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Becher v. Becher

Court of Appeals of Nebraska

June 6, 2017

SONIA BECHER, APPELLEE AND CROSS-APPELLANT.
v.
MARK A. BECHER, APPELLANT AND CROSS-APPELLEE.

         1. Appeal and Error: Waiver. Whether a party waived his or her right to appellate review is a question of law.

         2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

         3. Judgments: Proof: Waiver: Affidavits: Appeal and Error. In order to establish whether a party has so dealt with a judgment or other order appealed from as to have waived any right to review, it is permissible to present affidavits foreign to the record thereto.

         4. Judgments: Appeal and Error. An appellant may not voluntarily accept the benefits of part of a judgment in the appellant's favor and afterward prosecute an appeal or error proceeding from the part that is against the appellant.

         5. Divorce: Judgments: Appeal and Error. A spouse who accepts the benefits of a divorce judgment does not waive the right to appellate review under circumstances where the spouse's right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or the benefits accepted are pursuant to a severable award which will not be subject to appellate review.

         6. Verdicts: Evidence: Appeal and Error. Recommended factual findings of a special master have the effect of a special verdict, and the report upon questions of fact, like the verdict of a jury, will not be set aside unless clearly against the weight of the evidence.

         [24 Neb.App. 727] 7. Judgments: Appeal and Error. Where parties consent that the report of a referee containing the evidence taken by said referee, and his findings of fact and conclusions of law, shall be submitted to the court, together with the objections and exceptions thereto, for determination on the merits by the court, they are precluded by such submission from assigning error by the court in setting aside the report and findings of the referee, and substituting therefor the findings of the court.

         8.__:__. Where parties consent that the report of a referee containing the evidence taken by said referee, and his findings of fact and conclusions of law, shall be submitted to the court, together with the objections and exceptions thereto, for determination on the merits by the court, an appellate court will only consider the correctness of the findings and judgment of the district court.

         9. Trial: Witnesses: Testimony. Witness credibility and the weight to be given a witness' testimony are questions for the trier of fact.

         10. Judgments. A trial court may only set aside or modify the report of a referee issued pursuant to Neb. Rev. Stat. § 25-1129 et seq. (Reissue 2016) upon a determination that the referee's findings were clearly against the weight of the evidence.

         11. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage. 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.

         12. __: __ . Generally, all property accumulated and acquired by either spouse during a marriage is part of the marital estate. Exceptions include property that a spouse acquired before the marriage, or by gift or inheritance.

         13. Divorce: Courts: Property Division. 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.

         14. Divorce: Property Division. In an action for dissolution of marriage, a court may divide property between the parties in accordance with the equities of the situation, irrespective of how legal title is held.

         15. Property Division: Proof. The burden of proof rests with the party claiming that property is nonmarital.

         [24 Neb.App. 728] 16. Modification of Decree: Child Support. The paramount concern in child support cases, whether in the original proceeding or subsequent modification, remains the best interests of the child.

         17. Rules of the Supreme Court: Child Support. In general, child support payments should be set according to the Nebraska Child Support Guidelines.

         18. Child Support. Use of earning capacity to calculate child support is useful when it appears that the parent is capable of earning more income than is presently being earned.

         19. Child Support: Evidence. Generally, earning capacity should be used to determine a child support obligation only when there is evidence that the parent can realize that capacity through reasonable efforts.

         20. Child Support. In calculating child support, the court must consider the total monthly income, defined as income of both parties derived from all sources.

         21. Divorce: Alimony. In considering alimony, a court should weigh 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 party seeking support to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.

         22. __:__. In addition to the specific criteria listed in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the income and earning capacity of each party and the general equities before deciding whether to award alimony.

         23. Divorce: Property Division: Alimony. The statutory criteria for dividing property and awarding alimony overlap, but the two serve different purposes and courts should consider them separately.

         24. Property Division. The purpose of a property division is to distribute the marital assets equitably between the parties.

         25. Alimony. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in Neb. Rev. Stat. § 42-365 (Reissue 2016) make it appropriate.

         26. Divorce: Alimony. In weighing a request for alimony, the court may take into account all of the property owned by the parties when entering the decree, whether accumulated by their joint efforts or acquired by inheritance.

         27. 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.

         [24 Neb.App. 729] 28. __:__.A dissolution court deciding whether to award attorney fees should consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

         Appeal from the District Court for Lancaster County: Steven D. Burns, Judge. Affirmed as modified.

          David P. Kyker and Brad Sipp for appellant.

          Sally A. Rasmussen, of Mattson Ricketts Law Firm, for appellee.

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

          MOORE, CHIEF JUDGE.

         I. INTRODUCTION

         In this dissolution of marriage action, the parties agreed to trial before a referee. The referee's report was filed with the district court for Lancaster County, and the parties filed exceptions to the report. The court subsequently entered a decree of dissolution from which the parties have appealed. Mark A. Becher assigns error to the manner in which the district court reviewed and modified the referee's report. Mark challenges certain findings of the court regarding the classification, valuation, and division of the parties' assets and debts; custody and parenting time; child support; alimony; and attorney fees. In her cross-appeal, Sonia Becher assigns error to the court's allocation of Christmas holiday parenting time and the court's failure to classify certain property as nonmarital. Sonia also seeks summary dismissal of Mark's appeal based upon Mark's acceptance of the benefits of the decree. For the reasons that follow, we affirm as modified, vacating and setting aside certain findings of the district court.

         [24 Neb.App. 730] II. BACKGROUND

         The parties were married in December 1991. They have three children: Daniel Becher, born in 2000; Cristina Becher, born in 2002; and Susana Becher, born in 2008.

         On February 1, 2013, Sonia filed a complaint for dissolution of marriage in the district court, and Mark thereafter filed an answer. Both parties sought custody of the children, child support, alimony, attorney fees, and an equitable division of the parties' property.

         The parties entered into a stipulation with respect to temporary matters. On April 19, 2013, the district court approved the stipulation and awarded the parties temporary joint legal custody of the children. Temporary physical custody of the children was awarded to Sonia, subject to Mark's rights of parenting time as set forth in the attached parenting plan. The court ordered Mark to pay temporary child support of $4, 000 per month beginning May 1 and spousal support of $6, 000 per month. The court also ordered Mark to pay the "school tuition and matriculation fees" for the minor children to attend a particular elementary school and temporary attorney fees on behalf of Sonia of $2, 000.

         Soon thereafter, Mark filed a motion to modify both temporary custody and support. In his motion, Mark alleged that Daniel's primary physical custody had been maintained with Mark since May 2013. Mark alleged that the temporary child support award should be adjusted to reflect this split custody arrangement. Mark also alleged that the children were attending a different school than that contemplated in the April 2013 temporary order, at a significantly higher cost, and that "[s]upport should be adjusted to reflect the increased education expense."

         On November 25, 2013, the district court entered another temporary order. The court awarded Mark temporary custody of Daniel and awarded Sonia parenting time with Daniel. The court denied Mark's motion for a reduction in his child support obligation and reserved that issue for trial. The court [24 Neb.App. 731] also ordered the parties to complete a custody evaluation by a psychologist, with each party paying one-half of any necessary expenses.

         On December 10, 2014, the parties filed a stipulation agreeing to a trial before a referee due to the complex financial and business valuation issues involved in their divorce as well as the issues of parenting time, child support, and alimony. The district court approved the stipulation and appointed a referee.

         Trial was held before the referee on multiple dates from December 11, 2014, to July 23, 2015. The voluminous trial record contains more than 2, 300 pages of testimony and nearly 200 exhibits. We have set forth the evidence relevant to the parties' assignments of error in the corresponding sections below.

         On October 20, 2015, the referee's report and the parties' exceptions thereto were filed with the district court. The referee's detailed and thorough report is 34 pages, excluding the attached parenting plan, child support worksheets, and spreadsheet of the property valuation and division. We have discussed specific findings of fact, analyses, and recommendations made by the referee as necessary in the analysis section below.

         On November 4, 2015, the district court received into evidence the transcribed trial testimony and exhibits from the trial before the referee for purposes of reviewing the record. The court heard Soma's arguments in support of her exceptions to the referee's report. Mark withdrew his exceptions to the referee's report, but he asked the court to modify the payment schedule for the equalization payment to Sonia. Mark's counsel informed the court that Mark was "am [en] able to having joint custody of his children" but asked the court to change his support obligation accordingly if joint custody was awarded. Finally, he asked the court "to adopt the report with the exception that [he] believe[d] that the court may fashion a different parenting plan or one that the court believes is more in the best interest of these children."

         [24 Neb.App. 732] On December 21, 2015, the district court entered a detailed 25-page decree. We have discussed specific findings in the decree in the analysis section below.

         Mark filed a motion to determine supersedeas bond. On January 26, 2016, the district court entered an order finding that during the pendency of any appeal by either party, each party shall manage, operate, and control the real estate awarded to that party pursuant to the decree and be entitled to collect and receive all rents due and payable with regard to the real estate awarded. The court also found that during the pendency of any appeal, Sonia shall be entitled to collect and receive all rents due and payable with regard to the three commercial properties awarded to her and each party shall service the debt obligation on the real estate allocated in the decree. Finally, the court found that upon Mark's posting a supersedeas bond of $600, 000 to be approved by the court, Mark shall not be required during the pendency of any such appeal to transfer to Sonia any ownership interest he might have in the real estate awarded to Sonia. The record does not show that Mark ever filed a supersedeas bond.

         On July 1, 2016, after Mark had perfected his appeal, Sonia filed a motion for summary dismissal of Mark's appeal with this court. She asserted that Mark had accepted the benefits of the decree and had forfeited his right to appeal all issues except those pertaining to the children. We overruled Sonia's motion without prejudice, and we have addressed the issue of acceptance of the benefits in this opinion. On December 14, just prior to oral argument in this case, Sonia filed a renewed motion to dismiss, and we address Sonia's renewed motion as well in the analysis section below.

         III. ASSIGNMENTS OF ERROR

         Mark asserts, restated, that the district court erred in (1) modifying the referee's report without determining whether the referee's findings were clearly against the weight of the evidence; (2) setting aside certain property to Sonia as [24 Neb.App. 733] nonmarital; (3) awarding Sonia three commercial properties; (4) valuing Sark Tile, Inc., Lamp & Lighting of Lincoln, Inc. (Lamp & Lighting), and Grab It Hardware; (5) dividing the parties' personal property; (6) treating Sark Tile's shipping containers as personal property; (7) determining marital debt; (8) setting forth conflicting custodial arrangements for Susana; (9) determining the parties' incomes for purposes of child support; (10) failing to prepare a "worksheet 3" in calculating child support; (11) improperly crediting Mark for overpayment of temporary child support; (12) requiring Mark to pay private school tuition; (13) awarding alimony; and (14) awarding attorney fees.

         On cross-appeal, Sonia asserts that the district court erred in (1) allocating parenting time over the Christmas holiday; (2) failing to characterize a life insurance policy purchased by Sonia's father as nonmarital; and (3) failing to award her nonmarital equity in Capitol Park, LLC, Lamp & Lighting, and certain residential rental property.

         IV. ANALYSIS

         1. Sonia's Motions to Dismiss

         Before addressing the merits of Mark's assigned errors on appeal, we first address whether he waived his right to appeal from the decree by accepting the benefits of the judgment. Whether a party waived his or her right to appellate review is a question of law. Edwards v. Edwards, 16 Neb.App. 297, 744 N.W.2d 243 (2008). To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Devney v. Devney. 295 Neb. 15, 886 N.W.2d 61 (2016).

         Although Mark has not argued that Sonia has waived her right to cross-appeal, for the sake of completeness, we have also addressed the effect of Sonia's acceptance of certain benefits on her right to cross-appeal. In addressing the issue of acceptance of benefits by the parties, we have reviewed [24 Neb.App. 734] both of Sonia's motions to dismiss and her supporting affidavits. The Nebraska Supreme Court has held that in order to establish whether a party has so dealt with a judgment or other order appealed from as to have waived any right to review, it is permissible to present affidavits foreign to the record thereto. See Phelps v. Blome, 150 Neb. 547, 35 N.W.2d 93 (1948).

         (a) Sonia's First Motion to Dismiss

         In the affidavit in support of her first motion to dismiss, Sonia stated that following entry of the decree and Mark's failure to post a supersedeas bond, she and Mark both took full ownership and control over the residential and commercial properties awarded to them by the district court. She stated that during the appeal, the parties have executed and recorded quitclaim deeds transferring their ownership interests in each other's properties. Sonia also stated that Mark has created a new corporation, John Gait Development, LLC, which now holds title to the properties awarded to him. Sonia attached copies of the quitclaim deeds executed and recorded by the parties and certified copies of the certificate of organization and proof of publication for John Gait Development filed by Mark with the Nebraska Secretary of State. Sonia also stated that Mark had refinanced the loans associated with his properties, releasing her as guarantor and her properties as collateral for those notes. She attached copies of recorded deeds of reconveyance releasing her properties as collateral.

         In her affidavit, Sonia stated that during the appeal, Mark has utilized rents and receipts from Sark Tile, one of the businesses awarded to him, to pay personal expenses. She attached documentation showing that checks from Sark Tile had been used to pay postdecree judgments to the district court for garage door openers and for the children's health care expenses.

         Finally, Sonia attached additional documents and outlined steps she had taken with respect to the commercial and residential property awarded to her; detailed her attempts to refinance [24 Neb.App. 735] a loan associated with a building housing a Dollar General store; and stated that, like Mark, she had utilized rents and receipts from the properties awarded to her to pay both business and personal expenses.

         (b) Soma's Renewed

         Motion to Dismiss

         In the affidavit attached to her renewed motion to dismiss, Sonia stated that since submission of her first affidavit, both parties had independently obtained refinancing for those commercial properties awarded to each of them, that a former "blanket loan" which was cross-collateralized by both parties' properties had been satisfied, and that she had renegotiated the terms and conditions for a loan on her commercial properties only and was making the loan payments pursuant to those terms and conditions. Finally, Sonia stated that she had sold Mini Storage, one of the commercial properties awarded to her, in an arm's-length sale to a third party. Sonia stated that she no longer owns any part of Mini Storage and has "no say" in how that business is operated.

         (c) Relevant Case Law

         Under the general acceptance of benefits rule, an appellant may not voluntarily accept the benefits of part of a judgment in the appellant's favor and afterward prosecute an appeal or error proceeding from the part that is against the appellant. Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006). There are, however, exceptions to this general rule.

         An exception to the acceptance of benefits rule exists where the outcome of the appeal could have no effect on the appellant's right to the benefit accepted. See Kassebaum v. Kassebaum, 178 Neb. 812, 135 N.W.2d 704 (1965) (appellant who withdrew $200 from former jointly held account assigned by divorce decree to him not estopped from appealing from decree on ground that property division awarded him was insufficient).

         [24 Neb.App. 736] In Liming v. Liming, supra, the Nebraska Supreme Court held that in a dissolution action, a spouse who accepts the benefits of a divorce judgment does not waive the right to appellate review under circumstances where the spouse's right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or ...


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