Ballew v. Ballew, 37923

• Decision Date: 05 November 1971
• Docket Number: No. 37923,37923
• Citation: 187 Neb. 397,191 N.W.2d 462
• Parties: John W. BALLEW, Appellee, v. Margaret Ann BALLEW, Appellant.
• Court: Nebraska Supreme Court

Page 462

191 N.W.2d 462

187 Neb. 397

John W. BALLEW, Appellee, v. Margaret Ann BALLEW, Appellant.

No. 37923.

Supreme Court of Nebraska.

Nov. 5, 1971.

Syllabus by the Court

1. In this state, a voidable marriage is legally valid for all civil purposes until its nullity is so pronounced.

2. Where a divorce decree requiring periodic alimony payments contains no provisions as to remarriage, the remarriage of a divorced wife establishes a prima facie case which requires the court to terminate alimony in the absence of proof of some extraordinary circumstance justifying its continuation.

3. Under a divorce decree providing that alimony payments shall terminate upon remarriage of the wife, the right of the divorced wife to receive such payments is terminated upon remarriage and is not revived by an annulment of her remarriage on grounds which rendered the remarriage voidable.

A. James McArthur, Lincoln, for appellant.

Cline, Williams, Wright, Johnson & Oldfather, Charles E. Wright, Lincoln, for appellee.

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

McCOWN, Justice.

This is an action to terminate a husband's obligation to make periodic alimony payments required by a divorce decree. The effect of the wife's remarriage and a subsequent annulment of the second marriage are the critical issues. The separate juvenile court modified the divorce decree and terminated the alimony payments.

The husband and wife were divorced and decree entered in the district court for Lancaster County, Nebraska, December 19, 1968. The decree approved and incorporated a settlement agreement between the parties. It required the husband to make monthly payments to the wife 'during her lifetime and so long as the wife shall not remarry * * *,' and provided that 'the obligation of the husband to make periodic payments pursuant to this paragraph shall terminate on the death or remarriage of the wife.' On June 30, 1969, the wife and one Aaron L. Unger were married in Lincoln County, Nebraska, under a marriage license obtained in Lancaster County, Nebraska. In July 1969, the wife and her new husband learned of the irregularity in their June marriage occasioned by the variance between the county of issuance of the license and the county in which the marriage occurred. On August 2, 1969, they were again married in Hall County, Nebraska. Thereafter, the wife began proceedings to terminate the marriage, apparently based on misrepresentation. On May 20, 1970, the district court for Lancaster County, Nebraska, entered its decree annulling the June and August marriages.

The husband remarried on April 28, 1970. In July 1970, he filed his petition for modification of the original divorce decree to eliminate alimony payments to the defendant. On November 2, 1970, the separate juvenile court of Lancaster County entered its decree terminating the alimony payments as of June 30, 1969.

Essentially, the wife argues here that a provision in a divorce decree terminating alimony upon remarriage by the wife is not effective unless and until there has been a valid remarriage. The wife's argument rests on the assumption that when a voidable marriage is annulled, the decree relates back, makes the marriage void as though it had never occurred, and reinstates the original alimony decree. We cannot agree.

The issues have been considered by many courts. The most common basis for decision in this area seems to turn on the distinction between a void and a...