Buker v. Buker, 42633

• Decision Date: 20 February 1980
• Docket Number: No. 42633,42633
• Citation: 288 N.W.2d 732,205 Neb. 571
• Parties: Jesse I. BUKER, Appellee, v. Mardell K. BUKER, Appellant.
• Court: Nebraska Supreme Court

Page 732

288 N.W.2d 732

205 Neb. 571

Jesse I. BUKER, Appellee, v. Mardell K. BUKER, Appellant.

No. 42633.

Supreme Court of Nebraska.

Feb. 20, 1980.

Syllabus by the Court

1. Judgments: Appeal and Error. A judgment of a District Court is supported by a presumption of correctness, and it is the appellant's duty to present and show by the record the judgment is erroneous.

2. Affidavits: Appeal and Error. Affidavits filed with the clerks of the District Courts are not considered on appeal unless they have been marked, offered in evidence, and are contained in the bill of exceptions.

3. Appeal and Error: Evidence. An assignment of error which requires a review of evidence cannot prevail on appeal in the absence of an adequate bill of exceptions.

4. Divorce: Statutes: Evidence. In determining whether a proposed settlement is conscionable under section 42-366(2), R.R.S.1943, a trial judge has discretion to request production of evidence on that issue, but has no affirmative duty to produce the evidence where the parties have failed to do so.

Vickie G. Horton and Horton & Waggoner, Lincoln, for appellant.

Jewell, Otte, Gatz, Collins & Domina, Norfolk, for appellee.

Heard before KRIVOSHA, C. J., BRODKEY, and HASTINGS, JJ., and REAGAN and NORTON, District Judges.

REAGAN, District Judge.

This is an action for dissolution of marriage. The wife brings this appeal from a decree dissolving the marriage, dividing the property of the parties, and making allowances for custody, support, and alimony.

A number of errors have been assigned, but they may be reduced essentially to the following: (1) Error in finding the property settlement not unconscionable; (2) error in awarding inadequate alimony; (3) error in awarding inadequate child support; and (4) error in failing to award attorney's fees. Prior to consideration of these error assignments, it may be helpful to outline how the case was disposed of in the lower court. We also point out appellant has different counsel on appeal than in the trial court.

The parties appeared for trial in the District Court with their respective counsel. Prior to commencement of the trial, extensive settlement discussions were evidently had which ultimately bore fruit. Trial was commenced approximately 3 hours after the time originally set. Mr. Buker was sworn and testified concerning the existence of the marriage, residence, children, the marital breakdown, and, very briefly, as to property he owned before the marriage, property acquired during the marriage, and his employment. The trial judge then announced from the bench his understanding of the agreement reached by the parties, and questioned Mr. Buker as to whether it was correct and if it was his agreement. Mr. Buker expressed some reservations about a provision of the agreement requiring him to maintain certain levels of life insurance for the children's benefit. The trial judge stated the proceeding was not for the purpose of negotiations, the parties either had reached an agreement or they had not; and if it was the latter, all issues would be decided by the court. A brief recess was taken, after which Mr. Buker acknowledged that the judge's recitation was his voluntary agreement. In response to a direct question, Mrs. Buker also acknowledged it as her voluntary agreement. The court then found the agreement not unconscionable and approved the provisions relating to child custody and support. The trial judge then announced that each party should pay his or her own attorney's fees inasmuch as the marital estate had been equally divided, and directed a decree be prepared incorporating the findings and order. Such a decree was subsequently entered.

Before considering specific assignments of error, we point out that a judgment of a District Court is supported by a presumption of correctness, and it is the appellant's duty to present and show by the record the judgment is erroneous. Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959). Appellant has urged we look to her affidavit of financial condition filed with the clerk of the District Court and contained in the transcript. But that affidavit was never marked, offered, or otherwise made a part of the bill of exceptions, and may not be properly considered in disposing of issues presented by this appeal. Frye v. Frye, 158 Neb. 694, 64 N.W.2d 468 (1954); Brierly v. Federated Finance Co., 168 Neb. 725, 97 N.W.2d 253 (1959); Peterson v. George, supra.

We now look at error assignments (2) through (4). In making determinations of alimony, child support, and attorney's fees, trial courts look to the circumstances, status, and situation of the parties, needs and costs of raising the children, division of the property, income and/or earning capacity of each party, general equities of the situation, and all other attendant circumstances that may be relevant to the disposition of those issues. Gregg v. Gregg, 193 Neb. 811, 229 N.W.2d 546 (1975...