Dorland v. Dorland

• Decision Date: 12 April 1963
• Docket Number: No. 35393,35393
• Citation: 175 Neb. 233,121 N.W.2d 28
• Parties: Ruth Ann DORLAND, Appellee, v. Warren B. DORLAND and Cetha Floy Dorland, Appellants.
• Court: Nebraska Supreme Court

Page 28

121 N.W.2d 28

175 Neb. 233

Ruth Ann DORLAND, Appellee, v. Warren B. DORLAND and Cetha Floy Dorland, Appellants.

No. 35393.

Supreme Court of Nebraska.

April 12, 1963.

Syllabus by the Court

1. Where there is no response to an answer, and no objection or exception is taken thereto, the affirmative allegations of the answer will be regarded as having been generally denied.

2. Consideration for an agreement or a promise is sufficient if there is any benefit to the promisor or any detriment to the promisee.

3. If negotiations between parties result in an agreement in reference to the subject matter thereof and if they reduce it to writing, execute, and deliver it, the writing, in the absence of fraud, mistake, or ambiguity, is the only competent evidence of the contract.

4. By the terms of the declaratory judgment statute any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

5. By the terms of the declaratory judgment statute a contract may be construed either before or after there has been a breach thereof.

Bayard T. Clark, F.A. Hebenstreit, Falls City, for appellants.

Wiltse & Wiltse, Paul P. Chaney, Falls City, Emory P. Burnett, Lincoln, for appellee.

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

YEAGER, Justice.

This is an action by Ruth Ann Dorland, plaintiff and appellee herein, against Warren B. Dorland and Cetha Floy Dorland, defendants and appellants, for a declaratory judgment determining the rights of these parties under a written agreement entered into by and between these parties, bearing date and declared effective date of April 1, 1959, and for judgment in favor of the plaintiff and against the defendants for the amount claimed by the plaintiff payable to her from the defendants at the time an amended petition was filed, which was $2,875, and for such a further amount as she claimed would become payable by the time of judgment, with interest.

By answer the defendants denied the right of the plaintiff to the declaratory relief which she claimed, and prayed for an accounting between the parties. From the standpoint of pleading the case was presented on an amended petition and an amended answer.

The plaintiff filed no pleading in response to the answer. The effect of this failure, there being no objection, was to regard the allegations as having been generally denied. See, Crilly v. Ruyle, 87 Neb. 367, 127 N.W. 251; Central Constr. Co. v. Highsmith, 155 Neb. 113, 50 N.W.2d 817; Dinkel v. Hagedorn, 156 Neb. 419, 56 N.W.2d 464; Anson v. Grace, 174 Neb. 258, 117 N.W.2d 529.

The case was tried to the court and a judgment was rendered declaring the rights of the parties under the agreement and awarding judgment in favor of the plaintiff for an amount due at that time of $3,301. From this judgment the defendants have appealed.

An understanding of the matters involved in this action requires a statement of its background which, to the extent necessary to relate, is the following: The plaintiff here and the defendant Warren B. Dorland were, prior to July 28, 1959, wife and husband. Some time prior to that date this defendant left the State of Nebraska, where the parties resided, and went to the State of Florida where he commenced an action for divorce. The parties had three minor children. In that action a decree of divorce was rendered on July 28, 1959.

Prior to the rendition of the decree of divorce the parties to the action entered into a written stipulation by which the parties, among other things, agreed upon the placement and custody of the children, upon provision for their support and maintenance, and upon alimony or support for the wife. By the terms of the stipulation, it was subject to approval of the court in case of the rendition of a decree of divorce. The stipulation was dated April 1, 1959, signed by the parties, acknowledged by plaintiff in that action on April 10, 1959, and by the defendant there on April 4, 1959.

By the terms of the stipulation the plaintiff there obligated himself to pay to the defendant there $50 a month for each of the children until they should respectively reach the age of 21 years or are married, and to pay to the defendant there $100 a month until death or remarriage. It was required that the payments should be made monthly in advance. Other matters were agreed upon but they do not require mention herein. The stipulation was ratified and confirmed by the Florida court in its decree.

At the same time that the stipulation was made an agreement was made between these two parties which contained the same substance as that in the stipulation with reference to support and maintenance for the children and for the wife. The obligations of this agreement, like the stipulation, depended upon the granting of the decree of divorce.

Cetha Floy Dorland, the other defendant in the present action, was a party to, signed, and acknowledged the agreement. For considerations stated in the agreement she bound herself to the following:

'And the undersigned Cetha Floy Dorland hereby contracts, agrees and assures the payment, in the event that a divorce may be granted, to the said Ruth Ann Dorland of monthly payments as above provided by Warren B. Dorland irrespective and regardless of the performance of Warren B. Dorland of the agreements and obligations hereunder; and independently of any judgment that may be entered in the state of Florida in connection with the divorce proceedings aforesaid. It is the intent of the parties to this...