Pope v. Pope

• Decision Date: 14 February 1997
• Docket Number: No. S-95-125,S-95-125
• Citation: 559 N.W.2d 192,251 Neb. 773
• Parties: Rosalie M. POPE, Appellee, v. Patrick E. POPE, Appellant.
• Court: Nebraska Supreme Court

Page 192

559 N.W.2d 192

251 Neb. 773

Rosalie M. POPE, Appellee, v. Patrick E. POPE, Appellant.

No. S-95-125.

Supreme Court of Nebraska.

Feb. 14, 1997.

Syllabus by the Court

1. Modification of Decree: Alimony: Appeal and Error. An appellate court entrusts the modification of an alimony award to the discretion of the trial court and reviews the trial court's decision de novo on the record for abuse of discretion.

2. Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

4. Modification of Decree: Alimony: Good Cause. Orders for alimony may be modified or revoked for good cause shown.

5. Modification of Decree: Alimony: Good Cause. Good cause is demonstrated by a material change in circumstances, but any changes in circumstances which were within the contemplation of the parties at the time of the decree, or that were accomplished by the mere passage of time, do not justify a change or modification of an alimony order.

6. Modification of Decree: Alimony: Proof. The moving party has the burden of demonstrating a material and substantial change of circumstances which would justify the modification of an alimony award.

7. Modification of Decree: Child Support. In the context of the modification of child support obligations, a petition for modification will be denied if the change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets.

8. Modification of Decree: Alimony. A petition for the modification or termination of alimony will be denied if the change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets.

9. Courts: Jurisdiction: Judgments: Alimony. A trial court has inherent power to retain jurisdiction to determine amounts due and to enforce judgments for alimony.

10. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable so as to deprive a party of a substantial right or just result.

Steven J. Lefler, of Lefler & Franklin Law Offices, Omaha, for appellant.

Richard M. Fellman, of Fellman, Moylan, Natvig, Steichen & Kelly, Omaha, for appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and ROWLANDS, D.J.

WHITE, Chief Justice.

Rosalie M. Pope petitioned this court for further review of the Nebraska Court of Appeals' decision terminating the alimony obligation of her former husband, Patrick E. Pope. Because we find that Patrick's decrease in income does not in this instance constitute good cause to justify modification or termination of his alimony payments, we reverse the decision of the Court of Appeals and remand the cause with directions to reinstate the district court's order in this matter.

Rosalie and Patrick were married on July 31, 1971, and the Douglas County District Court entered a decree of dissolution on November 6, 1989. At the time of the decree, Patrick was employed in a management position at Kellogg Company in Omaha and earned approximately $70,000 per year. Rosalie was (and still is) employed as a teacher at a private school in Omaha and earned approximately $14,000 per year. The parties had one minor child.

The district court, in relevant part, ordered Patrick to pay $515 per month in child support. The court also ordered Patrick to pay alimony in the amount of $600 per month commencing October 1, 1989, continuing for 36 months, and then in the amount of $300 per month for 73 months.

On July 13, 1990, Patrick was fired from his position at Kellogg for sleeping at his desk during his night shift. During the hearing on this matter, Patrick's attorney asked him, "And can you tell the Court why you got terminated, sir?" Patrick answered, "They caught me sleeping at my desk during a lunch hour." This is the only evidence concerning the matter.

Patrick attempted to find other comparable employment, but was unsuccessful because he lacks a high school diploma and had attained his management position only by working his way up through the company. On July 25, 1990, Patrick filed an application for modification of decree, asking for a reduction in his child support and alimony obligations. The court entered a temporary order on November 26, 1990, reducing Patrick's child support payments to $258 per month and his alimony payments to $300 per month, and ordering that the original decree remain in effect in all other respects.

Patrick found a job as a car salesman in March 1991, earning a net pay of approximately $1,000 per month. Patrick left this position in 1993 and started his own car interior repair business. In 1994, Patrick grossed approximately $1,500 per month and testified that the business was showing "good growth this year."

On April 27, 1994, Patrick again filed an application to modify the decree, asking that the court terminate his alimony obligation. Child support was not an issue because the parties' minor child had reached the age of majority. In the court order dated January 5, 1995, the district court found that Patrick was in arrears in alimony payments in the amount of $9,200 plus interest; that Patrick was in willful contempt of the prior orders of the court and could purge himself from contempt and remain out of jail by paying $200 per month commencing January 1, 1995, and continuing every month thereafter until all alimony originally decreed by the court plus interest was paid; and that the court believed that the $200-per month payment was reasonable because it was comparable to Patrick's former monthly child support payment.

Patrick timely appealed to the Court of Appeals. The Court of Appeals terminated Patrick's alimony payments, finding that a material and substantial change of circumstances with regard to Patrick's employment status had occurred, that this change was not anticipated or the result of the mere passage of time, that Patrick would never be able to regain his former level of income, and that the failure of the trial court to terminate Patrick's alimony payments constituted an abuse of discretion. See Pope v. Pope, 96 NCA No. 21, case No. A-95-125, 1996 WL 266460 (Neb.App.1996) (not designated for permanent publication). The Court of Appeals remanded the matter with instructions to enter an order terminating Patrick's alimony payments and future obligation effective April 27, 1994. See id.

Rosalie petitioned this court for further review, and we granted that petition. Rosalie assigns as error the Court of Appeals' action in overruling the trial judge's determination that there existed no good cause justifying termination of alimony.

We entrust the modification of an alimony award to the discretion of the trial court and review the trial court's decision de novo on the record for abuse of discretion. Pendleton v. Pendleton, 247 Neb. 66, 525 N.W.2d 22 (1994); Kleager v. Kleager, 242 Neb. 24, 492 N.W.2d 873 (1992). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994). A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Adrian v. Adrian, 249 Neb. 53, 541 N.W.2d 388 (1995); Evenson v. Evenson, 248 Neb. 719, 538 N.W.2d 746 (1995).

In her sole assignment of error, Rosalie alleges that the Court of Appeals erred in finding that Patrick's job loss constituted an unanticipated material and substantial change in circumstances. Rosalie argues that Patrick did not demonstrate good cause justifying the termination of alimony because he was fired from his former employment due to his own wrongdoing. We agree.

Orders for alimony may be modified or revoked for good cause shown. Neb.Rev.Stat. § 42-365 (Reissue 1995). Good cause is demonstrated by a material change in circumstances, but any changes in circumstances which were within the contemplation of the parties at the time of the decree, or that were accomplished by the mere passage of time, do not justify a change or modification of the alimony order. Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992); Cooper v. Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985). The moving party has the burden of demonstrating a material and substantial change of circumstances which would justify the modification of the alimony award. Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).

While we have held that one may in good faith make an occupational change even though that change may reduce one's ability to meet financial obligations, we have never determined whether the termination of one's employment due to one's own bad acts or fault constitutes good cause justifying modification or termination of alimony payments. See Cooper, supra. Other jurisdictions have addressed this issue. For instance, the New Hampshire Supreme Court has stated, "Although unemployment...