*1 see. can No doubt a be made argument reasonable for the fact that increases cost because now probably both insurers and conse- must consider same risks quently compensated in higher premiums.
The great value as a society place upon which we life and health doctrine so justifies liability strict far as is concerned. First personal injury party per- sonal insurance injury match the remotely does damages which recoverable from tortfeasor, while insurance of the ordinarily we have earlier men- type tioned covers the completely loss and risks. spreads I
Third: agree Smith, in- J., important formation relating policy this area is inadequate. This, I believe an added reason for not expanding the legal liability manufacturer hold- our beyond ing Kohler.
Lyell appellee Magruder, Mitchell cross- Patsy appellant v. L. appellant, Magruder,
cross-appellee.
209 N. 2d 585 W. July 27,
Filed 1973. No. 38852. appellant. Crites, & Slavik, Shaffer *2 appellee. Smith, for Michael V.
Heard J., C. before White, Spencer, Boslaugh, Smith, JJ. and Clinton, McCown, Newton, J. Clinton, by plaintiff action one
This commenced as the husband for divorce. to trial on merits, Previous 820, L.B. p. proceeded 1972, Laws 246, was enacted and the action marriage as one for dissolution of the under that act ground alleged on plain- in an amendment to the petition marriage irretrievably tiff’s that the was broken. marriage The defendant denied the wife was irretriev- ably prayed legal separation broken and for a to allow time to effect a reconciliation. proceeded
The matter to trial and court found every that reasonable effort to effect reconciliation had been made irretrievably and that was property broken. The court ordered division be- granted parties tween the and the defendant alimony per beginning September month 15, $416.66 parties continue until either of the dies or the defend- ant remarries. appeals, claiming
The defendant that inadequate award is ap- that the court erred in praising property parties its division plaintiff cross-appeals, attacking between them. The ground on the award that the court erred making annuity it in form of an and also on ground requested that it is excessive. The defendant supersedeas bond be set. This was done and the Upon application bond furnished her. her she was per temporary support month awarded pending $750 plaintiff appeal. appeal on this attacks the amount as excessive. modify
We and affirm decree as modified. Kirksville, Missouri, at on were married plaintiff
May completing 20, 1962. At that time the was premedical College course at Kirksville Teacher’s working then as motel clerk. The defendant at- tending college working days and in an abstract half year office In afternoons. the fall plaintiff Columbia, entered medical school at Missouri. employment The defendant continued both her col- lege attendance commuted Columbia and between They purchased Kirksville. lived a mobile home parents gave cost from the father and her defendant’s her automobile she which traveled between the spring two cities. 1963 the defendant finished college job her teaching course and obtained a in the Columbia defendant schools. The continued work Degree during and also obtained her Master’s this time. continued in medical school and received *3 Degree his M.D. In in 1966. 1963, 1964, 1965, and the part parties supported first by largely 1966, the were earnings plaintiff’s the of the defendant. The' tuition paid grants by was and income from livestock he owned by and which were cared an uncle. year following graduation
In the his from medical during year internship plaintiff school, a 1 the in parties largely Des the plain- Moines, Iowa, lived on the salary as an tiff’s intern. The defendant had a small part-time employment. plain- income from In the 1967, tiff entered the Air Force as a medical officer and after longer employed. that defendant Following was no years duty, plaintiff practice of active entered the of medicine in an partnership established medical prospered. Chadron, Nebraska. He In 1970, his first year practice, adjusted gross full of medical his $27,900, income $22,718. In it was his income for 1972 trial the 1971 was and he estimated $36,000. be
would At the time of plaintiff was 32 and the defendant 28. Both They good no children. parties have health. are marriage occurred while apparent rift in the The first military he in- when service in the a divorce he defendant that wanted formed the good matter to him. looked other that women shortly the divorce action before until, no further went departure from the he made an unannounced filed, was home of up separate parties took Chadron together parties thereafter. did live residence. property of value of the court determined the parties ordered divided $42,000 about to be equally examined the evidence them. We have between appraisal property and conclude to the relative by judge trial are not erroneous that the valuations justified by The division of the evidence. approved. property is alimony. 42-365, next discuss the matter Section
We Supp., provides: “When dissolution of 1972, R. S. may payment court’ order decreed, alimony by party to the be one other as rea- regard having for the circumstances sonable, marriage, parties, of the duration of the engage gainful employment supported party with- interfering the interests of minor out children party.” 42-366(6), of such in the Section R. Supp., provides alimony may S. ordered property to a addition settlement award. Section provides Supp., 1972, also 42-365,R. S. unless other- agreed writing by wise or the order upon shall terminate court, the death remarriage recipient. of either determining whether should be awarded, and over what amount, time, what under the ultimate criteria statute as well as under the *4 decisions of this court former is one of reasonableness. vary The relevant considerations will from case to case. Prosser, Prosser v. 156 Neb. See, 629, 57 N. 173; W. 2d Mandelberg Mandelberg, 187 844, v. Neb. 195 N. W. 2d
577 reasonable to it is 148. determination whether alimony into considera- and if so takes award how much parties, as as tion all the circumstances of well marriage sup- duration of the and gainful ported engage employment without interfering the interests of minor children of parties supported party’s custody. § 42-365, Supp., R. S. 1972. payable
This court has held awards annuity period the form of for life an or some indefinite generally although they may of time are not desirable proper be in some circumstances. Card, v. Card 174 Neb. 116 124, 21; Metschke, N. W. 2d Metschke v.
Neb.
marriage having appear been dissolved, does together desirable by to have their lives bound financial ties which continue for their if lifetimes the de- remarry. fendant does not On the other hand, marriage years endure during did about time the defendant made substantial contributions to well-being the parties parties. future economic of the separation just time had reached point they begin reap where would some of economic rewards their efforts. The defendant would have liked to have had the continue. These considerations lead us to believe that be awarded the defendant be should substantial, but in light ages capacity and the ultimately the defendant to self-supporting be in a teach- ing capacity, relatively or secretarial we think the award should payable period be over a shorter of time than by that made the trial court. We determine, therefore, that the defendant monthly should receive alimony for present shorter but time, value of the approximately should an amount equivalent to that made the trial court. The award is *5 578 receive shall defendant
thus modified as follows: period monthly alimony for of the amount $833.33 in filing of beginning with years months, 2 of 10 and alimony shall court, the trial but our mandate in party upon or the re- of either the death terminate marriage of defendant. support of temporary the defendant of of
The award appeal during pendency of this month $750 discretion, by court and is the trial an abuse affirmed. attorney’s $1,250 an fee awarded
The defendant is attorney in this court. of her for the services modified.
Affirmed as J., dissenting. C. White, any respectfully to other I cannot come dissent.
I case is in this that award conclusion but grossly present not harmonious excessive is with creating provisions the dis- the “no fault” statute points marriage. majority opinion of a As solution age), (around years young out, both good be, or can self- health, are, in and both both are they They supporting. are both have no children, people. sophisticated, The award educated, cultured my opinion, alimony, uncon- in in is $100,000 of over in me this case It seems to that scionable. applying approval the harsh -a silentio sub present pic- punitive the traditional in considerations marriage, family children, lifetime with ture of a prior many to the the court of the cases cited in Even divorce under the “no fault” law. enactment of our old support, on the there is no evidence law, earnings grounds income of fault, an award present this case. It true in of the husband furnished financial case aided and this defendant during support his educa- compensated amply for whatever should tion. She contributed area. But and time she investment specifically eliminates element of fault the new law present in the enactment of the an considerations n alimony. disregards completely award of It new placed sup- statute, factor ported “and the gainful employment engage without interfering children interests minor party.” of such no children to There are Despite gainful employment. interfere with her fact, this court $100,000 of over to the awards plaintiff. *6 presented very important, issue here
This because is abundantly apparent despite court, philos- statute, has to determined follow the traditional ophy of fault. And if this be so, the entitled hearing explained, to a in which issue is and if happen, that should we are back where we started from philosophy and violation of the whole of the new statute.
My supported on views this matter are almost con- clusively by jurisdictions interpreted the decisions and identically following almost statutes. It should be noted that our statutes were drawn and follow the fault” “no divorce statute of California. no
There is Nebraska case on law this issue under pertinent statute, new and there is no legislative history. Therefore, other “no fault” jurisdic- divorce jurisdictions tions be examined. will examined are only judicial those which have interpreting decisions statute; no fault divorce Oregon, these are Florida, Iowa, and California. (West §
FLORIDA: 1972) F.S.A. 61.08 Pocket Part, “(1) provides: proceeding In a for dissolution of mar- * * grant riage, may alimony party court to either *. may spouse court consider the adultery of a and determining the circumstances thereof whether ali- mony spouse shall be to awarded and amount (cid:127) alimony, any, spouse. if to be awarded to such
“(2) determining proper alimony, equity necessary to do any factor consider
court parties.” justice between appellate only appears de- Florida to be There one point. 2d 112 Lefler, 264 So. In Lefler v. cision 1972), Appeal, re- (Dist. the husband 4th Dist., ofCt. in cer- lump interest sum his wife’s ceived as property. personal attacked tain alimony wife real * * “* Alimony’s provisions. The court stated: purpose hereto- remains same as nature basic and provide i.e., nourishment, sustenance fore, spouse neither has necessities life to a former who self-sustaining.” There- nor the resources alimony under Florida’s no fault divorce to receive fore, party ability of the need must show act, other pay. Lefler could Since husband judg- alimony, the he had need for the not show granting reversed. In- him such ment ferentially, except the stat- it seems that least, apply two-part adultery provision, utory Florida courts ig- ability to determine need and test misconduct fault. nore 1971) provides: (Supp., § 107.036 O.R.S.
OREGON: pari “(1) of fault and of delicto The doctrines * * * the dissolution of *7 in suits for are abolished marriage. specific
“(2) not receive evidence of The court shall excepting custody misconduct, where child of acts evidence is relevant or issue, such issue and an excepting hearing the such when court finds evi- at a provide necessary irreconcilable differences.” dence 1971) provides part: (Supp., § 107.105 in O.R.S. gross support party, “(c) or in- the of For money of such amount for such both, or stallments, just equitable may for the of time as * * * making sup- party to In contribute. other following consider the port court shall mat- the order, ters: marriage; the
“(A) duration The “ (B) ages parties; The of the
“(C) conditions; Their health capacities; earning “(D) experience Their work “(E) prop- Their financial resources conditions, rights; erty
“(F) relating provisions decree parties; of the minor of the children “(G) ages, dependency conditions of health and parties, them; and children of or either “(H) court shall deem Such other matters as relevant.” (Ct. Minovsky Minovsky, v. 2d 1234 500 P.
Appeals, Dept. 1972), 1, Ore., the trial court allowed testimony only that the real source wife had been the parties’ support daughter for a number of years. Husband also contended that the trial court, allowing alimony, lump $7,500 wife sum con- aspects appealed sidered other of fault. The husband contending award, fault should not Oregon have been allowed into evidence no under the fault divorce act. appellate court court’s affirmed trial justified to “It is wife: view the
parties’ disparate earning financial condi- abilities and plus quite tions, unusual circumstance that brought country unprepared married and to this a wife by training, language, knowledge even to fi- nancially fend for conclusion, herself. To arrive previous marriage a court need consider at all the parties’ participation upbring- and the relative in the ing daughter.” Although of their the trial court appellate fault, have court felt considered that the just considering decision could have been reached statute. factors enumerated the trial Therefore, permissible by perhaps court had reached a result exam- ining impermissible factors. It seems clear that if guilt only fault or of either had been reason granted alimony, appellate the trial court to have *8 582
court to stand. would not have allowed the decision (Pocket 1972) provides: § Part,
IOWA: I.C.A. 598.21 marriage the court decreed, is “When dissolution of prop- children, make relation order erty, parties, maintenance of as shall justified.” be provision, construing Iowa series of cases this “* * * (W)e
Supreme Court
at this conclusion:
arrived
chapter
legislative history
1266
from
of
determined
purpose
revised statute was
the intent and
that
grant
concept
for
as a standard
to eliminate the fault
ing
relationship and
that
of
marital
held
dissolution
‘guilty
only
party’ concept
as
eliminated
must
not
be
parties in
a factor
but evidence of
conduct of
place
for
break
sofar a's it tends
fault
rejected
spouse
a factor
on either
must also be
as
down
awarding property
of
or an allowance
settlement
Marriage
Tjaden,
support money.”
or
In re
1972), referring
Mar
to In re
(Iowa,
can no live our the sort stable on socio-economic unit which coun- try depends, spade spade so is time acrimony, call and dis- judgments solve it without moral bene- dictions.” Henderson, Practice and Under Problems p. 1 Laws, Nebraska’s New Divorce Neb. L. Rev. (1972). perspective, Viewed from this a trial court determining should broad consider two factors ali- mony: surroundings ability help Social one- surroundings self. 34 U. Pitt. 498. Rev. at Social in- L. length present cludes the health age. help ability oneself includes amount employment, *10 assets, obtain and the 'size of spouse. supporting income Id. Consideration would of these factors would also “* * [*] destroy provide the 'state of secured indolence sufficient ‘alimony denying as the known drone’ self-supporting.” one who is able to be Id. conclusion, the thrust of Nebraska’s new divorce proceedings law isi all divorce should be conducted without To reference to fault. allow to fault references guise setting or misconduct into evidence under the Legislature’s perversion a mere intent. “* * * Alimony should not be allowed as a matter of sympathy imposed penalty wife or as for the misconduct the husband.” Prosser, Prosser v. (1953) (Dictum). 57 N. 2d 173 Neb. W. clearly re- court’s decision foundation
sponse rejection philosophy the fundamental the new statute. I think this defendant should be liber- ally paid monetary awarded for the investment that plaintiff’s I she has made to the education. do not be- acquired $100,000 her she earnings over interest lieve that future. husband’s join JJ., dissent. Newton, McCown