§ 42-372 — Decree; appeals

Nebraska § 42-372

• Jurisdiction: Nebraska
• Ch. 42: Households and Families

Text

(1) A decree dissolving a marriage becomes final and operative, except for the purpose of review by appeal, at the time specified in section 42-372.01 .
(2) For the purpose of review by appeal, the decree shall be treated as a final order as soon as it is entered. If an appeal is instituted that does not challenge the finding that the marriage is irretrievably broken, then the decree shall become final and operative, as to that portion of the decree that dissolves the marriage, at the time specified in section 42-372.01 as if no such appeal had been instituted. If an appeal is instituted within thirty days after the date the decree is entered that challenges the finding that the marriage is irretrievably broken, such decree does not become final until such proceedings are finally determined or the date of death of one of the parties to the dissolution, whichever occurs first.

Legislative History

Source: Laws 1972, LB 820, § 26; Laws 1986, LB 600, § 10; Laws 1987, LB 33, § 8; Laws 1995, LB 544, § 1; Laws 1997, LB 77, § 1; Laws 2000, LB 921, § 33. Annotations: 1. Modification or vacation of decree 2. Miscellaneous 1. Modification or vacation of decree Modification of a dissolution decree during the 6-month interlocutory period pursuant to this section can be made only upon good cause shown after notice to all interested parties and hearing. McAllister v. McAllister, 228 Neb. 314, 422 N.W.2d 345 (1988); Neujahr v. Neujahr, 218 Neb. 585, 357 N.W.2d 219 (1984); Norris v. Norris, 2 Neb. App. 570, 512 N.W.2d 407 (1994). Upon a motion containing an allegation of fact which, if true, constitutes good cause to set aside or modify a decree dissolving a marriage, a court must grant an evidentiary hearing on the motion to set aside or modify the dissolution decree. Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (1985). During the six-month period following a dissolution of marriage decree, the action is still pending, and the court can at any time, for good reason, vacate or modify it. During the entire pendency of a dissolution of marriage decree, the marital relation continues. Choat v. Choat, 218 Neb. 875, 359 N.W.2d 810 (1984). Property settlement agreement entered into by parties to a dissolution of marriage may be vacated or modified if one of the spouses withheld information from the court, thus preventing the court from carrying out its function of approving or disapproving the agreement. Colson v. Colson, 215 Neb. 452, 339 N.W.2d 280 (1983). Section 42-372, R.R.S.1943, Reissue 1978, allows a modification within the six months before the decree is final to provide for alimony where none was awarded in the final decree. Section 42-365, R.R.S.1943, Reissue 1978, is limited in its application to those situations in which, except for this statute, the court could not otherwise modify or vacate the decree. Howard v. Howard, 207 Neb. 468, 299 N.W.2d 442 (1980). Where a party to a divorce action, represented by counsel, voluntarily executes a property settlement agreement which is approved by the court and incorporated in a divorce decree from which no appeal is taken ordinarily the decree will not be vacated or modified as to property provisions in absence of fraud or gross inequity. Klabunde v. Klabunde, 194 Neb. 681, 234 N.W.2d 837 (1975). The power of the district court to modify or vacate a decree of marriage dissolution hereunder within six months of the entry of the decree does not exist after appellant has suffered an involuntary dismissal of appeal. Dewey v. Dewey, 193 Neb. 236, 226 N.W.2d 751 (1975), 192 Neb. 676, 223 N.W.2d 826 (1974). Proceedings to modify a divorce decree during the 6-month period following a dissolution of marriage decree may continue and be finally decided after the 6-month period, so long as the original request was filed within the 6-month period. Novak v. Novak, 2 Neb. App. 21, 508 N.W.2d 283 (1993). 2. Miscellaneous Under former law, in Nebraska, a divorce becomes final six months after it is entered; during this six-month waiting period, the matrimonial tie between the parties is not dissolved. Watts v. Watts, 250 Neb. 38, 547 N.W.2d 466 (1996). In an alienation of affections case, evidence regarding the defendant's income during the six-month period following the plaintiff's divorce decree was relevant and admissible under the circumstances of this case. Vacek v. Ames, 221 Neb. 333, 377 N.W.2d 86 (1985). A motion authorized by this section, when appealed to this court, is not subject to review de novo on the record but, rather, is limited to an appeal of the action for dissolution itself. The granting or denying of a motion to set aside a decree of dissolution is within the sound discretion of the trial court, and any actions taken with respect thereto by that court will not be disturbed on appeal absent an abuse of discretion. Puetz v. Puetz, 211 Neb. 674, 319 N.W.2d 761 (1982). The control of a divorce decree during the six-month period pending finality is within the sound judicial discretion of the trial court. Miller v. Miller, 190 Neb. 816, 212 N.W.2d 646 (1973). Statute postpones dissolution until the decree becomes final; during six-month waiting period parties remain legally married. Under former law, wife was lawful spouse at time of death of insured and as his widow was entitled to the proceeds of insurance policy. Prudential Ins. Co. of America v. Dulek, 504 F.Supp. 1015 (D. Neb. 1980).