Vacek v. Ames

377 N.W.2d 86, 221 Neb. 333, 1985 Neb. LEXIS 1257
CourtNebraska Supreme Court
DecidedDecember 6, 1985
Docket84-361
StatusPublished
Cited by41 cases

This text of 377 N.W.2d 86 (Vacek v. Ames) 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
Vacek v. Ames, 377 N.W.2d 86, 221 Neb. 333, 1985 Neb. LEXIS 1257 (Neb. 1985).

Opinions

Per Curiam.

This was an action for alienation of affections and criminal conversation brought against G. Ronald Ames by Donald R. Vacek, Jr. A verdict was directed against the defendant on liability on the criminal conversation count. The jury returned a verdict for the plaintiff on both causes of action and fixed the damages at $100,000. The jury found that the damages on the criminal conversation count were $20,000, but that amount was included in the $100,000 awarded on the other cause of action.

The trial court found that the verdict for alienation of affections was excessive and granted a new trial on that cause of action as to damages only. The verdict on the criminal conversation count was set aside on the ground that actions for criminal conversation should be abolished.

The plaintiff has appealed and contends that the trial court erred: (1) In holding that criminal conversation was not a valid cause of action in this state; and (2) In finding that the verdict on the cause of action for alienation of affections was excessive [335]*335and granting a new trial on the issue of damages on that cause of action. The defendant has cross-appealed, claiming that the trial court erred in admitting evidence of the defendant’s income.

The record shows that the plaintiff married Cherie Cernik on May 15,1976. Their marriage was a relatively stable one during the first few years, with the couple planning for their future, making decisions together, planning for children, traveling together, and socializing with other couples. In 1980 Cherie became dissatisfied with her job at Mutual of Omaha. In mid-September of 1980 she was promoted to a secretarial position within Mutual. In her new position Cherie performed secretarial duties for three individuals, one of whom was the defendant, Ames. Ames was a second vice president in Mutual’s data processing department at that time.

In 1981 the plaintiff began to notice changes in Cherie’s behavior and her attitude toward their marriage. Most notable was the fact that she began to work longer hours.

The defendant testified that he first began to see Cherie alone socially in February of 1981. From that point on, the frequency of their dates for drinks or dinner after work increased from once every couple of weeks in late February to early April, to once every week in April and May, to sometimes twice a week in late May and June. The defendant admits that on these occasions he and Cherie went to various bars, restaurants, hotels, and motels. On Memorial Day weekend in 1981, they took a 2-day trip to Sioux City. She also accompanied him on a trip to Kearney, Nebraska, for the Fourth of July weekend. At the time of this latter trip, the defendant knew that Cherie had left the plaintiff and had taken up residence in a motel.

Cherie returned to the plaintiff during the week following the trip to Kearney. Four days later, she again left the plaintiff and moved into an apartment on the following weekend. The defendant left his family a few days later and moved in with Cherie. The defendant admits that he and Cherie engaged in sexual intercourse in late August 1981. Cherie filed for divorce in October of 1981. The decree was entered on April 16, 1982. Cherie married the defendant on February 14,1983.

We have held, recently, that a cause of action for criminal [336]*336conversation exists in Nebraska. Kremer v. Black, 201 Neb. 467, 268 N.W.2d 582 (1978). See, also, Creason v. Myers, 211 Neb. 551, 350 N.W.2d 526 (1984). The trial court erred in setting aside the verdict on that cause of action on the ground that the cause of action should be abolished.

Criminal conversation is the violation of a spouse’s right to the exclusive privilege of sexual intercourse. Oliver v. Oliver, 159 Neb. 218, 66 N.W.2d 420 (1954). In Kremer, supra at 470, 268 N.W.2d at 584, we acknowledged the common-law view that the sexual relation in a marriage “is one that must be maintained inviolate for the well-being of society.”

With respect to the verdict on the cause of action for alienation of affections, we believe the record supports the verdict. Although the evidence was in conflict in some areas, the jury resolved those conflicts in favor of the plaintiff. A party who has sustained the burden and expense of trial, and who has succeeded in securing a verdict on the facts in issue, has a right to keep the benefit of that verdict. Hegarty v. Campbell Soup Co., 214 Neb. 716, 335 N.W.2d 758 (1983).

A jury verdict may not be set aside unless it is clearly wrong and it is sufficient if there is any competent evidence presented to the jury upon which it could find for the successful party and all conflicts in the evidence . . . and the credibility of the witnesses is [sic] for the jury and not for the court.

Kniesche v. Thos, 203 Neb. 852, 856, 280 N.W.2d 907, 910 (1979).

The plaintiff ’s evidence showed that the marriage had been a relatively stable one up until the time that Cherie became involved with the defendant. At that point Cherie’s interest in the marriage and in sex with the plaintiff began to diminish. The plaintiff testified that he loved his wife and did not want the divorce. When Cherie left him, he was “totally devastated.” His pain and suffering were evidenced by the decline in the quality of his job performance in the Postal Service and testimony as to his emotions through 1983. The plaintiff sought counseling from a priest and has experienced religious conflicts because of the divorce. He did not date for a year and a half after the divorce became final. As a result of the divorce, he has lost the [337]*337friendship and companionship of Cherie’s parents.

In an alienation of affections case, the plaintiff is entitled to the damages which are the natural, probable consequence of the act complained of. Breiner v. Olson, 195 Neb. 120, 237 N.W.2d 118 (1975). The elements of the damages for which a plaintiff may recover include: lost comfort, society, love, and protection; pain; suffering; injury to health; degradation; and humiliation. Creason, supra; Breiner v. Olson, supra. Marital stability is a factor to be considered in the assessment of damages in an alienation of affections case. Creason, supra.

In previous alienation of affections cases, we have been reluctant to set aside the verdict. There is no mathematical method or formula for determining appropriate compensation. Hansen v. Strohschein, 178 Neb. 367, 133 N.W.2d 598 (1965); Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4 (1934). A jury, with proper instruction, is qualified to determine such damages. Creason, supra.

In this case the jury was instructed not to allow sympathy or prejudice for or against either party to influence its verdict.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lindsay Int'l Sales & Serv., LLC v. Wegener
301 Neb. 1 (Nebraska Supreme Court, 2018)
Lindsay Internat. Sales & Serv. v. Wegener
301 Neb. 1 (Nebraska Supreme Court, 2018)
Holmes v. Crossroads Joint Venture
629 N.W.2d 511 (Nebraska Supreme Court, 2001)
Thomas v. Siddiqui
869 S.W.2d 740 (Supreme Court of Missouri, 1994)
Zwygart v. STATE, DEPT. OF ROADS
430 N.W.2d 301 (Nebraska Supreme Court, 1988)
Bell v. WILLIAMS CARE CENTER, INC.
409 N.W.2d 294 (Nebraska Supreme Court, 1987)
Albertini v. Veal
357 S.E.2d 716 (Court of Appeals of South Carolina, 1987)
Beatty v. Davis
400 N.W.2d 850 (Nebraska Supreme Court, 1987)
Weiss v. Autumn Hills Investment Co.
395 N.W.2d 481 (Nebraska Supreme Court, 1986)
Nippert v. Shinn Farm Construction Co.
388 N.W.2d 820 (Nebraska Supreme Court, 1986)
Aetna Casualty & Surety Co. v. Nielsen
382 N.W.2d 328 (Nebraska Supreme Court, 1986)
Vacek v. Ames
377 N.W.2d 86 (Nebraska Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
377 N.W.2d 86, 221 Neb. 333, 1985 Neb. LEXIS 1257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vacek-v-ames-neb-1985.