No. 31943 | Neb. | Jun 22, 1945
The plaintiff, Frances Vocelka, commenced this divorce action in the district court for Douglas county against the
This decree awarded the defendant certain personal property and fixtures fully described in the decree, lots 6, 7 and 8, block 12, Kountze addition, Omaha, Douglas County, and the south half of lot 13 in Dee’s addition to South Omaha, Sarpy county, all in Nebraska.
Appellant complains of the court’s division of the property and its refusal to award her alimony.
The parties were married on January 10, 1939, and to this union a son, Edward J. Vocelka, was born. This is not the first marriage of either party. Appellant had two previous marriages. To her first marriage two children were born, Frank and Marie, who, at the time of the trial, were 17 and 11 years of age. At the time of the marriage they lived with their mother. The first husband was accidentally killed in 1934. She remarried in 1936 and this marriage lasted only about 10 months and ended in a divorce. No children were born to this union. The appellee, who was 56 years of age at the time of trial, was also previously twice married. His first wife died leaving him with six children. His second marriage ended in divorce. No children were born as a result of this union. At the time of this marriage four of his children were living with him.
At the time of the marriage both parties were possessed of property. Appellant owned two houses located at 2706 and 2708 Ed Creighton avenue, which were free of debt, and a property located at Thirteenth and William streets and referred to as the Golden Goose. This latter property was quite heavily encumbered. She also had $360 on deposit in the bank. Appellee owned the property described
Although a carpenter by trade, the appellee was engaged in operating a tavern. Prior to and at the time of the marriage he was operating it by securing a liquor license in his son’s name. This was necessary for the reason that he was not a citizen and therefore ineligible. After their marriage, when the license expired on May 1, 1939, they took out a new license in appellant’s name and continued to do so for four years. They operated this business, which included a restaurant, together. He did the managing and both worked in the tavern. She cooked, cleaned, waited on customers and did whatever was necessary besides taking care of their home, which was upstairs. They remodeled the building by putting a dance floor in the space formerly occupied by the grocery and included it in their business. The proceeds of the business were used to operate it, to repair and improve the tavern property, to add fixtures in the tavern, and for family expenses.
In 1943 the Nebraska Liquor Control Commission refused appellant a license and one was taken out in the name of McLaughlin. However, it appears that appellee was a secret partner in this setup. McLaughlin had his license revoked about two and one-half months later. It appears appellant advanced some $400 for McLaughlin to purchase liquor stock but she was never able to get this back.
However, she did not sell McLaughlin the stock of liquors which they had on hand when a license was refused her. Later, when a Mrs. Whitcomb obtained- a license on May 1, 1944, and operated the tavern, she sold it to her and received $992 therefrom. This sum she retained and invested in bonds for her children.
Appellant retained her two residences on Ed Creighton avenue. The same were kept in good repair, and the taxes assessed thereon paid. She collected the rents therefrom. She testified she used considerable of these rents to buy clothes for herself and her children. In 1940 she sold the property at Thirteenth and William, referred to as the Golden Goose, and received for her equity $3,000. She invested $1,600 of this in a property located at 2807 Ed Creighton avenue, which is awarded her in the decree; used $300 to' buy some furniture, which is awarded her in the decree; and used some $400 to fix up the place where they lived in the tavern property. What was done with the balance is not clear. However, her account book with the Union Building and Loan Association shows she had on deposit there as late as March 17, 1944, the sum of $1,611.82. She withdrew on that date $1,602.58.
Appellee sold two of his properties after the marriage. These were the properties located at 4115 South Thirteenth street and 1605 Elm street. What he received for them is not shown and just what he did with the proceeds is not too clear, except that he used some of it to repair and improve the tavern property, particularly when they remodeled it and put in a place to dance. This remodeling cost somewhere between $1,400 and $1,600. Other improvements and betterments were made to this property and the cost thereof was either paid from the proceeds of the sale of these properties or taken out of the income of
The record is none too complete as to the value of the real property and the income therefrom. Appellant testifies the two houses at 2706 and 2708 Ed Creighton avenue are worth $4,400. They rent for $45 per month. She purchased the property at 2807 Ed Creighton avenue for $4,000. Its rental value is not shown. The only testimony as to the value of the tavern property is appellant’s following answer : “Well, I don’t know. Maybe he can sell it for $15,-000.00.” Mrs. Whitcomb pays $125 per month rent for the first floor of the tavern property. There are some rooms upstairs, in addition to those occupied by the appellee as a home. These have, from time to time, been rented but are apparently not very desirable. The rental income or value is not shown for the Sarpy county property.
The appellee also has two music boxes from which he receives some income. Appellant testifies this amounts to $60 per month.
In addition to the property herein set forth it appears appellee, at the time of the trial, had $155 in cash, a $100 bond, the fixtures in the tavern and his household furniture.
While the evidence shows the appellee to be a carpenter by trade, he had not, as far as the record shows, engaged therein except to make repairs to the several properties of the parties. He is about 57 years of age and whether or not he is capable of again engaging therein is not apparent from the record.
We stated the rule applicable to the questions here involved in Martin v. Martin, 145 Neb. 655" court="Neb." date_filed="1945-02-16" href="https://app.midpage.ai/document/martin-v-martin-8038638?utm_source=webapp" opinion_id="8038638">145 Neb. 655, 17 N. W. 2d 625, as follows: “ * * * we apply the rule as stated in Hild v. Hild, 135 Neb. 896" court="Neb." date_filed="1939-03-10" href="https://app.midpage.ai/document/hild-v-hild-8037315?utm_source=webapp" opinion_id="8037315">135 Neb. 896, 284 N. W. 730: Tn determining the question of alimony or division of property as between the parties, the court, in exercising its sound discretion, will consider the respective ages of the parties to the marriage, their earning ability, the duration of, and the conduct of each during, the marriage, their station in life, the circumstances and necessities of each, as well as their health and
Applying these rules to the parties and their rights, particularly in view of the trial court’s finding- “ * * * that the plaintiff (appellanthere), Frances Vocelka, is a suitable and proper person to be awarded the care, custody and control of said minor child * * * ,” we think the decree should be modified as follows: That in addition to the property division, as made by the trial court, the appellant be allowed the sum of $1,500 alimony, same to be payable at the rate of $25 per month, beginning- with the date of the decree, December 18, 1944, until fully paid. That appellant be allowed an attorney’s fee in the sum of $150 for services in this court.
Affirmed as modified.