Case Brief

Else v. Else

367 N.W.2d 701 (NE Ct. App. 1985)

Procedural History

In the District Court of Phelps County, a decree of dissolution was entered and found that the marriage between Delmer and Lila Else was irretrievable broken. At the trial, the provisions of property and alimony were entered in the decree. Delmer appealed the decree of dissolution regarding his marriage with Lila H. Else. The Court of Appeals affirmed as modified.

Statement of Facts

The decree ordered the Petitioner to pay the Respondent alimony of $50,000 in annual installments of $5,000 for ten (10) years. The alimony is subjected to the limitation that the said alimony shall terminate on the death of either petitioner or the respondent, upon the remarriage of the respondent, or upon the co-habitation of respondent with a woman other than the petitioner out of wedlock.

Issues

1. Does the Respondent by Nebraska statutes have the authority to appeal the decision of the decree of dissolution regarding the division of property and alimony?

2. If the division of property and alimony are in error, does the district court have the right to terminate the alimony payment when the respondent cohabitation with a woman other than the petitioner but unmarried to such other woman?

Answers

1. Yes If the Respondent within the appropriate time period can appeal to a higher court, if he/she feels that any motion to modify or to change the original order of the decree is in error. This can even include where the division of property or alimony are incorrect.

2. Yes. A trial court may consider many factors when comes to determine the appropriate grounds in terminating alimony,

Reasoning

The Nebraska Legislature has dictated that financial issues between the parties, such as alimony, shall be disposed on the basis of economic needs of a spouse or former spouse. When discussing the aspects of the Respondent's alimony being terminated in respect to cohabitation, the court must prove that such arrangement exists and former spouse's overall financial condition has improved or warranted a modification of alimony.

To question statutes, Legislature is the public forum for resolution. In order not to violate a constitutional requirement, the role of the legislature is limited to interpretation and application of statutes, irrespective of our personal agreement or disagreement. To decide the public policy in retrospect to divorce, the courts state that it is not their role to decide, but the legislature. The order by the district court in determining the discontinuing