McGuire v. McGuire

157 Neb. 226, 59 N.W.2d 336 (1953)



It is an indispensable requirement of a maintenance statute that the wife should be living separate and apart from her husband without her fault, and that therefore, a wife living in the same house with her husband, occupying a different room and eating at a different time, is not entitled to separate maintenance.


Plaintiff, Lydia McGuire and defendant Charles W. McGuire married on August 11, 1919. Lydia alleged that when she has requested various things for the home or personal effects, Charles informed her on many occasions that he did not have the money to pay for the same, notwithstanding the fact that the he had properties and bank accounts under his name. Without separating or living apart from each other, Lydia brought an action against Charles for maintenance and support. The trial court entered an order in favor of Lydia and subsequently denied Charles’ motion for a new trial. Charles sought review of the district court’s judgment, contending that the trial court erred in entering an order allowing Lydia to recover maintenance, support money, and attorneys' fees from Charles.


Did the trial court err in entering an order allowing plaintiff Lydia to recover maintenance, support money, and attorneys' fees from defendant Charles?




The Court reversed the trial court’s decision to award Lydia support and maintenance from Charles, and remanded the matter with directions to dismiss Lydia’s action for maintenance payments. The Court held that a requirement for receiving maintenance was that the wife lived separate and apart from the husband, which did not apply to Lydia and Charles as it has been established that they never lived separately. In the case at bar, the Court found that the award of attorney's fees was also erroneous because there was no legal basis for Lydia’s action against Charles.

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