Card v. Card

• Decision Date: 29 June 1962
• Docket Number: No. 35230,35230
• Citation: 116 N.W.2d 21,174 Neb. 124
• Parties: Mary C. CARD, Appellant, v. Clyde F. CARD, Appellee.
• Court: Nebraska Supreme Court

Page 21

116 N.W.2d 21

174 Neb. 124

Mary C. CARD, Appellant, v.Clyde F. CARD, Appellee.

No. 35230.

Supreme Court of Nebraska.

June 29, 1962.

Syllabus by the Court

1.Res judicata is ordinarily an affirmative defense.It is only when it affirmatively appears to exist from the petition itself that it affords a basis for sustaining a general demurrer.

2.A divorce decree is ordinarily considered a final adjudication of the property rights of the parties, and may not be modified after 6 months from its rendition except when it lacks the attributes of a final judgment, where reservations are contained in it which lay the foundation for a modification, or where changed circumstances can be shown.

3.A provision in a divorce decree that a gross award of alimony shall be paid in installments and that liability for such installments shall cease on the death or remarriage of the wife are not void as being against public policy.

4.In order to avoid a judgment on the ground of fraud in obtaining it, the facts constituting the fraud must be pleaded and proved.

5.A demurrer to a pleading admits only such facts as are well pleaded.A pleading which alleges only a conclusion of law or fact does not state a cause of action and is subject to demurrer.

6.An allegation that the termination of installments on a gross award of alimony are oppressive, unconscionable, and inequitable do not state a cause of action in a collateral attack upon a final judgment.

7.A party to a divorce action will not ordinarily be required to pay attorney's fees for the benefit of the wife's legal counsel in a case involving the wife's collateral and unjustified attack upon a decree of divorce which has become final.

R. L. Jeffrey, Richard L. Goos, Lincoln, for appellant.

Beynon, Hecht & Fahrnbruch, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

Plaintiff filed a petition seeking the modification of a divorce decree to which she was a party.The defendant demurred generally to the petition.The trial court sustained the demurrer and granted time to further plead.Plaintiff elected to stand on her petition and the trial court dismissed the action.Plaintiff has appealed to this court.

The record shows that plaintiff obtained a divorce from the defendant on November 21, 1957.Prior to that date and on October 8, 1957, the parties entered into a written property settlement agreement.The trial court approved and incorporated the terms of the property settlement into its decree.No question arises concerning the division of the property of the parties, except the award of $33,875 to the plaintiff.With reference thereto, the decree states that in addition to the real and personal property which the said Mary C. Card is to have, 'Clyde F. Card shall pay to Mary C. Card as permanent alimony, the sum of $33,875.00, which sum to be payable as follows: The sum of $5,000.00 shall be paid immediately upon the approval of this settlement by the Court and the granting of an absolute divorce.The balance of said sum shall be paid by the said Clyde F. Card to the said Mary C. Card in monthly installments of $137.50 each beginning on the first day of October, 1957, and continuing on the first day of each and every month thereafter to and including the first day of March, 1975; provided, however, that in the event of the death or the remarriage of the said Mary C. Card, all monthly payment not then paid nor due shall be forever cancelled and the said Clyde F. Card shall be wholly relieved of his obligation to make any further or other payments.'

It is true that this court has condemned monthly installments as a proper method of allowing alimony without the fixing of the gross award.Such a method is not void, however.On appeal, on a trial de novo, this court has modified decrees to provide for an allowance of alimony in a fixed amount and permitted payment in installments where the financial circumstances of the husband required that this be done.SeeMetschke v. Metschke, 146 Neb. 461, 20 N.W.2d 238, 616.

The decree provided that the defendant should pay the plaintiff $33,875, said sum to be payable as follows: $5,000 upon the granting of the divorce and $137.50 each month thereafter, provided that in the event of the death or remarriage of the plaintiff the obligation of the defendant to make further installments ceased.The trial court made a division of property and in connection therewith made an allowance of a gross amount in the nature of monthly support.It is the contention of the plaintiff that the proviso terminating the monthly installments upon the death or remarriage of the plaintiff should in effect be deleted from the decree for several reasons which will be discussed hereafter.

It is contended that the proviso is against public policy.We think not.It fixes the termination date of the payments upon the total payment of $33,875, or upon the death of the plaintiff, or upon her remarriage, whichever first occurs.It is not an unreasonable restraint on marriage.It is a means of fixing the amount of alimony to be paid under the different circumstances therein set out.The decree is in the language of the property settlement agreement, which language is plain and definite, and easily understood.The parties as well as the court appear to have considered the fact that the support of plaintiff in case of remarriage devolves upon the new husband from which the prior husband should be relieved.

Plaintiff contends that she did not understand the language of the property settlement nor the similar language of the decree.As we have said, the language used was so simple and plain in meaning that we can give no credence to the contention that plaintiff did not understand exactly what it meant.

The petition asserts fraud in general terms.No facts are pleaded that even tend to support this allegation.A demurrer does not admit conclusions of either law or fact.Dodson v. F. W. Woolworth Co., 118 Neb. 276, 224 N.W. 289.The allegations of fraud were clearly vulnerable to demurrer.Thomas v. Thomas, 33 Neb. 373, 50 N.W. 170, 29 Am.St.Rep. 483.

The petition alleges that the proviso of the decree relating to plaintiff's death or remarriage...