Grummert v. Grummert

• Decision Date: 31 December 1975
• Docket Number: No. 40162,40162
• Citation: 195 Neb. 148,237 N.W.2d 126
• Parties: Doris M. GRUMMERT, Appellee, v. Orland W. GRUMMERT, Appellant.
• Court: Nebraska Supreme Court

Page 126

237 N.W.2d 126

195 Neb. 148

Doris M. GRUMMERT, Appellee, v. Orland W. GRUMMERT, Appellant.

No. 40162.

Supreme Court of Nebraska.

Dec. 31, 1975.

Syllabus by the Court

1. While in a divorce action the case is to be tried de novo, this court will give weight to the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the opposite.

2. The question of alimony and division of property may be considered together; in determining the same, the court shall have 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 abilities 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. Upon dissolving a marriage, the trial court has legal right to assign the property, both real and personal, acquired during the marriage by the joint efforts of the parties, title to which is held jointly by them, as the equities require.

Robert F. Lammers, James P. McKernan, Fairbury, for appellant.

Baldwin & Koenig, Hebron, for appellee.

Heard before SPENCER, BOSLAUGH and BRODKEY, JJ., and WARREN and VAN PELT, District Judges.

VAN PELT, District Judge.

This is an action for dissolution of marriage, brought by Doris M. Grummert, wife and appellee, against Orland W. Grummert, husband and appellant. The District Court dissolved the marriage, awarded custody of two daughters to the wife and custody of one son to the husband, provided for the payment of child support for the two daughters, divided the household furnishings and personal effects, awarded the real estate, crops, farm equipment, and livestock to the husband, and ordered a $52,000 lump sum payment from the husband to the wife.

The husband appeals, challenging the valuation and division of property, and in particular, the $52,000 payment to the wife. The items of property, the valuations of which are disputed, consist of 120 acres of improved and irrigated farm land in Jefferson County, Nebraska, livestock, crops, farm machinery, and motor vehicles.

In 1948 the parties married, and in 1950 they moved onto the real estate in question, then owned by the husband's father. They both lived on and farmed this property until their separation in March of 1974. The husband has continued to reside thereon since. In February of 1970 the husband's father executed a deed to the premises conveying title to the parties as joint tenants, subject to a mortgage of $9,500. There is evidence of a parol agreement under which the parties agreed to pay to the husband's father one-fifth of all crops and ASC payments during his lifetime. This agreement was never reduced to writing, was therefore not recorded, and there were no reservations or restrictions referring to the same appearing on the recorded deed.

The District Court valued the real estate, less the mortgage, together with the growing crops, farm machinery, farm cooperative investment, and cash on hand, at $150,000. The court further found the liabilities of the parties, other than the real estate mortgage, to be $20,000, arriving at a total net worth of the parties, less the household goods and personal effects previously mentioned, of $130,000. The court awarded the real estate and other property included in the total valuation of $150,000 to the husband, ordered that he pay the $20,000 of miscellaneous debt, and further ordered a lump sum payment of $52,000, payable to the wife from the husband, the same to be a lien against the real estate and drawing 8% Interest from and after August 1, 1975.

The husband challenges the $52,000 payment on the grounds that: (1) The real estate was a gift from his father and not a part of the marital estate; and (2) the valuation of the real estate by the trial court was excessive, and, therefore, the $52,000 lump sum payment to the wife is an excessive proportion of the marital estate.

The husband contends that since the conveyance of the real estate was from his father, the same constituted a gift to him alone. This contention is in direct conflict with the recorded legal title which was conveyed to both parties jointly. The only evidence of any intent to convey the property to the husband alone was objected to as being nonresponsive and the objection was properly sustained by the trial court. If it had been the father's intent to give the property to his son alone, the deed could easily have been so drawn.

This court has held in some instances that it will look behind the legal title, and decree according to the equities of the situation. Fotinos v. Fotinos, 184 Neb. 486, 168 N.W.2d 698; Tavlin v. Tavlin, 194 Neb. 98, 230 N.W.2d 108. However, the above-cited cases involved marriages in which one spouse made a substantially greater contribution to the property in question than the other.

The evidence in the instant case is to the contrary. Although the parties did not take joint title until 1970, they worked on and improved the premises for 20 years prior...