Van Newkirk v. Van Newkirk

• Decision Date: 29 October 1982
• Docket Number: No. 81-579,81-579
• Citation: 212 Neb. 730,325 N.W.2d 832
• Parties: John M. VAN NEWKIRK, Appellee and Cross-Appellant, v. Bonnie K. VAN NEWKIRK, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 832

325 N.W.2d 832

212 Neb. 730

John M. VAN NEWKIRK, Appellee and Cross-Appellant, v.Bonnie K. VAN NEWKIRK, Appellant and Cross-Appellee.

No. 81-579.

Supreme Court of Nebraska.

Oct. 29, 1982.

Syllabus by the Court

1.Divorce: Property Division.The rules for determining division of property in an action for dissolution of marriage provide no mathematical formula by which such awards can be precisely determined; they are to be determined by the facts in each case.The court will consider all pertinent facts in reaching an award that is just and equitable.

2.Property Division: Alimony.How property, inherited by a party during the marriage, will be considered in determining division of property or award of alimony must depend upon the facts of the particular case and the equities involved.

3.Property Division.When awarding property in a dissolution of marriage, property acquired by one of the parties through gift or inheritance ordinarily is set off to the individual receiving the inheritance or gift and is not considered a part of the marital estate.An exception to the rule is where both of the spouses have contributed to the improvement or operation of the property after receiving it by way of inheritance or gift, or the spouse not receiving the inheritance or gift has significantly cared for the property during the marriage.

Wright, Simmons & Selzer, Scottsbluff, for appellant and cross-appellee.

Robert W. Mullin and Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellee and cross-appellant.

Heard before KRIVOSHA, C.J., McCOWN, WHITE, and CAPORALE, JJ., and BRODKEY, J., Retired.

KRIVOSHA, Chief Justice.

This is an appeal from a decree entered by the District Court for Scotts Bluff County, Nebraska, dissolving the marriage between the appellant, Bonnie K. Van Newkirk, and the appellee, John M. Van Newkirk.The facts are essentially without dispute.The parties were married on December 19, 1959.As a result of the marriage two children were born to the parties, both of whom were, at the time of trial, minors and residing in the family home.

The record indicates that the parties acquired most of their assets during the course of the marriage and both made substantial contributions to the marriage and to the acquisition of that property.There were, however, several items of property included by the trial court in computing the marital estate which are now contested by the wife.Included in this property is a 320-acre wheat farm in Garden County, Nebraska, which was given to the wife by her parents in 1963.The trial court credited to the wife as her sole property the value of the farm in 1963 and credited to the marital estate the increase in value as determined by the court on the date of trial.In addition, the trial court included in the marital estate the value of the unharvested crops located upon the farm.The wife maintains that this was error.

The court further included as part of the marital estate stock in a mutual fund given to both the husband and wife as a gift by the wife's parents and having a value at the time of trial of $21,988.80.The wife likewise contends that this was error.

A third item in dispute is a loan in the amount of $25,000 from the father of the wife to both parties.At the time of trial the loan was unpaid.The court determined that the loan was not a legitimate obligation of the parties because the father had already delivered possession of the note to the parties prior to these proceedings and was not seeking repayment.The debt, therefore, was not considered in determining the value of the marital estate.The wife likewise contends that this was error.

The husband has filed a cross-appeal, maintaining that alimony allowed by the court to the wife in the amount of $400 per month for a maximum of 121 months and subject to modification in the event of the remarriage of the wife or change of circumstances was an abuse of discretion on the part of the trial court.

We shall consider the errors in the order noted above.In doing so we are required to keep in mind certain basic principles.In Johnson v. Johnson, 209 Neb. 317, 321, 307 N.W.2d 783, 787(1981), we said: "[T]he rules for determining division of property in an action for dissolution of marriage provide no mathematical formula by which such awards can be precisely determined; they are to be determined by the facts in each case.The court will consider all pertinent facts in reaching an award that is just and equitable."And in Ragains v. Ragains, 204 Neb. 50, 55, 281 N.W.2d 516, 519(1979), we said: "Generally speaking, awards in cases of this kind vary from one-third to one-half of the value of the property involved depending upon the facts and circumstances of the particular case."Furthermore, we review the record de novo, giving due regard to the trial court which had the opportunity to observe the witnesses.See, also, Meysenburg v. Meysenburg, 208 Neb. 456, 303 N.W.2d 783(1981).And in Koubek v. Koubek, 212 Neb. 2, 5, 321 N.W.2d 55, 58(1982), we said: "How...