization, and upon occasions when she refused to submit to such acts the plaintiff beat her. She also alleged interference on the part of the plaintiff's mother in the marital status; the plaintiff's subjection to his mother's will; attempts made by the plaintiff to kill or seriously injure the defendant; and prayed for separate maintenance and support money. The plaintiff's reply was a general denial of the allegations of extreme cruelty charged against him in the cross-petition.

After hearing had, the trial court granted the plaintiff and absolute divorce, dismissed the defendant's cross-petition, and allowed the defendant alimony, attorney fees, and costs. Upon the overruling of her motion for a new trial, the defendant appealed.

For convenience the parties will be designated in this court as they appeared in the district court.

The defendant contends the trial court erred in granting the plaintiff an absolute divorce from the defendant, in failing to grant the defendant a decree of separate maintenance as prayed for in her amended cross-petition, and in making an award of alimony to the defendant which was wholly inadequate under the testimony.

We proceed to a determination of these assignments of error.

To detail the evidence in this voluminous bill of exceptions would unnecessarily lengthen this opinion, we therefore give a summation of the material and relevant parts thereof in determining this appeal.

The record discloses that the parties were married at Kingston, Rhode Island, on March 16, 1944. The plaintiff, at the time of trial, held the rank of lieutenant commander in the United States Navy and was 32 years of age; the defendant was a registered nurse, had had experience as an airline hostess and in modeling, and was 31 years of age. The plaintiff was assigned for duty at various places. In a combat zone he was injured when his plane failed to properly land on a carrier. After recovery he was sent to Annapolis, Maryland, for post graduate study as an aeronautical engineer, and upon the completion of that tour of duty, was assigned to Minneapolis, Minnesota, where the parties separated about June 21, 1948. It is deemed unnecessary to relate or detail the various moves made by the parties.

The record does disclose that almost immediately from and after the marriage the defendant, on several occasions, made accusations against the plaintiff with reference to his conduct in dating and going out with other women. There is evidence that the plaintiff entertained a nurse who had attended him for his injuries while hospitalized in San Diego, California, when she was...