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Connolly v. Connolly

Supreme Court of Nebraska

February 23, 2018

Valerie K. Connolly, appellant,
v.
Monte D. Connolly, appellee.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law that an appellate court resolves independently of the trial court.

         2. Divorce: Appeal and Error. In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.

         3. Evidence: Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue.

         4. Judges: Words and Phrases. A judicial abuse of discretion exists if 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.

         5. Appeal and Error. Error without prejudice is not a ground for reversal.

         6. Divorce: Attorney Fees: Appeal and Error. In an action for dissolution of marriage, the award of attorney fees is discretionary, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

         7. Divorce: Attorney Fees. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case.

         Appeal from the District Court for Scotts Bluff County: Leo Dobrovolny, Judge. Affirmed.

         [299 Neb. 104] Paul W. Snyder, of Smith, Snyder, Petitt & Hofmeister, G.P. for appellant.

          William E. Madelung, of Madelung Law Office, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Heavican, C.J.

         I. INTRODUCTION

         In this dissolution action, Valerie K. Connolly filed a petition for legal separation. Valerie and her husband, Monte D. Connolly, then filed a stipulation and agreement, which was approved by the district court in its decree of legal separation. Monte subsequently filed a motion to amend the complaint from legal separation to dissolution of marriage. Following a hearing, the district court issued a divorce decree, which differed from the decree of legal separation and included both an award of alimony and an award of half of the attorney fees to Valerie. Valerie appeals. We affirm.

         II. FACTUAL BACKGROUND

         Monte and Valerie were married on April 15, 1974. At the time of trial, Monte was 64 years old and Valerie was 61 years old. Valerie worked from approximately 1976 until 2008, when, as a result of two automobile accidents, she became medically disabled and required continuing medical treatment. Valerie collects, as her sole source of income, approximately $1, 500 per month in long-term disability payments. Prior to the divorce decree, Valerie received medical insurance coverage through Social Security, Monte's health insurance policy, and a supplemental policy paid for by Monte.

         Monte also suffers from medical issues that prevent him from working. Monte collects long-term disability payments totaling approximately $3, 600 per month. Monte placed $78, 062.74 from a lump-sum payment of his retirement program in an [299 Neb. 105] annuity with an insurance company. Together, these form his sole sources of income.

         During their marriage, the couple purchased a home as joint tenants. Monte placed a value of $250, 000 on the marital home, while Valerie valued the home at $299, 950. As of July 2016, the home had a mortgage of $182, 598. According to their 2015 joint income tax return, the couple's adjusted gross income was $20, 018.

         On August 15, 2012, Valerie filed the petition for legal separation against Monte. On December 12, Monte and Valerie filed a stipulation and agreement, agreeing that in the event the parties' marriage dissolved, their jointly owned real estate property would be sold and the proceeds would be divided equally between the parties. The parties agreed that Monte would continue to carry Valerie on his health insurance policy and be responsible for the premiums on that policy through December 31, 2012. Monte further agreed that commencing January 1, 2013, he would pay the premiums on Valerie's Medicare supplemental policy. The parties also agreed that neither party shall pay or receive alimony. Furthermore, each party agreed to be responsible for one-half of the attorney fees incurred in the processing of this action for a legal separation. Both parties were using the same attorney at the time.

         The parties waived a hearing on the entry of a final decree of legal separation. On December 12, 2012, the district court issued a decree of legal separation, approving the parties' stipulations and granting the parties a decree of legal separation.

         On September 9, 2015, Monte filed a motion to amend the complaint from legal separation to dissolution of marriage. Valerie filed an answer requesting that the real estate owned by the parties be sold; that Monte provide health insurance for Valerie until Valerie reached the age of 65 or, in the alternative, that Monte pay spousal support; and that Monte pay Valerie's attorney fees. Valerie subsequently filed a separate application for attorney fees.

         [299 Neb. 106] On November 15, 2016, following a hearing, the district court filed a decree of dissolution. The decree ...


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