Macy v. Macy

32 Neb.App. 258

995 N.W.2d 899

Jeffry P. MACY II, appellant and cross-appellee, v. Megan A. MACY, appellee and cross-appellant.

No. A-22-528.

Court of Appeals of Nebraska.

Filed September 26, 2023.

Adam R. Little, Lincoln, of Nebraska Legal Group, for appellant.

Rhonda R. Flower, Scottsbluff, of the Law Office of Rhonda R. Flower, for appellee.

Riedmann, Bishop, and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Jeffry P. Macy II appeals and Megan A. Macy cross-appeals from the Scotts Bluff County District Court's order dissolving their marriage and adjudicating issues of custody, property classification and division, and alimony. For the reasons stated herein, we affirm in part, affirm in part as modified, vacate in part, and in part reverse and remand with directions.

II. STATEMENT OF FACTS

The parties were married in August 2008 and had two children during the course of their marriage: twins who were born in 2009. During the parties’ marriage, Jeffry was a commissioned officer in the U.S. Navy, which job required the family to reside in at least four different locations in California and Maryland. During the marriage, Megan primarily took care of the home and the children, while also earning an undergraduate degree and a master's degree, which involved incurring student loan debt. After the children entered kindergarten, Megan was employed teaching at different schools at the various duty stations. In October 2018, based upon the parties’ agreement, Megan began homeschooling the children.

In March 2019, Megan and the children relocated to Nebraska to care for Megan's father, who had suffered a heart attack. Because Jeffry was still actively serving in the Navy, he was unable to relocate to Nebraska with the family. Megan testified that the parties separated in May 2019, shortly after her move to Nebraska. Despite their separation, the parties purchased a house in Nebraska in July 2019, and Jeffry provided Megan with $3,000 to $3,500 in monthly support. Jeffry rented a room and a storage locker in California. Megan testified that after moving to Nebraska, she obtained employment as a teacher, earning approximately $63,000 per year in addition to receiving Department of Veterans Affairs (VA) disability benefits that she testified would decrease after the divorce to $758.28 monthly.

In May 2020, Jeffry filed for dissolution of marriage, requesting, inter alia, joint legal and physical custody of the parties’ minor children. In her answer and counterclaim, Megan requested, inter alia, legal and physical custody of the parties’ minor children. The dissolution proceeding was held over 2 days in February and March 2022. During the trial, witnesses included Jeffry; Megan; the parties’ children; and Adam Astley, an attorney specializing in dissolutions and military benefits.

Additionally, the parties offered into evidence a joint property statement, among other exhibits.

Jeffry testified that after Megan and the children relocated to Nebraska, he had difficulty visiting the children due to his deployment schedule and his visits were generally limited to holidays. Due, in part, to his desire to be closer to his children, Jeffry decided to separate from the Navy and was honorably discharged on September 30, 2021, after 13 years of service. Jeffry subsequently moved to Nebraska and purchased a separate home. At the time of the trial, Jeffry was employed full time as "a director of IT in cyber operations," earning $150,000 a year. He was also employed part time, earning $33,000 as a remote teacher at a university, but he indicated that this position was temporary. After moving to Nebraska, Jeffry exercised parenting time on Monday and Wednesday evenings after the children were done with school and one weekend per month.

Jeffry testified that he requested joint physical and legal custody of the children because the children informed him that they wanted equal time with both parents. Megan, on the other hand, testified that, in her opinion, joint custody was not in the children's best interests because Jeffry needed additional time to acclimate to spending more time with the children, needed to make sure his environment was proper for the children, and needed to get used to having only one job, and also because there was an incident during Jeffry's parenting time when one of the children located a loaded gun. The parties’ children testified that they had good relationships with both of their parents and wanted equal time with them.

As it related to the division of the marital property, the parties entered into a property settlement agreement where they generally agreed on the valuation of most of the parties’ debts and assets and how to divide the marital property. During the trial, the parties disputed the value and classification of certain debts and assets. Specifically, they disputed the classification of Megan's student loans and a credit card, the value of

a motorcycle, the valuation of debt related to a fence installed at the home where Megan and the children resided, the date of valuation of Jeffry's Thrift Savings Plan (TSP), and the division of his military benefits.

Megan adduced testimony from Astley, an attorney specializing in difficult dissolution cases. Astley testified regarding the military benefits and credits at issue in this case. Astley testified that because Jeffry did not complete 20 years of service in the Navy, his military pension benefit remained unvested unless he either reentered the military or began working in the federal sector, which would provide Jeffry with the opportunity to buy back his 13 years of service and, if in total, he accumulated 20 years, he would be eligible to receive his pension. As a result, Astley testified that the court should include those potential benefits in the division of the marital estate when entering the final decree, and he provided the proposed language that is required in the decree to properly divide those benefits.

In June 2022, the district court entered a decree dissolving the parties’ marriage, awarding the parties joint physical and legal custody of the parties’ minor children, and dividing the marital estate. Specifically, as relevant to this appeal, the district court awarded Megan alimony of $250 per month for 60 months; awarded Jeffry the motorcycle, which the court valued at $2,000; classified $27,453 of Megan's student loans and $2,893 in Megan's credit card debt incurred during the parties’ marriage as marital debt; and determined that Megan's payment of $8,000 for the installation of a fence at the marital property should be credited to her.

Further, regarding Jeffry's military "credits," the court found that Jeffry

served as an active[-]duty member of the U.S. Navy for more than ten (10) years overlapping ten (10) years of marriage. The credits that [Jeffry] earned during his service are a marital asset, subject to division by this Court. [Jeffry] separated from active[-]duty service on

September 30, 2021, having served less than twenty (20) years.

Should [Jeffry] re-enter active[-]duty military service at any time during his lifetime, he shall promptly notify [Megan] of his re-entry. Should [Jeffry] complete a total of twenty (20) or more years of military service, [Megan] will be awarded a portion of [Jeffry's] military retired pay, as described in this section, and with the following factual findings, legal conclusions, and information necessary for [Defense Finance and Accounting Service] to effectuate this award.

(Emphasis omitted.) The court awarded Megan 50 percent of the disposable military retired pay that Jeffry "would have received had he retired with a retired base (High-3) of $7,630 per month, and with 12.75 years of credi[ta]ble service on July 31, 2021. This award shall include [50 percent] of all future cost-of-living adjustments (‘COLA's’)." (Emphasis omitted.)

In addition to the award of the disposable military retired pay, the court's award went further and stated:

[Jeffry] shall also promptly notify [Megan] if he obtains employment with any government branch or agency which will permit him to obtain any credit towards any other government retirement system in consideration for the credits he earned while in the military. His notification must include the name of the branch or agency, and the retirement system in which he will participate. If [Jeffry] obtains such employment having not completed twenty (20) years of military service, he shall be entitled to sell, merge, trade, or waive his military retirement credits for credits with such agency's retirement system (this shall include the right to make a "Military Service Credit Deposit" with the government).

If [Jeffry] makes such a deposit or sells, merges, trades, or waives his military retired pay in return for credits under the agency's retirement system, [Megan] will be awarded a portion of [Jeffry's] retirement under

that system which is equal to one-half of a fraction, the numerator of which is 153 months (12 years, 9 months), and the denominator of which is the total number of months of equivalent service recognized by the agency to include service after the marriage and any service credits obtained by selling merging, trading, or waiving military retired pay or by making a Military Service Credit Deposit. In such case, [Megan] shall also be awarded a survivor annuity in a sufficient amount to continue her benefits at the same level in the event [Jeffry] predeceases [sic] her. [Megan's] portion of this benefit will be perfected by entry of an appropriate order or instrument which complies with the requirements of the system in which [Jeffry] participates.

If [Jeffry] is able to sell or waive his military retired pay credits outright in return for a fixed sum of money or property (such as, for example, funds deposited in a TSP or similar Plan), [Jeffry] shall promptly notify [Megan] of the sale or waiver, including a description of the

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