Peery v. Peery
Peery v. Peery
Opinion of the Court
This is an appeal by the plaintiff wife from-a-decree of marriage dissolution. The. only questions presented are the division of the parties’ property, the amount of alimony, and the child support award. We affirm- the judgment and decree of the District Court as hereinafter modified.
At the time of the trial, the plaintiff was 38 years of age, and the defendant was 36 years, of age. They were married in 1961 in Grand Island, Nebraska. They lived in Grand Island until May 1962; then they moved to St. Louis, Missouri, for 2 weeks and to Omaha, Nebraska, for about 6 months. Lincoln, Nebraska,- became their home in January 1963. The plaintiff had a daughter by a previous marriage, Deborah, who was 17 years of age at the time of the trial. Deborah was in the custody of the juvenile court and was living- in a foster home. The parties had one son, Michael, age .9.- The plaintiff was born and raised in Germany. She attended high school there; German high school is 2 years longer than American high school. She also attended business school for 6 months before the marriage and for a relatively short time thereafter was employed as a bookkeeper. The plaintiff’s health appears generally to be good. She has had some difficulty with her back, and has had a hernia operation and there is a possibility of another such operation.
Each party hqs personal debts of around - $600, • In 1967, with a downpayment of $10,000 the parties pur
The District Court entered a modified decree in which the plaintiff was given possession of the home property until the minor child of the parties reaches majority, is married, self-supporting, or dies. The decree requires the plaintiff to occupy the home property until one of these conditions happens and then the property is ordered sold, and the proceeds therefrom divided equally between the parties. In addition thereto, the plaintiff is to be given credit for her payments on the mortgage loan to the extent that such mortgage balance is reduced from and after the date of the decree. The plaintiff was awarded the household furniture and furnishings in the home, valued
It is apparent, without discussion of the pertinent authorities concerning the usual division of property, that the plaintiff has been awarded over one-half of the vested interests and value of the property existing at the time of the dissolution of the marriage. In addition, the plaintiff has been awarded alimony in the sum of $13,500, together with child support in the sum of $125 per month. We have said many times that the rule for determining alimony or division of property in an action of this nature is. not susceptible to the application of any mathematical formula. We have recently reaffirmed this court’s position that the determination of alimony, 'division of property, and child support rests in the sound discretion of the court and will not be disturbed on appeal unless there is a clear abuse of discretion, or it is clearly against
Considering all the circumstances,.including.the relative uncertainty of the. defendant’s-, future income, .the likelihood of the plaintiff becoming at least partially self-supporting, their ages, the duration of the marriage, and the proportionate burdens placed on the future, lives of each party, we cannot say that the District Court abused its discretion in entering the. awards that it did or that such decree was against the weight of the evidence. Manifestly, the total award,, including the alimony and child support, imposes a substantial burden upon the defendant beyond the award of over one-half, of the accumulated property, part of which was contributed to by .the assets of the defendant prior to the marriage. As. in most marriage dissolutions, neither party will be able to enjoy the same standard of living and the .physical comforts and luxuries to which they had been accustomed during the marriage relationship. Wie come..to the conclusion that the judgment and decree of the District Court as to the division of property, alimony, and child support should be generally affirmed.
• It is undisputed that the parties had purchased and were living in .and enjoying a home, with a value of around $40,000.- The decree of the District Court, in effect, requires: the plaintiff to live, in this home and to make the mortgage payments during the minority .of her child. It is quite apparent that this requirement of maintaining this residence with the expenses incident thereto is quite probably too onerous for the plaintiff to maintain. The plaintiff,- obviously, will be .able to marshal her future assets to accommodate her needs with the -restriction removed requiring her to live.in a house probably beyond her needs. The decree of the District Court is modified to provide- that upon application -of the plaintiff and approval of the court the property shall be sold and the
As so modified, the judgment of the District Court is correct and is affirmed.. . • •
Affirmed as modified.
Concurring Opinion
concurring.'
■ I would modify the decree to require sale of the residence property which the court finds is probably beyond the needs of the plaintiff. In all other respects I concur fully in the opinion of the court.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.