Bowers v. Scherbring

611 N.W.2d 592, 259 Neb. 595, 2000 Neb. LEXIS 128
CourtNebraska Supreme Court
DecidedJune 2, 2000
DocketS-98-564
StatusPublished
Cited by9 cases

This text of 611 N.W.2d 592 (Bowers v. Scherbring) 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. Scherbring, 611 N.W.2d 592, 259 Neb. 595, 2000 Neb. LEXIS 128 (Neb. 2000).

Opinions

Wright, J.

NATURE OF CASE

Carol A. Bowers, formerly known as Carol A. Scherbring, appealed from the Douglas County District Court’s denial of her application to modify an award of alimony and her request for attorney fees. The Nebraska Court of Appeals affirmed, and we granted Bowers’ petition for further review.

SCOPE OF REVIEW

The determination of good cause necessary for modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion. Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100 (1997).

FACTS

On June 3, 1996, the district court entered a decree dissolving the marriage between Bowers and Robert Scherbring. The decree awarded each party alimony of $1 per year. On September 24, Bowers filed an application for an increase in alimony, alleging a material change in circumstances. Bowers alleged that subsequent to entry of the decree, she was unexpectedly laid off from her job as part of a reduction in force which occurred on August 15.

At the hearing on the application, Bowers testified that she had previously been employed for numerous years as a medical technologist. A few days before entry of the decree, she began to work for Independence Regional Hospital and was employed there for 89 days. Subsequently, she was employed at Trinity Hospital for approximately 3 weeks. She voluntarily terminated her employment for an opportunity to work at Kaiser Permanente. She voluntarily terminated her employment with [597]*597Kaiser Permanente and then gained employment at Physicians Reference Laboratory, LLC. There, she was asked to leave employment after approximately 1 month because of a mistake she had made in the laboratory. She then became employed at Lab One and worked there for approximately 7 weeks before she was asked to leave. At the time of the hearing, Bowers had not sought employment in the medical technology field since her employment with Lab One ended in March 1997. Bowers testified that she was unable to work in the field of medical technology due to her problems with cognitive impairments.

The medical testimony offered at the hearing showed that Bowers suffered from cognitive impairments related to short-term memory and that she was unable to continue working in the medical technology field. Bowers has suffered problems with memory retention and concentration since 1994. She has been treated by Dr. Johnny Johnson, an internal medicine/general practice physician; Dr. Roxane Bremen, a neurologist; Dr. Dennis Cowan, a neuropsychologist; and a Dr. Keyser, a psychologist.

Dr. Thomas Grandy, a psychologist, opined that in terms of Bowers’ short-term memory, she had recall very similar to a person with a learning disability. Her scores on visual matching and “cross out” were in the 28th and 24th percentile respectively. Grandy stated that such deficiencies would cause problems for someone working as a medical technologist and that the tests he performed showed that Bowers had a deficiency in short-term memory such that she had difficulty in remembering words and numbers and in putting items in sequence. Grandy stated that the test results, combined with employer information which he had obtained, strongly suggested that Bowers could not satisfactorily perform the daily duties required of a laboratory medical technologist in a timely and accurate manner. He opined that Bowers could not maintain employment in her previous career, but that she might be employable within the medical field either in a less demanding professional position or in a clerical position. He recommended that Bowers undergo vocational rehabilitation.

Bowers testified that she had collected unemployment for 6 months and then had “cashed in” her retirement funds. She has [598]*598applied twice for Social Security disability benefits, but was turned down. She was subsequently accepted into graduate school at the University of Nebraska-Omaha in the Department of Education, where she hopes to become a counselor and work with abused women. She estimated that her monthly living expenses while she attended graduate school would be approximately $1,600 per month.

The district court denied Bowers’ application for modification, finding that there had not been a material change in circumstances. Thereafter, the Court of Appeals affirmed. See Bowers v. Scherbring, No. A-98-564, 1999 WL 1080659 (Neb. App. June 29,1999) (not designated for permanent publication). The Court of Appeals relied on the fact that Bowers had suffered from memory problems since 1994 and that she had reported difficulties with thinking and problems with memory in November 1995. It concluded that Bowers did not prove a change in circumstances regarding her employability and earning capacity and that although she offered evidence proving that she was no longer employable as a medical technologist, she failed to present evidence to show that she was unemployable in any field or that her medical condition had caused a decrease in her earning capacity. The court, with one judge dissenting, concluded that Bowers had failed to meet her burden of proving a change in circumstances since the time of the decree, and it affirmed the denial of Bowers’ application to modify the decree. We granted further review.

ASSIGNMENTS OF ERROR

Bowers argues, summarized and restated, that the Court of Appeals erred (1) in failing to find that a material change in circumstances had taken place since the entry of the divorce decree and (2) in not awarding fees and costs to Bowers.

ANALYSIS

Pursuant to Neb. Rev. Stat. § 42-365 (Reissue 1998), alimony orders may be modified or revoked for good cause shown. In order for Bowers to show good cause, she must show a material and substantial change in circumstances which was not contemplated by the parties at the time of the decree.

[599]*599The determination of good cause necessary for modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion. Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100 (1997). Good cause means a material and substantial change in circumstances and depends upon the circumstances of each case. Id.:, Creager v. Creager, 219 Neb. 760, 366 N.W.2d 414 (1985). In a de novo review, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. When the evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Pope v. Pope, 251 Neb. 773, 559 N.W.2d 192 (1997).

We first consider whether Bowers proved a material change in circumstances and examine the decision of the district court for an abuse of discretion.

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Bluebook (online)
611 N.W.2d 592, 259 Neb. 595, 2000 Neb. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-v-scherbring-neb-2000.