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Marshall v. Marshall

Court of Appeals of Nebraska

August 16, 2016

Amy Marshall, appellee,
v.
Brian W. Marshall, appellant.

         1. 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 alimony.

         2. 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, and evidence.

         3. 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.

         5. 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 marital estate.

         6. 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.

         7. Property Division: Proof. The burden of proof to show that property is nonmarital remains with the person making the claim.

         [24 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.

         9. 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 than another.

         10. 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.

         11. 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.

         12. Alimony. In awarding alimony, a court should consider, in addition to the specific criteria listed in Neb. Rev. Stat. § 42-365 (Reissue 2008), the income and earning capacity of each party as well as the general equities of each situation.

         13. __ . Disparity in income or potential income may partially justify an award of alimony.

         Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge.

          Donald 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 appellee.

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

          Irwin, Judge.

         I. INTRODUCTION

         Brian 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.

         Upon 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.

         II. BACKGROUND

         Brian 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.

         On 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.

         On 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.

         [24 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.

         Trial 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.

         After 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.

         Brian appeals from the decree of dissolution here.

         [24 Neb.App. 258] III. ASSIGNMENTS OF ERROR

         On 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 21 years.

         IV. STANDARD OF REVIEW

         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 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).

         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, and evidence. Adams v. Adams, 13 Neb.App. 276, 691 N.W.2d 541 (2005).

         V. ANALYSIS

         1. Calculation and ...


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