Bertucci v. Bertucci

1

Nicholas Bertucci, appellee, v. Brandy Bertucci, appellant.

No. A-23-559

Court of Appeals of Nebraska

July 2, 2024

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: KEVIN R MCMANAMAN, Judge.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

James H. Hoppe, of Law Office of James H. Hoppe, for appellee.

PIRTLE, Chief Judge, and RIEDMANN and BISHOP, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION

BISHOP, Judge.

INTRODUCTION

Nicholas Bertucci and Brandy Bertucci, now known as Brandy Miller were married in July 2021, they separated in May 2022, and the Lancaster County District Court dissolved their marriage in June 2023. Brandy appeals the district court's decree, as amended; she disagrees with the court's decision not to award her any marital equity in the home Nicholas owned before their marriage. She also contends that the court erred in overruling a relevancy objection, and in failing to award her alimony and attorney fees. We affirm.

BACKGROUND

Nicholas and Brandy met "through FaceBook" about a year and a half before they were married on July 11, 2021. Brandy, age 40 at the time, moved from New Orleans, Louisiana, to Nebraska, with her teenage son "in the middle of August 2021." Nicholas, age 36 at the time, was living in Lincoln, Nebraska; Nicholas had three children from a previous marriage. No children were born to the parties during their marriage to each other.

The parties "met online right around the time" Nicholas found a house to purchase in Lincoln on "Winchester South" (Winchester property). Nicholas purchased that property in April 2020 without a mortgage, using his own funds and money provided to him by his parents to pay the full purchase price. Within 5 months after the parties married, a quitclaim deed was executed conveying joint title of the Winchester property to Nicholas and Brandy.

The parties separated on May 26, 2022, less than a year after they married. The parties alluded to a protection order entered at that time, which excluded Nicholas from the Winchester property and left Brandy in sole possession of the home. Nicholas filed a complaint for dissolution of marriage on June 30. Trial took place in January 2023. We will set forth the evidence as needed in our analysis below.

In its decree on June 5, 2023, and as pertinent to the issues raised on appeal, the district court "set off" to Nicholas the Winchester property subject to existing liens, debts, taxes, and encumbrances. Nicholas was ordered to remove Brandy's name from any obligations related to the property within 60 days and Brandy was ordered to "promptly execute a Quitclaim Deed in favor" of Nicholas. Based upon the allocation of marital assets and debts, Nicholas was ordered to pay Brandy an equalization judgment of $828.10 within 60 days of entry of the decree. Neither party was awarded alimony, and each party was ordered to pay their own attorney fees and costs.

Brandy filed a "Motion to Alter or Amend Judgment" on June 14, 2023, generally asserting that the decree was "not sustained by the evidence and [was] contrary to law." At the hearing on the motion, Brandy's counsel argued solely about the Winchester property, asserting that Nicholas failed to satisfy his burden of proving that the property was nonmarital. Brandy's counsel argued that the district court "did not make a finding in its decree that this property was non-marital"; "[i]t simply said it shall be . . . set aside to [Nicholas]." The district court entered an "Amendment to the Decree" on June 23 "to explicitly state its finding that the . . . [Winchester property] . . . was found to be non-marital property." It added that "[a]ll other findings and orders of the Decree of June 5, 2023, are incorporated herein and remain as set forth therein."

Brandy timely appealed from the amended decree.

ASSIGNMENTS OF ERROR

Brandy assigns that the district court erred by (1) implicitly determining that the Winchester house was Nicholas' nonmarital property and not equitably dividing it, (2) not awarding alimony to her, (3) not awarding attorney fees to her, and (4) overruling her relevancy objection at trial related to a question she was asked in her deposition.

STANDARD OF REVIEW

In a marital dissolution action, 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 in his or her determinations regarding custody, child support, division of property, alimony, and attorney fees. Parde v. Parde, 313 Neb. 779, 986 N.W.2d 504 (2023). 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. Id.

When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Id.

ANALYSIS

Winchester Property

Nicholas purchased the Winchester property for $267,000 in April 2020 and according to Nicholas, it was a cash transaction. He contributed "roughly" $140,000 to the purchase, and his parents provided "about . . . $125,000." Nicholas and his parents had an "informal agreement" that Nicholas would pay them back if he could; he "took it upon [himself]" to pay his parents $1,000 a month when he moved into the home. However he did not make payments to his parents during his marriage to Brandy.

According to Nicholas, about 5 months after he and Brandy were married, his mother urged him to put Brandy on a joint tenancy deed. Since Nicholas, a traveling nurse, was commuting to work out of town, his mother was concerned about what would happen with the house if something happened to Nicholas. Nicholas claimed that Brandy also asked him to put her on the "title of the home." He also claimed that doing so was not intended to be a gift to Brandy. Nicholas stated that Brandy "pressured" him to execute a quitclaim deed and that she made the appointment with the title company to get it done. A quitclaim deed executed by both parties and a "Real Estate Transfer Statement" were received into evidence and both documents are dated December 10, 2021. Nicholas testified that no improvements were made to the home during the marriage.

Nicholas' mother, Ruth Bertucci, testified that she and her husband provided $125,000 to Nicholas when he purchased the Winchester property in 2020. Ruth said that she told Nicholas he needed to "be sure the house is in the proper name so that if something happens to [him], [he would not] just lose the house, the house isn't just lost." She was "very concerned" about Nicholas working as a traveling nurse in Fremont, Nebraska, and she had been with him there on "a small country road or . . . farmland, hills." She was concerned about him "going very early in the morning, working long hours, coming home late at night, that something may happen." She recalled Brandy talking to her about Nicholas owing them for the house, and that it was her debt, too, since she and Nicholas were married. Ruth told Brandy it was "not [her] concern" and that Ruth and her husband helped their children and grandchildren "in any way that [they] can." When asked if a gift was made to Brandy "of anything," Ruth responded, "No, sir."

When Brandy was asked if she made any structural improvements to the Winchester property, she responded that she had "changed out some light fixtures, some outlets, and that's about it, as far as structure." Brandy acknowledged that she did not make any monthly payments to any person related to any loan on the house. Her recollection regarding any incumbrances against the house was that Nicholas and his mother told her that he had a loan to his parents, "but we've come to find out that that's not even real." Brandy claimed that "right after Christmas" when she and her son and Nicholas were at Nicholas' parents' "Tide Water property," there "was this big ordeal of them gifting us paying off the loan so that we were debt free." According to Brandy, Nicholas' parents "acted like they were gifting us the rest . . . releasing us from the debt that we owed them on our home, so they gifted us, to be debt free, . . . you know, they paid off the loan." She acknowledged that when the quitclaim deed was executed that Nicholas did not call it a gift, but that "he conveyed the property because I was leaving my entire family and friends." Brandy stated that when she and Nicholas discussed the quitclaim deed "he had said it's -- it's not mine, but in my mind, when we're coming into marriage, it's all of ours, and that includes, like, payments, loan payments on the home that I'm living in."

Brandy denied putting pressure on Nicholas to make her a joint tenant on the property; she claimed "[t]here was no need for that" because it was something he wanted to do. Brandy did not recall whether she or Nicholas called the title company to prepare the necessary documents. On cross-examination, she was asked about her prior deposition testimony, specifically, when she was asked whether Nicholas made any statements to her about "'making a gift to [her] of half of the house?'" Her response was, "'I don't see it as a gift. I see it as partners coming together as one and owning property together.'"

We initially observe that at the time Nicholas married Brandy all equity in the Winchester property was nonmarital and could be properly set aside as Nicholas' separate property. See Parde v. Parde, supra (equity in...