Sunday, October 29, 2006

In another Eihusen dissolution of marriage action, the Nebraska supreme Court denies ex wife's request for a jury trial on her action to set aside dissolution settlement agreementRobert G. Eihusen, appellee, v. Linda K. Eihusen, appellant. Eihusen v. Eihusen, 272 Neb. 462 Filed October 27, 2006. No. S-05-523. Wife of Chief Industries Robert Eihusen agreed to sign a divorce settlement agreement before consulting an attorney. Then she complained that her exhusband robert had undervalued the debenture Chief owed to him by $3.5 million dollars. She claimed the debentures option price of $100 per share should equal the parties ESOPS which allowed option exercising at $167. Supreme Court denies her request for jury trial. And affirms District Court judgment against her. Apples dont fall far from the tree so Mrs. Eihusen could have taken some cues from Virgils maneuvering. The existence of the statutory right to vacate a judgment can be traced to 1867, prior to the adoption of the Nebraska Constitution. See Rev. Stat. § 602 (1867). The statutory provision as it read then is substantially similar to the version now in effect. Since 1867, that provision, as now codified at § 25-2001, has bestowed upon a district court the power to vacate or modify its own judgment for one of nine enumerated reasons, including fraud. Since its enactment, the nature of this action has been equitable. As we described it in In re Estate of West, 226 Neb. 813, 833, 415 N.W.2d 769, 783 (1987), an action under § 25-2001 is "equitable in character, available or administered on equitable principles, and extended on equitable terms." Moreover, the relief provided by this statute--the vacation or modification of a judgment--is not legal in nature, but, rather, is equitable. See, e.g., In re Estate of West, supra. We conclude, therefore, that an action to set aside a judgment or order under § 25-2001 invokes the equitable powers of the court, for which there exists no constitutional right to a jury trial. Similarly, the evidence here reveals that during the settlement negotiations and throughout the subsequent divorce proceeding, Linda was aware of the existence of the debenture. Prior to signing the settlement agreement, Linda sought the advice of an accountant who, in turn, advised her to seek legal advice before signing the agreement. Linda elected not to do so.

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