Pyke v. Pyke

• Decision Date: 09 July 1982
• Docket Number: No. 44239,44239
• Citation: Pyke v. Pyke, 212 Neb. 114, 321 N.W.2d 906 (Neb. 1982)
• Parties: Myrna PYKE, Appellee and Cross-Appellant, v. James A. PYKE, Jr., Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 906

321 N.W.2d 906

212 Neb. 114

Myrna PYKE, Appellee and Cross-Appellant, v.James A. PYKE, Jr., Appellant and Cross-Appellee.

No. 44239.

Supreme Court of Nebraska.

July 9, 1982.

Syllabus by the Court

1.Alimony: Property Division.When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, 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.

2.Alimony.The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in Neb.Rev.Stat. § 42-365(Cum.Supp.1980) make it appropriate.

3.Alimony.In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion 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.

4.Alimony.Where the situation of the parties and the contingencies are such that the amount of alimony cannot be placed in a lump sum without danger that such allowance may prove unjust or inequitable to one or the other of the parties, it is therefore proper for the courts to provide for the payment of a stated sum at fixed times over an indefinite period.

5.Divorce: Pensions.Federal law precludes a state court from awarding a nonmilitary spouse a portion of a military spouse's government pension.

6.Divorce: Alimony: Pensions.A trial court, in determining what, if any, alimony should be awarded a spouse, may recognize that the spouse ordered to pay the alimony may have, by way of income for his own maintenance and support, a military pension or may have the proceeds of a military pension from which he may be able to make alimony payments, although the court cannot award an interest in the pension to the nonmilitary spouse.

Thomas J. Garvey of Hascall, Jungers & Garvey, Bellevue, for appellant.

Albert L. Feldman of Harris, Feldman, Stumpf & Pavel, Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

KRIVOSHA, Chief Justice.

The appellant, James A. Pyke, Jr.(appellant husband), appeals from a decree entered by the District Court for Sarpy County, Nebraska, on March 26, 1981.The decree dissolved the marriage of appellant husband and his wife, Myrna Pyke(appellee wife), and further provided for the division of the property owned by the parties.In addition, the court awarded alimony to appellee wife.This appeal involves only the issue of the alimony awarded.We affirm.

James and Myrna Pyke were married in Floydada, Texas, on August 11, 1956.Two children were born of the marriage, both of whom have now reached their legal majority.One of the sons is fully employed and the other is a student at the University of Nebraska-Lincoln.

Appellant husband is a lieutenant colonel in the U. S. Air Force with 26 years of service.He is presently 47 years of age and has annual earnings from the Air Force in the amount of $39,000.Appellee wife, who is 45 years of age, has engaged, to some limited extent, in selling real estate and has had gross earnings of approximately $4,000 per year.Additionally, she has been employed in the past as a secretary in the civil service with a grade of GS-3, although she was eligible to be employed as a GS-4.The record discloses that the assets accumulated by the parties during their marriage consisted of $81,000 in cash and additional personalty in the amount of approximately $10,000.In addition, appellant husband will be eligible to receive a federal military retirement upon his separation from the service, which the record indicates is anticipated in approximately 2 years.

With regard to the matter of alimony, the court decree specifically provided as follows: "The respondent is presently a Lt. Col., in the United States Air Force, earning an annual salary of $39,000, and the petitioner, although unemployed at the present time, is capable of earning approximately $7,000 per year based upon the present current prevailing minimum wage.That based upon the foregoing earning capacity of the parties, the court finds that the respondent should pay to the petitioner as permanent alimony the sum of $850 per month, commencing March 1, 1981, and a like amount on the first day of each month thereafter until the death of the respondent or the petitioner, or until further order of the court."The court specifically found that the alimony was not to terminate automatically upon the remarriage of the appellee wife but that such remarriage could be considered as a change of circumstances to be considered by the court at some future time, together with any other relevant circumstances in regard to the earning capacity of either of the parties.

The trial court further specifically found that although appellant husband, by reason of his service in the U. S. Air Force, would, upon retirement in 1983, receive the sum of $1,991.28 per month, said retirement pay was not an asset to be divided by the court but could be considered as a fund available to appellant husband for the payment of alimony.

Appellant husband argues to the court that the trial court erred in both setting the alimony at the sum of $850 per month and in not limiting it to a fixed time.He argues that the alimony should have been fixed at $650 per month for a set number of months.Our examination of the record does not lead us to that conclusion.

Neb.Rev.Stat. § 42-365(Cum.Supp.1980) specifically details how and when the trial court is to consider awarding alimony.The section, reflective of our case holdings, provides in part as follows: "When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, 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."SeeTuttle v. Tuttle, 193 Neb. 397, 227 N.W.2d 27(1975).In 1980the Legislature of Nebraska amended § 42-365 and added a new paragraph which more fully indicated the Legislature's intent in adopting the section.The amendment provides as follows: "While the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, the two serve different purposes and are to be considered separately.The purpose of a property division is to distribute the marital assets equitably between the parties.The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate."(Emphasis supplied.)It seems clear to us that by amending this sectionthe Legislature intended that the trial court, in the first instance, and this court, on review, were to look at the overall circumstances of the parties and to attempt, if possible, to provide for the award of alimony for such period of time and under such conditions as would minimize any substantial and unnecessary disruption in the lives of the parties occasioned by reason of the dissolution of marriage.That is not to say that the court is, in every instance, to grant to one of the spouses a lifetime annuity.It is simply to say that in each case the court must make an examination of the circumstances and attempt to enter an order which is fair and equitable under the circumstances.That notion is not new to the law.

Specifically, in Magruder v. Magruder, 190 Neb. 573, 576, 209 N.W.2d 585, 587(1973), we said: "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."And in Baird v. Baird, 196 Neb. 124, 125, 241 N.W.2d 543, 545(1976), we said: "In determining whether alimony should be awarded, the ultimate test is one of reasonableness."

As we examine the record in this case, taking into account the factors which we are required to consider in accordance with § 42-365, we cannot say that the trial court was incorrect in its award of $850 per month, nor do we believe that in reviewing the record de novo we should modify that award.

Appellant husband argues that the trial court has granted to the appellee wife a lifetime annuity, which should not be permitted, citing to us our decision in Cole v. Cole, 208 Neb. 562, 567, 304 N.W.2d 398, 401(1981), wherein we said: "[A]...