Sebesta v. Sebesta

277 N.W.2d 49, 202 Neb. 624, 1979 Neb. LEXIS 1062
CourtNebraska Supreme Court
DecidedMarch 20, 1979
DocketNo. 41807
StatusPublished
Cited by1 cases

This text of 277 N.W.2d 49 (Sebesta v. Sebesta) 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
Sebesta v. Sebesta, 277 N.W.2d 49, 202 Neb. 624, 1979 Neb. LEXIS 1062 (Neb. 1979).

Opinion

Knapp, District Judge.

This is an action for dissolution of marriage. The court found that the marriage was irretrievably broken, approved the parties’ written property settlement agreement and dissolved the marriage. Petitioner wife appeals, contending the court erred in not granting her motion, filed prior to entry of the decree, to declare the agreement null and void and in not finding the agreement to be unconscionable. We affirm the judgment of the trial court.

The parties were married in 1942. Appellant was then 16 years old; appellee was 22 years old. Neither of them completed high school. With the exception of 15 to 20 head of cattle then owned by appellee, neither of them brought property of value to the marriage. Four children were bom to the marriage; two survive, a married daughter and a son who was 18 years old at the time the decree was entered. During the marriage, by purchase and by inheritance, the parties accumulated the property which is the subject of this appeal. When the petition was filed they owned 608 acres in Valley County, Nebraska, purchased in 1955, which, with the farm home and other improvements thereon, was ap[626]*626praised at $195,000; 24 acres in Loup County, Nebraska, purchased in 1976 for $3,072; a one-third interest in 1,032 acres in Loup County, Nebraska, inherited by appellee in 1949 and valued at $44,032; 150 head of cattle valued at $33,750; farm machinery, including a 1974 pickup, valued at $15,000; a 1968 Buick automobile valued at $500; and a certificate of deposit in the amount of $9,730.08. They owed $55,000 to their bank, $9,500 in miscellaneous business debts, and a $22,000 balance on a mortgage on the Valley County land.

Appellant’s petition for dissolution was filed September 20, 1976. Hearing was had on her application for temporary allowances on December 16, 1976. Evidence of the parties’ assets and liabilities was received and temporary allowances were ordered. Shortly thereafter, appellee’s counsel wrote a letter to appellant’s counsel outlining a proposed property settlement agreement. Appellant learned of this proposal on December 24, 1976, while visiting her daughter, who had been informed thereof by appellee. Appellant insisted that appellee come to their daughter’s home to explain the proposed agreement and, on December 27, he did so. The proposal, in addition to dividing the property, included conveying to each of their two children a quarter section of the Valley County land. Following this discussion they, with their daughter, went to the office of appellee’s counsel in Ord, Nebraska, and there executed warranty deeds conveying the quarter sections to their children. Appellee’s counsel was not present and was not aware that the parties were in his office. Appellant and her daughter then drove to Bur well, Nebraska, to confer with appellant’s counsel, who read to them the letter from appellee’s counsel setting forth the terms of the proposed settlement. Appellant advised her counsel that she agreed to the proposed terms and had already executed the deeds conveying the quarter sections to their children.

[627]*627Thereafter, the terms of the agreement were incorporated into an instrument entitled “Stipulation of Property Settlement” (hereinafter called Stipulation). It provided that appellee would have custody of the parties’ minor son and would assume the debts, including the mortgage on the Valley County land. It included a recital that the parties had, on December 27, 1976, conveyed to each of their two children a quarter section of the Valley County land. Appellee received the balance of the Valley County land (288 acres) together with the farm home and other improvements thereon, all farm livestock and machinery, and the 1974 pickup. Appellant received all of the Loup County land (368 acres), the $9,730.08 certificate of deposit, the 1968 Buick, and the personal effects and clothing then in her possession. Appellee received “all other personal property of the parties.” Neither “personal effects and clothing” nor “all other personal property of the parties” was then, or later, more fully identified, nor was any monetary value assigned thereto by either of the parties at any of the three hearings before the trial court. The Stipulation further stated that the parties had made every reasonable effort to reconcile their differences and were convinced that their marriage was irretrievably broken and that reconciliation and continuance of the marriage was impossible.

Appellee executed the Stipulation on January 13, 1977. Appellant’s counsel mailed it to appellant, together with a certain “Statement” prepared by him, and, on January 21, 1977, appellant took both instruments to the office of appellee’s counsel, executed and acknowledged them before his secretary, a notary public, and left the executed instruments there with directions to mail them to her attorney. Again, it should be noted that appellee’s counsel was not present nor was he aware of appellant’s presence in his office. The “Statement” prepared by [628]*628appellant’s counsel and executed and acknowledged by her on January 21, 1977, was captioned as a pleading in the case, entitled “Statement,” and is as follows: “I, ELLEN G. SEBESTA, do hereby acknowledge that I have been informed by my Attorney * * * that I would probably be awarded by the District Court of Valley County, Nebraska, a greater amount of the joint property accumulated by my husband and myself during the period of our marriage, than the property I will receive according to the Stipulation of Property Settlement signed by me this date.

“However, it is my express wish and desire that the joint property owned by my husband and myself and accumulated during the period of our marriage be divided and disposed of according to the Stipulation of Property Settlement which I have executed this date, and I hereby certify that I have knowingly and willingly executed said Stipulation, with full knowledge of my act and without any restraints whatsoever.”

On January 31, 1977, appellant returned to the office of appellee’s counsel and, in his presence, executed United States Quarterly Gift Tax Returns relating to the gifts of the Valley County quarter sections to their children.

On March 23, 1977, hearing was had on appellant’s petition for dissolution. Appellee testified that the marriage was irretrievably broken and to the execution by the parties of the Stipulation and the gift tax returns. Appellant’s counsel then stated to the court “* * * my client now states to me that apparently she has changed her mind since signing this particular document (the Stipulation) and does not feel at this time that was a fair property settlement.” Appellant did not take the stand, but on being asked by the court if she had any questions replied: “Yes, I do. I don’t want it to go through.”

The court ordered both parties to undergo mar[629]*629riage counseling, the results thereof to be reported to the court. Appellant’s counsel requested and received permission to withdraw as counsel in the case.

On May 10, 1977, the marriage counselor seen by the parties filed his report with the court setting forth the visits had with the parties, the tests administered to them, and his conclusion that the marriage was irretrievably broken.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burns v. Burns
Nebraska Court of Appeals, 2015

Cite This Page — Counsel Stack

Bluebook (online)
277 N.W.2d 49, 202 Neb. 624, 1979 Neb. LEXIS 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sebesta-v-sebesta-neb-1979.