Nemecek v. Nemecek

Nebraska Supreme Court

Nemecek v. Nemecek

199 N.W.2d 409, 188 Neb. 799, 1972 Neb. LEXIS 911

CourtNebraska Supreme Court

DecidedJuly 21, 1972

Docket38445

StatusPublished

Cited by2 cases

This text of 199 N.W.2d 409 (Nemecek v. Nemecek) 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

Nemecek v. Nemecek, 199 N.W.2d 409, 188 Neb. 799, 1972 Neb. LEXIS 911 (Neb. 1972).

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Opinions

Boslaugh, J.

This is an appeal in a divorce action brought by Ladis[800]*800lav J. Nemecek against Gayle Ann Nemecek. The amended petition alleged that the defendant had been-guilty of extreme cruelty and adultery. These allegations were denied in the defendant’s answer and cross-petition which alleged that the plaintiff had' been guilty of extreme cruelty.

The trial court found the defendant had been guilty of extreme cruelty but the evidence was insufficient to sustain the allegations of adultery; the plaintiff should be granted a divorce from the defendant; and the defendant was-a fit and proper person to have the custody of the minor children. It awarded child support in the amount of $80 per month per child until the children became self-supporting or emancipated. The plaintiff appeals. :

The principal controversy is over custody of the minor children. The plaintiff contends the evidence established the defendant was guilty of adultery and that the custody of the children should have been awarded to him. The children involved are Lad Thomas, born December 18, 1961; Craig John, bom November 17, 1963; and Brian Christopher, born November 2, 1965.

The parties were married in 1961. The evidence shows a course of misconduct by the defendant during the last 6 years of the marriage. This included visiting the apartments of other men in the early morning hours. Although circumstantial, there was evidence which, if believed, was clearly sufficient to establish adultery on the part of the defendant.

In determining child custody, the paramount consideration is the best interests and welfare of the children. Phillips v. Phillips, ante p. 89, 195 N. W. 2d 160. In this regard there is evidence in the record concerning the conduct of, the plaintiff which makes it doubtful whether the custody of the minor .children , should be awarded to him.

The evidence relating to the care of the children by the defendant shows they have not been neglected ■ dr [801]*801mistreated in any way. Under these circumstances the judgment of the district court placing the children in the care of the defendant should not be reversed. However, in view of the evidence as to defendant’s past misconduct, the judgment should be modified to provide for supervision of their custody by the chief juvenile probation officer. See Beck v. Beck, 175 Neb. 108, 120 N. W. 2d 585. As so modified, the judgment is affirmed. Defendant’s attorney is allowed a fee of $250 for services in this court.

Affirmed as modified.

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Boslaugh, J.

This is an appeal in a divorce action brought by Ladis[800]*800lav J. Nemecek against Gayle Ann Nemecek. The amended petition alleged that the defendant had been-guilty of extreme cruelty and adultery. These allegations were denied in the defendant’s answer and cross-petition which alleged that the plaintiff had' been guilty of extreme cruelty.

The trial court found the defendant had been guilty of extreme cruelty but the evidence was insufficient to sustain the allegations of adultery; the plaintiff should be granted a divorce from the defendant; and the defendant was-a fit and proper person to have the custody of the minor children. It awarded child support in the amount of $80 per month per child until the children became self-supporting or emancipated. The plaintiff appeals. :

The principal controversy is over custody of the minor children. The plaintiff contends the evidence established the defendant was guilty of adultery and that the custody of the children should have been awarded to him. The children involved are Lad Thomas, born December 18, 1961; Craig John, bom November 17, 1963; and Brian Christopher, born November 2, 1965.

The parties were married in 1961. The evidence shows a course of misconduct by the defendant during the last 6 years of the marriage. This included visiting the apartments of other men in the early morning hours. Although circumstantial, there was evidence which, if believed, was clearly sufficient to establish adultery on the part of the defendant.

In determining child custody, the paramount consideration is the best interests and welfare of the children. Phillips v. Phillips, ante p. 89, 195 N. W. 2d 160. In this regard there is evidence in the record concerning the conduct of, the plaintiff which makes it doubtful whether the custody of the minor .children , should be awarded to him.

The evidence relating to the care of the children by the defendant shows they have not been neglected ■ dr [801]*801mistreated in any way. Under these circumstances the judgment of the district court placing the children in the care of the defendant should not be reversed. However, in view of the evidence as to defendant’s past misconduct, the judgment should be modified to provide for supervision of their custody by the chief juvenile probation officer. See Beck v. Beck, 175 Neb. 108, 120 N. W. 2d 585. As so modified, the judgment is affirmed. Defendant’s attorney is allowed a fee of $250 for services in this court.

Affirmed as modified.

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199 N.W.2d 409, 188 Neb. 799, 1972 Neb. LEXIS 911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nemecek-v-nemecek-neb-1972.

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