Koubek v. Koubek

Decision Date25 June 1982
Docket NumberNo. 44005,44005
Citation212 Neb. 2,321 N.W.2d 55
PartiesMary Jane KOUBEK, Appellee and Cross-Appellant, v. John Stanley KOUBEK, Appellant and Cross-Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. 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. The court will consider all pertinent facts in reaching an award that is just and equitable.

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

3. Property Division: Alimony. How property, inherited by a party during the marriage, will be considered in determining division of property or award of alimony must depend upon the facts of the particular case and the equities involved.

4. Property Division: Alimony. The division of property and the issue of alimony are to be determined upon the consideration of all the facts and circumstances.

5. Divorce: Attorney Fees. In an action for dissolution of marriage, the award of attorney fees is discretionary with the trial court and depends on 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.

Tedd C. Huston and David C. Huston, Broken Bow, for appellant and cross-appellee.

Robert E. Roeder, North Platte, for appellee and cross-appellant.

Heard before McCOWN, HASTINGS, and CAPORALE, JJ., and STUART and HIPPE, District Judges.

STUART, District Judge.

This dissolution of marriage action was brought by the appellee, Mary Jane Koubek (Mary Jane), against the appellant, John Stanley Koubek (John), in January 1979. Trial was had and final decree was rendered on November 6, 1980. This decree dissolved the marriage, awarded custody of the minor children to Mary Jane, subject to John's right of reasonable visitation, ordered John to pay $125 per month per child as child support, divided the property, awarded alimony to Mary Jane, and ordered John to pay certain attorney fees. John appealed, assigning as error the division of property, the awarding of alimony, and the awarding to Mary Jane of a life estate in the residence and 1 acre of land on the "home place." Mary Jane cross-appealed, assigning as error the division of property, the awarding of only $125 per month per child as child support, and the refusal to award Mary Jane's present attorney a fee for his services.

John and Mary Jane were married on December 25, 1955. As a result of this union, there are nine living children, of which six were still minors at the time of the marriage dissolution. This was the first marriage for both parties, and at the time of dissolution, after almost 25 years of marriage, John was 50 years of age and Mary Jane was 42 years of age. Each party had substantial health problems. Mary Jane was grossly obese, with circulatory problems, and had a possible need for abdominal surgery. John had open heart surgery in 1973 and now suffers from diabetes.

At the time of the marriage neither party had any substantial assets. After the marriage John entered a farming partnership with his father and since then has been actively engaged in farming. John inherited a 480-acre farm at the time of his father's death in 1964 (the "home place"). Since that time the parties have purchased three additional farms totaling 480 acres. In addition, the parties have acquired four school land leases totaling 2,080 acres. John has become a successful corn farmer and cattlefeeder, and operates a total of approximately 3,500 acres. At the time of John's inheritance of the "home place" in 1964, it had an appraised value of $46,660. Since that time there have been improvements made on this farm, costing between $29,325.33 and $136,577.51. The higher figure is that testified to by Mary Jane, which figure is seriously contested by John, who testified to the lower figure. The trial court did not make a specific finding on this point, but an examination of the record indicates that John's testimony appears more credible here. At the time of the decree the "home place" had a value of $295,030. The total assets of the parties were between $874,000 and $922,000. The debts of the parties totaled $471,000 to $476,000. Therefore, the net worth of the parties at the time of the trial was between $403,000 and $446,000.

The court awarded Mary Jane a 1977 Dodge van, all the furniture and household goods, one quarter section of land, and one-half of the five lots and a mobile home located at Lake McConaughy. The court also awarded Mary Jane the life use of the residence and not to exceed 1 acre of land located on the "home place," or, in the alternative, granted John the option to purchase a home for Mary Jane, to be approved by her or the trial court, in Arnold, Nebraska, at a cost not to exceed $40,000. The above-described property awarded to Mary Jane had a value of between $113,000 and $117,000. All other property of the parties was awarded to John, and John was ordered to assume all of the debts of the parties and ordered to pay two of Mary Jane's former attorneys their fees in the sum of $4,000.25. In addition, John was ordered to pay Mary Jane $60,000 alimony, payable $500 per month for 12 months, then $750 per month for 72 months, all payments without interest.

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 of the value of the property involved, depending upon the facts and circumstances of the particular case, and particularly so when the marriage is of long duration and the parties are the parents of all the children involved. Ragains v. Ragains, 204 Neb. 50, 281 N.W.2d 516 (1979); Knigge v. Knigge, 204 Neb. 421, 282 N.W.2d 581 (1979). This court is not inclined to disturb the division of the property made by the trial court unless it is patently unfair on the record. Johnson v. Johnson, 209 Neb. 317, 307 N.W.2d 783 (1981); Ritter v. Ritter, 205 Neb. 668, 289 N.W.2d 526 (1980). How property, inherited by a party during the marriage, will be...

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13 cases
  • Taylor v. Taylor
    • United States
    • Nebraska Supreme Court
    • May 16, 1986
    ...set forth in § 42-365. See, Rockwood v. Rockwood, supra; Choat v. Choat, 218 Neb. 875, 359 N.W.2d 810 (1984). In Koubek v. Koubek, 212 Neb. 2, 321 N.W.2d 55 (1982), we affirmed a property award of considerably less than one-third of the net marital estate and stated that the general guideli......
  • Preston v. Preston
    • United States
    • Nebraska Supreme Court
    • July 31, 1992
    ...and the parties are the parents of all the children, see, Sullivan v. Sullivan, supra; Taylor v. Taylor, supra; and Koubek v. Koubek, 212 Neb. 2, 321 N.W.2d 55 (1982). Here, the parties were married for 26 years and produced four children. The record reveals that both parties were employed ......
  • Grace v. Grace
    • United States
    • Nebraska Supreme Court
    • January 24, 1986
    ...of funds brought into a marriage is a consideration in the division of property, it is not an absolute." See, also, Koubek v. Koubek, 212 Neb. 2, 321 N.W.2d 55 (1982). Here, Mr. Grace's shares of stock represented 18.14 percent of the stock of a farm and ranch corporation which had a net va......
  • Ainslie v. Ainslie
    • United States
    • Nebraska Court of Appeals
    • September 26, 1995
    ...of the particular case and the equities involved. Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982); Koubek v. Koubek, 212 Neb. 2, 321 N.W.2d 55 (1982). The general rule in Nebraska is that property inherited by one spouse is not subject to division unless the other spouse has......
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