Jensen v. Jensen

15 N.W.2d 57, 144 Neb. 857, 1944 Neb. LEXIS 109
CourtNebraska Supreme Court
DecidedJune 23, 1944
DocketNo. 31757
StatusPublished
Cited by9 cases

This text of 15 N.W.2d 57 (Jensen v. Jensen) 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
Jensen v. Jensen, 15 N.W.2d 57, 144 Neb. 857, 1944 Neb. LEXIS 109 (Neb. 1944).

Opinion

Paine, J.

In an action by the wife for a divorce, the trial court dismissed the husband’s cross-petition, and granted the wife an absolute divorce, with alimony in the sum of $21,886.10 and attorney’s fees in the sum of $1,500. From this decree the defendant appeals.

Said decree also permanently enjoined defendant from transferring and conveying to any person any real or personal property owned by him, and enjoined defendant from [859]*859disposing of his stock or holdings in the Chris Jensen & Sons Realty Company, and further enjoined the defendant from transferring any of the real or personal property of said corporation, but provided that such injunction should not apply to defendant’s personal checking account in the Omaha National Bank, which was under the name of the Omaha Wrecking Company, or his personal checking account in the Douglas County Bank of Omaha. It was further provided that said restraining order and injunction shall be dissolved only upon the payment of álimony to the plaintiff of $21,886.10, with attorney’s fees and costs.

The errors relied upon for a reversal by the defendant may be summarized as follows: The court erred in the finding that the defendant’s property is of the value of $70,-889.14, and entering judgment for alimony in the sum of $21,886.10; the court erred in basing its finding of alimony in favor of plaintiff on the gross value of defendant’s property, and in refusing to take into consideration tax liens and indebtedness of the defendant and of Chris Jensen & Sons Realty Company; the court erred in issuing an injunction, upon filing of plaintiff’s original petition, enjoining defendant from disposing of or transferring his property and from going to his home, and continuing said injunction until the alimony and attorney’s fees are paid; the court erred in allowing attorney’s fees in favor of plaintiff in the sum of $1,500, and said judgment and decree of the court is contrary to law and contrary to the evidencé.

We will now present the main facts as disclosed by the evidence. The plaintiff is 56 years of age, and the defendant about the same. They were married in Omaha August 21, 1917, and neither had been married before. Two children were born to this union, a daughter, Mary Annalee, who is now 23 years old and married to Wendell Anderson, and a son, Sgt. Edward C. Jensen, of Company A, 381st Infantry, United States Army, stationed at Fort Lewis, Washington, at the time of trial. The son, being unmarried and aged 21 years, testified to the fine Christian character of his mother. The testimony of the plaintiff and the two [860]*860children amply supported the charge of extreme cruelty as alleged in the third amended petition.

The defendant has been more or less- seriously ill since April 6, 1933, being afflicted with tuberculosis and diabetes, and -has no chance at this time of being restored to- good health. At the time of trial he was confined to the Douglas County Hospital, because that was the only Omaha hospital prepared to handle serious tubercular conditions. Defendant’s evidence was taken by deposition, as he was too sick to appear in court.

It will be seen that the defendant is making no complaint against granting the wife an absolute decree of divorce. The argument of defendant is, however, addressed principally to these two points: That the value of defendant’s property was fixed at much too high an amount, and the alimony judgment based thereon is excessive, as are the attorney’s fees; that the granting of a temporary injunction on the same day the petition was filed, and continuing the said injunction in full force and effect after decree was entered until the decree for alimony had been paid in full, with plaintiff’s attorney’s fees, is an error on the part of the trial court warranting a reversal of such decree for alimony and injunction.

We will, therefore, examine the facts in reference to the financial conditions. Christian Jensen, father of the defendant, who died July 18, 1938, was a very successful business man, and incorporated the Chris Jensen & Sons Realty Company in 1909, with 400 shares- of stock. This was a holding company, of which the father retained 398 shares and one share was issued to- the defendant by his father, and the remaining share was issued to- John A. Byrne, a half-brother of the defendant, a man 63 years of age, who was one of the original officers of said corporation, and testified that he had given all his time to- looking after the interests of the corporation and working for it. He was supposed to get $100 a month, but in Item III in the will of Christian Jensen he was given $1,000 cash, the same to be in full of all sums due him for labor and services, and it was [861]*861further provided that he was to surrender his share of stock in said corporation, the same to be retired into its treasury as a condition precedent to receiving the $1,000 cash.

In Item VIII testator stated that he was the owner of the capital stock of said corporation, and also of the Omaha Wrecking Company, which was not incorporated. Such will, after making numerous bequests, made Charles J. Jensen the residuary legatee of all of the remainder of .his father’s property. Mr. Byrne testified he had not been paid anything for his services since Christian Jensen died, although he had continued to give all his time to looking after the varied business interests of the defendant.

It was stipulated between the parties that cash on hand, cash in banks, and deposits in the Omaha Loan & Building Association and liquid assets amounted to $36,680.90. The home at 909 North Forty-ninth street, Omaha, was inherited by the defendant from his mother’s estate. A farm near Louisville, Nebraska, was valued at $3,500, and a farm near Modale, Iowa, was valued at $4,000, making a total of $11,-500 for these three pieces of real estate, or a total of $48,-180.90 for assets the value of which was undisputed.

There were, in addition, a large number of old brick and frame buildings in Omaha, including a three-story 40-room hotel building and the interest in a number of pieces of real estate belonging to the estate of Mary E. Jensen, his mother, in which the defendant owns a one-sixth interest, and all of these many pieces of real estate were given a value of $20,650 by the defendant Jensen and a value of $19,600 by Thomas F. Quinlan, a real estate expert called by the defendant, and a value of $25,783.34 by W. O. Larson, a real estate expert called by the plaintiff.

In the decree entered by the trial judge, the total value of the defendant’s holdings was fixed at $70,889.14, from which it appears that the trial judge added a few thousand dollars to the defendant’s value, and his final amount appears to be practically the average between the amounts reached by the two experts, and from a careful analysis of each of the many items making up these values we have reached the [862]*862conclusion that the trial judge gave a very patient and careful study to each and every item of real and personal property owned by the defendant and all of his interests therein, and we have reached the conclusion that the trial judge was right.

From this property, the trial judge directed that the plaintiff should be given a total amount of alimony of $21,-886.10, which was practically 30 per cent of the defendant’s holdings.

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Cite This Page — Counsel Stack

Bluebook (online)
15 N.W.2d 57, 144 Neb. 857, 1944 Neb. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jensen-v-jensen-neb-1944.