Bowen v. Bowen

29 Neb.App. 726

959 N.W.2d 282

Melvin Kadel BOWEN, appellant,

v.Karen Denise BOWEN, appellee.

No. A-20-194.

Court of Appeals of Nebraska.

Filed April 6, 2021.

Donald A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., Omaha, for appellant.

Mona L. Burton, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellee.

Riedmann, Bishop, and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Melvin Kadel Bowen appeals the dissolution decree entered by the Sarpy County District Court dissolving his marriage to Karen Denise Bowen. Melvin contends the district court erred in finding that certain real property was a marital asset and in ordering the sale of real property rather than dividing the real property and ordering an equalization payment. For the reasons set forth herein, we affirm in part, and in part reverse and remand with directions.

II. STATEMENT OF FACTS

Melvin and Karen married in September 2010. No children were born of the marriage. Melvin filed for dissolution in June 2018. At the time of trial, Melvin was 57 years old and Karen was 50 years old.

During the parties’ marriage, Melvin was employed as a mission analyst for an information technology company and later as a civilian employee for the U.S. Air Force. In addition to his salary, Melvin received military retirement and disability payments from the Department of Veterans Affairs (VA) resulting from his military service that ended prior to the date of the parties’ marriage. Karen was unemployed as of 2015, but received VA disability income and monthly Social Security benefits. Karen testified that during the marriage, Melvin told her she did not have to work or pay any bills.

1. TRIAL

The evidence adduced at trial that is relevant to this appeal centered on the parties’ real property consisting of a property on Rahn Boulevard in Nebraska and a property on Sunset Drive in North Carolina.

(a) Rahn Boulevard Property

Melvin purchased the Rahn Boulevard property in 2004 with his ex-wife and originally encumbered the property with a mortgage in the amount of $182,663.64.

In October 2010, at Karen's request, Melvin executed a quitclaim deed adding Karen as a titleholder to the Rahn Boulevard property. Melvin testified that he signed the deed voluntarily and that it was "[his] intent to include [Karen] on the deed" as tenants in common. Although Melvin testified that he added Karen's name to the property "[b]ecause we were married," because he "felt it was the right thing to do," and "so [Karen] would ... feel comfortable in the house," he also testified that he did not intend to make a gift to Karen of half the value of the property.

Melvin testified that during the parties’ marriage, there were improvements made to the Rahn Boulevard property, including the installation of granite countertops and crown molding in the kitchen. According to Melvin, he and Karen installed the backsplash themselves and he alone paid for these upgrades. Melvin testified that at the time of trial, a Sarpy County website listed the value of the Rahn Boulevard property at approximately $213,000 and the remaining mortgage balance was $51,000.

Melvin also testified he discovered Karen had executed a real estate transfer statement and quitclaim deed of the Rahn Boulevard property to herself and her two daughters dated March 2018. Melvin explained he was unaware that Karen executed these documents.

Karen testified Melvin deeded half of the Rahn Boulevard house to her because she told Melvin she did not want to live in a house previously inhabited by Melvin and his ex-wife and that she was uncomfortable with the property being titled solely in his name. She further explained another reason Melvin included her on the deed "was that I owned half of that house to do whatever I choose to do with, and he had his half that he could do whatever he wanted to do as far as if something would happen to either one of us." Further, Karen testified that after she moved into the property in July 2010, the property still had the furnishings from Melvin's first marriage which Karen explained was "not going to work. I didn't want to live like that," so she took responsibility for refurnishing the property. Karen moved out of the residence on December 15, 2018. Karen testified that at the time of trial, the value of the Rahn Boulevard property was $250,300 with a mortgage balance of $54,597.34. In exhibit 61, Karen's "Suggestions to the Court" (which was received as an aid to the court), she suggested that Melvin should be awarded the Rahn Boulevard property.

(b) Sunset Drive Property

During the parties’ marriage, they purchased the Sunset Drive property located in North Carolina for $263,000. Melvin testified he paid $26,000 as a downpayment with money from his premarital accounts. In connection with that purchase, the court received exhibit 21, which included a bank statement indicating that as of November 20, 2018, the unpaid principal balance on the mortgage for the Sunset Drive property was $214,865.65 and the total amount paid against the mortgage balance during the marriage was $21,846.24.

Melvin testified that he should be awarded the Sunset Drive property, that the current value of the property was $295,000, and that the current mortgage balance was $214,865.65. Karen agreed Melvin should be awarded the Sunset Drive property, but testified the value of the property was $309,800. Karen testified that after reducing the equity in the property by Melvin's $26,000 downpayment, the remaining $68,935 in equity in the property should be divided equally.

2. DISSOLUTION DECREE

The district court entered a decree of dissolution in August 2019. In the decree, as relevant to this appeal, the district court found Melvin owned the Rahn Boulevard property prior to the marriage, but added Karen's name to the deed giving her "joint status of ownership," making the property part of the marital estate. The district court ordered the sale of the Rahn Boulevard property with the proceeds or liabilities split equally between the parties. The district court found the parties acquired the Sunset Drive property during the marriage but utilized $26,000 of Melvin's premarital assets in making a downpayment for the property. The district court also ordered a sale of the Sunset Drive property with any profits or losses split equally between the parties after reducing the equity by $26,000 for Melvin's downpayment.

Melvin moved for a new trial or, in the alternative, to alter or amend the decree, alleging the district court's findings were not supported by the facts or the law. In support of his motion, Melvin argued the court erred in finding the Rahn Boulevard property was a marital asset and in ordering the sale of the Sunset Drive property. Following a hearing, the district court denied Melvin's motion for new trial or to alter or amend the decree.

Karen filed a motion to clarify, which in relevant part requested clarification on how the parties were to accomplish the sales of the Rahn Boulevard and Sunset Drive properties. In response, the district court entered an order stating that if Melvin or Karen wished to purchase the Rahn Boulevard property, the Sunset Drive property, or both,

he/she may do so if the parties are able to agree upon a sales price. The purchasing party would then have 30 days after closing on the property in question within which to provide the non-purchasing party's portion of the proceeds from the sale of the home(s).

If neither party chooses to purchase one and/or both homes, the same shall be placed on the market within 60 days of the date of this order. [Melvin] shall be responsible to prepare the properties for sale and any reasonable costs to prepare the houses for sale shall be deducted from the proceeds and reimbursed to him prior to a division pursuant to the Court's Decree. If [Melvin] and [Karen] cannot agree on a realtor within 15 days of this order, then Re/Max Real Estate Company will be used, and a specific realtor is to be randomly assigned by the company in each market. If the parties cannot agree on a sales price, the Re/Max Real Estate Company's agent will provide the offering price using their best professional judgment of the fair market values of each property. [Melvin] and [Karen] shall cooperate in the sale of the homes in signing all necessary documents.

[Karen's] portion of the proceeds shall be paid within 30 days of the closing of each home.

Melvin has timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Melvin contends that the district court erred (1) in finding the Rahn Boulevard property was a marital asset and (2) in ordering the sale of the Rahn Boulevard and Sunset Drive properties rather than awarding the properties to him and ordering an equalization payment from Melvin to Karen.

IV. 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. This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Dycus v. Dycus , 307 Neb. 426, 949 N.W.2d 357 (2020).

An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Windham v. Kroll , 307 Neb. 947, 951 N.W.2d 744 (2020).

V. ANALYSIS

1. MARITAL ESTATE

Melvin first argues the district court erred in finding the Rahn Boulevard property was a marital asset. In support of his contention, Melvin argues that he clearly purchased the property prior to his marriage with Karen and added Karen's name to the title because she did not want to live in the house previously inhabited by himself and his ex-wife and that he simply added Karen's name to the title to assuage her discomfort in living in a property previously purchased and inhabited by Melvin and his ex-wife. More specifically,...