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Kellogg v. Kellogg

Court of Appeals of Nebraska

August 6, 2013

Clyde M. Kellogg, appellee,
v.
Dian L. Kellogg, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Washington County: John E. Samson, Judge.

Paul J. Gardner, Kevin J. McCoy, and Aaron F. Smeall, of Smith, Gardner, Slusky, Lazer, Pohren & Rogers, L.L.P., for appellant.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellee.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, JUDGE.

INTRODUCTION

Dian L. Kellogg appeals from the order of the district court for Washington County dissolving her marriage to Clyde M. Kellogg, approving the parties' property settlement agreement, ordering Dian to pay alimony to Clyde, and ordering Clyde to pay $2, 000 toward Dian's attorney fees. On appeal, Dian challenges only the court's order of alimony, arguing that no alimony was warranted or, in the alternative, that the alimony awarded was excessive in both duration and amount. Upon our de novo review of the record, we find no abuse of discretion by the trial court and affirm its decision.

BACKGROUND

Dian and Clyde were married in March 1982. They had two children during their marriage, but both children had reached the age of majority at the time of trial.

On October 21, 2010, Clyde filed a complaint for dissolution of marriage. In the complaint, Clyde asked that the parties' marriage be dissolved, that their marital assets and debts be equitably divided, and that he be awarded attorney fees and alimony. Dian filed an answer, asking that the parties' marriage be dissolved, that their marital assets and debts be equitably divided, that neither party be required to pay alimony to the other, and that she be awarded attorney fees.

Trial was held on June 20 and 21, 2012. At trial, the parties indicated to the court that they had reached a partial property settlement agreement. Thus, the remaining issues left for the court to decide included division of Dian's 401K account, Clyde's pension, and a few marital debts; Clyde's request for alimony; and each party's request for attorney fees.

At the time of the trial, Dian was 52 years old and described her health as "very good." She testified that she continued working for the first couple of years of the marriage but began staying home to care for the parties' children in 1984. Since she reentered the workforce in 1994, Dian steadily worked her way up to her current position and salary. She was employed by a telemarketing company from 1994 until 1998 at an hourly rate of $12.50. Dian then worked briefly for a trucking company before she was hired by a health insurance company in 2000. She worked for the health insurance company until 2003, earning an annual salary of $35, 000. From December 2003 through the end of 2005, Dian worked for another health insurance company at an annual salary of $38, 000.

Dian has been with her present employer, another health insurance company, since January 2006 and is currently a senior sales executive. She was hired at a base salary of $49, 000, but her current base salary is $71, 000 per year and she is eligible for quarterly bonuses and monthly commissions. Dian testified that her income fluctuates, but that she generally expects to earn a commission every month and usually receives her quarterly bonus. Her gross income in 2009 was $133, 539; in 2010, it was $106, 780; in ...


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