Murrell v. Murrell

440 N.W.2d 237, 232 Neb. 247, 1989 Neb. LEXIS 235
CourtNebraska Supreme Court
DecidedMay 19, 1989
Docket88-944
StatusPublished
Cited by17 cases

This text of 440 N.W.2d 237 (Murrell v. Murrell) 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
Murrell v. Murrell, 440 N.W.2d 237, 232 Neb. 247, 1989 Neb. LEXIS 235 (Neb. 1989).

Opinion

Caporale, J.

In this dissolution of marriage case, the respondent-appellant husband, Charles Murrell, challenges the award of alimony to the petitioner-appellee wife, Betty Murrell, by asserting the district court erred (1) in purporting to make the award not subject to modification and (2) by ordering excessive payments. We affirm as modified.

The parties were married in 1962. At the time of trial the wife was 43 years of age and the husband 53. Four children were born of the marriage, all of whom had attained the age of majority by the time of trial.

The wife has a ninth-grade education; the husband progressed through the eighth grade. The wife, who had been employed at the time of, and periodically during, the marriage, was employed at the time of trial, working fewer than 40 hours per week and earning $3.85 per hour. The wife’s most recent paycheck stub, admitted into evidence, indicates that in the 1988 calendar year, she had earned a gross amount, before taxes and deductions, of $4,381.65 through September 1, 1988, suggesting that her total earnings, before taxes and deductions, would have amounted to approximately $6,572.48 in 1988.

The wife’s highest wage during the marriage had been $3.90 per hour, the 5-cent-per-hour increment having been based on “certification” for her position as some type of health care provider, which certification required periodic retesting. She testified that she could not afford to pay for this testing and so had allowed her certification to lapse. Moreover, she was medically precluded from doing heavy lifting at the time of trial.

At the time of trial the husband was employed at Western Sugar as a sugar boiler, earning $12.44 per hour for a 40-hour *249 workweek, with 8 hours of overtime scheduled every 3 weeks. His 1987 income tax return reveals that his total income in the year preceding trial was $28,412. Having no adjustments to income, his adjusted gross income equaled his total income.

The couple had accumulated certain assets during their 26-year marriage which the district court distributed in such a manner that the wife received somewhat more than $15,337 in net asset value and the husband $12,760.06. The decree also provides:

[The husband] shall pay as alimony to the [wife] the sum of $350.00 per month for a period of 121 months, commencing November 1,1988 and the 1st of each month thereafter. Such alimony shall not be modifiable and shall terminate upon the death or remarriage of the [wife]. Delinquent payments shall draw interest at the legal rate per annum until paid.

In considering the modifiability of the district court’s alimony award, we note that Neb. Rev. Stat. § 42-365 (Reissue 1988) provides in relevant part that “[u]nless amounts have accrued prior to the date of service of process on a petition to modify, orders for alimony may be modified or revoked for good cause shown____”

In Ball v. Ball, 183 Neb. 216, 159 N.W.2d 297 (1968), a case predating the adoption of § 42-365, this court outlined the distinction between “alimony” and “alimony in gross” as follows, and adopted the following rule:

The distinction between “alimony” and “alimony in gross” may be gathered from the accepted definitions of the two terms. “ ‘Alimony,’ which signifies literally nourishment or sustenance, is an allowance for support and maintenance, or, as has been said, a substitute for marital support. It is the allowance which a husband may be compelled to pay to his wife or former wife for her maintenance when she is living apart from him or has been divorced.” ... “Alimony in gross, or ‘lump-sum alimony,’ is fundamentally the award of a definite sum of money; and if the sum is payable in instalments the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the *250 husband or the remarriage of the wife. Gross alimony becomes a vested right from the date of the rendition of the judgment, and the manner of its payment in no wise affects its nature or effect. The fact that the award is payable in instalments is not determinative of the question whether it is gross alimony or periodic alimony. On the other hand, alimony in general, or instalment alimony, contemplates periodic payments of a definite sum for the indefinite future, and terminates on the death of either party or the remarriage of the wife.” . . . The phrase “alimony in gross” or “gross alimony” is always for a definite amount of money, the payment is always for a definite length of time, and it is always a charge on the estate of the husband and is not modifiable. It, therefore, appears that a decree providing for “alimony in gross,” constituting a final judgment not subject to modification, must incorporate each and every one of the following propositions to meet the recognized requirements for this type of judgment, to wit: (1) The award must be for a definite sum or for installments payable over a definite period of time; (2) it must be payable in full regardless of the death or remarriage of the judgment creditor; and (3) it cannot terminate on the death of the judgment debtor.

(Citations omitted.) Id. at 219-20, 159 N.W.2d at 300. We observe that the instant award satisfies only the first element of the Ball definition of alimony in gross.

More recently, in Van Pelt v. Van Pelt, 206 Neb. 350, 354, 292 N.W.2d 917, 919-20 (1980), decided after the enactment of § 42-365,

[t]he decree ... required the husband to pay to the wife as alimony the sum of $100 per month for a period of 121 months. The decree recited that the alimony granted was to be deemed alimony in gross and was not to be affected or terminated by the marriage or death of either party. The alimony did not bear interest except for delinquent payments.

We reasoned:

Under a prior statute, this court held that an unqualified allowance of alimony in gross, whether *251 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____Under the terms of Neb. Rev. Stat. §§ 42-365 and 42-366 (Reissue 1978), we believe that rule must be extended to those cases in which the decree expressly precludes modification. The terms of the decree in the present case expressly designate the alimony judgment as alimony in gross and expressly preclude modification.

(Citations omitted.) Id. at 355, 292 N.W.2d at 920. This court affirmed the district court’s award of alimony. Unlike the award in Van

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Bluebook (online)
440 N.W.2d 237, 232 Neb. 247, 1989 Neb. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murrell-v-murrell-neb-1989.