Cooper v. Cooper, 83-727

• Citation: 219 Neb. 64,361 N.W.2d 202
• Decision Date: 11 January 1985
• Docket Number: No. 83-727,83-727
• Parties: Rosemarie G. COOPER, Appellee, v. George D. COOPER, Appellant.
• Court: Supreme Court of Nebraska

Page 202

361 N.W.2d 202

219 Neb. 64

Rosemarie G. COOPER, Appellee, v. George D. COOPER, Appellant.

No. 83-727.

Supreme Court of Nebraska.

Jan. 11, 1985.

Syllabus by the Court

1. Modification of Decree: Alimony: Appeal and Error. In dissolution of marriage cases, actions for the modification of alimony will, on appeal, be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion; however, where the evidence is in conflict, this court will give weight to the fact that the trial judge observed and heard the witnesses and accepted one version of the facts rather than another.

2. Modification of Decree: Alimony. Good cause for altering alimony provisions in a divorce decree is demonstrated by a material and substantial change of circumstances.

3. Modification of Decree: Alimony. An alimony recipient's obtaining employment after the date of the decree is a circumstance that permits the situation of the parties to be reexamined.

4. Divorce. In dissolution of marriage cases one may in good faith make an occupational change even though that may reduce his ability to meet his financial obligation.

John A. Gale of Girard & Gale, North Platte, for appellant.

Baskins & Rowlands, North Platte, for appellee.

KRIVOSHA, C.J., and HASTINGS, CAPORALE, and SHANAHAN, JJ., and BRODKEY, J., Retired.

BRODKEY, Justice, Retired.

This is a proceeding to modify a judgment for alimony. Following a hearing, the district court for Lincoln County dismissed the motion.

In this appeal the appellant, Dr. George D. Cooper, argues that his change in employment and concurrent decrease in income and the appellee's, Rosemarie G. Cooper's, return to work constitute a substantial and material change in circumstances sufficient to warrant a modification of the alimony award.

The parties were married on August 8, 1954. They have four children, all of whom have reached majority. On September 7, 1978, the parties were divorced pursuant to a final decree which incorporated the terms of a child custody, child support, property settlement, and alimony agreement entered into by the parties. As is relevant here, the appellant was to pay the appellee $268,700 in periodic alimony payments over a period of 10 years and 2 months. As of the date of the trial in July of 1983, appellant has paid a total of $127,900 and is obligated to pay $2,200 per month through October 1, 1988.

The appellant, a physician, is 53 years old. At the time the parties were divorced, he was engaged in the general practice of medicine in North Platte, Nebraska. His gross income in 1976 from that practice was $127,000. Additionally, as a supplement to his income, appellant received $7,000 from other physicians with whom he contracted to cover emergency room work.

In 1982 appellant quit his general practice to become a full-time emergency room specialist, at which he works approximately three weekends a month from 6 p.m. Friday until 6 a.m. Monday. As a full-time emergency room specialist, the appellant earned $55,000 last year. Appellant contends that he sought emergency room contract work to "augment" his income, that he found such work gave him far greater satisfaction than his general practice, that he became concerned about his competence in general practice, and that his career goal is to ultimately become board certified as an emergency room physician.

Since the time of their divorce, appellee, who is 58, has become employed as a histology technician and earns in excess of $18,000 per year. Appellee, who had not worked in that field for over 19 years, testified that at the time of the divorce she was not working, nor did she consider herself employable, because she suffered from migraine headaches, a condition which has since lessened.

Appellee testified that it is only with this additional income that she has been able to save for her retirement and for when appellant's alimony payments cease. In fact, she has accumulated substantial savings over the years. Along with supporting herself, two of the parties' children currently live with her.

We have previously held that issues dealing with the division of property, awarding of alimony, and awarding of attorney fees in marriage dissolution cases are matters initially entrusted to the sound discretion of the trial judge, which matters, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion. However, where the evidence is in conflict, this court will give weight to the fact that the trial judge observed and heard the witnesses and accepted one version of the facts rather than another. Reuter v. Reuter, 218 Neb. 732, 359 N.W.2d 78 (1984); Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d 87 (1984). We now hold that the same standard of review applies in actions for the modification of alimony awards.

Neb.Rev.Stat. § 42-365 (Reissue 1984) provides that "orders for alimony may be modified or revoked for good cause shown...." Generally, this court has held that good cause for altering alimony provisions in a divorce decree is demonstrated by a material and substantial change of circumstances. Sloss v. Sloss, 212 Neb. 610, 324 N.W.2d 663 (1982). Any changes in circumstances which were within the contemplation of the parties at the time of the decree, or that were accomplished by the mere passage of time, do not arise to the level to justify a change or modification of the order. Albers v. Albers, 213 Neb. 471, 329 N.W.2d 567 (1983). It is further noted at the outset that this court's power to modify the alimony award is not affected by the fact that the decree is based on an agreement of the parties. Id.; Williams v. Williams, 119 Neb. 8, 226 N.W. 798 (1929). Our task in this de novo review, then, is to determine whether the trial judge abused his discretion in determining that good cause did not exist such as to warrant a modification of the alimony previously awarded.

Appellant remarried in 1979. However, it is acknowledged that appellant does not rely on his remarriage as a change in circumstances. However, it is a fact which seemingly underlies this litigation, and his testimony indicates that it constitutes at least a motivational factor for his seeking a modification. Remarriage is not of itself sufficient to justify a modification--"The first wife and children have first consideration." Thuman v. Thuman, 144 Neb. 177, 182, 13 N.W.2d 117, 120 (1944). "It is a circumstance that may be considered, however, in weighing the equities of the situation, where other facts are present...