Bowers v. Lens

648 N.W.2d 294, 264 Neb. 465, 2002 Neb. LEXIS 184
CourtNebraska Supreme Court
DecidedJuly 26, 2002
DocketS-01-447
StatusPublished
Cited by67 cases

This text of 648 N.W.2d 294 (Bowers v. Lens) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowers v. Lens, 648 N.W.2d 294, 264 Neb. 465, 2002 Neb. LEXIS 184 (Neb. 2002).

Opinions

Gerrard, J.

NATURE OF CASE

The appellant, Carol A. Bowers, appeals from the district court’s award of alimony for $400 per month for 54 months, pursuant to this court’s remand with directions to modify Bowers’ award of alimony. See Bowers v. Scherbring, 259 Neb. 595, 611 N.W.2d 592 (2000). Bowers argues on appeal that the district court erred in failing to award her a larger amount of alimony for a longer time period, interest on the judgment, and attorney fees.

BACKGROUND

Bowers, formerly known as Carol A. Scherbring, and Robert J. Scherbring were married on May 30, 1969, and divorced pursuant to a dissolution decree entered on June 3, 1996. The decree awarded, inter alia, alimony of $1 per year to each party. Bowers filed a petition for modification on September 24, alleging a material change in circumstances because she unexpectedly lost her job as part of a reduction in force on August 15. Bowers requested an award of alimony on a temporary basis and modification of alimony on a permanent basis.

The district court held a hearing on Bowers’ petition to modify. See Bowers, supra. Bowers, who had previously worked as a medical technologist for numerous years, had been dismissed from several jobs in her field since the entry of the dissolution decree and had not worked since March 1997. Bowers testified that because of cognitive impairments relating to her short-term memory, she was no longer able to work in the field of medical technology. Bowers presented medical testimony that she had suffered problems with memory retention and concentration since 1994. Dr. Thomas Grandy, a psychologist, testified that Bowers’ deficiency in short-term memory prevented her from satisfactorily performing the daily duties required of a laboratory [467]*467medical technologist, and he recommended that she undergo vocational rehabilitation. The district court, in a May 15, 1998, order, concluded that there was no material change in circumstances after the entry of the decree and denied Bowers’ petition for modification.

Bowers appealed the district court’s order. The Nebraska Court of Appeals affirmed in an unpublished opinion, determining that Bowers failed to prove a change of circumstances since the time of the decree, as Bowers had suffered from memory problems since 1994 and had reported difficulties with thinking and remembering in 1995. Bowers v. Scherbring, 8 Neb. App. ci (No. A-98-564, June 29, 1999). Thus, the Court of Appeals determined that the record did not support a modification of alimony, and the district court did not abuse its discretion in denying Bowers’ application to modify. Id.

This court granted Bowers’ petition for further review. We determined that although Bowers’ neurocognitive problems existed prior to the decree, neither party contemplated the extent to which Bowers’ illness would prevent her from working as a medical technologist. Bowers v. Scherbring, 259 Neb. 595, 611 N.W.2d 592 (2000). Additionally, we concluded that the Court of Appeals erred in requiring Bowers to present evidence that she was unemployable in any position, rather than just as a medical technologist. Thus, we reversed the judgment of the Court of Appeals and remanded the cause to the district court with directions for further proceedings. Id.

On remand, the district court held a hearing to determine the appropriate amount of alimony. Bowers requested an increase in alimony retroactive to April 1997, because she had not worked since March 1997. Bowers had been employed as a medical technologist until March 1997, but her physician advised Bowers at that time to get out of the medical technology field and apply for Social Security disability benefits because of her ongoing cognitive problems. Bowers testified that she received neurocognitive therapy from May 1997 to August or September 1997, but discontinued treatment after her insurance company stopped paying for it.

Bowers entered a master’s degree program in community counseling at the University of Nebraska-Omaha in August 1998, [468]*468and at the time of the hearing, she expected to finish her degree in May 2001. Bowers testified that she could seek a job in counseling after graduation, but she would not become a licensed mental health practitioner until she passed board examinations and completed 3,000 hours of work in her field.

Because she had not been employed since March or April 1997, Bowers used her savings and Social Security as income, and eventually liquidated assets totaling approximately $9,100 in the form of IRA’s and mutual funds. Bowers received $2,631 in Social Security benefits for 1997. Bowers also received $17,000 in loans from her mother and student loans totaling approximately $36,000. For the spring 2001 semester, Bowers received an additional $4,200 in student loans.

The court admitted as an exhibit a list of Bowers’ estimated monthly expenses, which included the type of monthly expenses Bowers incurred back to March or April 1997 when she first became unemployed. Bowers’ monthly expenses, as estimated, totaled $1,838; she incurred approximately $5,000 in additional expenses since March 1997 for medical insurance, dental expenses, and eye care. Bowers testified that 6 months after her graduation, she will begin making payments of $400 per month on her student loans and will continue such payments for 10 years.

Scherbring indicated his income from the years 1997 to 2000 by submitting tax returns and W-2 forms as exhibits: $43,983.82 in 1997 (W-2 form); $43,048 in 1998; $47,775 in 1999; $50,533.42 in 2000 (W-2 form). Scherbring testified that his average net income was $2,771 per month and that his average monthly expenses were $2,923. Scherbring’s cohabitant did not contribute to any of Scherbring’s living expenses. Although Scherbring’s monthly mortgage payment was approximately $800 to $850 at the time of the dissolution in 1996, that amount had increased to $1,193 because he refinanced his mortgage pursuant to a $22,000 property settlement in the dissolution decree. The district court received as an exhibit Bowers’ attorney’s affidavit and itemization of hours up to the time of the previous trial in this matter.

In a March 13, 2001 order, the district court awarded Bowers alimony retroactive to April 1, 1997, and ending on September [469]*4691, 2001, for a total of 54 payments at the rate of $400 per month, a purported total judgment of $21,200—54 multiplied by $400, however, actually totals $21,600. The district court ordered that Scherbring pay $500 per month starting on April 1, 2001, until the judgment is paid in full. The district court denied Bowers’ request for attorney fees. Bowers appealed the judgment of the district court on April 10.

Scherbring died on October 12, 2001. Gail Lens, personal representative of Scherbring’s estate, has been substituted as the appellee, and the judgment and instant appeal have been revived.

ASSIGNMENTS OF ERROR

Bowers assigns, restated, that the district court erred in (1) terminating Bowers’ alimony in September 2001, (2) allowing Scherbring to pay off the judgments on a monthly basis instead of allowing Bowers to collect the judgment as may be deemed appropriate, (3) not allowing Bowers interest on the judgment, (4) awarding only $400 per month in alimony, and (5) failing to award Bowers attorney fees.

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Bowers v. Lens
648 N.W.2d 294 (Nebraska Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
648 N.W.2d 294, 264 Neb. 465, 2002 Neb. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-v-lens-neb-2002.