Shafer v. Shafer

Maxwell, Ch. J.

In January, 1877, the plaintiff commenced an action against the defendant, in the district court of Cass county, for a divorce and alimony. The defendant, in answer to the plaintiff’s petition, denies the material facts therein stated, except the marriage, and prays for a divorce on the ground of abandonment.

On the trial of the cause the court found that plain *471 tiff Dorothea Shafer has failed, to sustain the allegations of her said bill, etc., “and the court does further find upon the testimony adduced that said plaintiff1 has been guilty of abandoning defendant without sufficient cause for more than two years prior to the commencement of'the said action. * * Wherefore it is ordered, adjudged, and decreed by the court that said Wm. H. Shafer be granted a divorce from the said Dorothea Shafer, and that the bonds of matrimony heretofore existing between said parties be annulled and set aside, and that Wm. H. Shafer pay to the said plaintiff the sum of one thousand dollars in lieu of all dower or interest the said plaintiff may have in and to the property and real estate of said Wm. H. Shafer, defendant, as alimony, as follows: $300 in thirty days, $200 in three months, $250 in six months, and $250 in one year from the date of the rendition of this decree. And that the said Wm. H. Shafer, annually, on the first day of October of each and every year until further order be made, pay unto said Dorothea Shafer, for the support and maintenance of said two minor children, the sum of $125, and that said Dorothea Shafer, plaintiff, shall pay the costs of this action,” etc. The defendant appeals to this court.

It appears from the bill of exceptions that the parties were married in 1873, each at that time having a number of children by a former marriage. It also appears that the plaintiff, who seems to have been in possession of the estate of her former husband, after her marriage with the defendant, refused to remove with him to his residence, and that about two years after said marriage she abandoned him. It also appears that she kept an account with the defendant in the same manner as though they had not been married, and that the account, although there is some dispute as to some of the items, has been paid by him. The *472 decree for alimony, therefore, is not for the property of the wife received by the husband, but as an allowance, presumably in lieu of dower. Does the testimony justify the court in decreeing permanent alimony? In awarding permanent alimony, in addition to the financial ability of the husband, the court will take into consideration the conduct of the wife, the . duration of the marriage relation, and all the circumstances which tend to prove or disprove her right to the same. In the case at bar, the court finds that the husband was not at fault, and refused to grant a divorce on the wife’s petition, but granted the same on the answer of the husband. And the testimony clearly shows that she is the party at fault, and is not entitled to alimony. The allowance to the plaintiff', for the care of the infant children of the parties, is reasonable and just and will be continued in force, as provided in the decree. The decree providing for the payment of $1,000 alimony to the plaintiff is reversed, and the decree of the court in all other respects is affirmed.

Judgment accordingly.