Nimmer v. Nimmer, 42187
| Decision Date | 22 May 1979 |
| Docket Number | No. 42187,42187 |
| Citation | 203 Neb. 503,279 N.W.2d 156 |
| Court | Nebraska Supreme Court |
| Parties | Polyxeny M. NIMMER, Appellee, v. George R. NIMMER, Appellant. |
Syllabus by the Court
Divorce: Custody: Minors: Attorney's Fees. An action seeking modification of custody or possession rights over minor children is a proceeding ancillary to the original divorce and the District Court retains authority to exercise discretion in the granting of attorney's fees.
Seb Caporale, Omaha, for appellant.
Sally Millett Rau, of Walsh, Walentine & Miles, Omaha, for appellee.
Heard before BOSLAUGH, McCOWN, CLINTON, and BRODKEY, JJ., and WINDRUM, District Judge.
The marriage of Polyxeny M. Nimmer, appellee, and George R. Nimmer, appellant, was dissolved on April 14, 1975. Custody of the minor children of the parties was retained by the District Court, with the physical possession awarded to petitioner, the appellee, subject to visitation rights of respondent, the appellant.
On September 15, 1977, the appellant filed his application requesting a change in the possession, care, and control of the minor children. Appellee on October 17, 1977, filed her responsive pleading, the prayer of which is as follows: "Wherefore, petitioner having fully answered respondent's Application, petitioner prays that said Application be dismissed and that petitioner be awarded attorney's fees which were necessitated by respondent bringing this matter before the Court." On February 23, 1978, in response to a motion of the appellant filed February 22, 1978, appellant's application to modify the decree relative to custody was dismissed without prejudice. On March 2, 1978, appellee filed an application for attorney's fees together with a notice for a hearing on March 8, 1978. An objection to the application was filed March 6, 1978.
The record is silent as to what, if anything, occurred on March 8, 1978, at the appointed time for hearing the application for attorney's fees. There is no bill of exceptions for this portion of the case and no order of continuance contained in the transcript. An order was entered on April 13, 1978, reciting that both sides had presented briefs to the court concerning the appellee's application for attorney's fees, and the court found that appellant should pay for the use and benefit of appellee's attorney the sum of $500 for services rendered in behalf of the appellee, payable forthwith.
The appellant filed a motion for new trial. It was duly overruled, and he brought the appeal.
Appellant maintains the District Court had no jurisdiction to order attorney's fees after the cause of action had been dismissed. He cites therefor Kiddle v. Kiddle, 90 Neb. 248, 133 N.W. 181. In that case, the wife brought the action for divorce. The parties reconciled before the hearing at which the court awarded temporary attorney's fees and suit money to the wife. Before it was paid, the court, on motion of the husband, dismissed the petition for divorce. The court held that the husband had to pay the attorney's fees. The court still had jurisdiction when the order was made. Appellant further cites Rhein v. Rhein, 244 Minn. 260, 69 N.W.2d 657. In that case, the husband had brought an action for divorce. The wife asked for temporary suit money. Prior to ruling thereon, the husband dismissed the petition. The Minnesota Supreme Court held that they had no jurisdiction to award suit money.
In the instant case, once the original decree was entered the court had continuing jurisdiction until all the children were of legal age or emancipated. A final order, the decree, had been entered imposing obligations on appellant.
The application to change physical custody of the minor children and the response thereto constituted a continuation of the suit for dissolution of marriage and was one of its incidents. Thus, the holding of Rhein v....
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Stewart v. Heineman
...if a proper decision is possible by considering them as evidence along with the bill of exceptions at this time."62 Similarly, in Nimmer v. Nimmer ,63 we affirmed an award of attorney fees despite the fact that the evidence of those fees was found only as an itemized list of services render......
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Interest of Joshua M., In re
...in aid of the appeal process." See In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91 (1986). See, also, Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979) (decree of dissolution insofar as minor children are concerned is never While we agree that a juvenile court retains limited......
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Boamah-Wiafe v. Rashleigh
...uniform course of procedure exists in Nebraska jurisprudence for the award of attorney fees in dissolution cases. See Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979). It is therefore possible that the trial court determined it was allowing attorney fees under statutory authority or a ......
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Marriage of Kozloff, In re
...finds support in the decisions of other jurisdictions. (In re Marriage of Billings (Mont.1980), 616 P.2d 1104; Nimmer v. Nimmer (1979), 203 Neb. 503, 279 N.W.2d 156; Campbell v. Campbell (Miss.1978), 357 So.2d 129.) Of course, there is always a right to a change of venue, even after a subst......