Meier v. Meier

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.

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

Haley L. Cannon and Brent M. Kuhn, of Brent Kuhn Law, for appellee.

PIRTLE, Chief Judge, and RIEDMANN and BISHOP, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

BISHOP, JUDGE

I. INTRODUCTION

Taress M. Meier appeals the Douglas County District Court's decree dissolving her marriage to Steven C. Meier. She challenges the district court's finding that there was not an enforceable settlement agreement. She also takes issue with the court's classification and treatment of a business interest and associated debt, and its impact on the equalization of the marital estate. We conclude the district court abused its discretion by finding that Steven's 25-percent premarital interest in a business, and a subsequent related debt, were marital in nature; the debt should not have been included in the court's equalization of the marital estate. We therefore modify the property equalization judgment by an additional $19,675 owed by Steven to Taress.

II. BACKGROUND

Taress and Steven were married on October 20, 2012; they had two children together. Taress filed a complaint to dissolve the marriage in April 2021. She requested joint legal and physical custody of the parties' children, child support to be paid by the parties according to the Nebraska Child Support Guidelines, an equitable division of the parties' property and debts, and attorney fees. Steven filed an answer and counterclaim seeking the same.

On February 10, 2023, Taress filed a "Motion to Enter Decree and Motion for Fees." She alleged the following. The parties, with counsel present, held a settlement conference on January 18 and reached an agreement as to all terms in the parenting plan, and as to all values of the marital estate except the specific value of the home. Steven, with counsel present and in the presence of Taress and her counsel, agreed to accept the appraisal value for the marital home when it was provided by the appraiser. The day after the settlement conference, the parties received the appraisal for the home showing a value of $272,000. On January 24, after receiving the appraisal and despite the agreement reached on January 18, Steven communicated through counsel that he was refusing to accept the figure as previously agreed, offered no alternative or justification, and caused his counsel to withdraw from representation. Taress incurred reasonable but substantial attorney fees in negotiating the agreement that Steven was now refusing to abide. Steven, who was requesting that trial be continued and reset, was causing Taress to incur further attorney fees and he should be ordered to pay for those increased costs caused by his bad faith actions. Taress stated that a copy of the fully negotiated agreement would be offered for entry at the time her motion was heard, as would an attorney fee affidavit.

Following an evidentiary hearing on February 21, 2023, the district court entered an order on March 15 overruling Taress' motion. The court stated that in order for there to be an enforceable settlement agreement, there had to be a meeting of the minds as to all material elements, but that there was no such meeting of the minds in this case.

Trial was held on March 16, 2023. Both parties testified, and numerous exhibits were received into evidence. The evidence will be set forth as necessary in our analysis below.

Pursuant to the district court's decree entered on April 24, 2023, the parties' marriage was dissolved, they were awarded joint legal and physical custody of their children, child support was ordered, and the parties' property and debts were divided; Steven was to pay Taress a property equalization judgment of $42,020.94. As relevant to this appeal, the court found that Steven's 25-percent interest in a business acquired before the marriage was marital in nature. It determined that loans totaling $25,000 were premarital and should not be included as marital debt, but that $39,350 in loans owed to Steven's mother and stepfather were a marital debt and each party was obligated to pay one-half of that debt (Taress' portion to be "set off against the balance of the marital estate and accounted for in the property equalization payment"). Without assigning any value to the business, the court awarded Steven the entirety of his interest in the business and all value or liability associated with it as his separate property. Each party was to pay their own attorney fees.

Taress appeals.

III. ASSIGNMENTS OF ERROR

Taress assigns that the district court erred by (1) failing to enforce a valid oral settlement agreement, (2) improperly classifying a nonmarital debt as marital, (3) classifying a personal debt as marital where there was no obligation to repay, (4) improperly valuing marital property, and (5) admitting exhibit 49 (business documentation) despite objections on foundation and hearsay grounds.

IV. STANDARD OF REVIEW

In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge in his or her determinations regarding custody, child support, division of property, alimony, and attorney fees. Parde v. Parde, 313 Neb. 779, 986 N.W.2d 504 (2023). A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.

V. ANALYSIS

1. Taress Did Not Forfeit Right to Appeal

Initially we note that after both parties briefed this marriage dissolution appeal, Steven filed a "Motion to Dismiss Appeal and Memorandum Brief" on February 29, 2024, claiming that Taress forfeited her right to appeal because she accepted the benefits of the decree. Taress filed an objection to Steven's motion on March 7. We overruled Steven's motion to dismiss without prejudice to consider the issue of acceptance of the benefits in our final opinion.

Steven claims that Taress forfeited her right to appeal because she accepted the benefits of the decree. A cashier's check for $42,020.94 was cashed on June 14, 2023; Taress filed a "Receipt" on February 16, 2024, acknowledging receipt of that sum. Steven claims the "acceptance of benefits rule indicates 'an appellant may not voluntarily accept the benefits of part of a judgment in the appellant's favor and afterward prosecute an appeal or error proceeding from the part that is against the appellant.'" Brief for appellant in support of motion at 4-5 (quoting Liming v. Liming, 272 Neb. 534, 538, 723 N.W.2d 89, 93 (2006)).

However, as pointed out by Taress in her objection to Steven's motion, "[a]n exception to the acceptance of benefits rule exists where the right to the benefit accepted is absolute and cannot possibly be affected by reversal of the judgment." Liming v. Liming, 272 Neb. at 539, 723 N.W.2d at 94. "It is the possibility that [the] appeal may lead to a result showing that the party was not entitled to what was received under the judgment appealed from that defeats the right of appeal." Id. "Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from." Id. Therefore,

the acceptance of benefits rule has no application where one is shown to be so absolutely entitled to the sum collected or accepted that reversal of the judgment or decree will not affect his or her right to it, as in the case of a collection of an admitted or uncontroverted part of his or her demand [Citations omitted.] The rule does not apply when the appellant is conceded to be entitled to the thing he or she has accepted and where the appeal relates only to an additional claim on his or her part

Id. The Nebraska Supreme Court ultimately held that

a spouse who accepts the benefits of a divorce judgment does not waive the right to appellate review under circumstances where the spouse's right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or the benefits accepted are pursuant to a severable award which will not be subject to appellate review.

Id. at 544-45, 723 N.W.2d at 97.

In the present appeal, Taress seeks only to increase the amount of equalization owed to her by eliminating the $39,350 business debt, which she claims was a nonmarital debt. Nothing argued on appeal would reduce the amount she already received; if successful, Steven would owe her more money to equalize the marital estate. Further, Steven has conceded Taress' right to the $42,020.94 by making that payment to her rather than cross-appealing any matters related to how the marital estate was calculated. Nothing being asserted on appeal would have any effect on Taress' right to at least the court-ordered equalization amount. Therefore, Taress did not forfeit her right to appeal by accepting the $42,020.94 equalization payment.

2. Property Division

All of Taress' assigned errors stem from the district court's classification of Steven's 25-percent business interest as a marital asset, and its treatment as a marital debt the $39,350 in personal loans for the business that Steven received from his mother and stepfather, Margaret and Steven Swerczek (the Swerczeks). By not assigning any value to the business interest itself, and then including the personal loans in the...