Morehead v. Morehead

SUZANNE M. MOREHEAD, APPELLANT, v. JAMES R. MOREHEAD, APPELLEE.

No. A-11-722

NEBRASKA COURT OF APPEALS

Filed April 24, 2012

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOREHEAD V. MOREHEAD

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 Gage County: DANIEL E. BRYAN, JR., Judge. Affirmed.

Chris A. Johnson, of Conway, Pauley & Johnson, P.C., for appellant.

Jerry L. Shelton for appellee.

MOORE, CASSEL, and PIRTLE, Judges.

CASSEL, Judge.

INTRODUCTION

Suzanne M. Morehead appeals from the decree dissolving her marriage to James R. Morehead. She contends that the district court erred in neglecting its duty to deliberate before making a final ruling, failing to equitably divide the marital estate, considering James' payments to repay a loan from his 401K as an appropriate deduction from income in calculating child support, terminating temporary alimony, assigning to her an earning capacity greater than her actual income, and awarding inadequate alimony. Because we find no abuse of discretion by the court in its determinations, we affirm.

BACKGROUND

The parties married in August 1979, and eight children were born to the marriage. Suzanne filed a complaint for legal separation in February 2007 and filed the operative complaint for dissolution of marriage in March 2009. Trial commenced in July 2011. At that time, only three of the parties' children remained minors, the youngest of which was almost 8 years old.

The parties married when Suzanne and James were ages 19 and 23, respectively. At that time, James was a mechanic and Suzanne had not pursued any postsecondary education. James later secured employment with United Parcel Service (UPS), where he has continued to work as a mechanic for approximately 25 years. Suzanne testified that James always wanted her to be a stay-at-home mother and that she primarily took care of the children and performed all of the cooking and housekeeping.

Suzanne acquired a real estate license in 1990 or 1991 and worked as a real estate agent for approximately 14 years, but she was never able to pursue a full-time career in real estate. She testified that she generally earned, after expenses, $5,000 to $10,000 a year and that her best year resulted in income of approximately $12,000 to $14,000. Apparently, her 2005 and 2006 tax returns reflected gross income in excess of $20,000. At the time of trial, her license was inactive and she would need to complete 12 hours of continuing education to reinstate her license to active status. Suzanne testified that she had neither the time nor the energy to complete the necessary education.

Suzanne engaged in other activities to earn money during the marriage. She provided in-home daycare and held a seasonal sales job, but she testified that the most money she made after expenses was "probably [$]5,000 or even took a loss." She worked the seasonal job from July to December for approximately four seasons and testified that she was very successful. In 2006, Suzanne began selling cosmetic products on a commission basis. She initially earned $1,000 to $1,500 a month, but her earnings had decreased. The most she had made selling such products, after expenses, was around $2,000 to $3,000. Suzanne testified that selling the cosmetic products required her to invest money in the products and to travel to different seminars. She testified that she had not actively sold the products in the last 3 years, but that she was a consultant and had clients who continued to buy products from her.

At the time of trial, Suzanne was employed by her attorney's law firm as a legal assistant. She earned $9.50 an hour and was working part time because "[a]fter paying for full-time daycare, it did not pay me to work." Suzanne testified that she also cleaned houses for three clients, working 4 hours each Tuesday and Wednesday and receiving $60 per day.

James has a 401K account through his employer. The value of the 401K as of July 6, 2011, was $36,143.35. In 2006, the parties borrowed $31,000 from the account, with the payback amount being $38,747.80. Since November 2006, $149.03 has been withdrawn from James' pay each week to repay the loan. Suzanne testified that the monthly payment was $645 or $693. The loan was scheduled to be paid off in November 2011. James also made $39,406.66 of withdrawals--not loans--from the 401K since the parties' separation. A listing of the withdrawals classified each as a "[h]ardship" transaction. James testified that he made these withdrawals after receiving a notice of default on the marital home and that the funds were used to make him current on the house payments and to pay the taxes and penalty. Suzanne asked the court to add the amount of the withdrawals to the 401K's current value. James testified that the amount of the 401K loan--which he had been solely repaying--was roughly the same as the hardship withdrawals, and he asked the court to not add the hardship withdrawals back into the 401K when determining its value.

The parties disagreed about the value of the marital home in Beatrice, Nebraska. James valued the home at $124,650, while Suzanne valued it at $138,500--the amount arrived at by aJuly 2009 appraisal. Suzanne, who had sold real estate in Beatrice for approximately 14 years, was shocked at the appraised value and felt that it should have been much higher. Suzanne testified that the home was appraised in 2006 or 2007 for $155,000 and that approximately $30,000 of work had been performed on it since that time. She testified that shortly after she gave James a quitclaim deed in May 2011, he informed her that he wanted to lower the value of the home down from $138,500. The parties had purchased carpet for the upper two levels and tile for two bathrooms, but it had not been installed at the time that Suzanne left the home. She did not know whether that work had been completed at the time of trial but believed that it had. The home had undergone extensive remodeling, but more work remained. Suzanne felt that it was 80-to 85-percent complete. James testified that virtually all of the woodwork was off and that a stairwell needed to be finished. Keith Krecklow, a real estate broker and previously a licensed appraiser, viewed the property on July 6, 2009. His estimate of value was based on the remodeling work being completed. The appraisal specifically stated that the value was "[s]ubject to floor coverings being put down and stairway finished." Krecklow testified that he viewed the property on the day before trial and determined its current value to be $115,000 to $118,000.

After both parties rested, the court dictated the order from the bench. As to child support, the court stated that it would use $2,080 for Suzanne's gross monthly income and that James' income until November 2011 would be $5,500. The court stated that for December and thereafter, James' gross income would "increase with the added income from the full payment of all that loan" and that he "gets a standard retirement deduction from the child support." The court awarded each party the personal property in his or her possession as displayed on the joint property statement. Two minutes after adjourning, the court stated that the record should reflect that the 401K would be divided equally as of the value of July 7, 2011.

The district court later entered a decree dissolving the marriage. Thereafter, the parties filed a joint motion for "nunc pro tunc decree" because the decree did not address James' pension plan or health insurance for Suzanne and because "[t]he [d]ecree signed by the [c]ourt was a draft sent to the [c]ourt for comments, it had not yet been approved by counsel for [Suzanne], was not meant to be signed, and should be disregarded." On August 18, 2011, the court entered a "decree of dissolution of marriage nunc pro tunc." The court awarded Suzanne custody of the three minor children. It ordered James to pay child support of $1,218 per month on August 1, September 1, October 1, and November 1. Commencing December 1, James' child support obligation would increase to $1,370 per month for the three children. The court awarded James the Beatrice residence subject to all indebtedness thereon. The court determined that a money judgment of $10,000 should be entered against James and in favor of Suzanne to equalize division of the marital assets. The court awarded Suzanne a one-half interest in the amount of $18,071.67 in James' 401K, based on a total valuation of $36,143.35 as of July 7. It also awarded Suzanne 50 percent of James' pension benefits through his employment with UPS that had accrued as of July 31, 2011. Finally, the court ordered James to pay alimony of $500 per month for 7 years or until Suzanne's remarriage or death.

Suzanne timely appeals. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

ASSIGNMENTS OF ERROR

Suzanne assigns that the district court erred in (1) neglecting its duty to deliberate before making a final ruling, (2) failing to equitably divide the marital estate, (3) considering payments made by James to repay the loan from his 401K as a proper deduction from income for purposes of a child support calculation, (4) terminating temporary alimony, (5) awarding an inadequate amount of alimony for an inadequate amount of time, and (6) assigning to her an earning capacity greater than her actual income.

STANDARD OF REVIEW

An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Klimek v. Klimek, 18 Neb. App. 82, 775 N.W.2d 444 (2009).

ANALYSIS

Deliberation.

Suzanne...