Rahn v. Rahn

113 N.W.2d 189, 173 Neb. 249, 1962 Neb. LEXIS 24
CourtNebraska Supreme Court
DecidedFebruary 2, 1962
DocketNo. 35036
StatusPublished

This text of 113 N.W.2d 189 (Rahn v. Rahn) 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
Rahn v. Rahn, 113 N.W.2d 189, 173 Neb. 249, 1962 Neb. LEXIS 24 (Neb. 1962).

Opinion

Yeager, J.

This is an action for divorce which was instituted by Esther E. Rahn, plaintiff, appellee here, in the district court for Sarpy County, Nebraska, against Harry Rahn, defendant, appellant here. In the action the defendant filed a cross-petition on the basis of which he sought a decree of divorce from the plaintiff. There were two children born of the marriage of the parties. One, a son, had attained his majority. The other, a daughter, was a minor, and each party prayed for an award of custody of this child.

[250]*250The case was tried to the court and a decree of divorce was granted to the plaintiff. The custody of the minor child was awarded to the plaintiff. By the decree no alimony as such was awarded, but in lieu of alimony the plaintiff was granted the title to two parcels of real estate in Sarpy County, Nebraska, all household goods and furnishings contained in a house on one of the properties awarded to her, a 1940 Chevrolet automobile, $4,-790.20, being the balance in an account of the defendant in the Nebraska Savings & Loan Association, and $2,259. Also by the decree a final award was made of $900 for the attorneys for the plaintiff. In addition to this the defendant was ordered to pay $60 a month for the support of the minor child during her minority, or until the further order of the court.

From this judgment and an order overruling a motion for new trial, which was duly filed, the defendant has appealed. The brief of defendant contains numerous assignments of error as grounds for reversal. These however present basically three questions. The first is that of to which party, if either, a decree of divorce should have been granted? The second is, if a decree was proper, to whom should the custody of the minor child of the parties have been granted? The third is, in case a divorce decree was proper, what was proper in the area of alimony and division of property?

Certain facts upon which the ultimate determination must depend and about which there is no material dispute are that the parties were married March 18, 1933; that two children were born of the marriage, a son born January 1, 1934, and a daughter born March 28, 1947; that at the time of the marriage the plaintiff was about 20 years of age and the defendant about 40; that the parties have lived in Sarpy County; that the defendant during that time has engaged in farming and in the operation of a shop where he performed automobile repairing, welding, and other such types of work; that lately he is retired and disabled from personal engage[251]*251ment in gainful employment; that the farming activities of the defendant from 1940 forward were carried on on 160 acres of land in which the defendant had an undivided one-fourth interest and on 96.29 acres of land in which he had an undivided one-fourth remainder interest; that prior to 1940 he farmed only the 160 acres; and that he rented this land on a crop or production basis whereby he received three-fifths and the owners of the 160 acres and the life tenant of the 96.29 acres received two-fifths. The shop of the defendant was on the land and there is no evidence that he paid anything for the use of the area. The parties also lived on the land.

On the question of whether or not one or the other of the parties was entitled to a divorce there is much dispute in the evidence. The alleged basis charged by each is cruelty practiced by the other. No good purpose could be served by setting forth in detail the testimony as to this. It appears that general reference will be sufficient.

The evidence of the plaintiff indicates that the defendant denied from the beginning paternity of the son, and through all of the years, in terms reflecting upon the chastity of the plaintiff, voiced to plaintiff his denial. Her evidence further indicates that the same character of denial of paternity of the daughter accompanied her birth and has continued throughout the years. The plaintiff testified that following the birth of the daughter and as a result of this attitude and the accusations conjugal relations between the parties were discontinued. This was not disputed by the defendant. Her evidence further discloses that the defendant habitually and over the years used toward her vile, profane, and abusive language which was at times in its nature threatening. On the other hand the evidence discloses that she used language of a like character, however to a lesser extent. There is no evidence that either used any violence upon or toward the other. There is no [252]*252evidence that these attitudes increased or decreased over the years.

This state of affairs, according to the evidence of the plaintiff, continued to June 18, 1960, on which date the parties went to Omaha, on which day after the return home the testimony of the plaintiff is that the defendant left the home and did not return until the following day, when he did return. He came in, drank a cup of coffee, and went away. The defendant denied that he left and remained away that night. Some time in the afternoon the plaintiff, the son, the daughter, and another young lady went swimming. On their return the defendant, his two sisters, and his mother were there. Some of them were sitting at a table. The plaintiff entered the room and according to her testimony, which testimony is supported by the testimony of other witnesses, said to the defendant: “Where have you been?” In response the defendant said: “You God damn whore, where have you been?” The son came in and said: “You can’t talk to my mother like that, I have stood by too many years, you have got to cut that out.” The plaintiff said that she got between the father and son, then the father made a lunge at her. The evidence as to the sequence of events thereafter is not certain but it appears that the son grabbed a chair and broke it over the table. Articles were tossed about violently and wildly, and in some manner a bone in the forearm of the defendant was fractured. Whether this was of the left or right arm is not made clear. Whether a blow from a part of the chair in the hands of the son or a fall caused the fracture is not made certain. It was testified that this incident was closed by the defendant running from the room with a statement that he would shoot those involved if it was the last thing he ever did.

The effect of the evidence of the defendant was to deny all of the improper conduct over the years and to place the blame for the incident occurring on June 19, I960, on the son of’ the parties. The defendant spe[253]*253cifically denied that. he. made the statements . charged against him, and he charged that the. fracture of the bone in his arm was produced by the. acts of the son. He did not charge that he was assaulted by the plaintiff.

After hearing all of the evidence the trial court found that the plaintiff was entitled to a divorce and adjudicated. accordingly. ...

The defendant urges that on the record this adjudication is not ■ sustained under law by the evidence. The theory of this appears to be that the plaintiff as ground for divorce relies upon cruelty over a long period of years, proof of which is made by testimony of the.plaintiff and which. stands without corroboration.

It is true that a decree of divorce may not properly be granted upon the uncorroborated testimony of a party. See, § 42-335, R. R. S. 1943; Hines v. Hines, 157 Neb. 20, 58 N. W. 2d 505.

It may well be said that incidents of conduct alleged to have taken place before.

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Related

Kinch v. Kinch
95 N.W.2d 319 (Nebraska Supreme Court, 1959)
Hines v. Hines
58 N.W.2d 505 (Nebraska Supreme Court, 1953)

Cite This Page — Counsel Stack

Bluebook (online)
113 N.W.2d 189, 173 Neb. 249, 1962 Neb. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rahn-v-rahn-neb-1962.