78 Neb. 240 | Neb. | 1907
The plaintiff, Nellie L. Whitney, and the defendant, George D. Whitney, were married in Cedar county, this state, in 1888. They lived together happily until 1904, when Mrs. Whitney brought an action for divorce in the district court for Cedar county, alleging cruelty and failure to support. On November 15, 1904, a trial was had
We entertain serious doubts concerning the good faith of plaintiff’s residence in Holt county. It is clear that the sole purpose of her residence there was to institute divorce proceedings, and we are urged to condemn such conduct and reverse the decree for this reason. It does, indeed, seem to be taxing the courts to thus shift one’s residence so soon after being denied relief in another jurisdiction, and applying again for a divorce on the same grounds. Were Ave required to determine the question of residence, we doubt very much AAdiether Ave could sustain the jurisdiction of the court. Howtwcr, a judicial pronouncement as to this question is unnecessary as the decision may be placed on other grounds. We therefore pass over this — defendant’s first contention — and take up his insistence that the decree granting plaintiff a divorce is not sustained by the evidence. The discussion here proceeds under tAvo heads:
1. Was it sliOAvn by a preponderance of the (widence that defendant had been guilty of extreme cruelty? The district court considered immaterial all evidence as to the conduct of the parties prior to November 15, 1904, the
2. The most .serious difference between these parties, and the real trouble in this home, is the controversy over family expenses. We find that the testimony on this subject has taken a wide range, and refers principally to alleged misconduct prior to the unappealed from decree of the district court for Cedar county denying plaintiff a divorce on the identical grounds here urged. We therefore do not place our decision upon evidence relating to transactions prior to November 15, 1901. What provision has defendant made for his family since that date? He possesses property (mostly farm land) worth $15,000 above incumbrances. His income is perhaps $700 or $800 a year. As required by the decree in the former divorce suit, he paid plaintiff $30 a month alimony until December 1, 1901. It therefore cannot be said that defendant failed to support his wife from November 15 to December 1, 1901. Defendant testified that.he expended $75.20 for provisions from December 1 until his wife left him December 29. Mrs. Whitney testified: “When I went out to my daughter’s to spend Christmas, he went and put in the biggest supply I ever knew to be in the house. * • * * 1 wasn’t there long enough to go through it all, I seen that there was a.lot of things there that wasn’t there when I went away. * * * There was more than I was used to, it shocked me with surprise.” Counsel argue that defendant refused to pay plaintiff’s bills, but the evidence discloses that the bills were contracted while defendant was paying plaintiff $30 a month alimony under decree of court. Dr. Kerley, a disinterested witness, was asked whether the Whitneys were as well situated as the average people in the village as to house, clothing and surroundings, and answered: “Well, as to that class of people, I should say, ‘yes.’ ” We are convinced from a review of the evidence that plaintiff did not successfully carry the burden of proving that defendant subsequently to the former decree had “grossly or wantonly and cruelly
We recommend that the judgment of the district court be reversed and plaintiff’s action dismissed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and plaintiff’s action dismissed.
Reversed and dismissed.