Sloss v. Sloss, 44381

• Decision Date: 01 October 1982
• Docket Number: No. 44381,44381
• Parties: Solveig A. SLOSS, Appellee, v. Pierce T. SLOSS, Appellant.
• Court: Nebraska Supreme Court

Page 663

324 N.W.2d 663

212 Neb. 610

Solveig A. SLOSS, Appellee, v. Pierce T. SLOSS, Appellant.

No. 44381.

Supreme Court of Nebraska.

Oct. 1, 1982.

Syllabus by the Court

1. Modification of Decree: Alimony. Except for amounts which have accrued prior to a petition to modify, orders for alimony may be modified or revoked for good cause shown. Neb.Rev.Stat. § 42-365 (Reissue 1978).

2. Modification of Decree: Alimony. A change in the circumstances of the parties since the entry of the alimony order is a prerequisite to a modification of the alimony decree. Not every change in circumstances will warrant such modification, but only changes of circumstances which are material and substantial.

3. Modification of Decree: Alimony: Appeal and Error. In actions for the modification of alimony in a dissolution of marriage proceeding, it is the duty of this court to review de novo the determination of the District Court as to whether a change in circumstances has occurred which justifies the modification of the original decree.

John Story and Sam Grimminger, Grand Island, for appellant.

Brian R. Watkins of Watkins, Osborne, Scott & Keist, Lincoln, for appellee.

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

McCOWN, Justice.

This is a proceeding to modify the alimony provisions contained in a divorce decree upon the ground of a change of circumstances. The District Court denied the petition to terminate or modify the original decree and this appeal followed.

The parties were married in 1955. They had four children who were, respectively, 17, 16, 13, and 11 years old at the time of the divorce decree in 1974. During the course of the marriage the husband, a pathologist, was actively engaged in the practice of medicine. The wife was a registered nurse and anesthetist but did not actively pursue her profession.

The parties entered into a written agreement in the divorce proceeding, which included a property settlement, custody and control of the minor children, child support, and alimony. The District Court found the agreement to be proper and reasonable in all respects, and that its terms were not unconscionable, and entered its decree approving the terms of the agreement and incorporating the agreement as a part of the decree. No appeal was taken.

The agreement and decree of March 6, 1974, provided that the wife should have custody of the children, subject to reasonable visitation rights of the husband, and that the husband would pay $62.50 per month child support for each of the two boys until each attained the age of 21 years or for a period of 4 academic years following graduation from high school if the sons were enrolled as full-time students in educational institutions. The husband was entitled to claim the sons as dependents for income tax purposes. No child support was set for the two girls, and the agreement provided that the wife could claim them as dependents for income tax purposes.

The agreement and decree also provided that beginning with the year 1974 the husband would pay to the wife as alimony an amount equal to 50 percent of all of his net income subject to federal income tax plus tax-free income, but that in no event should the amount to be paid be less than $1,000 per month until the husband reached 65 years of age. Estimated payments of alimony were to be made each year, with final adjustments following the completion of the year. Alimony ceased upon the death of either the husband or the wife.

The decree also provided for a division of property, real and personal, and noted that the parties had already divided all investments, cash, and securities between them.

The agreement and decree provided that if the husband was unable to make the payments provided for due to inability to work, the payments were to be delayed until his recovery, and also provided: "In the event that Respondent desires the amount of the payments to be changed due to decreased earning ability and the parties are unable to agree upon the amount thereafter to be paid, Respondent may submit the question to this Court and both parties shall be bound by the determination of the Court."

The husband paid all the amounts of alimony and child support required by the decree in accordance with its terms. On October 7, 1980, the husband filed the petition in this proceeding requesting termination or modification of the original decree as to alimony upon the ground of changed circumstances.

Hearing was held in the District Court for Hall County in February 1981. At the time of the hearing the husband was 57 years old and the wife was 52. Neither party has remarried. The evidence at the hearing showed that the four children were 24, 23, 19, and 18 years old at the time of the hearing and that the youngest daughter would become 19 in June 1981. Two of the children were living with the wife in her home in Lincoln, Nebraska.

Since the original decree of 1974 through the calendar year 1980 the husband paid approximately $427,000 in alimony to the wife and child support of $10,500, plus voluntary payments through 1979 of approximately $20,000 for such things as automobiles, insurance, and...