Pierce v. Pierce , 96 Neb. 511 ( 1914 )

Barnes, J.

The plaintiff brought this action in the district court for Lancaster county, charging the defendant with extreme-cruelty toward her, and praying for a decree of divorce and alimony. A trial was had, and the court-rendered a decree in favor of the plaintiff granting' her a divorce, and requiring the defendant to pay her the sum. of $6,000 a» her permanent alimony. The plaintiff, not being satisfied with that amount, has brought the case to this court by an appeal. The defendant has filed no cross-appeal, and only contends that the judgment of the district court was right and should be affirmed.

The bill of exceptions discloses that plaintiff and defendant were married near Emerson, Iowa, in' October, 1879, and immediately moved to a rented farm near Shenandoah in that state. At the time of their marriage the plaintiff had what was necessary to commence housekeeping, and one mare, which became the dam of a number of colts. Her household furniture, with the’ mare and some poultry, were worth about $800. The defendant had a team, which Avas worth about $200, a set of harness- and five heifers, for which he paid about $100. The fore.going was practically all tbe property possessed by both plaintiff and defendant. With this outfit they began housekeeping. The plaintiff milked the cows, made butter and sold the same at the market town, fed and eared for the poultry, did her housework, and aided the defendant some in his work on the farm and in the garden. In fact, she performed the duties of a good industrious housewife. She was a good manager, and sold the pro-needs of the poultry and other things produced on the farm, and at the end of the first year she had a credit .at the store of $12 over and above their living expenses. !On March 6, 1881, their son Winfield was bom, and on this account plaintiff did not do as much outside work as «he usually did. A hired man was employed for the sea.son of 1881, and for the next year things went on much the «ame as before. In September, 1882, plaintiff and defend.ant came to Nebraska and purchased the southwest quarter of section 25, township 11, range 5, in Elk Greek precinct, near the city of Lincoln. This was unimproved prairie land, and defendant entered into a written contract ¿agreeing to pay therefor the sum of $2,650. Of the first ■payment plaintiff, who had inherited some money from her father’s estate, paid about $300. The second instalment was for $1000, of which plaintiff testified she paid '$350 out of her own funds, and the defendant paid the remainder. The following spring they moved to Nebraska, .and defendant farmed a tract of land which had been purchased by the plaintiff’s mother, and cornered with the land which they had theretofore purchased.

Both plaintiff and defendant appear to have been industrious, hard-working people. They prospered, and soon paid the remainder due on the contract, and defendant received a deed for the land purchased by them, and on which they resided up to the time of their separation. 'They engaged in farming extensively, and acquired quite a number of full-blooded Jersey cattle, with which they started a dairy. • It appears that the plaintiff was fond of cattle and had a good idea of how to conduct a dairy. She did much of the purchasing of the stock, and kept the records and pedigrees' of the animals which they purchased and raised. For a number of years they lived in an old house on the farm, but later on, at the solicitation of the plaintiff, the defendant built a very comfortable home ■costing about $5,400. They continued to improve the farm, built two barns thereon, and brought the land to a high state of cultivation. The plaintiff appears to have taken great interest in the cultivation of flowers, fruits and shrubs, and everything that enhanced the beauty and productiveness of their home. The defendant meanwhile did his full share in making the improvements and enhancing the value of the property, so that, at the time when this action was tried, a fair consideration of the testimony showed the value of the farm improvements to be about $21,000. It also appeared that the defendant, at that time, was possessed of personal property consisting of horses, cattle, farm implements, and such other things as were necessary and convenient for use on the farm, of the value of about $1,500; that he was indebted to divers and sundry persons in the sum of $900, 'and his net worth, at the time of the commencement of the plaintiff’s action, was about $21,000.

It appears from the evidence that, notwithstanding the fact this couple prospered in the way of property accumulations,'the plaintiff, owing to her age and condition of ill health, became somewhat faultfinding and dissatisfied with the property arrangements, and her affection for her husband gradually turned to dislike and hatred. The defendant, on his part, was no doubt somewhat exacting, and in time became somewhat cruel toward the plaintiff. Things seem to have gone from bad to worse, until finally the plaintiff abandoned the home and commenced this action for a divorce. The district court was evidently of the opinion, however, that such a feeling of hostility had arisen between the parties that there was no prospect of a reconciliation, and in view of all of the facts the plaintiff was entitled to a divorce.

We have carefully read the evidence, and are satisfied that the court did not err in its findings and judgment so far as that matter was concerned, and we therefore affirm so much of the decree as granted the plaintiff a divorce.

It appears that the district court allowed the plaintiff temporary alimony to the amount of $750, suit money amounting to $50, attorneys’ fees $500; plaintiff has received household goods of the value of $700, an organ worth $80, incubators and brooders of the value of $65. The allowances thus made out of the property of the defendant are of the value of $2,145. This amount deducted from the defendant’s property leaves the net value thereof, still possessed by him, at about the sum of $18,855. He was also required to pay, and has paid, $50 a month, allowed by this court, as temporary alimony, which now amounts to the sum of $1,100. A substantial allowance was made by this court to pay for the bill of exceptions and for briefs and attorneys fees, and there are other expenses connected with this litigation, so that defendant, at its termination, will have unincumbered property of the value of about $17,000. As we view the testimony, the plaintiff was entitled to receive one-half of the net value of their accumulations. It follows that the decree of the district conrt granting the plaintiff $6,000 permanent alimony should be, and is hereby, reversed. We find that the plaintiff, should receive the amount of $8,500 in lieu of the $6,000 decreed to her by the district court.

The cause is therefore remanded to the district court for Lancaster county, with directions to that court to render a judgment in harmony with the views expressed in this opinion.

Judgment accordingly.

Rose, Fawcett and Hamer, JJ., not sitting.