Druba v. Druba

• Decision Date: 07 June 1991
• Docket Number: No. 89-029,89-029
• Citation: 470 N.W.2d 176,238 Neb. 279
• Court: Nebraska Supreme Court
• Parties: Marlene Denise DRUBA, Appellee, v. Johnnie Lee DRUBA, Appellant.

Page 176

470 N.W.2d 176

238 Neb. 279

Marlene Denise DRUBA, Appellee, v. Johnnie Lee DRUBA, Appellant.

No. 89-029.

Supreme Court of Nebraska.

June 7, 1991.

Syllabus by the Court

1. Divorce: Appeal and Error. In appeals involving actions for dissolution of marriage, the Supreme Court's review is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. When the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

2. Divorce: Alimony: Property Division. When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property as may be reasonable having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party.

3. Divorce: Child Support. Both parents have the duty to support their minor children.

Lyle Joseph Koenig, Hebron, for appellant.

Wayne L. Garrison, of Garrison & Garrison, Nelson, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

This is an action for dissolution of marriage. After trial, the district court for Nuckolls County dissolved the marriage of the parties and ordered respondent-appellant husband, Johnnie Lee Druba, to pay child support, alimony, and medical and dental expenses for the parties' three minor children. The husband has appealed to this court, assigning as error the actions of the trial court (1) in awarding alimony and (2) "in requiring respondent to pay medical and dental expenses in addition to child support because such an award exceeds the child support guidelines." We affirm.

In appeals involving actions for dissolution of marriage, the Supreme Court's review is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. When the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. LaBenz v. LaBenz, 237 Neb. 231, 465 N.W.2d 726 (1991).

The record shows that the parties were married on May 31, 1975, and are the parents of three minor children, one of whom requires medical care for petit mal seizures. No medical insurance was ever carried for the children during the marriage, and the husband has been paying the children's medical expenses.

Both parties have high school educations. The husband owns a trash-hauling business and is self-employed, and the wife operates a child-care service in her home. The wife's child-care service earned net profits of $1,039 in 1987. The husband purchased the trash-hauling business from his father on November 1, 1987, for $30,000. The husband and his father did not execute any formal documents or payment schedule regarding the sale of the business, but agreed that the husband would pay the money back "as soon as [he] could." As of the date of trial, November 30, 1988, the balance owed on the business was $25,000. The husband testified that he earned a net income of approximately $31,496 between November 1, 1987, and November 1, 1988. This figure does not reflect any payment to the husband's father for the purchase of the business. No evidence was offered as to the present value of the trash-hauling business.

During the marriage, the parties accumulated approximately $23,467.10 in savings and checking accounts. The wife testified that she withdrew half of this money ($11,733.55) and deposited it in her own account after she filed the petition for dissolution. The parties also own a $20,000 house in Superior. There is no mortgage or debt on the house, and no evidence of any debt was presented other than the $25,000 balance due on the trash-hauling business.

In the decree, the district court awarded custody of the three minor children to the wife, ordered the husband to pay child support of $250 per month per child, and ordered the husband to pay alimony of $350 per month for 60 months. Because neither the wife nor the husband wanted to live in the house, the parties were ordered to sell it, with the proceeds of the sale to be divided 35 percent to the wife and 65 percent to the husband. Finally, the husband was ordered to "pay and be responsible for the reasonable and necessary medical bills of each of his children" until each child became of age, became self-supporting, or was otherwise emancipated.

In connection with his first assignment of error, the husband contends the district court did not properly consider the criteria set out in Neb.Rev.Stat. § 42-365 (Reissue 1988), which provides:

When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party....

While the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, the two serve different purposes and are to be considered separately.... The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate.

See, also, Ritz v. Ritz, 229 Neb. 859, 429 N.W.2d 707 (1988); Buche v. Buche, 228 Neb. 624, 423 N.W.2d 488 (1988).

In this case, the parties were married for approximately 13 years. The wife worked in a bakery for 1 1/2 years before the parties' first child was born in June 1978. Since that time, she has worked as a homemaker and...