Koch v. Koch

LORI ANN KOCH, APPELLEE AND CROSS-APPELLANT, v. KEITH EMERY KOCH, APPELLANT AND CROSS-APPELLEE.

No. A-13-717.

NEBRASKA COURT OF APPEALS

November 18, 2014

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

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 Knox County: JAMES G. KUBE, Judge. Affirmed in part, and in part remanded with directions.

Michelle M. Schlecht and David E. Copple, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellant.

Ronald E. Temple, of Fitzgerald, Vetter & Temple, for appellee.

INBODY, RIEDMANN, and BISHOP, Judges.

INBODY, Judge.

I. INTRODUCTION

Keith Emery Koch appeals, and Lori Ann Koch cross-appeals, from the decree of dissolution entered by the Knox County District Court dissolving the parties' marriage. The parties both challenge certain portions of the decree, including findings regarding the parties' marital estate and the alimony award. Keith also contends that the district court erred in ordering him to provide security for the alimony and child support awards. Lori also assigns as error that the court erred in failing to award interest on the money judgment and alimony awards as they come due, in failing to award her the dependency exemptions, and in failing to award her sufficient child support and sufficient attorney fees.

II. STATEMENT OF FACTS

The parties were married on July 26, 1986. They had six children. The parties' three youngest children are minors and are affected by the parties' dissolution proceedings whichcommenced on March 19, 2012, when Lori filed the complaint for dissolution of marriage. Trial was held on March 19 and 20, 2013, with the parties litigating, inter alia, the classification of the parties' property as marital or nonmarital, the valuation of the marital estate, child support, tax dependency exemptions, and alimony.

1. REAL PROPERTY

The parties litigated whether real property consisting of agricultural land and the residential home and acreage owned by them was marital or nonmarital and the valuation of the property. At the time of the dissolution hearing, the parties owned seven contiguous tracts of land totaling nearly 320 acres. The details regarding the transfers of title from Keith's parents and the legal descriptions of each of the seven tracts are outlined separately.

(a) Tract 1

Tract 1 consists of the acreage which contains the parties' residence and outbuildings on approximately 12.5 acres. The buildings located on tract 1 include the home that the parties lived in, a detached garage, a farrowing barn, and sheds. Tract 1 was gifted to Keith by his parents in 1991. Also in 1991, Keith and Lori executed a deed of trust on tract 1 in order to secure a $20,000 loan in order to build a farrowing barn on tract 1. The legal description of tract 1 is as follows:

A tract of land located in the Southeast Quarter (SE1/4) of Section Twenty (20), Township Thirty-Two (32) North (N), Range Two (2) West of the 6^th P.M., Knox County, Nebraska, containing approximately 12.5 acres, more or less, described as follows:

Beginning at a point located on the Eastern boundary of the Southeast Quarter (SE1/4) of said Section Twenty (20), said point being 1,320 feet North of the Southeast Corner of the Southeast Quarter (SE1/4) of said Section Twenty (20); thence Southerly along the Eastern boundary of the Southeast Quarter (SE1/4) of said Section Twenty (20) a distance of 1,320 feet to the Southeast Corner of the Southeast Quarter (SE1/4) of said Section Twenty (20); thence Westerly along the South boundary of the Southeast Quarter (SE1/4) of Section Twenty (20) a distance of 577 feet; thence North a distance of 602 feet; thence Northeasterly to the point of beginning.

(b) Tract 2

Tract 2 consists of approximately 40 acres including 24.07 acres of agricultural land and the 12.5 acres previously gifted to Keith as tract 1. Tract 2 was gifted to Keith by his parents in 1995 in consideration of "Love and Affection." The legal description of tract 2 is as follows:

The Southeast Quarter of the Southeast Quarter (SE 1/4 SE 1/4) of Section Twenty (20), Township Thirty-two (32) North, Range Two (2) West of the 6^th P.M., Knox County, Nebraska, LESS 3.43 conveyed to the State of Nebraska for highway purposes by a deed recorded in Book 86, Page 105 of the Knox County Deed Records and including a tract previously conveyed to Grantee containing approximately 12.5 acres, more or less, as described as follows: [Legal description of tract 1.]

(c) Tract 3

Tract 3 consists of approximately 40 acres of agricultural land which was gifted to Keith by his mother in 1996 in consideration of "Love and Affection." The legal description of tract 3 is "[t]he Northeast Quarter of the Southeast Quarter (NE 1/4 SE 1/4) of Section Twenty (20), Township Thirty-two (32) North, Range Two (2) West of the 6^th P.M., Knox County, Nebraska."

(d) Tract 4

Tract 4 consists of approximately 40 acres of agricultural land which was gifted to Keith in 1997 by his mother in consideration of "Love and Affection." The legal description of tract 4 is "[t]he Northwest Quarter of the Southeast Quarter (NW 1/4 SE 1/4) of Section Twenty (20), Township Thirty-two (32) North, Range Two (2) West of the 6^th P.M., Knox County, Nebraska."

(e) Tract 5

Tract 5 consists of approximately 40 acres of agricultural land which was gifted to Keith by his mother in 1998 in consideration of "Love and Affection." The legal description of tract 5 is as follows:

The Southwest Quarter of the Southeast Quarter (SW 1/4 SE 1/4) of Section Twenty (20), Township Thirty-Two (32) North, Range Two (2) West of the 6^th P.M., Knox County, Nebraska, less portion thereof conveyed to [the] State of Nebraska for highway purposes by deed recorded at Book 86, Page 105 of the Knox County Deed Records.

(f) Tract 6

Tract 6 consists of approximately 80 acres of agricultural land which was purchased from Keith's mother in 1996 for $400 per acre. The parties signed a promissory note in the amount of $28,130 to facilitate the purchase of tract 6. The legal description of tract 6 is as follows:

The East Half of the Southwest Quarter (E 1/2 SW 1/4) of Section Twenty (20), Township Thirty-two (32) North, Range Two (2) West of the 6^th P.M., Knox County, Nebraska, less portion thereof conveyed to the State of Nebraska for highway purposes by Deed recorded in Book 87, Page 131 of the Deed Records of Knox County, Nebraska.

(g) Tract 7

Tract 7 consists of approximately 80 acres of agricultural land which was purchased from Keith's mother's estate in 2001 for $400 per acre. Although the parties took out a $32,000 loan to purchase tract 7, tract 7 was titled solely in Keith's name. The legal description of tract 7 is as follows:

The West Half of the Southwest Quarter (W1/2SW1/4) of Section Twenty (20), Township Thirty-Two (32) North, Range Two (2) West of the 6^th P.M., Knox County, Nebraska, less portion thereof conveyed to the State of Nebraska for highway purposes by deed recorded in Book 86, Page 105 of the Knox County Deed Records of Knox County, Nebraska.

(h) Joint Tenancy Deed

In December 2000, Keith and Lori executed a warranty deed conveying tracts 1 through 5 and tract 6 to Keith and Lori as joint tenants. (Tract 7 was not purchased until 2001.) A copy of the joint tenancy warranty deed was admitted into evidence as exhibit 102. This deed provided that the property was being conveyed in consideration of "Love and Affection."

Keith testified that when he executed exhibit 102, he did not understand that the deed, which conveyed tracts 1 through 6 to Keith and Lori as joint tenants in consideration for "Love and Affection," was transferring his interest to him and Lori. He also testified that he understood that the deeds conveying parcels of real estate from his parents to him for "Love and Affection" conveyed his parents' interest in the real estate to him. According to Keith:

The intent to give [the land] to my wife was never that (sic) case. . . . The only reason it was done is because, yes, she did say if her name was good enough to go on the loan, she wanted her name on the land. I explained, and this probably went on for at least five years, and I didn't see the point because I said, well, if something happens - if I die, you're going to get it all anyway because that's how estates work, as far as I know.

And the estate was never worth enough to ever be subject to estate tax, so I honestly didn't see the point. Why pay a lawyer to do a transaction or deed or whatever you want to call it when it would have no effect. Therefore, I drug my feet on it.

We were in at Riesberg's doing wills. She goes, I want . . . my name on that land. And I said I don't see the point, but fine, whatever.

Keith also testified that he executed the joint tenancy deed because "if something happened to me, there would be a simple transfer in the estate."

Lori testified that she was concerned that if anything happened to Keith, that Keith's siblings would come after the property. Lori told Keith that her signature was good enough for the loans, "it should be good enough for the deed, too." Keith responded that he "did not think that it was necessary"; however, when the parties were doing their wills, Lori renewed the issue telling Keith that she felt "it was necessary to protect [her] and the kids from his siblings if something were to happen to him."

(i) Valuation of Real Property

Glen Anderson, a certified general appraiser for approximately 34 years and a licensed real estate broker for 23 years, was hired by Lori to perform an appraisal of the parties' real estate which he performed in accordance with the Uniform Standards of Professional Appraisal Practice. He appraised the properties using both the sales comparison and income approaches, but testified that the sales comparison approach carried the most weight for him because it was the most accurate. Anderson performed a...