82 Neb. 37 | Neb. | 1908
The plaintiff, Thomas H. Sample, and the defendant; Sarah O. Sample, were married in 1887, and had three children, aged, in 1905, 16, 12 and 7 years, respectively. For some years they had lived in Beatrice, in this state; but in June, 1904, the defendant, with her three children, removed to Boston, Massachusetts, and in July, 1905, the plaintiff filed a petition in the district court for Gage county, praying for a divorce from the defendant on the ground of cruelty and desertion. Service was had by publication, and a decree of divorce was taken by default August 29, 1905. On October 24, 1905, the defendant filed a petition and affidavit to set aside this decree, tendering an answer, in which she denied the allegations
1. As the desertion charged in the plaintiff’s .petition is neither alleged nor proved to have continued for the statutory period, it may be disregarded.
The precise charge of cruelty in the plaintiff’s petition was that, “commencing with the year 1899, the said defendant has been guilty of extreme cruelty toward plaintiff, without cause or provocation on his part, in this: that said defendant would accuse this plaintiff of drunkenness, and of having sexual intercourse with women other than defendant, and accused plaintiff of associating with lewd women, and accused this plaintiff of being untrue to her, and constantly annoyed plaintiff by such taunts and accusations, harsh language and scornful actions; that said accusations, taunts, harsh language and scornful actions were all in the presence of plaintiff’s children and others, and all for the purpose of humiliating this plaintiff, and said defendant tried to induce his children to be known by some other name than that of said plaintiff.” To prove these allegations the plaintiff was sworn as a witness, and practically, disclaimed the charge that defendant had accused him of drunkenness. With reference to the charge of improper conduct with other women, he says that, if he met a woman on the street, or went to a woman’s honse to hang paper, the defendant would
The defendant produced witnesses who testified to specific instances of the plaintiff’s association with the woman already mentioned, under circumstances that would have justified his wife’s suspicions of the existence of improper relations between them, and the facts so related were not denied by the plaintiff upon the stand. The strongest support for the charge in the plaintiff’s petition is found in the testimony of the defendant, who said: “I frequently did talk with him about his drunkenness, which was witnessed by me and my children, and I frequently talked with him as to what I believed his relations were with Mrs. -, and I did accuse him of being untrue and unfaithful to me, and it is very probable that some of this talk may have been in the presence of our children.
Whether the conduct of the wife under the circumstances shown amounts to extreme cruelty within the meaning of the statute is therefore presented by the record. Unfounded and malicious accusations of infidelity, when made by the husband against the wife, have frequently been held to constitute such cruelty. Berdolt v. Berdolt, 56 Neb. 792; Walton v. Walton, 57 Neb. 102. Whether such accusations, when made by a wife against a husband, should be given the same effect has been doubted. McAlister v. McAlister, 71 Tex. 695, 10. S. W. 294; Pfannebecker v. Pfannebecker, 133 Ia. 425. But it is not necessary .to make a distinction founded upon sex; the real question being the effect that such accusations produced, when made by one spouse against the other, in the case under consideration. Whether such accusations constitute cruelty must be determined as a matter of fact in each particular case. In this case the plaintiff does not seem to have been especially sensitive to either charge; and we should hesitate to hold that the accusations constitute cruelty, even if they were shown to be unfounded. In every case we have examined which holds such accusation to amount to cruelty, an essential element has been the untruth of such charges and the lack of any foundation for the same. We are not prepared to hold
2. The defendant in her answer asked the court to make a suitable allowance for the support of herself and children. It is settled in this state that a wife may bring a suit in equity to secure support and alimony without asking for a divorce. Earle v. Earle, 27 Neb. 277, 20 Am. St. Rep. 667; Cochran v. Cochran, 42 Neb. 612; Brewer v. Brewer, 79 Neb. 726. From what we have already said, it follows that the defendant was justified in leaving the plaintiff under the then existing circumstances. A wife is not guilty of desertion in leaving the domicile of a husband who, addicted to drunkenness and association with women of doubtful character, fails to support her; but we cannot adjudicate her right to live in separation, for that would be in effect to grant a divorce, for which she does not pray. The order for support where divorce is not prayed for must always be temporary in its nature; the court granting the same retaining jurisdiction to make such modifications in the order as changed conditions necessitate. In this case the district court should award to the defendant a reasonable sum for the support of herself and minor children until such time as the plaintiff shall provide them a suitable home and support, and satisfy the court that he is ready and willing, in good faith, to amend his conduct.
We therefore recommend that the judgment of the district court be reversed and this cause remanded for further proceedings in accordance with this opinion.
By the Court: For the reasons stated in the foregoing opinion, the judgment, of the district court is reversed
Reversed.