Lagerstrom v. Neal

THOMAS J. LAGERSTROM, APPELLEE AND CROSS-APPELLANT, v. TERESA L. NEAL, APPELLANT AND CROSS-APPELLEE.

No. A-14-210.

NEBRASKA COURT OF APPEALS

March 17, 2015

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 Lancaster County: ANDREW R. JACOBSEN, Judge. Affirmed in part as modified, and in part reversed and remanded.

Andrea D. Snowden and Darla S. Ideus, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellant.

Terrance A. Poppe, Benjamin D. Kramer, and Andrew K. Joyce, Senior Certified Law Student, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and INBODY and PIRTLE, Judges.

PIRTLE, Judge.

INTRODUCTION

Teresa Neal appeals the decree of dissolution of the parties' marriage entered by the district court for Lancaster County on December 20, 2013. She asserts the district court abused its discretion in dividing the marital estate, in calculating the amount of child support and alimony to be paid by Thomas Lagerstrom, and in failing to award her reasonable attorney fees. Thomas cross-appeals and asserts the district court abused its discretion in dividing the marital estate, in calculating the amount of child support and alimony, and in ordering him to maintain a life insurance policy to provide for alimony and child support. For the reasons that follow, we affirm in part as modified, and in part reverse and remand.

BACKGROUND

Tom and Teresa were married June 29, 1990. There were two children born of the marriage; Katherine who has reached the age of majority, and Ian, age 17 at the time of trial. The marriage was Tom's first and Teresa's second.

Tom filed his complaint for dissolution of marriage on or about July 30, 2012, and the parties separated on August 2. Tom was ordered to pay temporary child support in the amount of $1,500 per month, and temporary alimony in the amount of $2,000 per month.

At the time of trial Tom was 57 years old. He obtained a Bachelor of Science degree in electrical engineering from the United States Naval Academy in 1977, and he completed the Navy's nuclear power propulsion training program. Tom obtained postgraduate degrees including a Juris Doctor degree from the University of Nebraska College of Law in 1984, a Master of Science degree in industrial management systems engineering from the University of Nebraska in 1989, and a Doctorate degree in industrial management systems engineering from the University of Nebraska in 1990. When the parties married, Tom was practicing law in private practice, and he later became a teaching assistant at the University of Nebraska, first in Lincoln, then in Omaha while he pursued his master's degree.

Tom retired from the military in 2007 and he will receive a military pension when he reaches the age of 62. The parties agree that the military pension accumulated during the marriage would be divided equally between the parties.

Tom worked from December 2001 to June 2008 for Ayars and Ayars, Inc., in areas including engineering management, human resources, and project management. He began working for Pederson Power Products, a predecessor to Eaton Corporation, in June 20008. At the time of trial, Tom was employed as engineering manager for Eaton Corporation in Omaha. In addition to his employment at Eaton, Tom is a consultant for Architecture Etc. His monthly gross income at the time of trial was approximately $11,403.12, or $136,837.44 annually.

At the time of trial, Teresa was 55 years old. She obtained a Bachelor of Arts degree in accounting from James Madison University in 1980 and a Master of Business Administration degree from the University of Nebraska in 1988. Teresa's first job in 1980 was for TRW. She started contributing to a 401(K) through TRW, and her employer matched her contributions. She was employed at Cushman from approximately 1990 to 1993, and she earned approximately $34,000 per year.

After the parties' first child was born in August 1993, Teresa left her position as a staff accountant for Cushman to be a stay-at-home mother. Teresa was the primary caregiver for the children while Tom was at work. Teresa also testified that she was very active in caring for Tom's parents when they were sick, up until their deaths.

Tom and Teresa testified that their daughter lives with Teresa and she continues to rely on them for maintenance and support while she is a student at the University of Nebraska. She has earned a scholarship that pays for her tuition, but fees, books, and room and board are not covered. At the time of trial, the parties' son also lived with Teresa and was to begin his senior year of high school in the fall.

Teresa testified that she believed it would be very difficult to return to work after a twenty year gap in employment. She testified that many jobs require computer skills andproficiency in word processing programs and Excel, which she does not currently have. She testified that the jobs which require those skills pay approximately $8.50 per hour. She also testified that even if she were to acquire the necessary computer skills, she did not believe that she would be able to earn more than $8.50 per hour.

In determining the amount of child support and alimony to be paid by Tom to Teresa, the court attributed a minimum wage to Teresa, using Tom's proposed child support calculation. The court ordered child support to be paid on behalf of the parties' minor child in the amount of $1,215.00 per month. The court awarded alimony to Teresa in the amount of $2,500.00 per month through April 2015, a total of 21 consecutive months. The court ordered the amount to increase in May 2015 to $3,250.00 per month for a period of 89 consecutive months. Tom was also ordered to maintain one of the life insurance policies awarded to him in "a decreasing term amount to provide for Plaintiff's child support and alimony obligation in the event of the untimely death of the Plaintiff during the period of time that the Plaintiff is obligated to pay child support and alimony." The value of the life insurance policy was to be in an amount equal to the unpaid child support and alimony.

The parties accumulated numerous assets throughout the course of their marriage including cars, bank and stock accounts, life insurance policies, retirement benefits, and other personal property. The value and the marital or nonmarital character of several assets are in dispute.

When Tom's father died in 1992, he bequeathed to Tom a portfolio of stocks with a value of $245,325.65. Tom testified that stocks from his father's estate were deposited into an Edward Jones account titled in Tom's name only by his brother, the personal representative of his father's estate. Tom testified that the Edward Jones accounts were subsequently titled in his name and Teresa's name jointly for the purpose of "convenience of administration and for estate planning."

The Edward Jones portfolio consisted of four investment accounts: (1) an account titled in the names of Tom and Teresa as joint tenants with right of survivorship; (2) Tom's individual retirement account; (3) Teresa's individual retirement account; and (4) Tom's ROTH individual retirement account.

The first account had a total value of $609,331.06 in August 2012. The account was split into four separate sub-accounts: (1) cash and money market funds with a value of $32,346.96; (2) bonds with a value of $28,449.10; (3) stocks with a value of $435,526.32; and (4) mutual funds with a value of $113,008.68.

Tom testified that the stock portions of the portfolio derived directly from his inheritance and have stayed in the account. Tom testified that he managed the account and stocks were bought and sold. By 2012 three of the original stocks remained in the account: Exxon, Union Pacific Corp, and AT&T. The stock account paid regular dividends which were reinvested in the cash and money market account, and reported on the parties' joint income tax returns.

The Edward Jones bond account originated in 2008 when $15,000 was withdrawn from the cash and money market funds account to purchase Omaha Public Power District bonds. On December 14, 2010, another $10,367.45 was withdrawn from the cash and money market funds account to purchase Nebraska Public Power District bonds.

The district court found the Edward Jones money market account was marital property, and the Edward Jones stock and bond accounts were Tom's nonmarital property. Tom conceded that the mutual funds are a marital asset, and does not contest the district court's designation of the money market account as marital property. Only the character of the stock and bond accounts are at issue in this appeal.

The district court found Teresa's IRA was marital property and the value of the account was reflected as her asset in the division of property. The court also determined that Xcel Energy stock was Tom's nonmarital asset. The court accepted the parties' valuation of the marital home, and determined that a portion of the home was purchased with Teresa's nonmarital assets, so that portion was excluded from the property division. Teresa received a judgment in the sum of $89,631.00 for the equalization of the marital estate. Teresa was also awarded one-half of the marital component of Tom's military retirement as of the date of the decree.

ASSIGNMENTS OF ERROR

On appeal, Teresa asserts the trial court abused its discretion in: (1) dividing the marital estate; (2) calculating the amount of child support to be paid by Thomas; (3) determining the amount of alimony to be paid by Thomas; and, (4) not awarding Teresa reasonable attorney fees.

In his cross-appeal, Thomas asserts the trial court abused its discretion in (1) attributing a minimum wage income to Teresa when calculating child support, (2) awarding excessive alimony to Teresa under the circumstances, ...