81 Neb. 777 | Neb. | 1908
In 1902 plaintiff was divorced from defendant by decree of the district court for Seward county. Her original petition charged cruelty and adultery; but. on the evening of the first day of the trial of said cause the litigants stipulated in writing that plaintiff would file an amended petition charging only a wanton failure to support her, that an absolute divorce should be granted, plaintiff to have the custody of their two children, eight and eleven years of age, respectively, and that defendant would pay as alimony to the wife and maintenance for the children $10 each month for seven years, and furnish the children clothing, “if such provision for that term is necessary,” and so long as plaintiff remained unmarried defendant for five years would provide her with a dwelling, and She- to retain all their household furniture, the $10 a month to be in lieu of dower and all other claims and demands of plaintiff against defendant. The court acted on the stipulation, and the evidence theretofore taken, and granted a decree upon the amended petition in strict conformity with the terms of the stipulation, and further ordered the reporter not to transcribe his shorthand notes of said testimony for any one. In 1904 plaintiff commenced these proceedings for a modification of said decree and an increase of the allowance therein provided for, because of the alleged fraud in procuring said stipulation and the judgment thereon, her changed circumstances on account of failure of health, the increased cost' of living, the insufficiency of the allowance to maintain and educate the children, the failure of defendant to provide clothing for the children, and for other reasons
The stipulation between the parents will not avail to release defendant from his lawful obligation to sup
Defendant has paid $10 a month to plaintiff, and has also provided the children with a' generous supply of wearing apparel, besides giving each of them spending money from time to time. Plaintiff has also purchased some minor articles each year for her' children. Plaintiff testified, and she is not contradicted, that the necessaries of life cost more than they did in 1902, and that it will cost $32 a month to support the children as they have been accustomed to be maintained. The affidavits on file in this court in support of and resisting plaintiff’s application for suit, money disclose that defendant has changed his residence to Kansas and that the boy is now with the father. The mother testifies that the boy went to his father without her permission and against her will. The son is old enough and sufficiently well developed to earn money to aid his mother; but he evidently prefers the
Winnie, the girl, will not attain 18 years of age till the spring of 1912, the exact date not being furnished, and there is no good reason why her father should not support her until her eighteenth birthday. In our opinion, the judgment of the district court should be reversed and the cause remanded, with directions to said court to modify its former decree, so that plaintiff recover from defendant the sum of $30 a month for each and every month, commencing April 15, 1908, and ending March 15, 1912, for the support and education of their said children, without deduction for the absence of the son, Walter, from plaintiff’s home, and that she be not compelled to maintain him elsewhere; that the provision in the original decree for clothing be annulled, that the said sum of $30 a month be in lieu of all allowances under said decree, and that it be paid to the clerk of the district court for plaintiff; that defendant pay the costs of these proceedings, including an attorney fee of $75 for plaintiff’s attorneys.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded, with directions to said court to modify its former decree, so that plaintiff recover from
Judgment accordingly.