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Despain v. Despain

Supreme Court of Nebraska

February 6, 2015

ABIGAIL K. DESPAIN, APPELLEE,
v.
WILLIAM E. DESPAIN, APPELLANT

Page 567

Appeal from the District Court for Saunders County: MARY C. GILBRIDE, Judge.

Mark A. Steele, of Steele Law Office, for appellant.

John H. Sohl for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ. CASSEL, J., concurring.

OPINION

Page 568

[290 Neb. 33] Miller-Lerman, J.

NATURE OF CASE

Abigail K. Despain, the appellee, and William E. Despain, the appellant, were married in June 2012, and Abigail filed her complaint for the dissolution of marriage in the district court for Saunders County in August 2012. After trial, the district court filed its decree of dissolution of marriage including orders regarding property division. William appeals.

The issues in this appeal are whether William's appeal was timely and whether the district court correctly calculated the division of property. We determine that although William's motion for new trial was filed before the entry of judgment, it was filed after announcement of the decision. Under Neb. Rev. Stat. § 25-1144.01 (Reissue 2008), it is treated as filed after the entry of judgment. And, thus, the motion was effective and the appeal is timely. We further determine that the district court erred in that portion of the decree which divided the property, and we modify the decree as indicated below. We affirm as modified.

STATEMENT OF FACTS

Abigail and William were married on June 23, 2012. On August 27, Abigail filed her complaint for the dissolution [290 Neb. 34] of the marriage. No children were born to the parties during the marriage.

Page 569

Prior to their marriage, Abigail and William purchased a house together. The parties sold the house after Abigail had filed for divorce but prior to trial. The net sale proceeds were $12,453.34, and the parties divided the proceeds equally prior to trial, each receiving $6,226.67.

A trial was held on June 10, 2013. Abigail and William each testified and presented evidence at trial. As noted, at the time of trial, Abigail and William had already divided the proceeds from the sale of the house. According to the evidence, they had no joint indebtedness.

Abigail presented evidence that in purchasing the house with William, she had used her premarital funds to pay the earnest deposit of $1,000, the closing costs of $4,422, and the water deposit of $150. Abigail stated that in total, she had used $5,572 of her premarital funds to help purchase the house. Abigail also presented evidence that without her knowledge at the time, the parties had received a refund in the amount of $70 for the overpayment of closing costs, and that William had kept the $70.

William stated at trial that he had made repairs and improvements to the house using his premarital funds in the amount of $3,509.92. The district court did not credit this claim, and William does not assign error to this finding on appeal.

The record shows that after trial, on August 14, 2013, the district court sent the parties an unsigned document captioned " Journal Entry" (unsigned journal entry) containing the substance of its decision and ordered counsel for Abigail to prepare a dissolution decree. This unsigned journal entry specifically states that unsigned copies were sent to counsel for each party on August 14.

In the unsigned journal entry, regarding " property division," the court found that Abigail is entitled to the return of premarital funds used to purchase the house, in the amount of $5,422; the return of the water deposit, in the amount of $150, which was paid from her premarital funds; and one-half of the overpayment of closing costs, in the amount of $35. The unsigned [290 Neb. 35] journal entry states that William shall make an equalization payment which flows from those findings. The unsigned journal entry states:

[Abigail's attorney] shall prepare the decree herein. It shall be reviewed by [William's attorney] and presented to the court for signature not later than September 16, 2013. The decree shall append the appropriate calculation of the division of the estate in accordance with paragraph 2. In order to avoid confusion as to appeal time, [t]his order shall be forwarded to counsel both unsigned and unfiled. A signed copy will be filed contemporaneously with the entry of the decree.

Following the distribution of the unsigned journal entry on August 14, 2013, but before the decree was filed on October 21, William filed a motion for new trial on October 16 in which he claimed that the district court's decision regarding division of property failed to recognize the division of proceeds from the sale of the home which had occurred and that an equalization payment based on this failure is erroneous.

On October 21, 2013, the district court filed its " Decree of Dissolution of Marriage," which included orders reflecting its provisions. In the dissolution decree, the court stated that Abigail and William's marriage was irretrievably broken and should be dissolved. Abigail's birth name was restored to her. Regarding the division of property, the decree stated:

[Abigail] should be entitled to the return of premarital funds used to purchase the

Page 570

marital home in the amount of $5,422.00. [Abigail] should be entitled to the return of the water deposit in the amount of $150.00 which was paid from premarital funds, less any amounts deducted for water usage during the marriage. [Abigail] should be entitled to one half of the overpayment of closing costs in the amount of $35.00.

In the decree, the court ordered William to pay Abigail $5,607 in order to equalize the division of property. The court did not award alimony to either party and stated that each party shall be responsible for his or her own attorney fees and court costs.

[290 Neb. 36] The court signed a copy (signed journal entry) of the unsigned journal entry first distributed on August 14, 2013, on October 18 and filed it on October 21 along with the decree.

On November 27, 2013, the court filed its order overruling William's motion for new trial. The order states in its entirety: " NOW ON this 27th day of November, 2013, this matter comes before the Court on [William's] Motion for New Trial. The Court finds that the Decree has been signed. The Motion for New Trial is overruled."

On December 26, 2013, William filed his notice of appeal from the November 27 order ...


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