42-362. Spouse mentally ill; guardian ad litem; attorney; appointment; order for support.

When the pleadings or evidence in any action pursuant to sections 42-347 to 42-381 indicate that either spouse is mentally ill, a guardian ad litem or an attorney, or both, shall be appointed to represent the interests of such spouse. Such guardian's fee or attorney's fee, or both, shall be taxed as costs when allowed by the court and shall be paid by the county if the parties are unable to do so. When a marriage is dissolved and the evidence indicates that either spouse is mentally ill, the court may, at the time of dissolving the marriage or at any time thereafter, make such order for the support and maintenance of such mentally ill person as it may deem necessary and proper, having due regard to the property and income of the parties, and the court may require the party ordered to provide support and maintenance to file a bond or otherwise give security for such support. Such an order for support may be entered upon the application of the guardian or guardian ad litem or of any person, county, municipality, or institution charged with the support of such mentally ill person. The order for support may, if necessary, be revised from time to time on like application.

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Annotations

The trial court did not abuse its discretion in awarding continuing monthly spousal support in favor of the wife until either party died or the wife remarried or was no longer mentally ill, even though the spousal-support obligation might place the husband at or near his net income level; the wife was in an even more difficult financial position given that she had no ability to work. Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018).

A former wife was not entitled to have her marriage dissolution decree vacated for the trial court's failure to appoint a guardian ad litem for her, as a mentally ill party, where the wife was represented by counsel throughout the dissolution proceedings, the wife did not appeal from decree, the wife did not allege that she could not communicate effectively with her counsel, and the record did not show that her interests were adversely affected by the fact that the guardian ad litem was not appointed. Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).

Statute contemplates that the guardian ad litem or one charged with support of a mentally ill spouse apply for a support order. Reasonableness is the test governing awards of support and maintenance. Awards are reviewed de novo in Supreme Court and affirmed absent an abuse of discretion. Payments continue until spouse recovers or remarries. Black v. Black, 223 Neb. 203, 388 N.W.2d 815 (1986).

Where the evidence does not clearly and affirmatively establish that a spouse is suffering from a mental illness or that such mental illness affects the spouse's ability to work, it is not an abuse of discretion to deny support and maintenance for a mentally ill spouse. Ginn v. Ginn, 17 Neb. App. 451, 764 N.W.2d 889 (2009).

Although support and maintenance to a mentally ill spouse in some respects parallels alimony, the two are not the same in all respects. The condition which triggers the support and maintenance to be paid under this section is the mental illness; thus, the payment of such support and maintenance should continue so long as, and only so long as, the mental illness continues or the mentally ill individual acquires another spouse. Kearney v. Kearney, 11 Neb. App. 88, 644 N.W.2d 171 (2002).

Reasonableness is the ultimate criterion to be applied in testing whether support and maintenance is to be awarded to a mentally ill spouse under the provisions of this section and, if so, the amount and duration thereof. The support and maintenance to be awarded under this section is a matter initially entrusted to the discretion of the trial judge, which award, on appeal, is reviewed de novo on the record and affirmed in the absence of an abuse of that discretion. Kearney v. Kearney, 11 Neb. App. 88, 644 N.W.2d 171 (2002).

This section empowers the court to order the payment of such support and maintenance to a mentally ill spouse as it may deem necessary and proper, giving due consideration to the property and income of the parties. Kearney v. Kearney, 11 Neb. App. 88, 644 N.W.2d 171 (2002).