Steele v. Steele, 41625

• Decision Date: 25 October 1978
• Docket Number: No. 41625,41625
• Citation: 201 Neb. 549,270 N.W.2d 903
• Parties: William Henry STEELE, Appellee, v. Lorraine C. STEELE, Appellant.
• Court: Nebraska Supreme Court

Page 903

270 N.W.2d 903

201 Neb. 549

William Henry STEELE, Appellee, v. Lorraine C. STEELE, Appellant.

No. 41625.

Supreme Court of Nebraska.

Oct. 25, 1978.

Syllabus by the Court

1. Under section 42-365, R.S.Supp., 1978, the criteria to be used is what appears to be fair and equitable between the parties under the circumstances present in the case.

2. Although review in marriage dissolution cases is de novo in this court, we also give weight to the fact that the trial court had an opportunity to observe the parties and hear the witnesses.

3. A decree in a dissolution of a marriage case awarding one party all her "personal effects" does not include bank accounts standing in that party's name alone.

Robert M. Harris, Scottsbluff, for appellant.

P. J. Heaton, Jr., Sidney, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

BRODKEY, Justice.

Lorraine C. Steele has appealed to this court from a decree entered by the District Court for Kimball County in a marriage dissolution action. The court entered a decree dissolving the marriage on May 19, 1976, but reserved questions of alimony, division of property, attorney's fees, and court costs for a later hearing. These latter items were dealt with by the decree of the court entered on September 2, 1976, and Lorraine thereafter perfected her appeal to this court. In her brief on appeal, appellant makes three assignments of error. First she claims the division of the property by the trial court was unreasonable and unfair; second, she alleges that the court erred in not awarding her savings account and a checking account standing in her name alone to her as her separate property; and third, that the court erred in permitting the appellee, William Henry Steele, to have the option of paying the $7,800 awarded to Lorraine by the court either in cash within 10 days of the decree, or in the alternative to pay her the sum of $1,800 within 10 days of the decree, with further annual payments of $2,000 each due on or before January 11, 1977, 1978, and 1979, without requiring appellee to pay interest thereon. We modify the decree of the court in the respects hereinafter indicated, and otherwise affirm its judgment.

The somewhat unusual facts of this case must be noted. The parties were married on January 7, 1969. The marriage lasted for approximately 7 years, having been terminated by the decree of May 19, 1976. It was the second marriage for both. No children were born to this marriage but both had children by prior marriages. At the time of their marriage in 1969, William was 79 years of age, and Lorraine was 54. They were 86 and 61 years of age respectively when the marriage was dissolved. Prior to their marriage, Lorraine had been employed in taking care of elderly and ailing persons in their home. She brought little property into the marriage, the principal asset being a used automobile which she has retained. William owned a farm in Kimball County, Nebraska, which he personally farmed until September 1972, at which time he sold the farm on land contract and purchased a house in Kimball, Nebraska. The funds for the purchase of the home were provided exclusively by William from the sale of the farm; and the title to the farm was originally in his name, although later, at her insistence, was placed in both their names as joint tenants. Other than the above, there was no other property accumulated by them other than what they owned at the time of the marriage. Just before they were married, William paid off two of Lorraine's personal obligations, totaling approximately $600. It further appears that subsequently, Lorraine became disabled with a back ailment in 1970, and in 1971 received from social security a lump sum payment of $1,000 for past payments due her in 1970. She retained this payment for her own use. She has since received monthly social security payments due to her disability. During the marriage Lorraine performed ordinary household duties of a farm wife, including the preparation of meals for herself and her husband, and on occasions for farm help employed to assist in the harvesting of the crops. On at least two occasions during the marriage, William became ill and was forced to go to the hospital, but most of his care was taken care of in the hospital itself, although Lorraine also assisted when he returned home from the hospital. Also, in the later years, she acted as chauffeur for her husband, driving him around in the automobile when it was necessary for him to make trips.

Lorraine testified that before she married William she had expressed concern about her future financial well-being, and had even orally discussed the matter with William and his attorney. However, no prenuptial agreement was ever entered into. In its decree the court found that William owned property of the approximate value of $100,000. However, the largest single asset appears to be the land contract for the sale of the farm, with a balance remaining thereon in the amount of approximately $84,000 as of the time of the trial. Appellee's source of income at the present time appears to be annual payments in the amount of $4,500, plus interest, required by the terms of the contract to be made by the purchaser during the period of January 10, 1974, through January 10, 1983, with a final lump sum payment due January 10, 1984. Out of these annual payments, he is required to make payments due to the Federal Land Bank on its mortgage covering the farm in an unspecified amount.

In the decree of the trial court, the appellant was awarded as her division of the property the sum of $12,800, less $5,000 previously given to appellant by appellee in two previous payments of $2,500 each; and the court entered a judgment of $7,800,...