Stuczynski v. Stuczynski
| Decision Date | 14 June 1991 |
| Docket Number | No. 89-081,89-081 |
| Citation | 238 Neb. 368,471 N.W.2d 122 |
| Parties | , 17 A.L.R.5th 944 Jeanine K. STUCZYNSKI, Appellee, v. James E. STUCZYNSKI, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Divorce: Appeal and Error. In appeals involving actions for dissolution of marriage, the Supreme Court's review is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. When the evidence is in conflict, the Supreme 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.
2. Child Support: Rules of the Supreme Court: Presumptions. Child support shall be established in accordance with the Nebraska Child Support Guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the application of the guidelines will result in a fair and equitable child support order.
3. Property Division: Alimony. 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.
4. 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 (Reissue 1988) make it appropriate.
5. Alimony. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness. The court should consider what effect, if any, the marriage has had upon the ability of the supported spouse, if any, to secure employment in the future and should consider the earning capacity of the supporting spouse.
John W. Kocourek, of Peterson Law Offices, Council Bluffs, Iowa, for appellant.
Paul R. Elofson, of Abrahams, Kaslow & Cassman, Omaha, for appellee.
This is an action for dissolution of marriage. The parties agreed on a property settlement regarding the disposition of most of their marital assets and the debts accumulated during the marriage. They further agreed that custody of their two minor sons should be awarded to petitioner-appellee wife subject to reasonable rights of visitation in respondent-appellant husband. The district court found that this agreement was fair and reasonable and incorporated the terms of the agreement into the decree.
Pursuant to the property settlement agreement, the wife was awarded the marital home subject to the debt thereon. The house is to be sold upon the wife's remarriage or when the youngest child reaches majority. After the residence is sold, the husband will receive $11,250, which was agreed to be his equity interest in the real estate and personal property. The parties allocated their personal property, divided the husband's pension, and awarded each party a vehicle subject to the debt thereon. The husband agreed to liquidate certain cash value life insurance policies to provide a fund to discharge several thousand dollars of outstanding debt of the parties. The remainder was divided one-half to each.
The only issue not settled by the agreement of the parties was with regard to the amounts of alimony and child support. The district court ordered the husband to pay alimony of $350 per month for a period of 7 years and child support of $350 per month per child. The husband has appealed and assigns 12 errors, which may be summarized as contentions that the trial court erred in (1) "[t]aking into consideration Respondent's second job in making its award of alimony and child support" and (2) "[f]ailing to take into consideration the earning capacity of the petitioner which should be based upon a 40 hour work week, and not the 32 hours she was actually employed."
In connection with the first summarized assignment, two issues must be decided in our review. The first is the issue of considering the earnings of the second job the husband works. The second issue is implicit in the presentations of both parties. The husband, in his evidence on the issue of support, assumes that only his basic salary, not including overtime wages, should be considered his total earnings. The wife, on the same issue, wants to include in the husband's total earnings the entire amount of overtime earned by the husband in 1987, which was the last full year of earnings before the trial in September 1988. We determine those two issues herein and modify the judgment of the trial court with regard to the husband's first summarized assignment of error. We affirm the judgment of the trial court on the second assignment. The remainder of the specific assignments of error need not be specifically addressed, with the exception that we note appellant is in error when he states that he "timely" filed his "Motion to Reconsider and Motion for Specific Findings of Fact and Conclusions of Law...." Brief for appellant at 4. We have considered the motion to reconsider as a motion for new trial. In a case tried to the court without a jury, a motion for specific findings of fact pursuant to Neb.Rev.Stat. § 25-1127 (Reissue 1989) must be made before the final submission of the case to the court. State, ex rel. Sorensen, v. Mitchell Irrigation District, 129 Neb. 586, 262 N.W. 543 (1935). Appellant's assignment of error in this regard has no merit.
In appeals involving actions for dissolution of marriage, the Supreme Court's review is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. When the evidence is in conflict, the Supreme 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. LaBenz v. LaBenz, 237 Neb. 231, 465 N.W.2d 726 (1991); Von Tersch v. Von Tersch, 235 Neb. 263, 455 N.W.2d 130 (1990).
The record shows that the parties were married on February 24, 1973. At the time of trial, the wife was 34 years old and the husband was 36 years old. Throughout the marriage, the husband was employed as a maintenance mechanic at ConAgra, Inc., and the wife worked as a homemaker. The couple's sons were born on November 30, 1973, and November 24, 1976.
The husband left the home in the summer of 1987, but continued to support his family, contributing approximately $1,600 per month to the wife for her and the children's household expenses during the time between the filing of the petition herein and the trial. The petition for dissolution was filed on July 8, 1987, and the decree was entered on November 28, 1988. The record before us does not set out any temporary support order.
In the fall of 1987, the wife borrowed approximately $5,000 in student loans, enrolled in a 9-month program at the Omaha College of Health Careers, and completed her medical assistant training in May 1988. In June 1988, she began working 32 hours per week at a doctor's office, earning $5 per hour with no employment benefits.
In November 1987, the husband secured a part-time position at Omaha Processors, Inc., in addition to his regular job at ConAgra. He testified that he generally worked 40 hours per week at ConAgra, plus 8 hours per month overtime at ConAgra, and worked 30 hours per week at Omaha Processors. The husband testified that he got the second job "[t]o take care of the responsibilities from the house that I just left and to enable Jeanine [petitioner] to acquire employment or schooling to get employment." The husband further testified that he did not want to continue working 70 hours per week. In 1987, the husband earned net wages of $27,796 (including a federal tax refund of $4,513) from ConAgra, and net wages of $1,774 from Omaha Processors. The court also considered evidence of the husband's projected earnings for 1988 and the parties' income tax returns for 1985, 1986, and 1987.
Based on the foregoing, the district court found that
the petitioner has the approximate take home pay of $515 per month based upon her current employment of approximately 32 hours per week, with expenses of $1,500, including a student loan [payment] of approximately $100. The Court finds that the respondent has current net income of approximately $2,100, based upon employment from two positions, and that he has reasonable monthly expenses of approximately $880.
(Emphasis supplied.)
On appeal, the husband contends that the award of alimony and child support constituted an abuse of discretion because it equals 75 percent of his income from ConAgra and the court based the award on his working 70 hours per week. Thus, he claims, he will be forced to work 70 hours per week for the next 7 years and is "in effect reduced to a form of bondage or involuntary servitude to his former wife from which he cannot escape." Brief for appellant at 13.
We first consider appellant's first summarized error, concerning his second job, and determine there is merit in the husband's contention that the court should not have considered income from his second job in setting child support and alimony payments. In this connection, we agree with the holding in Naquin v. Naquin, 405 So.2d 1171, 1172 (La.App.1981), where the court stated:
The wife...
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