Pfeiffer v. Pfeiffer

• Decision Date: 17 April 1979
• Docket Number: No. 41974,41974
• Citation: 277 N.W.2d 575,203 Neb. 137
• Parties: Doris J. PFEIFFER, Appellee and Cross-Appellant, v. Ben C. PFEIFFER, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 575

277 N.W.2d 575

203 Neb. 137

Doris J. PFEIFFER, Appellee and Cross-Appellant, v. Ben C. PFEIFFER, Appellant and Cross-Appellee.

No. 41974.

Supreme Court of Nebraska.

April 17, 1979.

Syllabus by the Court

1. New Trial: Motions, Rules, and Orders: Time. A motion for new trial filed after the trial court has announced its decision, but before a judgment has been rendered or entered, is effective and does not constitute a nullity if the record shows that the motion for new trial relates to the decision which has been announced by the trial court and the record shows that a judgment was subsequently rendered or entered in accordance with the decision which was announced and to which the motion for new trial relates.

2. Divorce: Alimony: Property. The rules for determining alimony or 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 and the courts will consider all pertinent facts in reaching an award that is just and equitable.

3. Divorce: Alimony: Property. The fixing of alimony or distribution of property rests in the sound discretion of the District Court and in the absence of an abuse of discretion will not be disturbed on appeal.

Philip M. Kneifl of Kneifl, Kneifl & Forrest, Omaha, for appellant and cross-appellee.

Michael J. Mooney, of McCormack, Cooney & Mooney, Omaha, for appellee and cross-appellant.

Heard before KRIVOSHA, C. J., McCOWN, CLINTON, and WHITE, JJ., and KELLY, L. W., Jr., District Judge.

McCOWN, Justice.

This is an action for dissolution of marriage. The District Court dissolved the marriage, divided the property of the parties, and awarded alimony to the wife. The husband has appealed and the wife has cross-appealed.

The parties were married on October 14, 1944. At the time of trial in October 1977, the husband was 59 years old and the wife was 55. They had four children, all of whom had attained their majority prior to trial. In 1970 the wife left the family home and on September 3, 1970, filed a petition for divorce from bed and board. On September 10, 1970, the trial court entered an order granting custody of the two minor children still at home to the husband, and directing the payment of temporary support for the wife. On October 5, 1970, the husband answered and filed a cross-petition for a decree of absolute divorce. No further action was taken until 1977. All support payments were made. The husband filed an amended answer and cross-petition on April 12, 1977, in which he alleged that all the children had attained their majority and renewed the prayer for absolute divorce. Trial was held in October 1977.

From the time of the marriage in 1944 until 1946, when the husband returned from active military duty as a pilot in World War II, the wife continued to work as a registered nurse. After 1946 she worked only occasionally until 1961, and not thereafter. Upon return from active duty, the husband operated an appliance business in South Omaha until he was recalled to active duty in the Korean War in 1951. He served as a pilot in Korea until 1953. In 1953, he again retired from active military duty. At that time he and another individual organized a corporation known as Majors, Inc., whose principal business is the manufacture and distribution of custom-designed plastic products. The corporation is a closely-held corporation in which the husband owns 160 of 265 shares. He is the president and chief operations officer of the corporation. The operation of the corporate business has been the sole business activity of the husband since 1953.

Sometime in the mid-1950's the wife became an alcoholic and was hospitalized several times between 1961 and 1967 for alcoholism. In 1968 the wife fell down the basement steps at the family home and fractured her skull. She suffered an organic brain syndrome and depressive neurosis, and is not employable. Since she left the family residence in 1970, she has lived alone in an apartment, while the husband continued to occupy the family residence.

The parties filed separate income tax returns after 1970. In addition to support payments from the husband the wife receives income as a life beneficiary of a testamentary trust. In 1976 her income tax return shows an adjusted gross income of $8,827, of which $3,600 was support payments received from the husband. Her living expenses in 1977 were $669 per month, including medical expense.

The husband's salary as president of his corporation from 1970 to 1976 varied from $43,000 to $45,000 per year. He also received a variable bonus from year to year, and in 1976 his combined salary and bonus was $62,300.

At the time of trial the marital assets in the possession of the husband consisted of the residence valued at $38,850, against which there was a mortgage of $6,500; a tract of desert property worth $1,200; $5,000 cash value of life insurance; savings accounts of $6,299; and miscellaneous stocks, other than the Majors, Inc., stock, valued at $5,725. The principal asset was the 160 shares of Majors, Inc., which had a net book value of $350,385.44. There was some evidence that the stock was worth more than that amount and there was also evidence that it was worth less and that the business was declining. The husband also had a bank indebtedness of $8,000.

The assets in the possession of the wife consisted of certificates of deposit in the amount of $17,000; a checking account in the amount of $3,073.20; and savings accounts of $1,456.08.

On November 28, 1977, the court announced its findings and decision and directed that a decree be submitted. On December 5, 1977, counsel for the wife submitted the form of decree to the court and filed a motion for new trial. The decree was signed by the court and entered on the trial docket on December 6, 1977.

The...