LaViness v. LaViness

Wendell D. LaViness, appellant, v. Jessica L. LaViness, appellee.

No. A-21-839

Court of Appeals of Nebraska

October 4, 2022

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: Peter C Bataillon, Judge. Affirmed.

Justin A. Quinn for appellant.

Adam E. Astley, of Astley Putnam, P.C., L.L.O., for appellee.

Moore Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Welch Judge

I. INTRODUCTION

Wendell D. LaViness (hereinafter referred to by his middle, and preferred, name "Donavon") appeals portions of the order of the Douglas County District Court dissolving his marriage to Jessica L. LaViness. Donavon contends that the district court erred in including untaxed income in determining child support, in awarding Jessica alimony, in failing to set off $35,572.62 as funds traceable to the sale of his premarital home, in improperly valuing the marital home, and in failing to order the sale of the marital home. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

The parties were married on May 12, 2007, and had two children during the marriage: Wyatt, born in 2012, and William, born in 2014. In April 2020, Donavon filed a complaint for dissolution of marriage requesting the court equitably distribute the accumulated property and award him sole legal and physical custody of their two minor children. In her answer and counterclaim, Jessica requested the same, except she requested that the court award the parties joint legal and physical custody. In August, the court entered a temporary order awarding the parties joint legal and physical custody of the minor children, ordering Donavon to pay temporary child support of $125 per month, ordering Donavon to pay alimony of $400 per month, and granting Jessica temporary possession of the parties' marital home beginning on October 1.

The trial on the complaint and countercomplaint for dissolution of marriage was heard in July 2021. Donavon; Jessica; Courtney Meysenburg, a real estate agent; and Jonathan Jameson, a loan originator testified at trial.

The parties testified that they were married in 2007 but resided together prior to their marriage in a home purchased by Donavon. In 2006, Donavon purchased the home located on Fowler Avenue (Fowler house) for $196,450, which he titled solely in his name. Although Donavon declined to place Jessica's name on the title of the Fowler house, both parties used their income to pay for the joint home expenses. Jessica testified that she gave two-thirds of her monthly income to Donavon to pay expenses and that she liquidated her retirement account from a former employer to have the Fowler house painted. Additionally, because Donavon worked out-of-town 12 days out of a 14-day period, Jessica was primarily responsible for upkeep of the Fowler house and took care of the parties' children. Although the parties refinanced the Fowler house in 2010 and 2015, Jessica was not placed on the title even though she agreed to equally assume the mortgage with Donavon.

The family resided in the Fowler house until they sold it in 2017 for $240,000. After paying the mortgage balance of $176,083 and a $12,000 commission to the real estate agency, they received $51,760.24 in net proceeds from the sale of the home. Donavon placed the proceeds in a bank account which he testified was solely in his name. Donavon used $10,341.38 to pay Jessica's student loans which had been accumulated during the parties' marriage and paid $25,231.34 in closing costs for the parties' new home located on Potter Street (Potter house).

At the time of the trial, the parties still owned the Potter house and Jessica had exclusive possession of it pursuant to the temporary order. The children attended the school located next door to the Potter house and the children were actively involved in their school and neighborhood. Under the terms of a mediated partial parenting plan, the parties agreed to joint legal and physical custody of the minor children. Both parties agreed that it was in the children's best interests for them to continue at their school, however, they disagreed on how the Potter house should be divided in the dissolution. Donavon requested that the court order the sale of the Potter house, whereas Jessica requested that she be awarded the Potter house so that she could keep the children within the school district and remain close to their friends and neighbors. Jessica testified that if the parties were ordered to sell the home, the children would no longer qualify to attend their current school because the district required residency within the district to attend school there. Jessica stated that their children had grown accustomed to the home, neighborhood, and school, and were involved in activities and had developed close friendships. As a result, Jessica stated that she believed it was in the children's best interests for them to remain in the residence as opposed to selling it. Donavon, on the other hand, argued that the children would be able to remain in their school so long as Jessica obtained another residence within the district.

The parties also disputed the valuation of the Potter house. Donavon obtained an appraisal of the home and the appraiser valued the Potter house at $345,000 as of April 7, 2021. However, Donavon testified that at the time of the July 2021 trial, the value of the home had increased due to market fluctuations as evidenced by a market analysis completed by real estate agent Courtney Meysenburg. Meysenburg completed a market analysis of the Potter home finding that the home could be listed and sold at a higher price if the home was in "excellent condition." Meysenburg testified that she would list the Potter house between $372,000 and $375,000. However, Meysenburg admitted that she was not expressing an opinion as to the home's fair market value; rather, her valuation was an indication of the price at which she would likely list and sell the home. Meysenburg admitted that the appraisal value reflected the average price of homes in the area of the Potter house but opined that prices had increased seven percent since the appraisal was completed.

Jonathan Jameson, a loan originator, testified that he was working with Jessica to help her refinance the Potter house. He indicated that he believed with Jessica's $55,000 annual income, along with Donavon's $125 monthly child support payment and $400 per month in alimony, Jessica would qualify to refinance the home in the amount of $275,000 which would produce a $2,050 monthly payment obligation. In the alternative, Jameson testified that without spousal support, Jessica could qualify to refinance at that value if she eliminated her vehicle loan.

In accordance with the partial parenting plan, both parties requested the court enter an order determining child support and expenses. Both Donavon and Jessica offered, and the court received, proposed child support calculations under the guidelines. The parties generally agreed to most of the calculations with the exception that Donavon disputed Jessica's claim that the calculation should include the value of Donavon's personal use of a company vehicle. At the time Donavon filed the complaint for dissolution, he owned a 2016 Chevy pickup for which he made a monthly loan payment of $382.99. After he obtained employment with RONCO, RONCO provided him with a company vehicle and permitted him to use that vehicle for his personal use. As a result, Donavon sold his 2016 truck in order to minimize his expenses. Donavon received a profit in the amount of $7,500 for the sale of his 2016 truck. Donavon was not required to pay taxes, registration, licensing fees, or any other expense associated with the maintenance or care of RONCO's vehicle. According to Donavon, his only expense for the vehicle was his obligation to pay for gas every other time he filled the tank. He stated that he attempted to contact a dealership to determine the cost to lease a similar vehicle but that the dealership indicated that they would not lease out a vehicle of like age. Additionally, Donavon stated that when he contacted RONCO to determine what amount was included in income on his W-2 for his use of the company vehicle, he was informed that there was no such attribution. Donavon testified that no income should be attributable to him for his personal use of the company vehicle. Conversely, Jessica requested that the court attribute $1,000 per month as tax exempt income, or an "in-kind" benefit, consistent with the expense that Donavon would have incurred had he maintained a personal vehicle.

The district court's decree dissolved the parties' marriage and awarded the parties joint legal and physical custody of Wyatt and William. Additionally, after finding that $350 per month of tax-exempt income, or "in kind" benefits, should be attributed to Donavon for the benefit he received from his personal use of RONCO's vehicle, the court ordered Donavon to pay child support of $224 per month. The court further awarded Jessica $250 per month in alimony for 36 months. The court denied Donavon's request to order the sale of the marital home and awarded the Potter house, which it valued at $345,000, to Jessica, subject to her obligation to refinance the home solely in her name. The court denied Donavon's request to set aside $35,572.62 in funds traceable to premarital property and awarded a $43,343.35 equalization payment to Donavon. Donavon has timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Donavon contends that the district court erred in (1) including $350 in untaxed income, or "in kind" benefits, from his...