Safar v. Safar

113 N.W.2d 206, 173 Neb. 292, 1962 Neb. LEXIS 27
CourtNebraska Supreme Court
DecidedFebruary 9, 1962
DocketNo. 35068
StatusPublished
Cited by1 cases

This text of 113 N.W.2d 206 (Safar v. Safar) 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
Safar v. Safar, 113 N.W.2d 206, 173 Neb. 292, 1962 Neb. LEXIS 27 (Neb. 1962).

Opinion

Yeager, J.

This is an action where Eunice Safar, plaintiff and appellee, instituted in the district court for Douglas County, Nebraska, an action for divorce against Albin Safar, defendant and appellant. A decree of divorce [293]*293was duly granted. In the decree the rights of the parties with regard to division of property in lieu of alimony for the plaintiff were adjudicated, as well as the obligation of the defendant to support and maintain a minor daughter of the parties. From an order overruling a motion for new trial which was filed and the judgment the defendant has appealed.

On the appeal the defendant does not challenge that part of the decree granting the divorce or the portion relating to the minor daughter. The only challenge is to the propriety of the division of property. There was no award of alimony as such. Instead there was decreed a division of property. The single complaint is that the decreed division was unfair. The single assignment of error is: “The Trial Court erred by computing the total assets subject to division, not only on the basis of real and personal property owned by the parties at the time of the hearing, but also on the basis of past income earned and spent by the parties prior to the decree.”

There is no substantial dispute as to the amount of value of the personal and real property owned by the parties or of existing unpaid obligations at the time the judgment was rendered by the district court, or of the amount of income earned or received over the period in question.

The defendant contends that the theory of the court was to make a substantially equal division of property between the parties, but that in so doing values of non-existing properties or money were used which rendered the division unequal and unfair to the defendant. He does not contend that equal division was improper but that existing property alone should be considered in making the division.

He asserts however that for the purposes of equal division the court added to the value of the existing property the earned and rental income received by plaintiff and by the defendant for the 2 years prior to [294]*294the trial, none of which was shown to be in being.

It is clear that the purpose of the trial court was to effect an equal division of property between the parties. This is declared by an opinion of the court which was delivered before the judgment was rendered, as is apparent from a recital therein. It, however, was not made a matter of record until after rendition of the judgment.

There can be no doubt that the court did add earnings of the defendant in the amount of $11,000, earnings of the plaintiff in the amount of $5,824, rental income received by plaintiff in the amount of $1,100, and rental income received by the defendant in the amount of $2,200. There is no evidence the effect of which was to say that there was an existence of these amounts separate from other property which was assigned a value for the purpose of a property division.

With these items eliminated and a division based on the valuations fixed by the court, which valuations are not contested, the plaintiff would receive, instead of equal division, property of the value of $14,100, whereas the defendant would receive property of the value of $8,775.

The question arises of course as to whether or not the items of earnings should be eliminated in arriving at a division of the property of the parties in an action for divorce.

In an action for divorce the court has power to adjust the respective property interests, and to assign both real and personal property. See Mason v. Mason, 157 Neb. 279, 59 N. W. 2d 365. It may not however assign property interests which are nonexistent.

The plaintiff substantially contends that although the trial court by its opinion declared the basis for a judgment and rendered judgment which by computation conformed to the opinion, it did not necessarily base its judgment thereon, but that the judgment must be treated as one which was right, proper, and equitable [295]*295in the light of the whole record without reference to the opinion.

In legal and equitable contemplation the theory of this approach is sustained by the decisions of this court. There is no fixed standard, but all facts and circumstances surrounding each particular case are to be considered and adjudication made accordingly. The guiding principles as they have many times been stated have been set forth as follows in Waldbaum v. Waldbaum, 171 Neb. 625, 107 N. W. 2d 407: “In determining the question of alimony or division of property as between the parties the court will consider the respective ages of the parties to the marriage; their earning ability; the duration of the marriage; the conduct of each party during the marriage; their station in life, including the social standing, comforts, and luxuries of life which the wife would probably have enjoyed; the circumstances and necessities of each; their health and physical condition; and their financial circumstances as shown by the property they owned at the time of divorce, its value at that time, its income-producing capacity, if any, whether accumulated or acquired before or after the marriage, the manner in which it was acquired, and the contributions each has made thereto. From these elements and all other relevant facts and circumstances, the court will determine the rights of the parties and make an award that is equitable and just.”

It is pointed out here that in the determination of what shall be awarded as alimony or division of property the court may assign both real and personal property as the ends of justice may require. See, Metschke v. Metschke, 146 Neb. 461, 20 N. W. 2d 238; Mason v. Mason, supra; § 42-321, R. R. S. 1943.

The grounds for divorce pleaded by the plaintiff may well be said to have been supported by a bare sufficiency of evidence. As related to the question of division of property the record discloses that the parties were married in 1934; that three daughters were born of the [296]*296marriage and that they are of such ages and in such situations that the question of child support is not involved in this case; that the parties were divorced in 1951; that they were remarried in 1954; that in February 1959, this action for divorce was instituted; and that the decree herein was rendered in February 1961. After the separation both parties were gainfully employed and over that period, it reasonably appears, had sufficient individual incomes to be regarded as self-supporting. It further appears that each will be self-supporting in the future. Over the years certain property was accumulated including two separately described pieces of improved real estate in the city of Omaha, Nebraska. The contributions made by each do not definitely appear, but in the light of the evidence the inference is unavoidable that the accumulations flowed from the joint efforts of the parties.

In the light of the record there is nothing to indicate, under the legal and equitable principles to which reference is made herein, that there should be a division of property the effect of which would be to award to plaintiff an amount or value of property in excess of that awarded to the defendant.

This conclusion requires therefore that this court make an accounting and direct a division which will substantially accomplish an equal division.

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Bluebook (online)
113 N.W.2d 206, 173 Neb. 292, 1962 Neb. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safar-v-safar-neb-1962.