Finch v. Finch

LEI ANN FINCH, APPELLANT, v. JASON MARK FINCH, APPELLEE.

No. A-20-489.

NEBRASKA COURT OF APPEALS

April 6, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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 Douglas County: DUANE C. DOUGHERTY, Judge. Affirmed as modified.

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

John A. Kinney and Jill M. Mason, of Kinney Mason, P.C., L.L.O., for appellee.

PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.

ARTERBURN, Judge.

I. INTRODUCTION

Lei Ann Finch appeals from the decree of dissolution entered by the district court for Douglas County which dissolved her marriage to Jason Mark Finch. On appeal, she argues that the district court abused its discretion by not including the value of the parties' retirement account and life insurance policies in its calculation of the net marital estate and equalization payment. She also argues that the court abused its discretion in its valuation of several items of personal property and that the court should not have found that any portion of the equity in the marital residence was nonmarital. For the following reasons we affirm the district court's order as modified.

II. BACKGROUND

Jason and Lei Ann were married on December 5, 1995. Six children were born of the marriage, four of which were under the age of 19 at the time of trial. Lei Ann filed a complaint for dissolution of marriage on October 10, 2017. She requested sole legal and physical custody of the parties' minor children, an order for permanent child support, an equitable division of real and personal property and the debts of the parties, an award of spousal support, and attorney fees. On November 13, Jason filed an answer and counterclaim. Trial was held on August 21 and 26, 2019.

The evidence presented at trial revealed that after their marriage in 1995, the parties moved to Des Moines, Iowa, and purchased a house. In order to make a downpayment, Jason sold his premarital vehicle and $7,000 of the proceeds from this sale were applied to the downpayment. The parties later moved to Fayetteville, Arkansas, and then to Denison, Iowa. They bought a house in Denison with the proceeds from the sale of the house that they had previously owned in Des Moines. After living in Denison they bought a house in Omaha, Nebraska. According to Jason's trial testimony, the $7,000 in equity from the Des Moines home followed them to their current marital residence in Omaha. Lei Ann testified similarly during her cross-examination, explaining that as far as she knew the $7,000 from Jason's premarital funds used for the downpayment for their first house in Des Moines followed them to every subsequent house that they purchased. Jason admitted in a deposition that they "broke even" when they sold the house in Denison. Nevertheless, at trial, he testified that he thought the $7,000 of premarital funds utilized to purchase the home in Des Moines still transferred into the residences they purchased in Omaha. He testified that while they only broke even on the sale of their residence in Denison, there still were proceeds from the sale which were used to purchase their home in Omaha. The court found that $7,000 of the equity in the marital home should be set off to Jason as a nonmarital asset.

During the pendency of the case, an appraisal was completed on the marital residence in Omaha. This appraisal valued the marital residence at $875,000. In the appraisal, there was a picture of the pool area which included a hot tub. After the parties' separation, Jason purchased a new hot tub for $8,000. This hot tub replaced an older one which Jason claimed had broken down. Jason testified that he believed the value of the hot tub was included in the appraisal of the home. He testified that the hot tub pictured in the appraisal report was the new hot tub he had purchased. The appraisal was completed in June 2018. Lei Ann contended that the hot tub should not be considered part of the appraisal but should be separately valued as personal property. In its decree, the court did not categorize the hot tub as an asset to be valued separately from the marital residence.

An appraisal was also completed of household goods located both at the marital residence occupied by Jason and at the house Lei Ann had rented. Lei Ann testified that there were many items of personal property located at Jason's residence that were not included within this appraisal. She created a list of these items and estimated that the total fair market value for the items not included in the appraisal was $16,760 which included $8,000 for the hot tub. A separate personal property appraisal was completed on firearms, tools, equipment, and other items in Jason's possession. The combined value of these items was $4,551 according to the appraisal. Jason conceded that this property value was not included in Lei Ann's listing. Jason contended that some of the items in this appraisal were nonmarital. His list of nonmarital items was received as exhibit76. He testified that in his opinion, the combined value of marital household items, tools, and firearms in his possession was $10,000. The items alleged to be nonmarital included in exhibit 76 also appear in the appraisal. The combined appraised value of those items is $535. Lei Ann's estimate of the value of all of the items of personal property in Jason's possession would range from $12,000 to $13,000, excluding the hot tub. The court ultimately found that the value of personal property in Jason's possession (excluding other specifically listed items not contested here) was $8,265 which was then awarded to him.

The parties owned several vehicles. Jason testified that his brother gave him a 1976 Ford F-250 approximately 2 years prior to trial and thus claimed that the vehicle was nonmarital property. On cross-examination, he admitted that he had no documentation to support his claim that the vehicle was a gift. Moreover, in his answers to interrogatories, Jason listed this vehicle as a marital asset. We note that in Jason's proposed division of marital assets he also lists the 1976 F-250. In the listing, he notes "non-marital" under it, but then proceeds to include its value on his side of the ledger for purposes of the division of marital property. The court followed the same procedure. The court did not separately list this pickup with the other premarital property found in paragraph 23. But in its balance sheet found in paragraph 24, the court listed the vehicle as having a value of $5,400 and placed that value on Jason's side of the ledger even though it noted "Non-marital" under the entry. Jason has not cross-appealed on this issue. Therefore, the ultimate inclusion of the vehicle's value as a marital asset is not before the court. The only issue before the court is the valuation of the vehicle. In his answers to interrogatories, Jason valued the vehicle at $10,000. However, he testified at trial that the current value of the truck was $5,400. He also submitted into evidence a valuation created by a third-party appraiser of the 1976 Ford F-250 which showed a value of $5,400. The court found the value of the 1976 Ford F-250 to be $5,400.

The parties also owned a 2005 Ford Ranger Super Cab XLT. In his answers to interrogatories, Jason stated that the value of this vehicle was $5,000. However, at the time of trial, Jason testified that this vehicle had no value according to Kelley Blue Book. Jason submitted his valuation which listed the vehicle having a value of zero. To explain the discrepancy between his discovery response and his trial testimony, Jason testified that one of the children had further damaged the back end of the vehicle after he submitted his discovery response. The vehicle already had damage to the front-end prior to his submission of discovery responses but according to him was still worth a "couple thousand" dollars. According to the Kelley Blue Book valuation report, the vehicle had zero value given this damage. Despite the damage, Jason testified that the vehicle was still drivable. The court found that the vehicle was worth $3,000.

The other two vehicles listed in the parties' assets were a 2014 Ford F-150 and a 2018 Ford F-150 both of which were listed as being owned by Jason's law practice. According to an appraisal conducted of the business, these vehicles were given a combined value of $98,500. Jason, through his business, purchased the 2018 Ford F-150 in 2018, after the parties separated. There was a loan of $56,680 to finance the vehicle, however, at the time of trial, the balance on the loan was reduced to approximately $44,600. According to the National Automobile Dealers valuation report that Jason submitted, the 2018 Ford F-150 had a value of $53,100. Jason asked for the court to use the original loan balance to determine the net value of the vehicle because the vehicle was purchased after the parties separated. The court found that as of the point in time the 2018 F-150 should be valued, the indebtedness was more than the value of the vehicle. As a result, the value for purposesof the marital estate was placed at $0. The 2014 F-150 was valued at $19,115 and was awarded to Jason.

The parties agreed that a Northwestern Mutual IRA held in Jason's name with a value of approximately $198,000 was a marital asset. The parties also agreed that life insurance policies with cash value existed as to each of them and that the cash value was a marital asset. The court ultimately found that the IRA and the cash value of the life insurance policies should be divided evenly. The court did not include any specific values for these assets in its reconciliation of the marital estate. The district court entered the decree of dissolution on May 18, 2020.

III. ASSIGNMENTS OF ERROR

Lei Ann assigns,...