Hamm v. Hamm, 86-302

• Decision Date: 21 April 1988
• Docket Number: No. 86-302,86-302
• Citation: 228 Neb. 294,422 N.W.2d 336
• Parties: Patricia Sue HAMM, Appellee and Cross-Appellant, v. James W. HAMM, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 336

422 N.W.2d 336

228 Neb. 294

Patricia Sue HAMM, Appellee and Cross-Appellant, v. James W. HAMM, Appellant and Cross-Appellee.

No. 86-302.

Supreme Court of Nebraska.

April 21, 1988.

Syllabus by the Court

1. Divorce: Appeal and Error. The review of a judgment relating to the dissolution of a marriage 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. In such de novo review, 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. Child Support: Appeal and Error. In determining the amount of child support to be awarded, the status, character, and situation of the parties and attendant circumstances must be considered. The financial position of the parties as well as the estimated costs of support of the children must be taken into account, and a decision in this regard rests in the sound discretion of the trial court and will not be disturbed on appeal unless it appears that the court abused its discretion.

3. Alimony. The ultimate test for determining correctness in the amount of alimony is reasonableness.

4. Divorce: Attorney Fees. An award of attorney fees in a dissolution of marriage action involves 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 of the case, the skill devoted to preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

Jerald W. Kerl of Andersen & Kerl, Beatrice, for appellant and cross-appellee.

James L. Nelson of Carlson & Nelson, Beatrice, for appellee and cross-appellant.

HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and BLUE, District Judge.

BLUE, District Judge.

The marriage of the petitioner, Patricia Sue Hamm, and respondent, James W. Hamm, was dissolved on March 25, 1986. The decree provided that the husband was to pay $350 per month child support and maintain health insurance for the child. The husband was to be responsible for the wife's medical debts, except those related to a broken arm. The wife was awarded alimony of $1 per year for a period of 5 years.

The husband appeals from this decree, assigning as error:

1. The Court erred in awarding child support beyond the husband's ability to pay.

2. The Court erred in ordering the husband to provide medical insurance for the minor child as long as his child support obligation continued and for the wife for six months after the decree.

3. The Court erred in ordering the husband to be responsible for the wife's medical indebtedness presently owed and not paid for by medical insurance, and arising out of the wife's pregnancy.

4. The Court erred in awarding the wife alimony in the amount of one dollar per year for a period of five years and providing that such alimony could be modified during that time period.

The wife cross-appeals from this decree, assigning as error:

1. The Court erred in awarding the [wife] alimony of only $1.00 per year for a period of five years.

2. The Court erred in ordering the [husband] to pay only $500 of the [wife's] attorney's fees.

The petitioner and respondent were married on October 12, 1984. They separated in March of 1985, and this action for dissolution was filed on March 22, 1985. The couple's child, LeeAnna Sue Hamm, was born on the same date that the petition was filed. Initially, paternity was an issue in this case, but was resolved after the husband conceded that he was the father of LeeAnna. Both parties described the marriage in similar terms, stating that "things were bad from Day One."

The husband attended one semester at the University of Nebraska before joining his father to farm in January of 1975. The husband's assets at the time of the trial totaled $48,515. These assets consisted of a one-half interest in a hog operation with his father, a dairy herd consisting of 71 head of cattle with a value of $38,472, a one-half interest in 6 horses, a one-half interest in 2 pieces of farming equipment, a one-half interest in a farrowing house, a 1981 automobile, a checking account, and the cash value of 3 life insurance policies.

It is difficult to determine the husband's income with any exactness. He receives income from two sources: self-employment as a dairy farmer and his share of the hog operation. As to the dairy business, respondent and his father divided the income as follows: "[W]e each have our own cows, and I take all the offspring off of my animals, and the income off the sale of those, however many animals I sell, and that's my income. My father takes the milk off of my animals and pays the expenses against them." The husband's income in 1985, from the sale of livestock, was $7,319.14. He received $2,450 in 1985 from his share of the sale of hogs. This would give him an average monthly income of $814.

It is claimed by the husband that he was debt-free prior to his marriage with the petitioner. He now owes approximately $7,900 to a bank, has borrowed $2,600 on his life insurance, and owes his parents $3,200.

The husband testified that his average monthly expenses were $815.64, not including payments on the wife's medical bills.

The wife has an associate degree in livestock production from Southeast Community College in Beatrice, Nebraska. Her work experience is very limited, consisting of helping her father-in-law on the farm. She is presently working part-time as a sales clerk for a gross salary of approximately $420 per month. The wife is suffering from a complication from pregnancy called a postphlebitic syndrome. She has a deep venous thrombosis that involves the proximal veins, causing swelling and pain. It extends from the groin to the middle of the abdomen. While this condition may become worse, it appears to be improving, but is potentially disabling in the future. Her physician testified that the wife is now able to be on her feet and work if she can rest occasionally and elevate her legs. There is evidence that the wife's monthly expenses average $600.87, not including the expense of babysitting.

The review of a judgment relating to the dissolution of a marriage 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. In such de novo review, 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. Frost v. Frost, 227 Neb. 414, 418 N.W.2d 220 (1988).

The district court ordered the husband to pay $350 per month child support. In addition, he was ordered to provide medical insurance for the minor child for as long as the child support obligation continued. The cost of such insurance was $87.50 per month during the 6-month period in which the wife was covered, as well, by insurance; following the 6-month period, the monthly payments would be somewhat less than $87.50.

Although the husband challenges the wife's claimed monthly expenses for the minor child, his main contention is that he simply cannot afford to meet his child support obligation as ordered by the district court.

The Nebraska Supreme Court has adopted child support guidelines effective October 1, 1987. See, Brandt v. Brandt, 227 Neb. 325, 417 N.W.2d 339 (1988); Fooks v. Fooks, 226 Neb. 525, 412 N.W.2d 469 (1987). Although these guidelines were not effective at the time this case was tried, they are helpful in attempting to arrive at a fair amount of child...