Dunlap v. Dunlap

• Decision Date: 16 March 1945
• Docket Number: 31900.
• Parties: DUNLAP v. DUNLAP.
• Court: Nebraska Supreme Court

18 N.W.2d 51

145 Neb. 735

DUNLAP v. DUNLAP.

No. 31900.

Supreme Court of Nebraska

March 16, 1945

Syllabus by the Court.

1. The wife's alimony and the children's maintenance, if included in the same decree, should be separated into distinct items, and not included in one sum.

2. An unqualified allowance of alimony in gross, whether payable immediately in full or periodically in installments, and whether intended solely as a property settlement or as an allowance for support, or both, is such a definite and final adjustment of mutual rights and obligations between husband and wife as to be capable of a present vesting and to constitute an absolute judgment. Such an allowance is not subject to modification under the provisions of section 42-324, R.S.1943.

3. In the absence of such judgment the court, upon proper petition and showing thereon, has power to revise and alter its awards of alimony as to future pavments under the provisions of section 42-324, R.S.1943.

4. The basis for changing such payments in the future must be founded upon new facts which have occurred since the decree was entered, and, in the absence of such facts, the matter is deemed to be res adjudicata between the parties.

5. No specific words of reservation are necessary, of course, as a foundation for the right of modification, and, indeed, such right will be held automatically to exist, unless, as we have indicated above, the decree defines and limits the rights of the parties with such completeness and finality as to be clearly capable of and intended as a present vesting, and hence to possess in its scope, the attributes of a final judgment.

6. Generally, we do not approve of allowing alimony in the form of an annuity, or requiring the husband to pay a fixed sum each month during the life of the other party, or for an indefinite period of time.

CHAPPELL, J dissenting.

George W Leamer, of South Sioux City, for appellant.

Wm. P Warner, of Dakota City, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE Justice.

This appeal is from an order of the district court for Dakota county modifying an alimony award.

On November 27, 1939, Iva Merle Dunlap, plaintiff and appellee, obtained an absolute divorce from William Glenn Dunlap, defendant and appellant, and was awarded the custody of their four children, Leora, aged 20 years, Dale, aged 18 years, Ward, aged 16 years, and Raymond, aged 13 years. This decree provided: '* * * that plaintiff also have and recover from the defendant the sum of $40.00 per month, payable monthly in advance, to the clerk of this court, for the use and benefit of the plaintiff, on the 5th day of each month, beginning with December 5th, 1939, for the maintenance and support of the plaintiff and said children, until the youngest child of said parties is through high school, or until this judgment, upon application of one or both of said parties, is changed or modified by subsequent order of the court.'

On December 22, 1943, plaintiff filed her petition for revision, modification and extension of this decree as to the provision for the payment of alimony. After hearing thereon the court, on June 8, 1944, entered its decree awarding to the plaintiff the payments of $40 due September 5, October 5, November 5, and December 5, 1943, and, commencing with January 5, 1944, ordered payments of $10 per month until further order of the court. From this order the defendant appeals.

For the purpose of this opinion the appellant will be referred to as the defendant and the appellee as plaintiff.

The record discloses that the plaintiff has at all times, since the decree was entered, maintained a suitable home for the four children. The three oldest children went through high school and are now married. Raymond, the youngest, who was 18 years of age on January 26, 1944, quit high school near the end of the first semester of the 1942-1943 school year when he was a junior. He then worked on a farm. In September of 1943 he returned to school for one day. Being advised to retake the entire junior year he quit and subsequently, with the plaintiff's consent, joined the Marines. Plaintiff owns her household goods and continues to live in the same home, although her married daughter now lives with her. She is 46 years of age and in about the same state of health as when the divorce decree was entered. She works out about two days a week doing house work for which she receives approximately $5.50 per week and receives $37 per month from the government as an allotment for her son, who is in the service. The defendant made all payments up to September 5, 1943. He receives about $200 to $210 per month, after all deductions, for his services with the Interstate Transit Lines. However, it is not shown whether his income is any different from what it was at the time the decree was entered. As a whole, the record fails to show any material change in the status of the parties except that all four children were definitely through high school on September 5, 1943, when the defendant quit paying the $40 per month.

We first desire to call attention to the terms of the original decree in which the court allowed $40 per month for the maintenance and support of the wife and children. This decree does not make any finding as to what part was allotted to the plaintiff and what part was allotted to her for the support and maintenance of the children. The decree of the trial court, in so far as minor children are concerned, is never final in the sense that it cannot be changed. Section 42-312, R.S.1943, provides: 'If the circumstances of the parties shall change, or it shall be to the best interests of the children, the court may afterwards from time to time on its own motion or on the petition of either parent revise or alter, to any extent, the decree so far as it concerns the care, custody and maintenance of the children or any of them.' See Carlson v. Carlson, 135 Neb. 569, 283 N.W. 214. In considering the many factors which may affect a court's subsequent ruling thereon, such as a change of custody, earnings of either party as affecting the amount, or the reaching of maturity of some of the minors, it is necessary to know what part was allotted for the support and maintenance of the minors. It the amount is included in one sum the court must then go back and endeavor to ascertain what part was allowed as alimony and what part for the support and maintenance of the minor children. This will often be difficult and necessarily involve considerable additional testimony. The rule that should be followed is properly stated in Connett v. Connett, 81 Neb. 777, 116 N.W. 658, as follows: 'The wife's alimony and the children's maintenance, if included in the same decree, should be separated into distinct items, and not included in one sum.'

It is apparent that the court based its order of June 8, 1944 wherein it modified the decree of November 27, 1939, upon the terms of the stipulation of the parties as to a property settlement which it found filed in the original case, dated the same day the original decree was entered. Courts may approve property and alimony settlements made between the parties, when a divorce is granted, if it finds the same to be fair and equitable. However, when the court in its decree determines and fixes the amount of alimony and no appeal is taken therefrom, the effect of the stipulation, so far as the decree is concerned, is that it was taken merely as advisory to the court and the terms fixed by the decree are controlling. W...