James v. James , 103 Neb. 278 ( 1919 )

Letton, J.

This is an action for divorce brought by a wife on the ground of extreme cruelty. A decree of divorce was awarded her, with permanent alimony in the sum of $7,500. Defendant appeals from the decree of divorce and from the judgment for alimony.

At the time of the marriage, defendant was a widower about 44 years of age, a farmer and ranchman living in Rock county. He had two children, twins, about 5 years old at that time. Plaintiff was a widow about 37 years of age. She had been married twice before. She had three children by her first husband, two daughters of the ages of 16 and 8 years, respectively, and one son of about 14 years. About 18 months after the death of her first husband, plaintiff married again, but a few years afterwards obtained a divorce on the ground of desertion. At the time she was married to defendant, she had little or no property, except a Kinkaid homestead and some household furniture.

At the time of the marriage, defendant had a ranch of about 1,800 acres, and a large amount of personal property. At the trial it was stipulated that defendant’s net worth at that time was $47,500; his property consisting of 2,400 acres of unincumbered real ■ estate in Brown and Rock counties, and a small amount of live stock and implements.

After the marriage plaintiff with her children lived upon the ranch. Trouble soon occurred between the parties. Both seem to be of strong will and determination, somewhat high tempered, and neither was very choice in the use of language toward the other. Each accuses the other of using foul language and physical violence in some of their altercations, but the evidence seems to show that the husband provoked the trouble in most instances. On one occasion the plaintiff with her children left the home on account of his cruel treatment, but afterwards, upon his earnest solicitation, and upon his payment to her of $3,000, she consented to return on his agreement to treat her more kindly in the future.

After her return matters seemed to be pleasant enough until early the next year, when he would occasionally become sullen and refuse to speak to plaintiff, sometimes for a week or longer. He would become angry, and would not speak to the children, would ignore them, and after one of these disagreements, plaintiff went to Long Pine and remained there a few weeks, living in a house she' had purchased with a part of the money she had received from him. When she went back to the ranch trouble again ensued, he swore at her, used opprobrious epithets, and finally matters became so unpleasant that plaintiff was compelled to leave with her children.

Defendant insists that there is hot sufficient testimony to justify the granting of a decree of divorce, mainly for the reason that, even though he might have been guilty of cruelty before his wife left the first time,’ this was condoned by her returning to his home and resuming marital relations, and there is not sufficient evidence of cruelty thereafter to sustain a decree.

It is a well-known principle that after a condonation a recurrence of the same offenses will revive the acts condoned so far as their legal effect is concerned. Heist v. Heist, 48 Neb. 794. Considering the testimony as to conduct after the condonation, while it does not show physical violence to the extent shown before the reconciliation, we are convinced that there is enough evidence of cruelty to justify the court in considering defendant’s conduct during the whole time of the marriage relation, and to justify a decree of divorce.

It is unnecessary to restate the principles governing the allowance of alimony, but, unless there has been an abuse of discretion on the part of the district court, this court will not ordinarily interfere with the amount awarded. Wilde v. Wilde, 37 Neb. 891; note 2 to Van Gorder v. Van Gorder, 44 L. R. A. n. s. 998 (54 Colo. 57). Considering all the facts and circumstances in evidence, proper to be considered in determining the amount of alimony, a majority of the court are of the opinion that the amount allowed is not excessive.

Affirmed.

Sedgwick and CoRNisri, JJ., not sitting.