Barton v. Barton

254 N.W. 561, 126 Neb. 835, 1934 Neb. LEXIS 335
CourtNebraska Supreme Court
DecidedApril 27, 1934
DocketNo. 28909
StatusPublished
Cited by4 cases

This text of 254 N.W. 561 (Barton v. Barton) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barton v. Barton, 254 N.W. 561, 126 Neb. 835, 1934 Neb. LEXIS 335 (Neb. 1934).

Opinion

Paine, J.

Action was brought by a wife to obtain a decree of separate maintenance on the ground of extreme cruelty. Defendant filed a cross-petition, praying for an absolute divorce. After a spirited trial, the plaintiff was granted a divorce. She was allowed $300 alimony, payable at the rate of $50 a month, together with attorney fees in the sum of $700. The trial court dismissed the defendant’s cross-petition. The plaintiff appeals from that part of the decree which awards her but $300 permanent alimony.

Plaintiff asked for separate maintenance, with $300 a month for support, and $1,500 attorney fees. Defendant filed a general denial by way of answer to the amended petition, and prayed for an absolute divorce in his cross-petition. The court entered a decree, finding generally that the allegations of plaintiff’s amended petition were true, and that the defendant had been guilty of extreme [836]*836cruelty, and granted the plaintiff an absolute decree of divorce, with permanent alimony of $300, payable at the rate of $50 a month for six months from the signing of the decree, the first payment to be due May 12, 1933, and allowed her $700 attorney fees, payable at the rate of $100 a month, and dismissed the cross-petition of the defendant. From the alimony awarded, .the plaintiff appealed to this court.

The bill of exceptions filed in this case consists of three thick volumes, embracing the testimony of many witnesses, together - with a large number of exhibits, including extensive write-ups and pictures of the parties in Sunday newspapers, checks, letters and photographs.

To give a fair reflection of the evidence in this bitterly contested divorce .case it may be better to state first the principal claims of each side separately. The plaintiff testifies, and presents the testimony of friends, to prove about the following state of facts: That she was 24 years of age, and the defendant was 52 years of age, having an only child, a married daughter 26 years of age. The defendant had been successfully engaged in the laundry business in Omaha, and, having retired as a wealthy man, was possessed of a large amount of real and personal property. That she was raised on a farm near Maywood, Nebraska, and at the age of 17 came to Omaha and completed the business course in a business college, including bookkeeping and shorthand, and was thereafter employed by the Standard Oil Company for more than a year, the Manhattan Oil Company for more than a year, the Otis Elevator Company for more than two years, and then by the Westinghouse Electric Company, where she was working at the time she was married. That in September, 1931, she met the defendant at a bridge party at the home of her friends Mr. and Mrs. L. C. Gibson. That the defendant immediately began taking her to dinners and theaters and other entertainments, and after a whirlwind courtship of about four months they were married on February 3, 1932, at Kansas City, instead of [837]*837Omaha, at the request of the defendant, the plaintiff being accompanied to Kansas City by her friends, Mr. and Mrs. L. C. Gibson, who returned to Omaha the next day, making the trip at the expense of the defendant. That the plaintiff and defendant then took a very extensive and expensive honeymoon trip, visiting St. Louis for three days, Memphis two days, New Orleans five days, with visits to Biloxi, Pensacola, Jacksonvillej St. Augustine, Palm Beach, Miami, Key West, and Havana. Then followed a 13-day ocean trip through the Panama Canal to Los Angeles, where they took an apartment, and defendant purchased an automobile for driving around California. They returned by way of Portland and Seattle, and stopped at North Platte, where the plaintiff’s mother and brother came from Maywood to visit them, and reached Omaha May 28, 1932. Upon the return to Omaha they went out to defendant’s former home, 3022 Lafayette Avenue, and the Gibsons called úpon them the first evening, having missed them at the depot. In the bunch of mail awaiting him at the house was one letter which he handed to Mr. Gibson to read, it being a letter from Attorney McGan on behalf of Thelma Holman, saying that, unless a settlement was made on or before the following Tuesday, suit would be filed against him. At that time Mr. Barton said that the girl was simply trying to blackmail him, and he had prior to that time, during the courtship, stated that this Thelma Holman was an orphan who had worked in his laundry, and whom he had shown many kindnesses, but only in a fatherly way. After the Gibsons had gone, the defendant was worried; said he did not care to live any longer, did not sleep well, and about 6 o’clock the next morning he sat up in bed and confessed to the relations with Thelma Holman, admitting that he had misrepresented his relations to her, and that he had been intimate with her prior to the death of Ms former wife, which relations had continued for six or seven years; that he had .given her about three or four thousand dollars in cash, a fur coat, a diamond ring, and [838]*838two automobiles, and had taken her on vacation trips, staying in Minnesota in a cottage for two weeks, and also $t Estes Park, Colorado, where they had a cottage and liyed together as man and wife. That after breakfast the defendant went to his room and slept a while, and the plaintiff gathered up her things and went to the L. C. Gibson home, and testifies that she was humiliated and shocked to find the kind of a man she had married, and that she stayed at the Gibson home for 5V& weeks, Mr. Barton telephoning to her and calling on her there, and on his first visit to the Gibson home to see her, when he failed to persuade her to come back and live with him, he threatened to go down and see a lawyer and sue her for divorce. On another occasion he wanted to know if she would sign deeds to his real estate before the lawsuit was started by Thelma Holman, so he could transfer all his property out of his name. However, about ten days after the return to Omaha defendant settled the Holman case through her attorney by paying $5,000.

The defendant presents an entirely different state of facts. His brief begins with this paragraph: “In legal terminology, this is a suit for divorce, but in its real purpose it is an action by a designing woman to strip Harry Barton of the little pf ‘this world’s goods’ that he has accumulated through years of toil, to which she did not, directly or indirectly, contribute a single cent.” Then follows the statement: “Let us examine the record and get the true picture of this woman that counsel attempts to portray before this court as an angelic symbol in human form. Let us unmask this ‘babe in the woods,' as counsel term her.” The defendant claims that they met in the fall of 1931 at Gibson’s; and in December marriage was agreed upon between them, and that he gave her an engagement ring costing $650, because she was not satisfied with one he had selected for less money; that he gave her $405 before their marriage to pay her debts, and made her beneficiary in his life insurance policies to the extent of $6,000; that on the day of the [839]*839wedding in Kansas City she wanted photographs taken at $40 a dozen, and became very hostile when the defendant would only purchase some costing $25 a dozen; that she insisted upon attempting to attend a premier showing of a picture in Hollywood when admissions were $5.50 a person, but did not go, as the house had been sold out, and the same show could be seen the next night for 75 cents.

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Bluebook (online)
254 N.W. 561, 126 Neb. 835, 1934 Neb. LEXIS 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-barton-neb-1934.