Magruder v. Magruder, 38852

• Decision Date: 27 July 1973
• Docket Number: No. 38852,38852
• Parties: Lyell Mitchell MAGRUDER, Appellee-Cross-Appellant, v. Patsy L. MAGRUDER, Appellant-Cross-Appellee.
• Court: Nebraska Supreme Court

Page 585

209 N.W.2d 585

190 Neb. 573

Lyell Mitchell MAGRUDER, Appellee-Cross-Appellant, v. Patsy L. MAGRUDER, Appellant-Cross-Appellee.

No. 38852.

Supreme Court of Nebraska.

July 27, 1973.

Syllabus by the Court

1. When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party. § 42--365 R.S.Supp., 1972.

2. Alimony may be ordered in addition to a property settlement award. § 42--366(6), R.S.Supp., 1972.

3. Unless otherwise agreed by the parties in writing or by the order of the court, an alimony order shall terminate upon the death of either party or the remarriage of the recipient. § 42--365, R.S.Supp., 1972.

4. The relevant circumstances in determining whether alimony should be awarded and in what amount will vary from case to case.

Crites, Shaffer & Slavik, Chadron, for appellant.

Michael V. Smith, Gordon, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

CLINTON, Justice.

This action commenced as one by the plaintiff husband for divorce. Previous to trial on the merits, L.B. 820, Laws 1972, p. 246, was enacted and the action proceeded as one for dissolution of the marriage under that act on the ground alleged in an amendment to the plaintiff's petition that the marriage was irretrievably broken. The defendant wife denied the marriage was irretrievably broken and prayed for a legal separation to allow time to effect a reconciliation.

The matter proceeded to trial and the court found that every reasonable effort to effect reconciliation had been made and that the marriage was irretrievably broken. The court ordered a division of property between the parties and granted the defendant alimony of $416.66 per month beginning September 15, 1972, to continue until either of the parties dies or the defendant remarries.

The defendant appeals, claiming that the alimony award is inadequate and that the court erred in appraising the property of the parties and in its division between them. The plaintiff cross-appeals, attacking the alimony award on the ground that the court erred in making it in the form of an annunity and also on the ground that it is excessive. The defendant requested that supersedeas bond be set. This was done and the bond furnished by her. Upon her application she was awarded $750 per month temporary support pending this appeal. The plaintiff on this appeal attacks the amount as excessive.

We modify the award of alimony and affirm the decree as modified.

The parties were married at Kirksville, Missouri, on May 20, 1962. At that time the plaintiff was completing a premedical course at Kirksville Teacher's College and working as a motel clerk. The defendant was then attending college half days and working in an abstract office in the afternoons. In the fall of that year the plaintiff entered medical school at Columbia, Missouri. The defendant continued both her employment and college attendance and commuted between Columbia and Kirksville. They lived in a mobile home purchased at cost from the defendant's father and her parents gave her the automobile in which she traveled between the two cities. In the spring of 1963 the defendant finished her college course and obtained a job teaching in the Columbia schools. The defendant continued to work and also obtained her Master's Degree during this time. The plaintiff continued in medical school and received his M.D. Degree in 1966. In 1963, 1964, 1965 and the first part of 1966, the parties were supported largely by the earnings of the defendant. The plaintiff's tuition was paid by grants and income from livestock he owned and which were cared for by a uncle.

In the year following his graduation from medical school, during a 1 year internship of the plaintiff in Des Moines, Iowa, the parties lived largely on the plaintiff's salary as an intern. The defendant had a small income from part-time employment. In 1967, the plaintiff entered the Air Force as a medical officer and after that the defendant was no longer employed. Following 2 years of active duty, the plaintiff entered the practice of medicine in an established medical partnership at Chadron, Nebraska. He prospered. In 1970, his first full year of medical practice, his adjusted gross income was $22,718. In 1971 it was $27,900 and he estimated his income for 1972 would be $36,000. At the time of trial the plaintiff was 32 and the defendant 28. Both parties are in good health. They have no children.

The first apparent rift in the marriage occurred while the plaintiff was in the military service when he informed the defendant that he wanted a divorce and that other women looked good to him. The matter went no further until, shortly before the divorce action was filed, he made an unannounced departure from the home of the parties in Chadron and took up a separate residence. The parties did not live together thereafter.

The court determined the value of the property of the parties to be about $42,000 and ordered it divided equally between them. We have examined the evidence relative to the appraisal of the property and conclude that the valuations by the trial judge are not erroneous and are justified by the evidence. The division of the property is approved.

We next discuss the matter of alimony. Section 42--365, R.S.Supp., 1972 provides: 'When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party.' Section 42--366(6), R.S.Supp., 1972, provides that alimony may be ordered in addition to a property settlement award. Section 42--365, R.S.Supp., 197i, also provides that unless otherwise agreed by the parties in writing or by the order of the court, the alimony shall terminate upon the death of either party or the remarriage of the recipient.

In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criteria under the statute as well as under the former decisions of this court is one of reasonableness. The relevant considerations will vary from case to case. See, Prosser v. Prosser, 156 Neb. 629, 57 N.W.2d 173; Mandelberg v. Mandelberg, 187 Neb. 844, 195 N.W.2d 148. The determination of whether it is reasonable to award alimony and if so how much takes into consideration all the circumstances of the parties, as well as the duration of the marriage and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children of the parties in the supported party's custody. § 42--365, R.S.Supp., 1972.

This court has held that alimony awards payable in the form of an annuity for life or some indefinite period of time are not generally desirable although they may be proper in some circumstances. Card v. Card, 174 Neb. 124, 116 N.W.2d 21; Metschke v. Metschke, 146 Neb. 461, 20 N.W.2d 238.

In the case at hand, both parties are young, both are in good health, and both are or can be self-supporting. The marriage having been dissolved, it does not appear desirable to have their lives bound together by financial ties which may continue for their lifetimes if the defendant does not remarry. On the other hand, the marriage did endure for about 9 years and during that time the defendant made substantial contributions to the future economic well-being of the parties. The parties at the time of the separation had just reached the point where they would begin to reap some of the economic rewards of their efforts. The defendant would have liked to have had the marriage continue. These considerations lead us to believe that the alimony to be awarded the defendant should be substantial, but in the light of the ages of the parties and the capacity of the defendant to ultimately be self-supporting in a teaching or secretarial capacity, we think the award should be payable over a relatively shorter period of time than that made by the trial court. We determine, therefore, that the defendant should receive monthly alimony for a shorter period of time, but the present value of the award should be an amount approximately equivalent to that made by the trial court. The alimony award is thus modified as follows: The defendant shall receive monthly alimony in the amount of $833.33 for a period of 10 years and 2 months, beginning with the filing of our mandate in the trial court, but such alimony shall terminate upon the death of either party or the remarriage of the defendant.

The award of temporary support of the defendant of $750 a month during the pendency of this appeal was not an abuse of discretion by the trial court and is affirmed.

The defendant is awarded an attorneys' fee of $1,250 for the services of her attorney in this court.

Affirmed as modified.

WHITE, Chief Justice (dissenting).

I respectfully dissent. I cannot come to any other conclusion but that the alimony award in this case is grossly excessive and is not harmonious with the present statute creating the 'no fault' provisions for the dissolution of a marriage. As the majority opinion points out, both parties are young (around 30 years of age), both are in godd health, and both are, or can be, self-supporting. They have no children, and they are both educated, sophisticated, and cultured people. The award of over $100,000 in alimony, in my opinion, is unconscionable. It seems to me that the award in this case is a sub silentio approval of applying the harsh...