Chamberlin v. Chamberlin, 42834

• Decision Date: 29 July 1980
• Docket Number: No. 42834,42834
• Citation: 295 N.W.2d 391,206 Neb. 808
• Parties: Helen R. CHAMBERLIN, Appellant and Cross-Appellee, v. C. Meade CHAMBERLIN, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 391

295 N.W.2d 391

206 Neb. 808

Helen R. CHAMBERLIN, Appellant and Cross-Appellee, v. C. Meade CHAMBERLIN, Appellee and Cross-Appellant.

No. 42834.

Supreme Court of Nebraska.

July 29, 1980.

Syllabus by the Court

1. Alimony: Divorce. Unless amounts have accrued prior to the date of service of process on a petition to modify, orders for alimony may be modified or revoked for good cause shown. Neb.Rev.Stat. § 42-365 (Reissue 1978).

2. Divorce. A material change in the condition of the parties since the rendition of the decree of divorce is a prerequisite to a modification of the decree.

3. Divorce: Alimony. The provisions of Neb.Rev.Stat. § 42-365 (Cum.Supp.1972), do not apply to judgments awarding alimony in gross entered prior to July 6, 1972.

4. Words and Phrases: Good Cause. The phrase "good cause" depends upon the circumstances of the individual case, and a finding of its existence lies largely in discretion of the officer or court to which decision is committed.

5. Divorce: Appeal and Error. In actions for the modification of dissolution proceedings, it is the duty of this court to review de novo the determination of the District Court with regard to whether a change in circumstances has occurred which justified the modification of the original decree.

6. Judgments. A judgment by consent constitutes the agreement of the parties and is simply made a matter of record by the court at their request. Although purporting to be, it is not, strictly speaking, the act of a court, but rather the act of the parties to the suit.

Steven J. Lustgarten of Lustgarten & Roberts, Omaha, for appellant and cross-appellee.

Ray R. Simon of White, Lipp, Simon & Powers, Omaha, for appellee and cross-appellant.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BRODKEY, Justice.

Helen R. Chamberlin (Helen) appeals from an order entered by the District Court for Douglas County, Nebraska, on May 22, 1979, modifying and terminating the provisions for alimony contained in the decree of absolute divorce granted to her in 1967. C. Meade Chamberlin (C. Meade) also cross-appeals from that same order. In the original divorce action, Helen was the petitioner, and C. Meade was the respondent. For purposes of clarity, we will in this opinion refer to the parties by their respective names, or will refer to C. Meade, who filed the application to modify the decree in the original divorce proceeding, as "Applicant," or "Cross-Appellant"; and we will refer to Helen herein as "Respondent" or "Appellant." We reverse the order of modification entered by the trial court on May 22, 1979, and reinstate the provisions of the original decree with reference to the payment of alimony.

The divorce decree was entered by the District Court on February 10, 1967. It granted Helen a decree of absolute divorce from C. Meade, awarded her the custody, care, and control of the minor children of the parties, and approved and incorporated into the decree an agreement captioned "Property Settlement, Alimony and Child Support Agreement" which was entered into between the parties.

Paragraph 1 of that agreement provided as follows:

1. Defendant (C. Meade) shall pay to plaintiff (Helen) alimony in the amount of Six Hundred Dollars ($600.00) per month, in advance, beginning on the date of entry of decree and on the same date of each month thereafter; said alimony payments shall terminate on the death or remarriage of plaintiff or the death of defendant.

As previously stated, the court found this provision to be fair and reasonable, and incorporated it verbatim into the decree of divorce.

The facts are uncontroverted that C. Meade made all of the alimony payments required under the above provision of the decree from the date of the entry of the decree on February 10, 1967, until the date of the hearing on his application to modify the alimony provisions of the decree, which he filed on August 4, 1977. In his application, he asked that his obligation for alimony payments as contained in the decree of February 10, 1967, be terminated because of a substantial change in circumstances occurring since the date of the entry of the decree, and alleged such changed circumstances to be that the minor children of the parties had obtained their majority, thereby allowing Helen to engage in employment without adverse effect upon the rearing of said children; that Helen had, in fact, engaged in gainful employment and had exhibited a substantial earning capacity; and that C. Meade had remarried, and that his present wife and two minor children born as the issue of his second marriage were dependent upon him for their support and maintenance.

In her "Responsive Pleading to Respondent's Application to Modify Decree," Helen denied that a significant and substantial change had occurred and that she had substantial earning capacity, and affirmatively alleged that no change in circumstances had occurred to warrant a modification of the decree. In her "Cross-Application," she prayed that the alimony payments be increased to $1,000 per month, but did not specifically allege what change in circumstances she relied on for the request modification.

C. Meade testified at the hearing on the application to modify that he believed the following circumstances merited modifying the decree: (1) That the two minor children had reached their majority and were employed; (2) That Helen had demonstrated a capability of earning a living; and (3) That he was concerned about being able to send the issue of his second marriage to college. In support of these claims, evidence was introduced with regard to the financial status of the parties.

C. Meade, who was 59 years of age at the time of the hearing, is a vice president of Mutual of Omaha. He had a monthly gross income of $5,489.90 as determined from the tax return for the tax year preceding the hearing. His monthly living expenses, including deductions from his wages and alimony payments, amounted to $3,927.42. During the period of time from the entry of the decree until the action for modification was instituted, C. Meade's income approximately doubled. Moreover, C. Meade has an amount in excess if $300,000 in a retirement account, managed by his employer. In addition, C. Meade is a retired lieutenant colonel in the National Guard and will be entitled to retirement benefits upon reaching age 60, although the amount of benefits was unknown at the time of the hearing.

Helen was 63 years of age. Since the fall of 1968, she had been employed, initially on a part-time basis, and subsequently on a full-time basis. At the time of the hearing, Helen was employed as an income maintenance technician for Douglas County Social Services. Her gross income per month, from her employment, investments, and alimony was $1,748.35 as determined from the tax returns for the tax year preceding the hearing. Helen's monthly living expenses amounted to $1,119. Because she did not qualify for a retirement plan through her employer, Helen established individual retirement accounts and a deferred compensation plan, under which she had accumulated the sum of $6,882. Helen testified that she desired to retire, and would have an income from social security and investments upon retirement of approximately $416 per month, exclusive of any alimony payments.

In its Order of Modification of Decree of February 10, 1967, entered on May 22, 1979, the trial court found that the provisions of the decree with regard to alimony were properly subject to modification and determination by the court and that the evidence revealed circumstances representing a substantial change from the conditions existing on the date of the decree, among which were: (1) The attainment of majority by the children of the parties, permitting Respondent to seek and obtain gainful employment; (2) The competency and capability of the Respondent in her employment and her substantial earnings therefrom; (3) The significant accumulated assets of the Respondent and earnings of her investments; and (4) The remarriage of the Applicant and the minor children born the issue of such marriage. The court thereupon ordered and decreed that the Applicant should comply with the payment of alimony as provided in the decree through the monthly installment payment which would fall due on May 10, 1980, following which the Applicant's obligation for monthly alimony payments would cease and terminate.

Helen has appealed to this court from that order. Her principal contention on appeal is that the trial court erred in finding a change in conditions had occurred since the date of the original decree, and that the reasons given by the court for such modification do not constitute "good cause" as that term is used in Neb.Rev.Stat. § 42-365 (Reissue 1978), which section, as far as material herein, provides as follows: "Unless amounts have accrued prior to the date of service of process on a petition to modify, orders for alimony may be modified or revoked for good cause shown . . . ."

Prior to the adoption by the Legislature of Nebraska's new dissolution of marriage statutes in 1972, commonly referred to as the "No-Fault" act, the rule with regard to the modification of alimony awards in divorce matters because of changed circumstances occurring after the decree was rendered was not stated in terms of "good-cause," but, rather, stated that a material change in the condition of the parties since the rendition of the decree of divorce was a prerequisite to a modification of the decree. See, for example, Bowman v. Bowman, 163 Neb. 336, 79 N.W.2d 554 (1956). It is clear that the decree of divorce entered in the instant case was entered prior to the effective date of the new statutes. There is no question, however, that the provisions of the new statutes apply to the modification proceedings in this case. The Legislature specifically provided in the new statutes enacted in 1972...