Zachry v. Zachry, 37362

• Decision Date: 20 March 1970
• Docket Number: No. 37362,37362
• Citation: 175 N.W.2d 616,185 Neb. 336
• Parties: Nelse ZACHRY, Appellee, v. Naomi T. ZACHRY, Appellant.
• Court: Nebraska Supreme Court

Page 616

175 N.W.2d 616

185 Neb. 336

Nelse ZACHRY, Appellee, v. Naomi T. ZACHRY, Appellant.

No. 37362.

Supreme Court of Nebraska.

March 20, 1970.

Syllabus by the Court

1. The control of a divorce decree during the 6-month period pending finality is within the sound judicial discretion of the trial court.

2. A properly certified transcript of the evidence and the record of the proceedings in the district court is conclusive and ordinarily may not be impeached by recitals in ex parte affidavits to show the falsity in such transcript.

3. On appeal to this court a refusal of a trial court to set aside a decree of divorce within the 6- month period may not be set aside in the absence of an affirmative showing of an abuse of discretion.

Mingus & Mingus, Ravenna, for appellant.

Kenneth Gotobed, Kearney, for appellee.

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

WHITE, Chief Justice.

Defendant, on her cross-petition, secured a decree of absolute divorce including a court-approved stipulation for a settlement of property rights between the parties, as a result of a trial and hearing before the district court for Buffalo County, Nebraska, on April 29, 1969. By a motion and affidavit attached thereto, appellant now seeks to set aside the property settlement agreement, asserting that she did not enter into it, or approve the stipulation for a property settlement between the parties; that she is not satisfied with the property settlement; and that the plaintiff had other and further property that was not disposed of by the decree and property settlement agreement. The district court, after granting a hearing on the motion to set aside the decree and to grant a new trial, refused to set it aside. We affirm the judgment of the district court.

There is only one assignment of error in this case which relates solely to the property settlement agreement. The parties herein are mature people. Plaintiff is a conductor on the Union Pacific Railroad and the defendant an experienced school teacher. Both had been previously married, and the plaintiff at the time of their marriage was the father of six children by a previous marriage, four of whom are still residing with him. The parties were married in 1959 and both were the owners of property acquired separately from the period of the marriage relationship. There is no allegation or evidence of poor health or disability of either of the parties. The court, in its decree of April 29, 1969, awarded the defendant two lots in the City of Grand Island, Nebraska, and several lots in the Village of Boelus, Nebraska, besides two cemetery lots owned by the plaintiff, together with a sum of $100 cash for credit on one tombstone. Defendant was awarded her personal property and extensive household goods and effects, including a sewing machine, vacuum sweeper, camera and projecting equipment, a corn stalk shredder, bedroom set, two deep freezers, bedding and linen, kitchen equipment, dishes, and silverware. She was also awarded the sum of $2,500 in alimony payable in installments of $100 per month, court costs, an dattorney's fee. The plaintiff was awarded a parcel of real estate in the Village of St. Michael, Nebraska, and two town lots in the City of Grand Island, Nebraska. All of these awards were subject to then existing indebtedness. All other personal property of the parties 'such as automobiles, household goods, trailer house, and other personal property or assets of every nature' were awarded to the plaintiff. In this approved stipulation, recited by the decree of April 29, 1969, the parties could not agree on the disposition of a large mirror mounted on the wall of the residence in St. Michael, or a small garden tractor. Trial was had on April 29, 1969, and by separate order on May 1, 1969, the court completed the disposition of the property by deciding that the mirror should go to the defendant and the garden tractor to the plaintiff.

It is clear that the control of a divorce decree during the 6-month period pending finality (section 42--340, R.R.S.1943), is within the sound judicial discretion of the trial court. Colick v. Colick, 148 Neb. 201, 26 N.W.2d 820; Pittman v. Pittman, 148 Neb. 864, 29 N.W.2d 790; Roberts v. Roberts, 157 Neb. 163, 59 N.W.2d 175. If such decree is vacated or modified, under section 42--340, R.R.S.1943, the exercise of a sound judicial discretion requires the showing of a good reason therefor and the absence of an unconscionable result. Roberts v. Roberts, Supra; Colick v. Colick, Supra; Pittman v. Pittman, Supra.

The defendant's motion for a new trial and the affidavit in support thereof were filed on May 9, 1969, and apparently without a transcript of the evidence being available to the defendant's newly employed attorney. It appeared that the defendant, after the orally announced decision in open court on April 29, 1969, then discharged her then attorney within a week, and employed her present counsel. In her motion and affidavit she alleges various conclusions and dissatisfactions. Giving maximum effect to her allegations and affidavit she asserts that she did not know of the property settlement agreement; that she did not approve of a stipulation for property settlement; and that the court did not ask her if she approved the settlement agreement incorporated in the decree of April 29, 1969, filed May 29, 1969. She also states, in effect, that the plaintiff had personal property and had sold or transferred some of it prior to the time of the decree and that she did not know the disposition of the proceeds.

The decree in this case, filed May 29, 1969, recites: 'Defendant and her attorney, Lloyd W. Kelly present. Conference was had between the attorneys for the parties and the Court relative to a property settlement agreement or division of property stipulation. After having conferred with the Court, the said attorneys counseled with their respective clients, the parties to this action, and said attorneys having been advised by their respective clients, the parties of this action, the following stipulation property settlement agreement or division of property was presented to the Court for its approval, to wit: * * *.'

In the hearing on the motion for new trial on May 26, 1969, the sole evidence introduced was the motion and affidavit of the defendant. The plaintiff did not testify nor is there anything in this record to controvert the evidence in the record, the recitals and findings in the decree as set out above. It therefore remains conclusive as to what transpired. Segebart v. Gregory, 160 Neb. 64, 69 N.W.2d 315; Woodard v. Baird, 43 Neb. 310, 61 N.W. 612; Hansen v. Village of Ralston, 147 Neb. 251, 22 N.W.2d 719. Further, matters certified as...