Baudendistel v. Baudendistel

159 N.W.2d 827 (1968)

183 Neb. 334

Zenda L. BAUDENDISTEL, Appellant, v. Donald R. BAUDENDISTEL, Appellee.

No. 36812.

Supreme Court of Nebraska.

June 28, 1968.

*828 Kelly & Kelly, Grand Island, for appellant.

Wagoner & Grimminger, Grand Island, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

McCOWN, Justice.

The plaintiff, Zenda L. Baudendistel, filed an action for separate maintenance against the defendant, Donald R. Baudendistel, which petition was later amended to a petition for absolute divorce on the grounds of extreme cruelty. The defendant filed a cross-petition asking for an absolute divorce, also on the grounds of extreme cruelty. The court awarded a decree of absolute divorce to the defendant on his cross-petition; awarded custody of the three minor sons to the defendant with reasonable visitation rights to the plaintiff; and provided for a division of property. The plaintiff has appealed.

The plaintiff's grounds for divorce were primarily based on the excessive use of alcoholic liquor by the defendant. The defendant's grounds for divorce were primarily based on the misconduct of the plaintiff with other men. The evidence is in substantial dispute in many respects and in direct conflict in others.

When the evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite. Stohlmann v. Stohlmann, 168 Neb. 401, 96 N.W.2d 40.

Where the evidence in a divorce suit sustains a finding of cruelty on the part of one spouse toward the other, and is corroborated as required by law, the action of the district court in granting a divorce to the aggrieved spouse is proper and ordinarily will not be interfered with by this court on appeal. Neeman v. Neeman, 183 Neb. 105, 158 N.W.2d 236.

The discretion of the lower court with respect to awarding or changing the custody and support of minor children is subject to review, but the determination of the court will not ordinarily be disturbed unless there is a clear abuse of discretion or it is clearly against the weight of the evidence. Jones v. Jones, 183 Neb. 223, 159 N.W.2d 544.

The decree of the district court is affirmed. The plaintiff is awarded the sum of $250 for the services of her attorney in this court.

Affirmed.