Cizek v. Cizek

Pound, C.

Michael Cizek, hereinafter styled the defendant, brought suit for' divorce against Anna Cizek, hereinafter referred to as the plaintiff. The latter filed a cross-petition, praying that she be granted a divorce: alleging certain facts evidently intended as a claim that the property in controversy in the present cause had been purchased with her money and Avas, in justice and equity, her separate property, held in trust for her by her husband; and seeking to have the title thereto quieted in her and an award of alimony. Defendant failed to comply with an order for temporary alimony, and upon hearing plaintiff Avas granted a divorce. The decree further provided that, “by consent of parties being made thereto in open court,” the defendant should convey the property in controversy to plaintiff, subject to a lien of $250 awarded defendant, to be evidenced by a mortgage which plaintiff was directed to execute; the decree to stand in lieu of such conveyance and mortgage in default of compliance. No appeal was taken, and the decree remains in full force. The present proceeding was brought by the plaintiff to obtain possession of the property. A verdict in her favor was directed in the district court, and error is prosecuted in this court.

It is contended on behalf of the defendant that the consent of his counsel was wholly without his knowledge or authority and that the decree, so far as it relates to the property in controversy, is void and open to collateral attack. There can be no doubt that if the court attempted to award alimony out of particular property or to charge the award upon particular property, instead of leaving it to operate as a general lien, its action was irregular *799 and erroneous, and subject to correction upon review. Swansen v. Swansen, 12 Neb. 210; Brotherton v. Brotherton, 14 Neb. 186; Nygren v. Nygren, 42 Neb. 408. But where the court had jurisdiction of the parties and of the. subject matter, and such subject matter was brought before it by the pleadings, its decree is not open to collateral attack, although the jurisdiction may have been exercised and the subject matter dealt with erroneously or irregularly. Hilton v. Bachman, 24 Neb. 490; Hough v. Stover, 46 Neb. 588. All parties were before the court by their pleadings. The plaintiff alleged that the property in question was, in equity, her separate estate and was held in trust for her by her husband. If so, the court had power to enforce the trust. Bartlett v. Bartlett, 15 Neb. 593. Whether any such presumption as that which exists where a husband purchases property and places the title in his wife’s name arises where the property is purchased with the wife’s money and the conveyance runs to the husband, we need not Consider. In any event the presumption may be overcome by clear and convincing evidence of a trust. Doane v. Dunham, 64 Neb. 135. And we must assume that such evidence was before the court. Hilton v. Bachman, supra. The mere fact that the decree contains no express finding upon the issue as to a trust; raised in the cross-petition, is not material. In case the pleadings are sufficient to bring the subject matter before the court, the decree may not be attacked collaterally merely for want of findings. Such defect goes no further than to render the decree irregular or erroneous. State v. Duncan, 37 Neb. 631.

Counsel contend, further, that the property in question was the homestead of the parties, and hence, as neither could convey without the concurrence of the other, the court could not by its decree transfer'the title from the one to the other without the other’s consent. But it is well settled that a conveyance of the homestead from the one spouse to the other does not require execution and acknowledgment by both, Furrow v. Athey, 21 Neb. 671, *800 There is, in substance, no conveyance or incumbrance of the homestead in such a -case. The reversion only is affected. The homestead interests of all parties are exactly what they were before. As the reversion is a valuable estate, and it is just and right that it should pass to the heirs or devisees of the spouse from whose estate in truth and fact the homestead was selected, there is every reason why a court of equity should interfere and should enforce the. trust in such cases. When the court had determined the title in the plaintiff, defendant’s rights in the property were those of homestead only, depending upon the relation of husband and wife between the parties. After decree of divorce, he had no right of possession in the wife’s separate property, merely because such property was occupied as a homestead while the marriage relation subsisted. Klamp v. Klamp, 58 Neb, 748.

1. Record: Presumptions. Presumptions indulged to sustain a record against a collateral attack can only be made to supply the record in matters regarding which it is silent, and can not be permitted to contradict the record in matters in which it speaks for itself. 2. Alimony: Jurisdiction. Jurisdiction of the court in matters relating to divorce and alimony is given by the statute, and every power exercised by the court with reference thereto must look for its source in the statute, or it does not exist. S. -: -. Provisions of chapter 25, Compiled Statutes, relative to alimony, its allowance and the mode of its enforcement, Heh? exclusive.

It is therefore recommended that the judgment be affirmed.

Duffie, C., concurs. By the Court:

For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed: