Chrisp v. Chrisp , 207 Neb. 348 ( 1980 )

KRIVOSHA, C.J.,

concurring, in part, and, in part, dissenting.

I concur, in part, and, in part, I dissent from the majority. I concur in that portion of the majority opinion which affirmed the trial court’s decision that each party retain property titled in his or her own name.

I dissent, however, from that portion of the majority opinion which orders the appellee to pay to the appellant an additonal $120,165. We have frequently declared that this court is not inclined to disturb the division of property by the trial court unless it is patently unfair on the record. Rinderknecht v. Rinderknecht, 204 Neb. 648, 284 N.W.2d 569 (1979); Blome v. Blome, 201 Neb. 687, 271 N.W.2d 466 (1978).

The distribution of property and fixing of alimony rest in the sound discretion of the District Court and, in the absence of an abuse of discretion, will not be disturbed on appeal. Phillips v. Phillips, 200 Neb. 253, 263 N.W.2d 447 (1978); Ritter v. Ritter, 205 Neb. 668, 289 N.W.2d 526 (1980); Van Cleave v. Van Cleave, 201 Neb. 211, 266 N.W.2d 900 (1978).

Neither the majority opinion nor the record in this case indicates how the trial court’s decision was patently unfair on the record. While the parties retained the formal appearance of marriage after they divided their property in 1970, for all practical purposes they were no longer married and conducted both their financial affairs and their private lives as if they were separate. Based upon what record we have before us, I find no justification in penalizing the appellee for his diligence with that portion of the estate which he received by reason of the parties’ voluntary division in 1970. I would have affirmed the trial court’s action in its entirety and not attempted to second-guess the trial court, who had the opportunity to see and observe and hear the various witnesses.

Clinton, J., joins in this concurrence and dissent.