In Baker v. Baker, 166 Neb. 306, 89 N.W.2d 35, this court laid down the following rules in a case where adultery of the wife has been established: "Where the evidence in a divorce action establishes adultery on the part of one of the parties thereto, the court is required to grant the prayer of the other party seeking a divorce on that ground unless prevented from doing so by applicable statutory provisions.Summary of this case from Houghton v. Houghton
Filed March 28, 1958.
1. Divorce. Where the evidence in a divorce action establishes adultery on the part of one of the parties thereto, the court is required to grant the prayer of the other party seeking a divorce on that ground unless prevented from doing so by applicable statutory provisions. 2. ___. Where a wife is found to be guilty of adultery she is ordinarily an unfit person to have the care and custody of her minor children as against the husband she has wronged. 3. ___. Where adultery by a wife is established, she is not entitled to an award of alimony and ordinarily will not be allowed an attorney's fee or an award of costs. 4. ___. Our holdings in Speck v. Speck, 164 Neb. 506, 82 N.W.2d 540, and Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689, are modified to the extent that they are in conflict with this opinion.
APPEAL from the district court for Custer County: ELDRIDGE G. REED, JUDGE. Affirmed.
Stewart Stewart, for appellant.
Wagener, Marx Galter and Lee Huston, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, CHAPPELL, and BOSLAUGH, JJ.
Plaintiff, Dorothy R. Baker, brought suit for divorce against the defendant, Robert F. Baker. The defendant denied generally the petition of the plaintiff and filed a cross-petition praying that a divorce be granted to him. The trial court denied plaintiff's petition and granted a divorce to the defendant on his cross-petition. The custody of the three minor children was granted to the defendant. A division of the property owned by the parties was made and alimony was denied. From the decree so providing, the plaintiff has appealed.
The evidence shows that the parties were married on June 2, 1946. Three children were born to the marriage: Lesley Jean, a daughter 9 years old, Randall Fred, a son 5 years old, and Robin Rae, a daughter 4 years old. The plaintiff alleged nonsupport and cruelty as grounds for divorce. In his cross-petition the defendant charged the plaintiff with numerous clandestine relations with other men, including adultery, as grounds for divorce. It was upon these issues that the case was tried.
The parties resided in Broken Bow, Nebraska, following their marriage. Defendant was engaged in the business of photography. In May 1955, they sold their home and business and purchased a resort in Minnesota. The venture was not a success and they returned to Broken Bow in October 1955. Being in financial distress they moved in with plaintiff's parents. Each sought and obtained employment. Plaintiff worked in Broken Bow and defendant in Des Moines during the times important here. By an arrangement between themselves each was to make payments on specified obligations of the parties. The defendant did so to the full extent of his means. The relationship of the parties appears to have been very harmonious until April 28, 1956, when plaintiff wrote the defendant that she would not live with him again. The charge of nonsupport is not sustained by the record, the funds earned by the defendant having been expended in accordance with the mutual understanding of the parties. The allegations of cruelty are not sustained by the evidence, but even if they were, the evidence shows a condonation of the acts of the defendant alleged to constitute cruelty.
The evidence is sufficient to sustain the granting of a divorce to the defendant. The record shows that plaintiff was drinking intoxicating liquor to excess. She engaged in many indiscretions with other men, particularly with one man named in the record. They are established by the evidence of several reliable witnesses. While there were no eyewitnesses to any act of adultery, a court would be naive, indeed, if it did not conclude from the evidence in the record that plaintiff was guilty of that offense against the marriage relation. A recitation of the lurid facts recited in evidence would serve no useful purpose in this opinion. The trial court found the plaintiff guilty of adultery. No other conclusion could properly have been reached from the evidence in this record.
Under the foregoing findings plaintiff is not entitled to alimony. She has as a matter of fact proclaimed her unfitness to have the care and custody of the minor children of the marriage. Their care and custody was properly granted to the defendant. The trial court made a division of the property between the parties which was in all respects proper and to which no complaint appears to have been made. The case falls within the rules announced in Speck v. Speck, 164 Neb. 506, 82 N.W.2d 540, and Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689, in the form in which they have been reannounced in this opinion.
The decree of divorce is in all respects correct and it is affirmed. The costs in this court are taxed to the plaintiff.
YEAGER and WENKE, JJ., participating on briefs.