Kramer v. Kramer
| Decision Date | 23 May 1997 |
| Docket Number | S-96-629,Nos. S-95-728,s. S-95-728 |
| Citation | 567 N.W.2d 100,252 Neb. 526 |
| Parties | Kenneth J. KRAMER, Appellee, v. Kathleen J. KRAMER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Summary judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
2. Pleadings: Demurrer: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.
3. Demurrer: Pleadings. In determining whether a cause of action has been stated, a petition is to be construed liberally. If as so construed the petition states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled.
4. Demurrer: Pleadings: Words and Phrases. A statement of facts sufficient to constitute a cause of action, as used in Neb. Rev. Stat. § 25-806(6)(Reissue 1995), means a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.
5. Judgments: Appeal and Error. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court has an obligation to reach a conclusion independent of that of the inferior court.
6. Federal Acts: Property Division: Armed Forces: Pensions. Military retirement benefits cannot constitute divisible marital property except to the extent specifically permitted by the Uniformed Services Former Spouses' Protection Act.
7. Summary Judgement. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
8. Summary Judgment: Proof. A party moving for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence was uncontroverted at trial. At that point, the burden of producing evidence demonstrating the existence of a genuine issue of material fact shifts to the party opposing the motion.
9. Actions: Equity. An action in assumpsit for money had and received may be brought where a party has received money which in equity and good conscience should be repaid to another.
10. Actions: Equity. Although founded on equitable principles, an action in assumpsit for money had and received is an action at law.
11. Actions: Equity. There must be a specific legal principle or situation which equity has established or recognized to bring a case within the scope of a cause of action in assumpsit for money had and received.
12. Modification of Decree: Alimony: Good Cause: Words and Phrases. Unless amounts have accrued prior to the date of service of process on a petition to modify, orders for alimony may be modified or revoked for good cause shown. Good cause means a material and substantial change in circumstances and depends upon the circumstances of each case.
13. Modification of Decree: Good Cause: Appeal and Error. The determination of good cause necessary for modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion.
14. Federal Acts: Modification of Decree: Alimony: Armed Forces: Pensions: Waiver. While a court may not include service-connected disability benefits awarded to a military retiree as a part of a marital estate, it may consider such benefits and the corresponding waiver of retirement pension benefits required by federal law in determining whether there has been a material change in circumstances which would justify modification of an alimony award to a former spouse.
Peter C. Bataillon, Omaha, and Kelly K. Brandon, Bellevue, of Sodoro, Daly & Sodoro, for Appellant.
Robert J. Hovey, P.C., Bellevue, for Appellee.
In a contested dissolution proceeding which was finally resolved by the Nebraska Court of Appeals in 1993, see Kramer v. Kramer, 1 Neb.App. 641, 510 N.W.2d 351 (1993) (Kramer I ), Kathleen J. Kramer (wife) was awarded a 46-percent interest in the monthly military retirement pension of Kenneth J. Kramer (husband). In August 1994, the Department of Veterans Affairs awarded service-connected disability benefits to the husband, retroactive to August 1, 1992. Under federal law, receipt of disability benefits operates as a waiver of an equal amount of regular retirement benefits to which the veteran would otherwise be entitled. Both of these cases involve the effect of this waiver on the wife's interest in the military retirement pension.
In case No. S-95-728, the husband alleges that the wife was "unjustly enriched" by receipt of her 46-percent interest in the retirement pension during the retroactive period of the disability award. On May 17, 1995, the district court for Sarpy County granted his motion for summary judgment, denied her motion for summary judgment, and entered judgment in favor of the husband against the wife in the amount of $7,897.28.
Case No. S-96-629 involves an application filed by the wife requesting modification of the decree of dissolution on the ground that the judgment in favor of the husband and the reduced future value of her interest in the retirement pension which resulted from the disability award amounted to a material change in circumstances justifying an increase in alimony. The district court dismissed the application on October 16, 1995.
The wife perfected timely appeals from both orders to the Court of Appeals. Pursuant to our authority to regulate the caseloads of the Court of Appeals and this court, we removed the cases to our docket. We consolidated them for oral argument because they arise from the same facts.
We affirm the judgment of the district court in case No. S-95-728 as modified, and reverse, and remand case No. S-96-629 to the district for further proceedings.
On January 11, 1991, the district court for Sarpy County entered a decree dissolving the 26-year marriage of Kenneth J. and Kathleen J. Kramer. The decree included the following provision:
That the [husband] shall pay as alimony to the [wife] the sum of $750.00 per month commencing on the 1st day of June, 1990 and continuing in a like amount on the 1st day of each month thereafter until the death of the [wife] or the [husband], whichever shall occur first. That this award of alimony is not to terminate automatically upon the remarriage of the [wife]. This alimony may be modified upon a change of circumstances to be considered by the court at some future date, together with any other relevant circumstances in regard to the earning capacity of either of the parties.
That in consideration of the provision, [the husband] is awarded all rights and entitlement to his United States Air Force Military Retirement Pension.
The record reflects that this alimony award was intended to constitute the wife's interest in the military retirement pension in accordance with our decision in Pyke v. Pyke, 212 Neb. 114, 321 N.W.2d 906 (1982). The decree also required the husband to pay additional alimony in the amount of $1,200 per month for 1 year and $900 per month thereafter, continuing until the death of either party or the remarriage of the wife.
The husband appealed, contesting the amount and duration of alimony and the award of attorney fees. The wife cross-appealed, contending that the district court erred in the manner in which it awarded her interest in the military pension.
In Kramer I, the Court of Appeals affirmed the award of what it characterized as "traditional alimony," 1 Neb.App. at 642, 510 N.W.2d at 353, in the amount of $900 per month but found that the provision for termination only upon death or remarriage was unreasonable. It ordered a modification to provide that this alimony would terminate on June 1, 2005, if not previously terminated by the death of one of the parties or the wife's remarriage.
Addressing what it characterized as the "Pyke alimony" challenged by the wife's cross-appeal, the Court of Appeals found that the "greatest accumulation of value" during the marriage was the military pension. Id. at 646, 510 N.W.2d at 355. The court further reasoned that under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1401 et seq. (1988 & Supp. II 1990) (USFSPA), and our holding in Taylor v. Taylor, 217 Neb. 409, 413, 348 N.W.2d 887, 889 (1984), "nondisability military pensions need no longer be treated differently than nonmilitary pensions" in the division of marital assets. In Kramer I, the Court of Appeals stated:
In our view, the provision in the Nebraska statute, [Neb.Rev.Stat.] § 42-366 [ (Reissue 1988) ], that pensions be treated as property subject to division, coupled with the USFSPA, means that as a general proposition, a military pension must be viewed primarily as property to be divided. Thus, although Pyke alimony can be used, it should not be used in a manner which deprives the receiving spouse of the benefits which would ordinarily inure from the division of property. Typically, when marital property is divided, each party has the benefit of receiving a fixed amount or value which potentially can appreciate. Additionally, each party's share is not subject to being later reduced or taken away entirely because of circumstances which...
To continue reading
Request your trial
-
Youngbluth v. Youngbluth
...Vt. 241, 242, 373 A.2d 549, 549 (1977). Husband was well within his rights to apply for disability benefits. See Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100, 110 (1997) (holding in a similar situation that there was "no evidence that the husband took any improper or unlawful action," sin......
-
Ploen v. Union Ins. Co.
...whom judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100 (1997). FACTS On December 24, 1991, Ploen was a passenger in a car owned and operated by his father. The car was hit from behind......
-
Ryan v. Ryan
...extent permitted by the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1401 et seq. (1982). Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100 (1997). Disability benefits, such as Howard's, are not divisible marital property under the USFSPA. See id. The question whethe......
-
Krempin, In re
...circumstances which permitted reassessment of support payments or redistribution of marital property. (E.g., Kramer v. Kramer (1997) 252 Neb. 526, 567 N.W.2d 100, 113; Clauson v. Clauson (Alaska 1992) 831 P.2d 1257, 1260-1261; Torwich v. Torwich (App.Div.1995) 282 N.J.Super. 524, 660 A.2d 1......