Witcig v. Witcig, 42642
| Decision Date | 28 May 1980 |
| Docket Number | No. 42642,42642 |
| Citation | 206 Neb. 307,292 N.W.2d 788 |
| Parties | Richard E. WITCIG, Appellee and Cross-Appellant, v. Frances I. WITCIG, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Divorce: Irretrievable Breakdown. When a personal relationship with another under the institution of marriage has deteriorated to the point that the parties can no longer live together, the marriage is irretrievably broken.
2. Divorce: Appeal and Error. While in a divorce action the case is to be tried de novo, this court will give weight to the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the opposite.
3. Alimony: Property Division: Appeal and Error. The fixing of alimony or distribution of property rests in the sound discretion of the District Court and, in the absence of an abuse of discretion, will not be disturbed on appeal.
4. Divorce: Property Division: Legal Title. Where the parties to an action for dissolution of marriage are unable to agree upon a division of property, the trial court shall make such division as it deems conscionable and fair under all the facts and circumstances, taking into account the equities of the situation, irrespective of how legal title is held.
5. Divorce: Pensions: Alimony. A pension of one party to a marriage, unless its terms provide otherwise, is not a joint fund for the benefit of the other party and is not ordinarily subject to division as part of a property settlement, but may be considered as a source for the payment of alimony.
6. Attorney's Fees. The allowance of attorney's fees and costs is discretionary with the trial court and depends upon a consideration of all the facts and circumstances presented.
Perry, Perry, Witthoff & Guthery, Lincoln, for appellant and cross-appellee.
Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee and cross-appellant.
Heard before BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
In this case, Frances I. Witcig appeals and Richard E. Witcig cross-appeals from a decree entered by the District Court for Lancaster County, Nebraska, on January 3, 1979, in a dissolution action between the aforementioned parties. In its decree, the trial court found that the marriage between the parties was irretrievably broken and dissolved the marital relationship. It awarded custody of the minor child, Richard Edward Witcig, Jr., to Frances, subject to reasonable rights of visitation by Richard; ordered Richard to pay child support in the sum of $200 a month until such time as the minor child attained his majority, died, or married, whichever should occur first; and required Richard to continue medical and hospital insurance in effect for the child. The court awarded the residence of the parties in Lincoln, Nebraska, to Frances but required her to assume and pay the mortgage on said property. The court also awarded to Frances all the items of furniture and fixtures located in the residence, a Dodge automobile, all bank accounts and insurance policies in her name, all her merchandise and interest in her Avon products business; and further ordered Richard to pay Frances alimony in the amount of $350 per month until her death or remarriage, with the specific provision that, at such time as Richard retires from his service with the federal government, he shall request that a survivor's annuity be established for Frances in that sum, payable upon petitioner's death by the U. S. Government until such time as Frances dies or remarries, whichever occurs first. The court also required Richard to file a certified copy of the decree under 5 U.S.C. § 8345 (Supp. II 1978). In its decree, the court also provided that Richard was to be relieved of all mortgage obligations upon the home; that he should receive the Oldsmobile automobile and all bank accounts, certificates of deposit, savings bonds, stocks, and insurance policies standing in his name; and that any and all property that either Frances or Richard hold jointly with either or both of their children, as well as property that Richard holds jointly with his sister, was not to be considered marital property subject to division, with the exception that some property and savings accounts held jointly by Richard and the minor child were ordered to be held in trust for the benefit of the minor child. The decree also provided, with reference to certain missing or misplaced U. S. savings bonds, that when and if such bonds were reissued, they should be divided equally between Richard and Frances. Finally, the trial court, in its decree, provided that the costs of the action should be taxed to Richard, with certain exceptions, and ordered Richard to pay partial attorney's fees to Frances' attorney, as well as to his own attorney, and also certain fees for expert witnesses.
In her brief on appeal, Frances makes the following assignments of error: (1) That the court erred in finding the marriage irretrievably broken; (2) That the alimony awarded to her is grossly inadequate and insufficient; (3) That the child support award of $200 a month for the minor child is grossly inadequate; (4) That the property division was patently unfair; (5) That the trial court erred in not considering as marital assets property held jointly by Richard and his sister; (6) That the trial court erred "in not considering an annuity receivable" (Richard's federal pension) as part of the accumulated marital property; (7) That the trial court did not correctly value the assets and receivables in its evaluation of the marital estate; (8) That the judgment was contrary to law; and (9) That the judgment was contrary to the evidence. For reasons hereinafter stated, we affirm the judgment of the trial court.
The parties to this action were married on March 9, 1947. Two children were born as issue of the marriage; however, at the time of trial, only one of the children, Richard E. Witcig, Jr., was a minor. As previously stated, the custody of the minor child was placed in Frances, with visitation rights given to Richard. The action of the trial court in this regard is not an issue on this appeal. The record reveals that the marriage between the parties was a lengthy and, for the most part, a very stormy one. The litigation which ensued was bitter, with recriminations and accusations made by both parties, including charges of physical assaults and infidelity. While it is true that the parties had resided at the same address in Lincoln for 13 years, it is likewise true that Richard and Frances had lived apart for some time, with Richard residing in the basement of the residence, and Frances and the minor child residing in the upper floors. The record reveals that they had sought counseling from various persons throughout the duration of the marriage, but that such counseling had been of little help in their attempts to resolve their difficulties. The parties have agreed on the various items of the marital property with certain exceptions, most notably the value of certain bank accounts and savings bonds, as well as the value of Richard's pension with the Social Security Administration as the result of his financial contributions through his many years of government employment with that agency. Further reference will be made to these items in our discussion of the specific assignments of error.
As previously stated, Frances first assigns as error the action of the District Court in finding that the marriage was irretrievably broken. Specifically, she relies on Neb.Rev.Stat. § 42-361(2) (Reissue 1978), which provides as follows:
If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken.
Frances contends that the finding that the marriage was irretrievably broken was erroneous, as only "slight or trivial" reasons were given for the dissolution. The record is undisputed that the parties have not lived together for a long period of time. In Mathias v. Mathias, 194 Neb. 598, 600, 234 N.W.2d 212, 213-14 (1975), we stated: "When a personal relationship with another under the institution of marriage has deteriorated to the point that the parties can no longer live together the marriage is irretrievably broken." In Boroff v. Boroff, 204 Neb. 217, 218-19, 281 N.W.2d 760, 761-62 (1979), we set forth the standard of review of dissolution actions in this court as follows:
While in a divorce action the case is to be tried de novo, this court will give weight to the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of facts rather than the opposite. Patton v. Patton, 203 Neb. 638, 279 N.W.2d 627 (1979). Obviously a trial court weighs the credibility of the witnesses and the evidence and determines what evidence should be given the greater weight in arriving at a factual determination on the merits. The testimony need not be accepted in its entirety and the trier of fact must use a commonsense approach and apply that common knowledge which is understood in the community.
We conclude from the evidence in the record that the marriage of these parties was irretrievably broken and find no merit in the first assignment of error.
Frances also contends that the trial court committed error because the award of the child support was grossly inadequate. This error was not further mentioned in her brief, nor was it presented to this court on oral argument. Neb.Ct.R. 8.a.2(3) (Rev.1977) provides, in part: "(C)onsideration of the cause will be limited to errors assigned and discussed." (Emphasis supplied.) That being so, under the above rule, we may not and do not consider the question of the...
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