Dewey v. Dewey
| Decision Date | 12 December 1974 |
| Docket Number | No. 39324,39324 |
| Citation | 223 N.W.2d 826,192 Neb. 676 |
| Parties | Robert E. DEWEY, Appellee, Cross-Appellant, v. M. Ellen Sim DEWEY, Appellant, Cross-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
The power of the District Court to modify or vacate a decree of marriage dissolution under the provisions of section 42--372, R.R.S.1943, within 6 months of the entry of the decree does not exist after an appeal has been made to this court and the appellant has suffered an involuntary dismissal here.
Bauer, Galter, Scott & Geier, Paul E. Galter, Lincoln, for appellant, cross-appellee.
Baylor, Evnen, Baylor, Curtiss & Grimit, Walter E. Zink, Lincoln, for appellee, cross-appellant.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
This is an appeal from an order of the District Court made upon an application under section 42--372, R.R.S.1943, to vacate and modify a decree dissolving a marriage. The District Court affirmed its earlier decree of dissolution, but modified it with respect to the order on alimony. The respondent wife appeals. Here she seeks to raise many issues, including the propriety of the decree of dissolution and the constitutionality of sections 42--347 to 42--372, R.R.S.1943.
One procedural issue is dispositive of the appeal and requires its dismissal. The issue may be stated in this way: Does the power of the District Court, under the provisions of section 42--372, R.R.S.1943, to modify a decree of dissolution within 6 months of its entry, survive an intervening order of this court dismissing an earlier appeal of the wife from the same decree?
A summary of what occurred will clarify the issue. After trial the court on November 16, 1972, entered a decree dissolving the marriage, dividing the property of the parties, and awarding minimal alimony to the wife. The wife perfected an appeal from that decree by taking the necessary procedural steps on December 15, 1972. The husband filed a motion to dismiss the wife's appeal. The principal basis of the motion was that the respondent had accepted benefits under the decree and that consequently, under our holding in Larabee v. Larabee, 128 Neb. 560, 259 N.W. 520, her appeal was barred under the principle that a party cannot accept a part of a judgment and appeal the remainder. Further grounds of the motion were that she had not caused to be prepared and filed in the District Court a bill of exceptions within the time required by rule of this court and that she had made no request for an extension of such time as required by Rule 7 f, providing as follows: 'A request for extension must be made within the time originally prescribed or within an extension previously granted.' We acted upon the motion and dismissed the appeal on April 2, 1973.
On May 8, 1973, less than 6 months after the entry of the decree, the wife filed an application to modify in the District Court. This application asked, among other things, that the decree of dissolution be set aside and set forth various grounds for such relief. On June 13, 1973, the application was heard, and on August 30, 1973, the District Court modified the decree to the extent previously mentioned. Its journal entry recites that in so doing it had reexamined the evidence of the original hearing and received evidence cumulative thereto. The District Court determined that section 42--372, R.S.Supp., 1972, 'should be interpreted to mean that, although the respondent herein instituted within one month an appeal from the decree entered November 16, 1972, and suffered an involuntary dismissal on April 2, 1973, by the Supreme Court of said appeal nevertheless said respondent may institute thereafter but within six months of November 16, 1972, proceedings in the district court to modify said decree; and that this court, the District Court which rendered said decree of November 16, 1972, has jurisdiction of said proceeding so instituted to modify.'
Section 42--372, R.R.S.1943, provides as follows:
The wife argues that the primary purpose of the...
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