Ball v. Ball, 36818
| Decision Date | 07 June 1968 |
| Docket Number | No. 36818,36818 |
| Citation | 159 N.W.2d 297,183 Neb. 216 |
| Parties | Jane A. BALL, Appellee, v. Stanley E. BALL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An unqualified allowance of 'alimony in gross,' whether payable immediately in full or periodically in installments, and whether intended solely as a property settlement or an allowance for support, or both, is such a definite and final adjustment of mutual rights and obligations between husband and wife as to be capable of a present vesting and to constitute an absolute judgment, and survives the death of the husband. Such an allowance is not subject to modification.
2. In the absence of an allowance of 'alimony in gross,' the court has power to revise and alter its awards of alimony as to future payments under the provisions of section 42--324, R.R.S.1943, and such right will be held automatically to exist, unless the decree defines and limits the rights of parties with such completeness and finality as to be clearly capable of and intended as a present vesting, and hence to possess in its scope the attributes of a final judgment.
3. 'Alimony,' which signifies literally nourishment or sustenance, is an allowance for support and maintenance, or, as has been said, a substitute for marital support. It is the allowance which a husband may be compelled to pay to his wife or former wife for her maintenance when she is living apart from him or has been divorced.
4. 'Alimony in gross,' or 'lump-sum alimony,' is fundamentally the award of a definite sum of money; and if the sum is payable in installments the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the husband or the remarriage of the wife. Gross alimony becomes a vested right from the date of the rendition of the judgment, and the manner of its payment in no wife affects its nature or effect.
5. 'Alimony in general,' or 'installment alimony,' contemplates periodic payments of a definite sum for the indefinite future, and terminates on the death of either party or the remarriage of the wife.
6. The phrase 'alimony in gross' or 'gross alimony' is always for a definite amount of money, the payment is always for a definite length of time, and it is always a charge on the estate of the husband and is not modifiable.
Kneifl, Kneifl, & Byrne, Omaha, for appellant.
Abrahams, Kaslow & Cassman, Omaha, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
The present action results from an application for reduction in alimony payments. Plaintiff Jane A. Ball obtained a decree of divorce from the defendant Stanley E. Ball on June 18, 1965. The decree of divorce adopted, and made a part thereof, an agreement regarding custody of the minor child of the parties, payment of child support, division of property, and the payment of alimony. The only question presented for decision is whether or not the alimony provisions require the payment of 'alimony' or 'alimony in gross.'
The provisions of the agreement and decree pertinent to a resolution of the question presented may be summarized. Defendant was required to pay plaintiff alimony of $150 per month, with the provision that such payments should terminate on the death or remarriage of plaintiff. Certain child support payments were also to be made by defendant and it was provided that when such child support ceased on the death, marriage, or coming of age of the minor child that the alimony payments should be increased to $200 per month. All alimony payments were to cease when plaintiff attained the age of 65 years. Defendant was to maintain life insurance with appropriate provisions to render the proceeds available to discharge any of the alimony obligations which he might still have at the time of his death. It was further provided that the agreement should constitute a release of any and all claims either might have against the property of the other which might then be held or should be acquired in the future, and should be a release and satisfaction of all claims either 'can, shall, or may have in the future against the other.'
In view of the foregoing provisions, does this agreement and decree provide for 'alimony in gross'? The district court found that it did and also that there had been a sufficient change in circumstances to otherwise justify and require a reduction in the alimony payments. The court decreed that child support payments should be reduced from $150 per month to $75 per month and that the alimony payments should be reduced, for a period of 6 months, from $150 per month to $100 per month, but that there should be no reduction in the gross amount owed by defendant under the original decree. In other words, although defendant's payments were temporarily reduced, he still owed and would have to pay the additional $50 per month provided for in the original decree of divorce. On the overruling of his motion for new trial, defendant has appealed.
It is a well-settled rule that: 'An unqualified allowance of alimony in gross, whether payable immediately in full or periodically in installments, and whether intended solely as a property settlement or an allowance for support, or both, is such a definite and final adjustment of mutual rights and obligations between husband and wife as to be capable of a present vesting and to constitute an absolute judgment, and survives the death of the husband.' Spencer v. Spencer, 165 Neb. 675, 87 N.W.2d 212. Such an allowance is not subject to modification. See Ziegenbein v. Damme, 138 Neb. 320, 292 N.W. 921. In the absence of an allowance of 'alimony in gross,' the court has power to revise and alter its awards of alimony as to future payments under the provisions of section 42--324, R.R.S.1943, and such right will be held automatically to exist, unless the decree defines and limits the rights of parties with such completeness and finality as to be clearly capable of and intended as a present vesting, and hence to possess in its scope the...
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