Weber v. Weber

• Decision Date: 19 April 1978
• Docket Number: No. 41416,41416
• Citation: 200 Neb. 659,265 N.W.2d 436
• Parties: Blanche E. WEBER, Appellee and Cross-Appellant, v. LeRoy Waring WEBER, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 436

265 N.W.2d 436

200 Neb. 659

Blanche E. WEBER, Appellee and Cross-Appellant, v. LeRoy Waring WEBER, Appellant and Cross-Appellee.

No. 41416.

Supreme Court of Nebraska.

April 19, 1978.

Syllabus by the Court

1. The area of domestic relations is virtually the exclusive province of the states, which have the right to prescribe the conditions upon which the marriage relation between their own citizens shall be created and dissolved, and which have an interest in the continuation and dissolution of the marital relation.

2. Public policy concerning divorce and its incidents is a matter for the Legislature, not the courts, to decide.

3. Under section 42-341, R.R.S.1943, a divorce from the bonds of matrimony obtained in another jurisdiction shall be of no force or effect in this state if both parties to the marriage were domiciled in this state at the time the proceeding for divorce was commenced.

4. Recognition of foreign divorce decrees under the principles of comity is neither a matter of absolute obligation nor mere courtesy. As a general rule, a foreign judgment will not be given effect under the principles of comity if opposed to the settled public policy of this state.

5. A person may be estopped from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him or her to do so.

6. The application of the principles of equitable estoppel cannot be subjected to fixed and settled rules of universal application, but rests largely on the facts and circumstances of each particular case.

7. Under section 42-366, R.R.S.1943, a property settlement agreement entered into by the parties to a marriage shall not be binding upon the trial court if, considering the economic circumstances of the parties and any other relevant evidence, the agreement is unconscionable. An agreement is unconscionable when it is manifestly unfair or inequitable.

8. This court is not inclined to disturb the division of property made by the trial court in a divorce action unless it is patently unfair on the record, or unless good cause is shown.

9. An award of attorney's fees in a divorce action involves consideration of such factors as the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation of the case, the skill devoted to preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

Warren C. Schrempp, Richard E. Shugrue of Shrempp & McQuade, Omaha, for appellant and cross-appellee.

Dixon G. Adams, Papillion, for appellee and cross-appellant.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.

BRODKEY, Justice.

Blanche Weber, petitioner and appellee herein, filed this divorce action in the District Court for Sarpy County on September 19, 1975, seeking to dissolve her marriage to LeRoy "Jim" Weber, respondent and appellant herein, on the ground that the marriage was irretrievably broken. Petitioner prayed, in part, for an award of alimony and an equitable distribution of property acquired during the marriage. The respondent appeared specially, objecting to the jurisdiction of the court on the grounds that the parties had been divorced in the Dominican Republic on January 13, 1975, and that they had executed a valid property settlement in conjunction with the foreign divorce.

The District Court concluded that it should not recognize the Dominican Republic divorce decree, and that the property settlement executed by the parties in conjunction with that decree was not binding on the petitioner because it was unconscionable. The trial court dissolved the marriage of the parties, and awarded the petitioner the family residence, an automobile, personal property in her possession, and the sum of $160,000 in lieu of a property settlement. The money judgment, with eight percent interest thereon, was ordered to be paid at the rate of $8,000 per year, although the respondent was granted the right to accelerate payments. The petitioner also received an award of $2,450 for attorney's fees.

The respondent has appealed to this court, contending that the District Court erred in (1) failing to recognize the foreign divorce decree; (2) finding that the property settlement executed by the parties was unconscionable; (3) failing to hold sections 42-341 and 42-366, R.R.S.1943, unconstitutional; and (4) awarding the petitioner a disproportionate share of the property. The petitioner has cross-appealed, contending that the award of attorney's fees was inadequate. We affirm the judgment of the District Court, but increase the amount of attorney's fees awarded plaintiff.

The parties were married in 1950, when both were students, and neither brought any significant amount of money or property to the marriage. Between 1951 and 1958, the wife worked as a nurse, and the husband was in the Air Force and attended law school. During this period of time, both contributed income to the marriage, and the husband's contributions were equal to, or exceeded, the contributions of the wife. The wife worked as a nurse until 1960, by which time the husband had established a law practice. The wife then retired from nursing to care for their two children and home. She resumed her career in nursing in 1971, and now earns an annual gross income of approximately $11,000.

The husband has had a successful law practice since 1960, and during the course of the marriage handled the family finances. He made sound investments in real property and stocks, and by 1975 had built up a sizable marital estate. The total value of the personal and real property, the cash value of insurance policies, and stocks acquired by the parties during the marriage was disputed at trial. Evidence presented by the husband indicated that the value of the marital estate was between $345,000 and.$390,000, while the wife's evidence indicated that the value was approximately $500,000. The trial court found that the value was in excess of $449,000.

Marital difficulties arose as early as 1970. In January 1975, the parties agreed that they should be divorced, and the husband suggested that a foreign divorce be obtained to avoid the "notoriety" of local divorce proceedings. The husband secured a "power of attorney" form from a Miami attorney for use in divorce proceedings in the Dominican Republic and the wife signed it, although she never at any time before or after those proceedings met the attorney or spoke with him. The husband also drafted a property settlement agreement, dated January 7, 1975. Under this agreement, the wife was to receive various household furnishings, a 1969 automobile, and gross alimony in the amount of $12,100, payable at the rate $100 per month. She was also to receive a life estate in the family residence. The husband agreed to pay child support in the amount of $75 per month for each of two children, the custody of whom was to be awarded to the wife. All other property acquired during the course of the marriage was to be the property of the husband. The wife signed the agreement, without consultation with or advice of counsel.

The husband then traveled to the Dominican Republic for 2 days and secured a divorce in that country. In the Dominican Republic decree it is stated that the parties expressly submitted to the jurisdiction of the court, and that the wife appeared before the court by her attorney. The decree also recites that both the husband and wife were domiciliaries of Nebraska. The basis of the foreign decree as set forth therein, was "incompatibility of temperaments." It is important to note the decree further expressly provided that the property settlement agreement executed by the parties was not affected nor modified by the judgment, and would survive in the form established by the laws of the place where the document was signed.

The husband then moved out of the family residence, and made alimony and support payments as provided in the property settlement agreement. He also had the wife sign quit claim deeds to the real property granted to him under the agreement. At no time during this time period did the wife obtain the advice of an attorney. However, in September 1975 she did consult counsel, and this action was filed immediately thereafter.

We first consider respondent's contention that the trial court erred in failing to recognize the Dominican Republic divorce decree. Section 42-341, R.R.S.1943, provides: "A divorce from the bonds of matrimony obtained in another jurisdiction shall be of no force or effect in this state, if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced." It is clear that the foreign divorce in this case falls within the provisions of section 42-341, R.R.S.1943, as it is undisputed that the parties were Nebraska domiciliaries at the time the Dominican Republic proceeding was commenced.

Respondent contends, however, that section 42-341, R.R.S.1943, is unconstitutional because it violates his right to due process and equal protection of the laws. In summary, he argues that the statutory provision is overbroad, arbitrary, and capricious, and denies him fundamental freedom of choice in matters relating to marriage and family life. Respondent relies on cases such as Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). These cases, however, do not deal with, or discuss, the constitutional validity of a statutory provision like section 42-341, R.R.S.1943, nor do they, or any other cases, support respondent's contention that he has a fundamental right to have a foreign divorce decree...