Divorce: Child Custody: Child Support: Property
Division: Alimony: Appeal and Error. An appellate
court's review in an action for dissolution of marriage
is de novo on the record to determine whether there has been
an abuse of discretion by the trial court. This standard of
review applies to the trial court's determinations
regarding custody, child support, division of property, and
Judgments: Words and Phrases. An abuse of
discretion occurs when the trial court's decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason,
Property Division. The equitable division of
marital 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, and the third step is
to calculate and divide the net marital estate between the
parties in accordance with statutory principles.
4. __ .
The marital estate includes property accumulated and acquired
during the marriage through the joint efforts of the parties.
Divorce: Property Division. Compensation for
an injury that a spouse has or will receive for pain,
suffering, disfigurement, disability, or loss of postdivorce
earning capacity should not equitably be included in the
Property Division. Compensation for past
wages, medical expenses, and other items that compensate for
the diminution of the marital estate should equitably be
included in the marital estate as they properly replace
losses of property created by the marital partnership.
Property Division: Proof. The burden of
proof to show that property is nonmarital remains with the
person making the claim.
Neb.App. 255] 8. Property Division:
Proof: Workers' Compensation: Presumptions.
Where the party making the claim of nonmarital property fails
to prove that all or portions of an injury compensation are
for purely personal losses or loss of future earning
capacity, the presumption remains that the proceeds from the
personal injury or workers' compensation settlement or
award are marital property.
Evidence: Appeal and Error. When evidence is
in conflict, an appellate court considers, and may give
weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather
Child Support. The provision of in-kind
benefits, from an employer or other third party, may be
included in a party's income for child support purposes.
Trial: Evidence: Appeal and
Error. Erroneous admission of evidence is harmless
error and does not require reversal if the evidence is
cumulative and other relevant evidence, properly admitted,
supports the finding by the trier of fact.
Alimony. In awarding alimony, a court should
consider, in addition to the specific criteria listed in Neb.
Rev. Stat. Â§ 42-365 (Reissue 2008), the income and earning
capacity of each party as well as the general equities of
. Disparity in income or potential income may partially
justify an award of alimony.
from the District Court for Douglas County: Thomas A. Otepka,
A. Roberts and Justin A. Roberts, of Lustgarten &
Roberts, P.C., L.L.O., for appellant.
Anthony W. Liakos, of Govier & Milone, L.L.R, for
Chief Judge, and Irwin and Bishop, Judges.
W. Marshall appeals from a decree of dissolution entered by
the district court, which decree dissolved Brian's
marriage to Amy Marshall; divided the marital assets and [24
Neb.App. 256] debts; awarded Amy sole physical custody of the
parties' minor child; and ordered Brian to pay child
support, alimony, and a portion of Amy's attorney fees.
On appeal, Brian asserts that the district court erred in
calculating and dividing the marital estate, in calculating
his income for child support purposes, in admitting into
evidence certain documentation about personal injury
settlement proceeds received by the parties during the
marriage, and in awarding Amy alimony in the amount of $2,
000 per month for 21 years.
our de novo review of the record, we find that the district
court erred in failing to include all of the proceeds from
the personal injury settlement in the marital estate and in
calculating Brian's current income. As a result of these
errors, we remand the matter to the district court to
recalculate the value of the parties' marital estate,
redistribute the assets and debts between the parties, and
recalculate Brian's child support obligation. In
addition, we reverse the district court's determination
concerning Amy's alimony award, because the court should
reconsider this award in light of any changes to the marital
estate and to the calculation of Brian's child support.
and Amy were married on August 20, 1993. Two children were
born of the marriage; however, by the time of the dissolution
proceedings, only one child remained a minor, the
parties' daughter, born in August 1996.
February 8, 2013, Amy filed a complaint for dissolution of
marriage. In the complaint, Amy specifically asked that the
parties' marriage be dissolved; that their marital assets
and debts be equitably divided; that she be awarded custody
of the parties' daughter; and that she be awarded child
support, alimony, and attorney fees.
March 4, 2013, Brian filed an answer and cross-complaint for
dissolution of marriage. In his cross-complaint, he asked
that he be awarded custody of the parties' daughter,
child support, and attorney fees.
Neb.App. 257] On March 21, 2013, the district court entered a
temporary order awarding Amy sole physical custody of the
parties' daughter and awarding Brian and Amy joint legal
custody of her pending a trial. Brian was ordered to pay
temporary child support in the amount of $514 per month. In
addition, he was ordered to maintain health insurance for the
family and to pay the real estate taxes for the marital home.
was held in October 2014. At trial, both Brian and Amy agreed
that they would continue to share legal custody of their
daughter and that Amy would retain sole physical custody. As
a result of this agreement, the issues left to be resolved at
trial included division of the parties' assets and debts,
child support, alimony, and attorney fees. The parties'
trial testimony centered on their current financial
circumstances. In particular, a great deal of testimony
focused on the disabling effects of a stroke Amy suffered in
2003 and a personal injury settlement that Brian and Amy
received as a result of Amy's stroke. More specific
details about this testimony will be discussed as necessary
in our analysis below.
the trial, the district court entered a decree of
dissolution. In the decree, the court ordered Brian to pay
$935 per month in child support. In addition, the court
ordered Brian to pay Amy alimony in the amount of $2, 000 per
month for 21 years and $5, 000 of her attorney fees. The
court calculated and divided the marital estate such that Amy
received the marital home and her personal vehicle and Brian
received a rental home owned by the parties; two trucks and
two boats; his interest in a business referred to as
"Elite Fitness"; and his 49-percent interest in his
family's business, Marshall Enterprises. The court
divided equally the cash value of various life insurance
policies held by Brian. The court also set aside a portion of
the personal injury settlement from Amy's stroke as
Amy's nonmarital property and set aside a smaller portion
of that settlement as Brian's nonmarital property.
appeals from the decree of dissolution here.
Neb.App. 258] III. ASSIGNMENTS OF ERROR
appeal, Brian assigns four errors: He asserts, restated, that
the district court erred in calculating and dividing the
marital estate; in calculating his income for child support
purposes; in admitting into evidence exhibit 81, which
contained documents relating to the settlement proceeds Brian
and Amy received as a result of Amy's stroke; and in
awarding Amy alimony in the amount of $2, 000 per month for
STANDARD OF REVIEW
appellate court's review in an action for dissolution of
marriage is de novo on the record to determine whether there
has been an abuse of discretion by the trial court. This
standard of review applies to the trial court's
determinations regarding custody, child support, division of
property, and alimony. See, Millatmal v. Millatmal,
272 Neb. 452, 723 N.W.2d 79 (2006); Gress v. Gress,
271 Neb. 122, 710 N.W.2d 318 (2006).
abuse of discretion occurs when the trial court's
decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or
conscience, reason, and evidence. Adams v. Adams, 13
Neb.App. 276, 691 N.W.2d 541 (2005).
Calculation and ...