Ziegenbein v. Damme

• Citation: 292 N.W. 921,138 Neb. 320
• Decision Date: 21 June 1940
• Docket Number: 30804.
• Parties: ZIEGENBEIN v. DAMME.
• Court: Supreme Court of Nebraska

292 N.W. 921

138 Neb. 320

ZIEGENBEIN v. DAMME.

No. 30804.

Supreme Court of Nebraska.

June 21, 1940

Syllabus by the Court.

1. An unqualified allowance of alimony in gross, whether payable immediately in full or periodically in installments, and whether intended solely as a property settlement or as an allowance for support, or both, is such a definite and final adjustment of mutual rights and obligations between husband and wife as to be capable of a present vesting and to constitute an absolute judgment.

2. Such an allowance is not subject to modification under section 42-324, Comp.St. Supp.1939, providing that the court may from time to time revise and alter the amount of alimony and make any decree with respect thereto which it might have made in the original suit.

Appeal from District Court, Otoe County; Wilson, Judge.

Suit for divorce by Margarette Ziegenbein against Frank E Ziegenbein, wherein the plaintiff was granted a divorce and an allowance of alimony payable periodically in installments. After plaintiff remarried and became Margarette Ziegenbein Damme, the defendant filed a petition to modify the decree to relieve him from any further payments of alimony. From an order modifying the amount of the alimony payments, the plaintiff appeals.

Decree reversed, and defendant's application for modification dismissed.

Thomas E. Dunbar, of Nebraska City, and O'Sullivan & Southard of Omaha, for appellant.

Tyler & Frerichs, of Nebraska City, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.

JOHNSEN, Justice.

The question presented is whether the amount of an allowance of alimony in gross, payable in installments, is subject to subsequent modification under section 42-324, Comp.St.Supp.1939. That section provides: " After a decree for alimony or other allowance for the wife and children, or either of them, * * * the court, from time to time, * * * may revise and alter such decree respecting the amount of such alimony or allowance, or the payment thereof, * * * and the court may make any decree respecting any of the matters which such court might have made in the original suit."

The wife in this case was granted a divorce from the husband, with a provision in the decree that, " by way of temporary and permanent alimony there is awarded (to the wife) * * * the total sum of Three Thousand Dollars * * * payable * * * at the rate of Thirty-five Dollars per month * * * until said sum is paid in full." Two and a half years later, the husband filed a petition to modify the decree, to relieve him of any further payments, on the ground that the wife had married again and that it was her new husband's duty to support her. The trial court entered an order of modification, providing that, in view of the wife's remarriage, the former husband should be relieved from the alimony obligation of the original decree, as of the date the petition for modification was filed, and that " the remaining installments of said alimony * * * being fifty-seven in number, should be reduced to the nominal sum of $1.00 each." From this order of modification, the wife has appealed.

In Beard v. Beard, 57 Neb. 754, 78 N.W. 255, the first paragraph of the syllabus reads: " Where, in a divorce proceeding, a decree is entered dissolving a marriage, and awarding the wife a judgment against the husband * * * in full of all her claims upon him or his property by reason of their former marriage relations, it seems that the courts have no jurisdiction to vacate or modify such a judgment after the term at which rendered solely because of a change in the circumstances, financial or otherwise, of either of the parties thereto." In that case, there was an alimony allowance of $5,000. The opinion states that " certain payments were to be made at certain specified times, and from thence $500 was to be paid annually until the full payment of the said $5,000." Four years later, and while three annual payments of $500 still remained to be made, the husband sought to be relieved from these further installments, on the ground of a material change in his financial condition. The court held that the statute, now section 42-324, Comp.St.Supp.1939, gave no right to a modification.

Again in Graham v. Graham, 135 Neb. 761, 284 N.W. 280, 281, in the second paragraph of the syllabus, it was said: " In a divorce proceeding, where a decree is entered dissolving a marriage, and awarding the wife a judgment against the husband for a definite sum, in full of all her claims upon him or his property by reason of their former marriage relations, courts have no jurisdiction to vacate or modify such a judgment after the term at which rendered [six months], solely because...