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Bussell v. Bussell

Court of Appeals of Nebraska

September 17, 2013

Brent Bussell, appellant and cross-appellee,
v.
Sheri Bussell, appellee and cross-appellant.

1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion.

[21 Neb.App. 281] 2. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365.

4. __: __. The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case.

5. __: __. Property which one party brings into the marriage is generally excluded from the marital estate.

6. __: __. The manner in which property is titled or transferred by the parties during the marriage does not restrict the trial court's ability to determine how the property should be divided in an action for dissolution of marriage.

7. __: __. When awarding property in a dissolution of marriage, property acquired by one of the parties through gift or inheritance ordinarily is set off to the individual receiving the gift or inheritance and is not considered a part of the marital estate. An exception to the rule applies where both of the spouses have contributed to the improvement or operation of the property which one of the parties owned prior to the marriage or received by way of gift or inheritance, or the spouse not owning the property prior to the marriage or not receiving the gift or inheritance has significantly cared for the property during the marriage.

8. Divorce: Property: Words and Phrases. "Dissipation of marital assets" is defined as one spouse's use of marital property for a selfish purpose unrelated to the marriage at the time when the marriage is undergoing an irretrievable breakdown.

9. Divorce: Property Division. Marital assets dissipated by a spouse for purposes unrelated to the marriage should be included in the marital estate in dissolution actions.

10. Divorce: Property Division: Alimony. In dividing property and considering alimony upon a dissolution of marriage, a court should consider four factors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.

11. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.

12. Alimony. Alimony should not be used to equalize the incomes of the parties or to punish one of the parties.

[21 Neb.App. 282] 13. __. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness.

14. __. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances make it appropriate.

15. Divorce: Attorney Fees. In a marital dissolution action, an award of attorney fees depends on a variety of factors, including the amount of property and alimony awarded, the earning capacity of the parties, and the general equities of the situation.

Appeal from the District Court for Chase County: David Urbom, Judge.

James C. Bocott, of Law Office of James C. Bocott, P.C., L.L.O., for appellant.

Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier & Byrne, P.C., for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Moore, Judge.

I. INTRODUCTION

Brent Bussell appeals, and Sheri Bussell cross-appeals, from the decree of dissolution entered by the district court for Chase County dissolving the parties' marriage. The parties challenge certain aspects of the district court's determination and division of the marital estate. Sheri also assigns error to the court's calculation of child support, failure to order Brent to pay health insurance premiums, and awards of alimony and attorney fees. For the reasons set forth herein, we affirm as modified.

II. BACKGROUND

The parties were married on August 5, 1995. They have two minor children, Ashlin Bussell, born in 1996, and Jadin Bussell, born in 1998. The parties separated in 2010. Brent filed a complaint for dissolution of marriage on July 5, 2010.

Sheri received $1, 400 per month in temporary child support. It is not clear from the record on appeal whether the child support was voluntary or court ordered or when the payments began. On October 3, 2011, the district court ordered Brent to [21 Neb.App. 283] pay Sheri additional temporary spousal support of $1, 500 per month beginning on October 1.

The dissolution trial was held on January 18 and 19, 2012. Prior to trial, the parties entered into a parenting plan concerning custody and parenting time, which plan was received into evidence by the district court. The court heard evidence on the parties' assets and debts, child support, alimony, and attorney fees. Specifically, the district court received documentary exhibits and heard testimony from witnesses, including the parties, Brent's brother and father, Brent's accountant, and two real estate appraisers. We summarize only the evidence relevant to the contested issues on appeal.

Sheri was employed when the parties married, but she quit working outside the home shortly before Ashlin was born. Thereafter, Sheri became the primary caregiver and performed most of the household chores, while Brent continued to work for his father on the family farm and earn the income for the parties' monthly expenses. The parties mutually decided that it would be best for Sheri to stay home with the children, and they could financially afford for her to do so. Sheri did not return to work until 2003 or 2004, after Jadin was enrolled in school. Sheri took medical transcription courses online and also obtained a certified nursing assistant certificate or degree. She began courses for a nursing degree in 2007, but she quit because it was difficult for the children to have her gone. At the time of trial, Sheri was working at a Chase County clinic, earning $10.28 per hour. Her gross wages for 2011 were $18, 194.99.

Sheri testified that she wanted to pursue an advanced directive registered nurse degree, which would take 3 years to complete. She testified that it would cost about $11, 000 a year plus mileage to either Sterling, Colorado, or North Platte, Nebraska, to receive such degree. She testified that opportunities for a registered nurse in Chase County are minimal compared to other areas, but that there are two nursing homes, a hospital, and a clinic in the county. The starting salary for a full-time registered nurse in Chase County would be $19 an hour.

[21 Neb.App. 284] Sheri testified about the ways she helped out on the farm during the marriage. She took lunches to the field so that the children could see Brent, made sure he had meals and clean clothes, helped move people and vehicles to different fields, picked up parts at several stores, delivered utility checks and loan payments, made bank deposits, picked up grain checks, and rode in the "semi" to deliver grain. In addition, she made sure all of the parties' personal bills were paid and mailed, maintained their house and yard, and reminded Brent of the children's activities.

Brent graduated from high school in 1985 and obtained his associate's degree in production agriculture in 1987. Brent worked for approximately a year in Colorado before returning to Nebraska in 1988 or 1989 to work for the family farming partnership. Brent's father formed an informal family farming partnership with Brent and Brent's brother. Brent and his brother were each given a 20-percent interest in the partnership, and Brent's parents had the remaining 60-percent interest. Brent did not pay anything or provide any particular consideration for his interest in the partnership. Brent has had no other employment since that time. Brent later received an additional 5-percent interest in the partnership, for a total of 25 percent. The partnership was formalized in February 2010 as Bussell Farms.

The partnership owns grain and equipment, including machinery, tools, and supplies. Evidence was presented to value Brent's 20-percent interest in the equipment that was owned by the partnership prior to his marriage in 1995 and to value his 25-percent interest at the time of trial. Specifically, the evidence included a farm equipment appraisal prepared by an appraisal service. The appraisal identifies the farm equipment owned by the partnership on the date of the marriage in 1995 and the equipment owned by the partnership as of September 29, 2011. The appraisal valued the premarital farm equipment at $955, 850. It valued the equipment owned as of September 2011 at $1, 982, 200. The record shows that the partnership regularly buys and sells farm equipment at the end of each year.

[21 Neb.App. 285] The partnership's sole source of income is from the sale of grain. The partners each receive their respective percentage of the income from the grain sales, which they deposit into their own bank accounts, and the partners each pay their respective share of expenses associated with the grain production. At the time of trial, all of the 2011 beans and corn had been harvested and the wheat planted in 2011 remained in the fields to be harvested in 2012. It appears from the record that all of the 2011 beans had been sold by the time of trial. Some of the 2011 corn had been sold, and the remainder was stored in grain bins owned by the partnership. Of the stored corn, 95 percent had been contracted for sale. Depending on shrinkage that occurs in the bins, there may be remaining approximately 10, 000 bushels of corn that had not yet been contracted or sold at the time of trial. Although not clear from the entire record, it appears from exhibit 71 that approximately 175, 000 bushels of corn under contract were set to be delivered in January, February, and March 2012, after which the partners would receive their respective shares of the gross revenues. However, it appears from the record that the partnership had received significant income in early January 2012 and it is not clear whether this revenue derived from any of the contracted corn shown in exhibit 71.

The parties' tax returns from 2005 to 2010 were received in evidence. The 2011 tax return had not yet been prepared at the time of trial. According to Brent and his brother, the 2011 corn crop suffered significant hail damage, which cut the yield approximately in half compared to previous years. Brent expects that the revenue from the 2011 crops will be dramatically reduced because of the hail losses and that the impact will be felt for the next 2 years, a consequence that is not within his control. In addition, approximately 75 percent of the 2011 seed wheat was totally hailed out and the remainder was damaged.

At the time of the marriage, Brent owned an undivided one-fourth interest in an acreage in Chase County. The acreage included a house, garage, and steel building. During the marriage, Brent's parents gifted him the remaining three-fourths [21 Neb.App. 286] interest in the acreage. In 1997, Brent executed a deed for the property to Brent and Sheri as joint tenants with right of survivorship. Brent testified that when he executed the deed, it was not his intent to make a gift to Sheri of one-half of the property; rather, he placed her name on the property because Sheri was concerned that she would lose the property if Brent died.

The parties lived in the house on the acreage for about 8 years. Sheri testified that they made and paid for many improvements to the home, including a new roof, siding, windows, upstairs carpet, downstairs bathroom and bedroom carpet, a furnace, and central air conditioning. They also tore out and replanted trees, and they poured a concrete floor in the steel building on the property, which floor cost over $20, 000. Sheri testified that they also spent $20, 000 on a kitchen remodel, which included custom-made oak cabinets, new flooring, and new appliances. Finally, they put in a sprinkler system that cost about $5, 000. The parties sold the property in 2003 for $120, 000. They used the $120, 000 in the construction of the marital home, where Sheri was residing at the time of trial and which was awarded to her in the division of property.

After the parties separated, Brent purchased a house for $156, 000 and took out two loans for the full purchase amount. He purchased a 2010 Chevrolet Avalanche for his personal use. The house and vehicle, along with their corresponding debts, were included in the marital estate and assigned to Brent. Brent also purchased some household goods and furnishings for his new ...


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