Wheeler v. Wheeler, 39716
| Decision Date | 01 May 1975 |
| Docket Number | No. 39716,39716 |
| Parties | Dean Edward WHEELER, Appellee, v. Marilyn WHEELER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Ordinarily the fixing of child support and alimony rests in the sound discretion
of the court, and in the absence of abuse of discretion, will not be disturbed on appeal.
2. The earning capacity of the husband is an element to be considered in the allowance of alimony.
3. The provision for reasonable security for payment of alimony provided for in section 42--365, R.R.S.1943, should not be invoked in the original decree except when compelling circumstances require it.
Griffiths & Gildersleeve, Auburn, for appellant.
Ginsburg, Rosenberg, Ginsburg & Krivosha, Lincoln, for appellee.
Heard before SPENCER, CLINTON, and BRODKEY, JJ., and FLORY and WHITE, District Judges.
The parties were married in 1960 when the petitioner, Dean Wheeler, was a freshman in the Kansas State University School of Veterinary Medicine. He was graduated in 1964. During this period of time respondent worked and contributed substantially to their living expenses while caring for their two children born in 1961 and 1963. After Dr. Wheeler's graduation they moved to Hebron, Nebraska, where he practiced for 1 year. In 1965 they moved to Tecumseh, Nebraska, where he practiced to the present time and continues to do so. Until 1969 he conducted his practice from his home with the respondent's assistance in taking care of the books, answering the phone, mixing medicines, and otherwise assisting him in his practice. In 1969 he formed a partnership with another veterinarian in a new clinic building owned by the parties.
Dr. Wheeler left the family in October 1973, and filed this action for dissolution of the marriage. At the time of the trial in June 1974, both were 38 years old and in good health. Dr. Wheeler's share of the partnership income in 1972 was $27,807, in 1973, $28,851.16. He also receives $3,000 annually for the rental of the clinic building.
The decree dissolved the marriage, awarded custody of the children to the respondent, with reasonable visitation to the petitioner, and ordered the petitioner to pay child support in the amount of $125 per child per month and to pay for future medical and dental expenses required by the children.
The two principal items of property, the clinic building of the approximate value of $22,500, subject to an indebtedness of $12,308, was awarded to the petitioner together with his interest in the partnership; and the home, a modest residence on 6.9 acres in the country near Tecumseh of an approximate value of $20,000, subject to indebtedness of $15,432, household goods and personal property, plus $2,000 in cash was awarded to the respondent.
Other miscellaneous personal property was divided between the parties and petitioner was ordered to pay an attorney's fee of $750 for the respondent.
In addition petitioner was ordered to pay respondent as alimony $500 July 1, 1974, $300 a month for the next 6 months, $200 a month for the next 6 months, $175 per month for the next 24 months, and $100 a month for the next 36 months, a total of $11,300. Temporary allowances including cost of appeal, an additional attorney's fee of $300, child support, alimony, and mortgage payments were awarded respondent pending determination of this appeal. The record further shows that respondent is now employed by the State of Nebraska earning $2.566 per hour, expecting to work a 40-hour week, for an approximate gross annual salary of $5,300, plus possible overtime, with health and life insurance furnished by the State.
Respondent has appealed contending that the property awarded her was inadequate and that the alimony and child support payments are inadequate. We think the division of property was reasonable and practical and it will not be...
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