In Divorce of 90+ Year Olds, Nebraska High Court Confirms Award of Alimony to Pay Nursing Home Fees

In Binder v, Binder, decided June 26, 2015, the Nebraska Supreme Court affirmed an award against the husband for alimony in the amount of $3,200 per month. This was the amount necessary to cover the wife’s balance due each month for her nursing home care.  The divorcing couple, each in their mid 90s, had been married for 32 years, a second marriage for both.  Married in their 60s, they had no children together. The husband had at least one child from a prior marriage; his son leased the husband’s farmland for more than 25 years to continue operations.

The husband argued that the alimony award, exceeding his own $2,800/mo income from Social Security and rental of his farming property, was an abuse of discretion as it lowered his income below “poverty thresholds” set by state guidelines for child support awards.  The Court ruled, however, that in the absence of minor children, the guidelines were inapplicable. Nonetheless, the Court also addressed the “reasonableness” of the award and concluded:

In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of alimony as the trial court. Instead it decides whether the trial court’s award is untenable such as to deprive a party of a substantial right or just result.  The main purpose of alimony is to assist a former spouse for a period necessary for that individual to secure his or her own means of support. Reasonableness is the ultimate criterion.

 

Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32–year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn’s premarital property. A court may consider all of the property owned by the parties—marital and separate–in decreeing alimony. 

 

As to disputes over matters such as Laura’s contributions to the marriage, we note that the district court was in the best position to judge the witness’ credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another. This rule is particularly apt here because both Laura and Glenn had some trouble testifying and the record does not show to what extent their difficulties were cognitive, auditory, or other.

In reading the decision, I’m struck by questions of what — or even who — was driving the divorce, and to what extent the parties’ decisions were affected by Medicaid eligibility issues.  For more history, as well as comments by the husband’s attorney, see “Retired Farmer Must Pay More in Alimony Than Monthly Income,” in the Omaha World-Herald.