Wolter v. Wolter

• Decision Date: 03 May 1968
• Docket Number: No. 36847,36847
• Citation: 183 Neb. 160,158 N.W.2d 616
• Parties: Lila WOLTER, Appellee, v. Clarence WOLTER, Appellant.
• Court: Nebraska Supreme Court

Page 616

158 N.W.2d 616

183 Neb. 160

Lila WOLTER, Appellee, v. Clarence WOLTER, Appellant.

No. 36847.

Supreme Court of Nebraska.

May 3, 1968.

Syllabus by the Court

1. The remarriage of a divorced wife does not automatically, in and of itself, terminate her right to receive alimony payable periodically and not in gross; but it does establish a prima facie case which requires the court to terminate it in the absence of proof of some extraordinary circumstance justifying its continuation.

2. Where the court has power to revise, alter, or terminate an alimony award upon remarriage of the wife, her remarriage operates to hold in abeyance her right to receive further alimony payments until a final judicial determination. Installments of alimony accruing after remarriage of the wife do not vest nor have the finality of a judgment until such determination, and the court has jurisdiction and authority to cancel or modify arrears of such alimony retrospectively back to, but not beyond, the date of remarriage.

McFadden, Kirby & Swoboda, Norfolk, for appellant.

Addison & Addison, Wayne, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, and McCOWN, JJ.

McCOWN, Justice.

The basic issues presented in this case are the effect of a wife's remarriage upon a divorce decree providing for a monthly alimony award to her limited only 'until further order of the Court'; and whether a modification of the decree as to alimony, based on such remarriage, may be retroactive or only prospective.

Plaintiff and defendant were divorced on January 17, 1957. The decree ordered the defendant husband to pay plaintiff $50 per month for support and maintenance of the two children and $25 per month as alimony, support, and maintenance of the plaintiff, both payments to continue until further order of the court. No issue of child support is involved here. On February 21, 1958, some 13 months after the divorce, the plaintiff wife remarried. Plaintiff's new husband has provided for the plaintiff since her remarriage. On September 5, 1962, the trial court was advised in some fashion that plaintiff was remarried, and the trial court thereupon entered an order terminating the monthly alimony payments as of September 1, 1962. A fair presumption from the entire record is that the plaintiff, through her attorney, advised the trial judge in open court of plaintiff's remarriage; the termination was entered on the trial court's own initiative; and no notice was served upon the defendant or his counsel. No amounts have been paid.

On March 17, 1967, the defendant filed an application to modify the original divorce decree of January 17, 1957, by terminating the defendant's obligation to pay alimony as of February 21, 1958, the date that plaintiff was remarried. The district court denied the application for modification; and found that the alimony payments up to September 1962, were due and owing. This appeal followed.

The specific question here is, therefore, limited to the defendant's liability for alimony from the date of plaintiff's remarriage in February 1958, until September 1962, when the obligation to pay alimony was terminated by the further order of the court. No issue is raised as to the liability for alimony until the date of remarriage and the sole ground for modification of the decree is the remarriage of the wife.

Similar problems have produced extensive judicial discussions and varied results. See, Annotation, 48 A.L.R.2d 270 to 311; 24 Am.Jur.2d, Divorce and Separation, §§ 645 to 648, pp. 765 to 768, §§ 690, 695 to 697, pp. 805, 809, 810; 27A. C.J.S. Divorce § 239 c, p. 1141; 27B C.J.S. Divorce §§ 251(3), 251(4), pp. 60 et seq.; 2A Nelson (Rev.Ed., 1961 2d Ed.), Divorce and Annulment, § 17.11, p. 58.

This court has not specifically passed on the effect of a remarriage on a periodic alimony award in a decree where there is no limitation, either of time or amount, nor any reference to remarriage. No statute requiring termination of alimony on remarriage is involved.

We have held that an unqualified allowance of alimony in gross, whether payable immediately or periodically in installments, is a vested absolute judgment not subject to modification. Ziegenbein v. Damme, 138 Neb. 320, 292 N.W. 921.

We have likewise held that an alimony award, unless it is an allowance of alimony in gross, may be revised and altered as to future payments. Dunlap v. Dunlap, 145 Neb. 735, 18 N.W.2d 51.

The plaintiff relies upon the law, well established in this state, that installments of alimony become vested as they accrue; and that past-due installments become final judgments, which courts have no authority to cancel or reduce. Sullivan v. Sullivan, 141 Neb. 779, 4 N.W.2d 919, and cases there cited.

It is now almost undisputed that remarriage affects a decree for indefinite periodic alimony. There are two separate views as to the effect of remarriage on an alimony decree. One is that it automatically terminates alimony. The other is that remarriage does not ipso facto terminate alimony but ordinarily justifies an application for termination of alimony. In courts taking the latter position, a judicial determination is almost universally required as to whether alimony continues with or without modification, or terminates. There is also the question of whether the court may cancel alimony which has accrued in the period between remarriage and the subsequent application for modification or termination.

The basic principle that supports both views is that it is against public policy that a woman...