Johnson v. Johnson

Decision Date02 July 1981
Docket NumberNo. 43269,43269
Citation209 Neb. 317,307 N.W.2d 783
PartiesJohn E. JOHNSON, Appellee, v. Sharon C. JOHNSON, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Divorce: Words and Phrases. When a personal relationship with another under the institution of marriage has deteriorated to the point that the parties can no longer live together, the marriage is irretrievably broken.

2. Divorce: Property Division. The rules for determining division of property in an action for dissolution of marriage provide no mathematical formula by which such awards can be precisely determined; they are to be determined by the facts in each case.

3. Divorce: Words and Phrases. Generally speaking, awards in cases of this kind vary from one-third to one-half the value of the property involved, depending upon the facts and circumstances of the particular case, and particularly so where the marriage is of long duration and the parties are the parents of the children involved.

4. Property Division: Appeal and Error. This court is not inclined to disturb the division of property made by the trial court unless it is patently unfair on the record.

5. Property Division: Interest. The trial court has the inherent power, in adjusting the rights of the parties, to provide that a money allowance to be paid in installments shall not draw interest until a certain date.

6. Divorce: Property Division. In an action for dissolution of marriage, a court may divide property between the parties in accordance with the equities of the situation, irrespective of how legal title is held.

7. Alimony. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion under Neb.Rev.Stat. § 42-365 (Reissue 1978) is one of reasonableness.

8. Appeal and Error. Errors assigned but not discussed will generally not be considered by the Supreme Court.

9. Divorce: Attorney Fees. There is no rule which requires a trial court to necessarily award attorney fees in accordance with the value of the services in a divorce case. The award of attorney fees is discretionary with the trial court and depends upon a variety of factors, including all the circumstances, such as the amount of the division of property and alimony awarded, the earning capacity of the parties, and the general equities of the situation.

Winner, Nichols, Meister & Douglas, P. C., Scottsbluf, for appellant.

Martin, Mattoon, Matzke & Mattoon, Sidney, for appellee.

Heard before KRIVOSHA, C. J., McCOWN, BRODKEY, and HASTINGS, JJ., and HICKMAN, District Judge.

HICKMAN, District Judge.

This dissolution of marriage action was commenced on April 25, 1979, in Kimball County, Nebraska, by petitioner husband, John E. Johnson, the appellee herein, who will be referred to as John, against the respondent wife, Sharon C. Johnson, the appellant herein, who will be referred to as Sharon. Trial was held on November 6 and 7, 1979, and the District Court, on December 17, 1979, entered a decree dissolving the marriage, awarding custody of the minor children to Sharon, subject to John's right of reasonable visitation, ordering John to pay $250 per month per child for child support, and dividing the property. This appeal followed. Sharon sets forth 20 assignments of error, but has abandoned 5 assignments, and the remaining 15 can be grouped as follows: The trial court erred (1) in finding that the marriage was irretrievably broken and awarding a dissolution of the marriage rather than a decree of separate maintenance; (2) in awarding Sharon an inequitable division of the property; (3) in failing to award interest on the unpaid balance of the payments ordered; (4) in not awarding Sharon one-half of the value of the prepaid expenses on growing crops; (5) in determining certain values and in making mathematical errors in the court's findings and in the computation of values placed on specified items of real and personal property; (6) in determining that certain gifts were made to the petitioner alone rather than to the parties jointly; (7) in failing to award alimony; (8) in awarding inadequate child support because the award made no provision for an increase in child support as each of the children reaches majority; and (9) in awarding inadequate attorney fees.

John and Sharon were married October 26, 1957, when they were 20 years and 19 years old, respectively. As a result of the union, five children were born, the first of which died shortly after birth. The remaining four children ranged in age from 12 years to 17 years at the time of trial.

John graduated from high school in 1955, and thereafter served in the Navy for approximately 2 years. Following marriage he commenced farming and has become a successful wheat farmer in Kimball County. After her high school graduation, Sharon worked as a secretary until the marriage, and during the 22 years since has fulfilled her obligations as a loyal and helpful farm wife and mother in the home and on the farms which have been acquired. At trial the health of both parties was not an issue.

The marriage relationship first became strained in 1973 when Sharon learned of John's extramarital activities and confronted him about them. After discussions, Sharon forgave John and they continued to live together, but, according to John, Sharon did not forget and thereafter continually nagged at him and kept track of his activities. According to John, the final straw came in early 1979 when he was locked out of the house after attending a sports function in which his son was involved. Thereafter, John slept in the basement until he acquired a mobile home and moved into it on March 12, 1979. The court ordered the parties to see a marriage counselor. John attended once, and it is obvious that because of his attitude he was told not to come back.

At the trial John stated that he had tried for 6 years following 1973 to reconcile with his wife but that, due to Sharon's attitude and actions, no further efforts were likely to be fruitful. John further stated that he no longer could live with Sharon and that he believed their marriage to be irretrievably broken. Sharon is very active in her church and, following the teachings of her religion, does not believe in divorce. One of the sources of tension in the marriage apparently was Sharon's strict religious position against artificial birth control. Sharon testified that she did not believe the marriage was irretrievably broken and she said that she and the children would welcome John back into the family home.

On review in this court, the factual determinations of the trial court are entitled to considerable deference. "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 facts rather than the opposite. Patton v. Patton, 203 Neb. 638, 279 N.W.2d 267 (1979). Obviously a trial court weighs the credibility of the witnesses and the evidence and determines what evidence should be given the greater weight in arriving at a factual determination on the merits. The testimony need not be accepted in its entirety and the trier of fact must use a commonsense approach and apply that common knowledge which is understood in the community." Boroff v. Boroff, 204 Neb. 217, 218-19, 281 N.W.2d 760, 761-62 (1979).

The trial court found that the marriage was irretrievably broken, relying heavily upon the failure of some 6 years of reconciliation efforts. It is true, as noted above, that the parties disagreed on this question and that their testimony conflicted as to whether their marriage was irretrievably broken. Under the rule stated above, the trial court was entitled to decide which version of the facts to give the greater weight. Apparently the court decided that John's testimony was more credible under the circumstances. Seen in that light, the facts of the case fully justify the trial court's finding that the marriage was irretrievably broken, and that finding is affirmed.

With regard to the division of the marital estate, the trial court determined, based on the evidence, that the total assets owned by the parties at the time this action was commenced had a value of $961,672.92. The majority of these assets consisted of farmland, wheat on hand or under loan, wheat sold but not paid for, and farm machinery. The court found that John was entitled to have set off to him $139,474.42 as gifts received from his mother. There were debts of $4,750. The parties therefore had disposable marital assets of $817,448.50.

John has built his dryland farming business into an efficient unit and has acquired the proper and necessary farm machinery to handle the large number of acres he owns and leases. The court, rather than destroy the efficiency of the farming unit and leave John without the wheat production required to pay a monetary award, granted Sharon $24,712, consisting of checking and savings accounts, automobiles, and household furnishings; $150,000 cash; and $15,000 per year for a period of 12 years, or a total of $354,712, which constitutes 43 percent of the marital property. The court also imposed upon John an initial child support obligation of $250 per month per child.

This court has consistently held that the rules for determining division of property in an action for dissolution of marriage provide no mathematical formula by which such awards can be precisely determined; they are to be determined by the facts in each case. The court will consider all pertinent facts in reaching an award that is just and equitable. Matlock v. Matlock, 205 Neb. 357, 287 N.W.2d 690 (1980). Generally speaking, awards in cases of this kind vary from one-third to one-half the value of the property involved, depending upon the facts and circumstances of the particular case, Ragains v. Ragains, 204 Neb. 50, 281 N.W.2d 516 (1979), and particularly...

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