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05/24/91 LISA A. WILSON v. HAROLD B. WILSON

May 24, 1991

LISA A. WILSON, APPELLEE,
v.
HAROLD B. WILSON, APPELLANT



Appeal from the District Court for York County: Bryce Bartu, Judge.

Hastings, C.j., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.

SYLLABUS BY THE COURT

Divorce: Trial: Witnesses: Testimony: Depositions. In dissolution of marriage cases, Neb. Rev. Stat. § 42-356 (Reissue 1988) provides that hearings shall be held in open court upon the oral testimony of witnesses or upon the depositions of such witnesses taken as in other actions.

The opinion of the court was delivered by: Grant

Petitioner-appellee, Lisa A. Wilson, acting pro se, filed a petition for divorce in the district court for York County, Nebraska. The petition alleged that the marriage between petitioner and respondent was irretrievably broken and should be dissolved. Respondent-appellant, Harold B. Wilson, also acting pro se, filed an "Appearance and Responsive Pleading of Respondent" alleging, in part, that "the parties are both serving lengthy sentences, so lengthy that subsequent marriage by either is unlikely, and/or unlikely to be ever consemated ." Respondent requested that the court "transfer this proceeding to a concilation court per Neb Rev. Stat. 42-360" and prayed that "the court will not find that this marriage is irretrievably broken."

On August 28, 1990, the trial court ordered, "This matter is set down for trial September 18, 1990 at 11:00 a.m." Respondent then moved for an order that he be transported from the Nebraska State Penitentiary to York County for the trial. This motion was denied. Apparently, petitioner requested transportation also, and this request was also denied.

On October 16, 1990, the court entered a decree dissolving the marriage of the parties. On October 24, 1990, respondent appealed to this court, assigning three errors, contending the district court abused its discretion in (1) not "allowing the parties to appear in person at the final divorce hearing, or by not providing an alternate means for the parties to submit evidence and testimony at the hearing"; (2) rendering a decision "solely upon the parties' pleadings, which were not substantive evidence"; and (3) not "affording the parties an opportunity to effect reconciliation of the marriage." We reverse the judgment of the district court.

Our standard of review in an appeal involving an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial Judge, giving due weight to the fact that the trial Judge, after hearing testimony and observing the witnesses, accepted one version of the ...


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