Poehling v. Poehling

JONI POEHLING, APPELLANT, v. PATRICK POEHLING, APPELLEE.

No. A-19-985.

NEBRASKA COURT OF APPEALS

October 27, 2020

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 Saunders County: CHRISTINA M. MARROQUIN, Judge. Affirmed as modified.

Leta F. Fornoff for appellant.

Linsey Moran Bryant and Brad Holtorf, of Sidner Law, for appellee.

PIRTLE, RIEDMANN, and ARTERBURN, Judges.

ARTERBURN, Judge.

I. INTRODUCTION

Joni Poehling appeals from the order of the district court for Saunders County dissolving her marriage to Patrick Poehling. On appeal, she argues that the district court erred in valuing and dividing the marital estate and in failing to award her alimony and attorney fees. For the reasons that follow, we affirm the district court's order as modified.

II. BACKGROUND

Joni and Patrick were married on November 4, 1989. The parties had four children during the marriage, all of whom reached the age of majority by the time of trial. Joni filed a complaint for legal separation on April 13, 2017. In her complaint, Joni sought temporary and final attorney fees, temporary and permanent custody of their then minor child, child support, and an equitable division of their assets and debts. On August 11, 2017, Patrick filed an answer and cross-complaint for dissolution of marriage. Trial was held on May 31, 2019.

Joni, age 55 at the time of trial, testified that she worked as a legal secretary from before she married Patrick until giving birth to their first child. She worked a few part-time jobs while raising their children and then began working full time for Fremont Middle School in approximately 2017. She testified that she earned $33,478 in 2018. Joni said that she expected to work there until she retired.

Joni testified that Patrick's father made numerous gifts to him throughout their marriage, some of which he kept separate from their other assets. She conceded that Patrick received real estate including a river island, duck blind, and riverbank area as gifts from his father and that they were nonmarital assets. Joni testified that she had also received cash gifts from her family totaling approximately $50,000 during the marriage but acknowledged that she had comingled those gifts with their marital assets.

In 2005, Patrick J. Poehling, LLC, purchased approximately 45 acres of land from Patrick's father, on which Joni and Patrick built a home. Joni testified that they purchased the land using marital funds, specifically from their investments and personal checking account. She said that they used their joint checking account to pay the taxes and insurance on the home each year. In 2016, they had a survey completed and sold their home and 5 acres immediately surrounding it. They separately sold the remaining 40 acres to Lane Goebel for $215,600.

Patrick testified that his father developed lakeside recreational property in Saunders County called Woodcliff. When Patrick obtained his broker's license in 1987, he took over the real estate company, Woodcliff Properties, Inc. He said that his father "basically . . . gifted the lots" to his brother, himself, and Patrick, so that each of them had a one-third interest in the lots. Patrick predominantly sold properties related to Woodcliff but also sold a few houses outside Woodcliff. His father and brother incorporated Woodcliff II, and Patrick was in charge of road grading, lake maintenance, lake management, security, and lot development for that entity.

Joni testified that Patrick "sold a lot of homes" and that "it was really good in the '90s" before beginning to taper off around 2003 or 2004. She said that she assisted Patrick in his real estate work by, for example, taking photos and creating sales brochures, making deposits, preparing documents, and transferring papers to the title office. Joni said that she was not paid for that work. She estimated that Patrick was making $150,000 to $200,000 per year when he was selling homes as a real estate broker and realtor. Joni said that the proceeds from the sale of lots that Patrick was gifted by his father was deposited into their joint account and that she never heard him describe that account as being solely his until after she began legal proceedings. The parties agreed that when a lot was sold, Patrick would receive a 6 percent sales commission on the sale price of any house located on a lot, a 10 percent sales commission on the price of the lot, and then his one-third share of the remaining proceeds from the sale of the lot. Patrick acknowledged that his sales commissions were marital. However, he contended that his share of the proceeds from the lots was not. Patrick acknowledged however that he had no documentation to show that the proceeds from the Woodcliff lots were placed into an account that was separate from marital funds.

In approximately 2009, the lake property was fully developed, and Patrick told his father that he wanted to enter a different line of work. At the time of trial, Patrick was earning $42,000per year working at Midwest Floor Coverings. He also received rental income of approximately $1,100 per month from an apartment located on a lot he owns.

Joni testified that in approximately 2008, after Patrick had decided to stop selling real estate, they invested $650,000 in gas stock. She said that Patrick had invested "some of our money." Patrick testified that for 4 or 5 years, they were making 4.5 to 5 percent on the investment, but then the company began operating at a loss. Joni said that the investment "did not do well" and that she did not know its value at the time of trial. On direct examination, Joni's counsel asked her, "You're fine with [Patrick] taking that gas stock free and clear from you?" She replied, "Oh, yes. He can have the gas stock."

Patrick testified that he purchased the gas stock from funds held in "a couple different brokerage accounts," including one account that held the money he received from selling lots and another account that held Joni and his joint funds. Patrick testified that for approximately the last 5 years, they had used the gas stock's operating loss to offset their taxable income. Patrick also did not provide any numerical estimate of the stock's value at the time of trial.

Joni testified that there was an apartment at Woodcliff, which Patrick built on a lot gifted to him by his father. She recognized the lot as nonmarital property and valued it at $25,000. She valued the apartment alone at $175,000, which resulted in an overall combined value to the apartment and land of $200,000.

Patrick testified that the value of the apartment alone was $140,000 and that the value of the land on which it sat, Tract 7, was $35,000 for a total value of $175,000. He said that Joni had agreed that the value of the land should be set off as nonmarital property because he received it as a gift. Patrick said that he would accept Joni's proposed $200,000 valuation for the apartment less some value for the land that he had received by gift.

Joni had a retirement account through her employment with Fremont schools which carried a value of $20,557.72. During trial, Patrick's counsel acknowledged an error in exhibit 47 which listed the value of the account as $22,557.72. However, in its order, the district court listed the account with the incorrect value.

Joni testified that Patrick had paid $44,000 in premiums on a life insurance policy on his father, which named his brother and him as beneficiaries. She said that Patrick told her that the premiums were paid from their joint account, and produced a copy of a check reflecting that. When Patrick and his brother decided to cash out the policy, Joni said that he received $73,000. She requested that she be reimbursed for half of the premiums that were paid, which she estimated lasted from approximately 2000 through March 2017. Patrick testified that the money they received from cashing out the policy had been spent on a fishing boat, kids' college tuition expenses, apartment repairs, and automobile repairs.

Joni testified that she had withdrawn money from her savings account and put it into their joint checking account in order to pay her attorney fees when she first separated from Patrick. She said that Patrick took money out of the joint checking account to pay his attorney fees as well.

On July 16, 2019, the district court entered its decree for dissolution of marriage. The court first outlined which assets it believed the parties had agreed were part of their marital estate and which assets they agreed were nonmarital property, including the gas stock. It then set forth five items of disputed property and valued each:

(1) Ameritrade Account ending in 8474

$733,382.84

(2) Home (Funds used from Ameritrade Account)

$360,000

(3) Apartment Lot (Tract 7)

$25,000 or $35,000

(4) Sale Proceeds (Land Sold to Goebel)

$212,373.17

(5) Razor (sale proceeds from sale of easement)

$10,000

As relevant in this appeal, the court concluded that the disputed Ameritrade account, which held funds received from selling the lots that Patrick had received from his father, was a marital asset. The court said there was not sufficient evidence adduced at trial regarding the lots' sales. The court noted that no documentation of the amounts of the transactions was offered, therefore making it impossible to determine the amount of the proceeds that would constitute Patrick's one-third gifted share. The court further found that the evidence showed that Patrick had comingled the proceeds with marital funds from the very beginning. Moreover, the court found that Joni and Patrick had treated the account as a marital asset with Joni having full access and the ability to withdraw and deposit funds and with Patrick depositing his income earned during the marriage into the account as...