Guggenmos v. Guggenmos, 83-713

• Decision Date: 07 December 1984
• Docket Number: No. 83-713,83-713
• Citation: 218 Neb. 746,359 N.W.2d 87
• Parties: Alice Constance GUGGENMOS, Appellee, v. Donald Lee GUGGENMOS, Appellant.
• Court: Nebraska Supreme Court

Page 87

359 N.W.2d 87

218 Neb. 746

Alice Constance GUGGENMOS, Appellee, v. Donald Lee GUGGENMOS, Appellant.

No. 83-713.

Supreme Court of Nebraska.

Dec. 7, 1984.

Syllabus by the Court

1. Property Division: Attorney Fees: Appeal and Error. The division of property and the awarding of attorney fees in marriage dissolution cases are matters initially entrusted to the sound discretion of the trial judge, which matters, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion; however, where the evidence is in conflict, this court will give weight to the fact that the trial judge observed and heard the witnesses and accepted one version of the facts rather than another.

2. Trial: Appeal and Error. An abuse of discretion exists where the reasons or rulings of the trial judge are clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice; it does not imply an improper motive, willful purpose, or intentional wrong.

3. Marriage: Equity. An action to annul a marriage is equitable in nature.

4. Marriage: Appeal and Error. It is the duty of this court, on appeal of an action to annual a marriage, to retry the issue or issues of fact complained of de novo on the record and reach independent conclusions without reference to the conclusions reached by the trial judge, giving weight, where the evidence is in conflict, to the fact that the trial judge observed and heard the witnesses and accepted one version of the facts rather than another.

5. Marriage. An annulment will be granted only in the presence of one or more of the grounds enumerated in Neb.Rev.Stat. § 42-374 (Reissue 1978).

6. Marriage: Proof. A marriage is presumed valid, and the burden of proving otherwise is upon the party seeking the annulment.

7. Property Division. There is no mathematical formula for dividing property when a marriage is dissolved; such awards are to be determined by the facts in each case, the ultimate test being one of reasonableness.

8. Attorney Fees. The award of an attorney fee involves a consideration of such factors as the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, the customary charges of the bar for similar services, the earning capacity of the parties, and the general equities of the case.

McQuillan & Spady, P.C., Ogallala, for appellant.

Paul D. Merritt, Jr. of McGinley, Lane, Mueller, O'Donnell & Merritt, P.C., Ogallala, for appellee.

BOSLAUGH, HASTINGS, CAPORALE, and GRANT, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

This case began with the filing of a petition by Alice Constance Guggenmos, appellee, for dissolution of her marriage to appellant, Donald Lee Guggenmos, who cross-petitioned for an annulment. For ease in reading we shall hereafter refer to the parties by their respective forenames. The district court dismissed Donald's cross-petition, dissolved the marriage, awarded each party the property in her or his possession, and awarded Alice an attorney fee of $1,000. This appeal from those determinations presents three issues: (1) Whether Alice perpetrated a fraud sufficient to justify an annulment rather than a dissolution of the marriage; (2) Whether the trial court erred in its division of property; and (3) Whether the trial court erred in awarding Alice an attorney fee. We answer each question negatively and, accordingly, affirm.

We begin by examining the rules of law which apply to the various scopes of review involved in this case. In our most recent marriage dissolution case dealing with the standard of review in the division of property, Gleason v. Gleason, 218 Neb. 629, 357 N.W.2d 465 (1984), we said we are required to try the case de novo on the record and reach independent conclusions on the issues without reference to the conclusions or judgment of the district court. However, in cases as recent as Haase v. Haase, 210 Neb. 371, 314 N.W.2d 270 (1982), and Liss v. Liss, 206 Neb. 587, 294 N.W.2d 341 (1980), we said that the distribution of property rests in the sound discretion of the trial court and would not be disturbed on appeal absent an abuse of discretion. See, also, Dobesh v. Dobesh, 216 Neb. 196, 342 N.W.2d 669 (1984), stating that in considering whether a property settlement agreement is unconscionable, the review is de novo but weight is given to the fact that the trial court observed the witnesses. In Steele v. Steele, 201 Neb. 549, 270 N.W.2d 903 (1978), also dealing with the division of property, we observed that where the evidence is in conflict, we give weight to the fact that the trial court had the opportunity to observe and hear the witnesses.

We have also made similar statements with respect to reviewing the award of attorney fees. For example, in Pittman v. Pittman, 216 Neb. 746, 345 N.W.2d 332 (1984), and Pfeiffer v. Pfeiffer, 203 Neb. 137, 277 N.W.2d 575 (1979), we indicated the matter was within the sound discretion of the trial judge, and his award would not be disturbed on appeal in the absence of an abuse of that discretion. Yet, in Buker v. Buker, 205 Neb. 571, 288 N.W.2d 732 (1980), we said the determination of attorney fees was to be reviewed de novo on the record.

A review de novo on the record is different than a review to determine whether an abuse of discretion has taken place. See Puetz v. Puetz, 211 Neb. 674, 319 N.W.2d 761 (1982). In a review de novo on the record, we reappraise the evidence as presented by the record and reach our own independent conclusions with respect to the matters at issue. A review to determine whether an abuse of discretion has taken place is much narrower. Although an abuse of discretion does not imply an improper motive, willful purpose, or intentional wrong, it does require the reasons or rulings of the trial judge to be clearly untenable and to deprive a party of a substantial right such as to amount to a denial of justice. Pettegrew v. Pettegrew, 128 Neb. 783, 260 N.W. 287 (1935).

Such confusion as may exist as to the appropriate standards of review arises not from the fact that the various statements we have made are inconsistent as might first appear, for they are not, but, rather, from the fact that we have apparently not stated the rule completely in any one case. There is no inconsistency in saying a matter is initially entrusted to the sound discretion of the trial judge and that on appeal we review the record de novo to determine whether that discretion has been abused. That is to say, we do not defer to the findings of the trial judge in determining whether there has been an abuse of discretion, but, rather, make our own appraisal of the record to determine whether the results obtained are untenable such as to have denied justice.

To remove any doubt as to the proper standard of review, we now state that the division of property and the awarding of attorney fees in marriage dissolution cases are matters initially entrusted to the sound discretion of the trial judge, which matters, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion. In our de novo review, where the evidence is in conflict, we will give weight to the fact that the trial judge observed and heard the witnesses and accepted one version of the facts rather than another.

An action to annul a marriage is equitable in nature. As such, it is our duty on appeal to retry the issue or issues of fact complained of de novo on the record and reach independent conclusions without reference to the conclusions reached by the trial judge, giving weight, where the evidence is in conflict, to the fact that the trial judge observed and heard the witnesses and accepted one version of the facts rather than another. Neb.Rev.Stat. § 25-1925 (Reissue 1979); Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980).

An annulment will be granted only in the presence of one or more of the grounds enumerated in Neb.Rev.Stat. § 42-374 (Reissue 1978), which include fraud. A marriage is presumed valid, and the burden of proving otherwise is upon the party seeking the annulment. Edmunds v. Edwards, supra.

Zutavern v. Zutavern, 155 Neb. 395, 52 N.W.2d 254 (1952), instructs us as to the type of fraud required to vitiate a marriage:

The fraud that vitiates a marriage contract does not lend itself to definitive statement automatically resolving every case. It is not every kind and degree of fraud that affords cause for setting aside the contract. The law differentiates between fraud in the essentials of the marriage relation and deceptive arts to which some persons resort with a view to an advantageous marriage by placing their accomplishments, character, and circumstances in a too optimistic view. While these constitute a species of fraud, they do not afford a basis for destruction of the marriage. However, if there is a deception as to some fact whose existence or non-existence may affect in some certain way the very essence of the marriage relation, resulting in a lawful marriage which practically operates as a fraud upon the...