Watts v. Watts

547 N.W.2d 466, 250 Neb. 38, 1996 Neb. LEXIS 101
CourtNebraska Supreme Court
DecidedMay 10, 1996
DocketS-94-545
StatusPublished
Cited by31 cases

This text of 547 N.W.2d 466 (Watts v. Watts) 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
Watts v. Watts, 547 N.W.2d 466, 250 Neb. 38, 1996 Neb. LEXIS 101 (Neb. 1996).

Opinions

Per Curiam.

On August 6, 1993, the district court for Sarpy County entered an order dissolving the marriage of Victoria Lachell Watts, now known as Victoria Lachell Kilgore, and Jeffrey Carter Watts. The divorce decree ordered Watts to pay alimony to Kilgore for a period of 5 years but also provided that alimony would cease upon Kilgore’s remarriage. Within 6 months of the decree, on December 16, 1993, Kilgore participated in a marriage ceremony. Watts immediately stopped making alimony payments. Under the laws of the State of Nebraska, Kilgore’s second marriage was void because the ceremony was conducted during the 6-month waiting period after her divorce from Watts. Kilgore’s putative second husband left her within 3 months of the marriage ceremony. Kilgore then filed a garnishment action in the district court for Sarpy County seeking to collect unpaid alimony from Watts. Kilgore asserted that since her second marriage was void and of no legal effect, Watts had not been relieved of his obligation to pay alimony under the divorce decree. Watts requested a hearing regarding the garnishment and asserted that his obligation to pay alimony had been terminated. The district court held that although Kilgore’s second marriage was void, the void marriage nonetheless terminated Watts’ alimony obligations. The district court stated that Kilgore might have remedies against her putative second husband. The court quashed the garnishment summons and ordered that its own prior divorce decree be modified to terminate alimony. Kilgore appeals. We reverse the order of the district court quashing the summons and modifying the divorce decree.

BACKGROUND

The facts are brief and uncontested. Watts and Kilgore were married on October 10, 1981. The parties are the parents of [40]*40four minor children. After more than 11 years, Jeffrey Watts filed for a divorce in the district court for Sarpy County. The matter was heard before the court on June 15, 1993. The divorce decree dissolving the parties’ marriage was entered August 6, 1993.

The court adopted the property and custody agreement of the parties in its decree. Joint custody of the children was awarded. Watts was ordered to pay $300 in child support per month. Alimony was awarded “in the amount of $250.00 per month commencing on [September 1], 1993, and continuing for a period of 60 months thereafter or until either [party] shall die or until [Kilgore] shall remarry . . . . ”

On December 16, 1993, Kilgore participated in a marriage ceremony with William Metoyer. (Metoyer is referred to as “William Montoya” in the bill of exceptions.) Kilgore testified that she believed that her divorce became final 6 months after the date of the June 15 hearing. Kilgore believed that she had entered into a valid second marriage, and she thereafter lived with Metoyer as husband and wife. When Metoyer learned that the marriage was in fact void, he ended his relationship with Kilgore. Apparently, the parties discovered that the second marriage was void in or around March 1994, but the exact date is not disclosed in the record.

Watts had stopped making alimony payments in January 1994. In April, Kilgore filed a garnishment affidavit and praecipe and asserted $750 in unpaid alimony was due. The record indicates that a garnishment summons and interrogatories were served upon the garnishee, Watts’ employer. The record does not contain the garnishee’s answer.

Neb. Rev. Stat. § 25-1011(1) and (2) (Reissue 1995) requires that notice be served upon the judgment debtor when a garnishment summons and interrogatories are served upon the garnishee. Section 25-1011(4)(c) provides that the judgment debtor may request a hearing if the debtor believes the amount is not owed on the judgment.

The record indicates that Watts received a notice to the judgment debtor. Such notice informed Watts that a garnishment summons had been served upon his employer and that he had the right to request a hearing if he did not believe that he [41]*41owed the judgment. Watts timely requested a hearing regarding the garnishment proceeding.

The matter was heard on April 26, 1994. At the hearing, Kilgore was the only witness. Kilgore admitted that she had participated in a marriage ceremony in December. Kilgore stated that her attorney had informed her that she had to wait 6 months after the June 15 hearing to remarry.

The district court held that Kilgore’s participation in the marriage ceremony constituted a marriage, albeit a void marriage. Since the divorce decree provided that alimony terminated upon remarriage, the district court ordered that the garnishment summons for the unpaid alimony be quashed because the summons was for a debt not owed. The district court also ordered that the divorce decree be modified to provide for the termination of alimony as of January 1, 1994. The court suggested that Kilgore might have some remedies against Metoyer.

Kilgore timely appealed the order to the Nebraska Court of Appeals. We moved the appeal to our docket.

ASSIGNMENTS OF ERROR

Kilgore asserts that the district court erred in failing to hold that her second marriage was void and therefore without legal effect. Kilgore also asserts that the district court erred in failing to find that a void marriage standing alone does not terminate an alimony award. Further, Kilgore asserts that the district court erred by terminating alimony accrued prior to the date of its order eliminating her right to receive alimony. Finally, Kilgore asserts that the district court erred by modifying its prior award and order to pay alimony without good cause shown.

STANDARD OF REVIEW

Garnishment is a legal proceeding. To the extent factual issues are involved, the findings of a garnishment hearing judge have the effect of findings by a jury and, on appeal, will not be set aside unless clearly wrong. Koterzina v. Copple Chevrolet, 249 Neb. 158, 542 N.W.2d 696 (1996); Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746 (1995); Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 235 Neb. 207, 454 N.W.2d 671 (1990).

[42]*42On questions of law, an appellate court has an obligation to reach its own independent conclusions. Koterzina v. Copple Chevrolet, supra; Davis Erection Co. v. Jorgensen, supra.

ANALYSIS

In Nebraska, a divorce decree becomes final 6 months after it is entered. Neb. Rev. Stat. § 42-372(l)(b) (Reissue 1993). During this 6-month waiting period, the matrimonial tie between the parties is not dissolved. Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984); Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).

In this case, the divorce decree was entered on August 6, 1993, and therefore was not final until February 7, 1994.

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Watts v. Watts
547 N.W.2d 466 (Nebraska Supreme Court, 1996)

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547 N.W.2d 466, 250 Neb. 38, 1996 Neb. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watts-v-watts-neb-1996.