Hicklin v. Hicklin

• Decision Date: 14 January 1994
• Docket Number: No. S-91-826,S-91-826
• Citation: 509 N.W.2d 627,244 Neb. 895
• Parties: Cathryn J.C. HICKLIN, Appellant and Cross-Appellee, v. Donnie D. HICKLIN, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 627

509 N.W.2d 627

244 Neb. 895

Cathryn J.C. HICKLIN, Appellant and Cross-Appellee, v. Donnie D. HICKLIN, Appellee and Cross-Appellant.

No. S-91-826.

Supreme Court of Nebraska.

Jan. 14, 1994.

Syllabus by the Court

1. Marriage: Equity: Appeal and Error. An action to annul a marriage sounds in equity. As such, an appellate court will review annulment cases de novo on the record and will reach independent conclusions without reference to the conclusions reached by the trial judge, but may give 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.

2. Marriage: Divorce: Child Support: Appeal and Error. In an action for dissolution or annulment, a parent may accept child support and yet appeal other issues in the decree. A parent's acceptance of child support does not preclude an appeal from a decree of dissolution or annulment.

3. Marriage: Presumptions: Proof: Words and Phrases. For purposes of Neb.Rev.Stat. § 42-378 (Reissue 1988), good faith means an honest and reasonable belief that the marriage was valid at the time of the ceremony. Whether a party acted in good faith depends on the facts and circumstances of the case. Good faith is presumed; the burden of proof rests squarely on the party charging bad faith. Good faith may result either from an error of fact or from an error of law.

4. Marriage: Divorce. Under Neb.Rev.Stat. § 42-378 (Reissue 1988), a party claiming good faith cannot close his or her eyes to suspicious circumstances; however, attending a divorce hearing does not trigger a duty to inquire as to the date on which the divorce will become final.

5. Marriage. Neb.Rev.Stat. § 42-378 (Reissue 1988) applies when one or both of the parties are innocent.

James R. Welsh, of Bradford, Coenen, Ashford & Welsh, Omaha, for appellant.

P.F. Render, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ.

WHITE, Justice.

This case arises from Cathryn J.C. Hicklin's petition for dissolution of marriage and Donnie D. Hicklin's cross-petition for annulment. The district court found that the marriage was void and dismissed the petition for dissolution. Cathryn Hicklin (petitioner) appealed to the Nebraska Court of Appeals, which reversed the decision of the district court. Donnie Hicklin (respondent) petitioned this court for further review. We affirm the decision of the Court of Appeals reversing the district court's judgment and remand the cause with directions.

In February 1981, respondent and petitioner began living together in Minnesota. Both parties knew respondent had been and was still married to Sandra Hicklin. In October 1981, respondent and petitioner moved to Nebraska.

On June 9, 1982, respondent and petitioner returned to Minnesota to attend respondent's divorce hearing. On July 4, respondent and petitioner participated in a marriage ceremony in Union Mills, Iowa. After a honeymoon in Iowa, respondent and petitioner returned to Nebraska. Respondent and petitioner's son, Jordan, was born 2 months after the wedding, on September 12. A second child, Jenna, was born on July 23, 1984.

In February 1990, petitioner filed a petition for dissolution of marriage. Respondent filed an answer and cross-petition for annulment, alleging that he had not been legally divorced from Sandra Hicklin at the time of his purported marriage to petitioner.

At trial, both parties presented evidence regarding their knowledge of respondent's divorce. Respondent stipulated that at the time of the marriage ceremony, he believed he had been legally divorced. Petitioner testified that at the time of the marriage ceremony, she believed that respondent had been legally divorced. Petitioner further testified that prior to respondent's answer and cross-petition, she had never received any indication that their marriage was invalid.

The district court dismissed the petition for dissolution. The court found that under applicable Minnesota law, a decree of dissolution becomes final when entered. The court further found that the decree dissolving Sandra Hicklin and respondent's marriage was entered on July 13, 1982, 9 days after respondent and petitioner's purported marriage. The court concluded that respondent had not been legally divorced from Sandra Hicklin at the time of the purported marriage. Therefore, the marriage between respondent and petitioner was void. See Neb.Rev.Stat. § 42-103 (Cum.Supp.1992).

The district court then turned to respondent's cross-petition for annulment. Although the district court did not explicitly annul the marriage, annulment clearly would have been proper on the ground that respondent had a spouse living at the time of his purported marriage to petitioner. See Neb.Rev.Stat. § 42-374(3) (Cum.Supp.1992). The court noted that both parties had attempted to bring themselves within Neb.Rev.Stat. § 42-378 (Reissue 1988). That statute provides:

When the court finds that a party entered into the contract of marriage in good faith supposing the other to be capable of contracting, and the marriage is declared a nullity, such fact shall be entered in the decree and the court may order such innocent party compensated as in the case of dissolution of marriage, including an award for costs and attorney fees.

The district court held that neither party was "innocent" within the meaning of this statute. The court found that respondent was presumed to know the law of Minnesota and was not innocent. The court found that petitioner either knew or should have known that respondent was not legally divorced. The court stated that because petitioner had been divorced herself and had attended respondent's divorce hearing, she should have known that a decree of dissolution had to be issued by a court, should have known that no decree was issued on the day of the hearing, and should have demanded to see a decree prior to entering into marriage. The district court thus refused to compensate petitioner "as in the case of dissolution of marriage." See § 42-378.

The district court then turned to issues involving the two minor children. The court granted petitioner custody of both children. The court ordered respondent to pay a fixed amount of monthly child support, to contribute 73 percent of child-care expenses actually incurred, and to provide medical and hospital coverage for the children.

Both parties filed motions for new trial. Both motions were overruled. Petitioner appealed, and respondent cross-appealed. Additionally, respondent filed a motion to dismiss petitioner's appeal on the grounds that she had accepted the benefits of the decree.

The Court of Appeals reversed the trial court's decision. Hicklin v. Hicklin, 3 NCA 805, 1993 WL 183576 (1993). First, the Court of Appeals denied respondent's motion to dismiss. The court reasoned that petitioner had not accepted the benefits of the decree that she was appealing because the child support payments flowed from respondent's cross-petition for annulment and petitioner was appealing the dismissal of her petition for dissolution. Second, the Court of Appeals held that the district court had abused its discretion by failing to find that petitioner was innocent within the meaning of § 42-378. The Court of Appeals found no evidence to suggest that petitioner knew or should have known that respondent's divorce had not become final. Finally, the Court of Appeals remanded the cause with directions to adjudicate the petition for dissolution pursuant to § 42-378.

Respondent sought and was granted further review by this court. Respondent asserts, in essence, that the Court of Appeals erred (1) in denying his motion to dismiss, (2) in failing to specifically affirm that the marriage was void, (3) in ordering application of § 42-378, and (4) in failing to consider the assignments of error set forth in respondent's brief on cross-appeal.

An action to annul a marriage sounds in equity. As such, an appellate court reviews annulment cases de novo on the record. Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d 87 (1984); Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980). The reviewing court reaches "independent conclusions without reference to the conclusions reached by the trial judge." Guggenmos, 218 Neb. at 749, 359 N.W.2d at 91. See, Neb.Rev.Stat. § 25-1925 (Cum.Supp.1992); Edmunds, supra. Where the evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the fact that the trial judge observed and heard the witnesses and accepted one version of the facts rather than another. Richdale Dev. Co. v. McNeil Co., 244 Neb. 694, 508 N.W.2d 853 (1993).

In his first assignment of error, respondent claims that the Court of Appeals erred in denying his motion to dismiss. Respondent argues that because petitioner had accepted the benefits of the decree, her appeal should be barred. Respondent does not specify which benefits petitioner accepted. The only benefits awarded by the decree were child support, a percentage of child-care expenses, and health benefits for the children. We assume these are the benefits which petitioner accepted. We will refer to this combination of benefits loosely as "child support." Petitioner's appeal did not involve issues of child support.

The issue presented, then, is whether a parent's acceptance of child support should bar that parent from appealing other issues in a decree of dissolution or annulment. The answer is no.

In arguing that petitioner's appeal should be barred, respondent relies on our recent case Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992). In Shiers, the wife had accepted property distributions and was attempting to appeal the amount of child support which she was to receive on behalf of the minor children. After a thorough discussion of the applicable case law, we formulated the following general rule: "[...