Younkin v. Younkin

375 N.W.2d 894, 221 Neb. 134, 1985 Neb. LEXIS 1225
CourtNebraska Supreme Court
DecidedNovember 1, 1985
Docket84-049
StatusPublished
Cited by71 cases

This text of 375 N.W.2d 894 (Younkin v. Younkin) 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
Younkin v. Younkin, 375 N.W.2d 894, 221 Neb. 134, 1985 Neb. LEXIS 1225 (Neb. 1985).

Opinions

[135]*135Shanahan, J.

The district court for Kearney County refused to set aside or modify its decree dissolving the marriage of Jeanne and Gary Younkin. Gary appeals and contends the district court erred in refusing to set aside its decree and denying discovery directed toward determining paternity of an unborn child for whom the court ordered Gary’s payment of child support. We affirm in part and in part reverse and remand with direction.

On July 4,1980, Jeanne and Gary Younkin married. On June 14,1982, Jeanne filed a petition for dissolution of marriage and alleged, among other things, existence of marital property and her anticipated delivery of Gary’s unborn child expected in October. Trial occurred on August 19,1982.

Jeanne testified about her employment as an accountant; her income and expenses, including probable cost of prenatal and maternity care; marital property and its value, as well as property possessed by the parties before marriage; debts; the expected birth of Gary’s child on October 7; and the absence of any health and accident insurance supplying maternity coverage.

Gary did not supply any evidence pertaining to Jeanne’s pregnancy or the paternity of Jeanne’s unborn child. Gary’s evidence, generally, related to the value of property, real and personal, affected by the dissolution proceedings and his compensation received from a farm partnership conducted with his father and brother.

Trial concluded without rendition of judgment on August 19. Nevertheless, on September 7 Jeanne and Gary separately filed a motion for new trial.

On February 4, 1983, the court signed a “Decree of Dissolution” prepared by Jeanne’s attorney in reference to the hearing on August 19, 1982. The decree provided: Custody of the unborn child was granted to Jeanne; Gary was required to pay child support of $350 per month and medical expenses regarding Jeanne’s pregnancy and birth of the child; and Jeanne was awarded alimony in the amount of $1,000 per month from August 19 until 2 months after the birth of the child, whereupon Gary was required to pay Jeanne “lump sum alimony” of $6,000 in monthly installments of $500.

[136]*136Gary filed a motion for an order nunc pro tunc on February 28, whereby the date for rendition of the judgment would be corrected in the decree, inasmuch as the court’s trial docket did not contain the date on which judgment had been rendered. On February 28 Gary also filed his first motion to vacate or modify the decree and claimed the court’s property division was incorrect, the costs of Jeanne’s obstetrical and maternity care were “exorbitant,” and child support was excessive. Gary requested modification of the decree to award him some 144 items of personal property, described in a 7-page exhibit appended to his motion. Personal property sought by Gary ranged from firearms to fishing paraphernalia and included sundry items such as sheets of plywood, a box of hinges, two or three pints of varnish, one black dress shoe, quiche pans, two corkscrews (one wooden and one Italian metal), and a portable dog kennel.

On April 7 the court overruled “the Motion for New Trial.” Presumably, that order related to the separate motions filed by Jeanne and Gary in September 1982, the only motions for new trial shown in the record to be pending at April 7.

Gary filed a second motion to vacate or modify the decree on April 19 and alleged that Jeanne had given birth to a child in September 1982; that after the child’s birth, Gary had become “aware of factors which lead [Gary] to believe that he is not the father of said minor child”; and that the decree should be modified to exonerate Gary from payment of child support and medical expenses concerning Jeanne’s pregnancy and the birth of her child. Also, on April 19 Gary filed a motion seeking a blood test and related tests of Jeanne and her child to determine whether Gary was the father of Jeanne’s child. Pursuant to Rule 37(a)(2), Nebraska Discovery Rules (rev. 1983), on May 31 Gary filed a “Motion for Order Compelling Discovery,” namely, production of Jeanne’s medical records concerning her pregnancy and postnatal care, because Jeanne had failed to produce the requested documents after Gary had served a formal “Request for Production” on April 18. Jeanne had not sought a protective order authorized by Rule 26(c) of the Nebraska Discovery Rules. Gary alleged that the documents sought were relevant to the paternity issue raised in his second [137]*137motion to vacate.

At a hearing on September 1 the court sustained Gary’s motion for an order nunc pro tunc and amended the decree of dissolution “to reflect the date of rendition thereof as February 4, 1983 rather than August 19, 1982.” At this same hearing the court overruled Gary’s motions (blood test and production of documents), and then made the following findings and order:

[The court] shall not receive any evidence in support of respondent’s Motion to Vacate or Modify Decree and respondent’s Motion to Vacate and Modify, both filed herein within the six-month period from the date of rendition of this Court’s Decree of February 4, 1983, for the reason that it is the opinion of this Court that the taking of such evidence is discretionary with the Court and that said Motions do not justify the receipt of any such evidence and should be overruled. The Court, however, upon stipulation of petitioner’s counsel, hereby grants to respondent the option to submit to the Court, for the record, a general written offer of proof in support of said Motions with a copy of said offer to be served upon petitioner’s attorney, provided that the evidence so offered shall not be received by the Court upon petitioner’s objection to said offer, which objection petitioner hereby makes in advance, for the record, and which objection the Court hereby sustains.

(Emphasis supplied.)

After the order nunc pro tunc correcting the date judgment was rendered, Gary, in his motion filed September 12, sought a new trial on account of the court’s actions in disposing of Gary’s motion to vacate or modify the decree of dissolution.

On November 7, 1983, Gary filed a “Statement of Intended Proof in Support of Motion to Vacate or Modify Decree.” In such statement Gary generally expressed displeasure with the court’s division of property. Gary further alleged that the child was born on September 18,1982, and that the medical expenses for Jeanne’s maternity care had been estimated to be $1,350, whereas actual expenses were $6,500. Neither Gary’s motion nor his statement indicates that Jeanne’s pregnancy was less than full term or that any feature of the child’s birth was other [138]*138than normal. Gary offered to prove that the child born on September 18, 1982, “is not his child”; that Jeanne had told Gary that the child would be born in the middle of October 1982, but the child was born earlier; and that Gary had “facts which supported his contention that [the child] may not be his child.” According to the offer of proof, the parties had separated until “nearly the end of December, 1981,” when the parties “cohabitated for a period of approximately one month.”

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Bluebook (online)
375 N.W.2d 894, 221 Neb. 134, 1985 Neb. LEXIS 1225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/younkin-v-younkin-neb-1985.