Manker v. Manker

Decision Date24 May 2002
Docket NumberNo. S-01-736.,S-01-736.
Citation263 Neb. 944,644 N.W.2d 522
PartiesKaren L. MANKER, Appellee, v. James I. MANKER, Appellant.
CourtNebraska Supreme Court

Thomas Blount, of Bertolini, Schroeder & Blount, Bellevue, for appellant.

Daylene A. Bennett, of Burger & Bennett, P.C., McCook, for appellee.




Karen L. Manker and James I. Manker were married in 1979 and lived together until 1998. On August 13, 1999, Karen filed this action alleging she had learned for the first time in 1994 that James had dissolved the marriage in 1980. In her petition, Karen claimed she was a putative spouse within the meaning of Neb.Rev.Stat. § 42-378 (Reissue 1998) and sought relief in the form of an equitable division of assets, alimony, and child support. In the alternative, Karen requested that she be granted the same relief through the imposition of a constructive trust. James asserted various defenses, including an allegation that Karen's claims were barred by the statute of limitations. The district court entered an order rejecting James' defenses and awarding Karen her requested relief. James perfected this timely appeal, and we granted his petition to bypass.


The parties were married in Kearney, Nebraska, on September 4, 1979. On February 21, 1980, James filed a petition in the district court for Buffalo County seeking to dissolve the marriage. Karen signed a voluntary appearance at the office of James' attorney on March 5. On April 18, Karen again accompanied James to his attorney's office to sign a property settlement agreement.

Notice of the final hearing on James' petition for dissolution was mailed to Karen at her address in Kearney on or about April 24, 1980. On May 8, James and his counsel appeared at the final hearing, but Karen did not appear personally or through counsel. The district court ordered the marriage dissolved after finding it to be irretrievably broken and then accepted the parties' property settlement agreement and incorporated it in the decree. On May 9, the clerk of the district court for Buffalo County mailed notice of the judgment to Karen at the address in Kearney where she and James resided.

Notwithstanding the legal dissolution of their marriage, James and Karen continued to reside together and hold themselves out as husband and wife. In late June or early July 1980, the couple moved to Loup City, Nebraska, so James could take a job as an industrial arts teacher. When James began his employment, he listed Karen as his "spouse" on his health insurance forms. James purchased a house in Loup City, and the warranty deed to the home referred to James and Karen as "husband and wife." In 1980, the parties filed their state and federal income tax returns under the status "Married, filing joint return" and continued to do so until 1997.

In 1988, the couple sold the house in Loup City and moved to Wauneta, Nebraska, so James could take a position as a school principal. When James began this employment, he again listed Karen as his "spouse" on his health insurance forms. In 1992, the parties visited an attorney for the purpose of executing wills. James executed a will that referred to Karen as his "wife" and left Karen the entirety of his property in the event of his death. Karen executed a will that referred to James as her "husband" and left the entirety of her property to James in the event of her death.

In 1998, the parties' relationship ended, and James moved out of the rented home in which the family had resided. On August 13, 1999, Karen filed this action in the district court for Chase County. In her petition, Karen alleged that she was "completely and innocently ignorant of the actual status of her marriage until the fall of 1994." Karen prayed that the district court declare her to be James' putative spouse under § 42-378 and equitably distribute the assets accumulated by the parties during the alleged putative marriage or, in the alternative, for the imposition of a constructive trust. She further prayed for a determination that James is the father of a child born October 10, 1983, during their cohabitation, an award of legal custody of the child, and an award of child support.

After his general demurrer was overruled, James filed an answer in which he affirmatively stated that he has "always acknowledged [the child] to be his son and has supported him since the date of his birth." He further alleged that Karen "was well aware that the parties were divorced in 1980," that her petition failed to state facts sufficient to state a cause of action, and that her purported cause of action was barred by the statute of limitations and laches.

At trial, Karen admitted executing the voluntary appearance and property settlement agreement in 1980 but claimed that James subsequently told her that "he was just thinking about" a divorce and that "[h]e had time to stop it." Karen further testified that sometime between April and June 1980, James informed her that he had, in fact, dismissed the divorce proceedings on the day after the parties signed the property settlement agreement.

Karen denied ever receiving a copy of the notice of the final hearing on James' petition for dissolution or the notice of final judgment. She testified that James always retrieved the mail and surmised that he must have concealed these documents from her. Karen testified that at the time, she did not check with the court or James' attorney to verify that the dissolution proceeding had been dismissed. Karen stated that she simply "believed [James]" in this regard.

Karen testified that she had no reason to suspect her marriage to James had been dissolved until James made a suspicious comment during an argument in 1994. Based on this comment, Karen consulted an attorney who made inquiries and confirmed that the decree had, in fact, been entered in 1980. Karen testified that she was "shocked" to learn of this fact.

On direct examination, Karen was questioned about why she had continued living with James after discovering in 1994 that the marriage had been dissolved. She stated that she attempted to move out on one occasion in 1994 but that James said he would move out instead. According to Karen, James did not move out until 1998, despite her repeated requests that he do so. Asked why she did not disclose the dissolution to others after learning of it in 1994, Karen testified that James told her they "couldn't do that ... because ... it would alert the IRS and we'd be into a lot of trouble. And he'd lose his job."

Additional testimony from both parties established that James handled all of the couple's finances and that nearly all of the property accumulated during their relationship was titled in James' name. As of 1997, the only property held by Karen was $800 deposited in a checking account, an IRA worth $16,501.55 that Karen cashed for living expenses following the separation, a savings bond valued at $5,542 which was given to Karen by James' father and subsequently cashed by Karen, and a 1997 Buick LeSabre automobile purchased by James but titled in Karen's name. The remainder of the property, including James' substantial retirement account, numerous stocks and bonds, a pickup, a boat, and a camper, was all titled in James' name. James testified that he purchased all of these assets with his own funds.

In an order entered June 12, 2001, the district court stated:

The Court finds that the very difficult issue in this case is the credibility of the parties. The question comes down to who does the Court believe. The Court finds that based upon the testimony, the demeanor of the witnesses, particularly Karen and James and the facts surrounding the dissolution of marriage in 1980 and the actions of the parties since 1980, [that] the plaintiff herein presented the more credible evidence. The Court finds specifically that the plaintiff herein believed, in good faith, that the defendant had stopped the dissolution of marriage in 1980 and that she was married to the defendant in 1980 and remained married to the defendant up until 1994. The Court further finds that in the fall of 1994, Karen found out the truth and [sic] that she had, in fact, been divorced from James since May 8, 1980.

Based upon these findings, the district court concluded that Karen should be considered James' putative spouse pursuant to § 42-378.

In reaching its conclusion, the district court relied on the decision of the California Court of Appeals in In re Marriage of Monti, 135 Cal.App.3d 50, 185 Cal.Rptr. 72 (1982), which held that a person who continues to live with a former spouse in ignorance of a final dissolution decree and with a good faith belief in the continued validity of the marriage is a putative spouse under California law. The district court reasoned that because the California putative spouse statute construed in In re Marriage of Monti was similar to § 42-378, the same result was warranted in this case.

The district court acknowledged that more than 4 years had elapsed between the date in 1994 when Karen discovered that the marriage had been dissolved and the filing of her petition on August 13, 1999. Nevertheless, the district court reasoned that because the parties had lived together until the fall of 1998 and because of certain statements James had made to Karen after 1994, her claim was not time barred. Based upon its determination that Karen was a putative spouse and its alternative determination that Karen was entitled to relief through the imposition of a constructive trust, the district court divided the parties' assets and ordered James to "transfer to Karen ... accounts, money, or monies worth [or] valued at one hundred thirty-eight thousand five hundred twenty-seven dollars ($138,527.00)," as part of a "property settlement." The district court then entered a judgment in that amount, with interest from...

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