Thompson v. Thompson

18 Neb.App. 363

782 N.W.2d 607

Susan Kaye THOMPSON, appellant,v.Gary Dean THOMPSON, appellee.

No. A-09-612.

Court of Appeals of Nebraska.

May 11, 2010.

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Syllabus by the Court

1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion.

2. Trial: Evidence: Appeal and Error. The reopening of a case to receive additional evidence is a matter within the discretion of the district court and will not be disturbed on appeal in the absence of an abuse of that discretion.

3. Child Support. An obligor parent is entitled to a credit against his or her current child support obligation for payments made by the Department of Veterans Affairs to the child as a result of the obligor parent's disability, in the absence of circumstances making the allowance of such a credit inequitable.

4. Trial: Expert Witnesses. Expert opinions are not binding on the trial court.

5. Divorce: Property Division. As a general rule, all property accumulated and acquired by either spouse during the marriage is part of the marital estate.

6. Property Division. The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case.

7. Divorce: Property Division. In cases where the growth of the marital estate cannot be attributed to one party more than to another, the trial court may divide the estate equally.

8. Divorce: Property Division. The division of marital property should take into account when the growth of the marital estate can be traced to one spouse, and the other spouse, through indolence or neglect, chose to make only minimal beneficial contributions to the marriage and was not engaged in activity beneficial to the marriage.

9. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.

10. Alimony. Factors which should be considered by a court in determining alimony include: (1) the circumstances of the parties; (2) the duration of the marriage; (3) the history of contributions to the marriage, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities; and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.

11. Attorney Fees. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case.

Stephanie Weber Milone, Omaha, for appellant.

Michael B. Lustgarten, Omaha, and Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., Omaha, for appellee.

INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.

SIEVERS, Judge.

FACTUAL BACKGROUND

Susan Kaye Thompson and Gary Dean Thompson were married January 2, 1987, and two children were born of the marriage, one of whom, Sarah Jane Thompson, remained a minor at the time of trial, at age 17. The parties separated on August 1, 2006, and Sarah continued to live with Susan in the family home. Gary lived in a number of apartments thereafter with the parties' older daughter, who attended college and worked. The older daughter reached the age of majority in May 2007. Susan did not pay support to Gary for the older daughter, nor did Gary pay support to Susan for Sarah either after the separation or during the pendency of this dissolution action. Gary's contact with Sarah following the parties' separation was extremely limited, and the parties stipulated at trial that Gary's parenting time with Sarah would be at Sarah's discretion.

At the time of trial, Susan was 55 years of age and without health problems. Susan's education consisted of an associate degree in business management, and she had been employed for 25 years with Commercial Federal Bank, which later became Bank of the West. Her job was operations manager of the consumer lending division. Susan's earnings were approximately $55,000 gross per year. After the trial was completed, but before the entry of the decree, Susan was notified by her employer that she was being laid off effective June 1, 2009. She filed a motion to reopen the evidence and introduce evidence of such pending layoff, but that motion was denied by the trial court, which reasoned that such fact could be addressed via a modification proceeding.

At the time of trial, Gary was 54 years of age and living alone. Gary's education consisted of several associate degrees and a bachelor's degree, and he had largely completed the work for a master's degree, but had not actually received the degree. During the parties' marriage, Gary worked at a variety of jobs, including being self-employed doing home improvements and repair. He worked doing consulting for ConAgra, he worked for Oriental Trading Company, and he worked as a property manager. Additionally, Gary had been in the military for approximately 28 years, with his service ending in March 1999.

Susan testified that during the course of the marriage, Gary incurred substantial debt, often without her knowledge, and that the parties were required on a number of occasions to take second mortgages on their home, but that at the time of trial, all of the second mortgages had been paid off. Susan asserts that Gary had been a “spendthrift” during the marriage.

The parties agreed that 70 percent of Gary's military retirement was accumulated prior to their marriage, and they agreed to divide the marital portion, 30 percent, equally; thus, Susan's portion of the military retirement was 15 percent. In 2005, Gary decided to work on a Web-based business from his home due to his health problems. Gary's testimony at trial was that he was disabled from engaging in gainful employment and that after July 2007, he had not done any work that generated income. In February 2006, Gary had applied for Social Security disability benefits because he considered himself totally disabled at that time due to severe anxiety, major depression, short-term memory loss, carpal tunnel “trigger lock,” heart palpitations, and knee problems. Gary introduced into evidence certified records from the Department of Veterans Affairs (VA), which had determined that he was permanently and totally disabled. Because of such award of VA disability, Gary elected to withdraw his Social Security disability application and take VA benefits. Gary's VA benefits as of trial were $985 per month, medical care, and some benefits to be paid on behalf of his children. Sarah's benefits were to start retroactively from December 1, 2007, but the VA had not made a determination of the benefits Sarah would receive as a consequence of Gary's disabled status.

Such additional facts as are necessary to resolve the assignments of error will be set forth in our analysis section.

PROCEDURAL BACKGROUND

The trial was held on October 8, 2008, and January 5, 2009, and the trial court issued a letter with its findings dated January 16, 2009. On March 11, Gary filed a motion with the court, asking it to clarify certain rulings in its January 16 letter. A hearing was held April 10 on Gary's motion to clarify the rulings, and the court determined that Gary's child support obligation was $118 per month, which was to begin the first full month following the entry of the decree. The trial court also ordered Gary to sign authorizations giving Susan access to information about the VA benefits for the children. Also, on April 8, Susan asked the court to reopen the evidence because of her discovery of a Centris Federal Credit Union account that she alleged she was unaware of until after the trial.

On May 1, 2009, the trial court filed its order on Gary's motion for clarification and the other pending motions. On May 20, Susan filed a second motion to reopen the evidence, alleging that she had been notified the previous day that she was being laid off from her employment, effective June 1. The trial court denied Susan's motion, indicating that the proper procedure for modifying a decree was to file an application to modify, although a decree had not yet been entered. The decree of dissolution, which was issued on May 22, largely followed the January 16 decision letter.

DISTRICT COURT DECREE OF DISSOLUTION

The district court's decree of dissolution of marriage was entered on May 22, 2009. That decree dissolved the marriage and awarded legal and physical custody of the parties' remaining minor child, Sarah, to Susan, subject to Gary's parenting time as arranged with Sarah. The decree further provided:

• Gary was found “legally disabled” and his child support was set at $118 per month, but such obligation was ordered to be credited, dollar for dollar, by any VA benefits payable to Sarah. Any VA benefits payable to Sarah for the time prior to the start date of Gary's child support obligations were payable directly to Sarah and not to be credited against Gary's child support obligation.

• Susan was to maintain health and dental coverage on Sarah as long as such coverage was available through her employment. Susan was further ordered to maintain health and dental insurance on Gary for 6 months following the entry of the decree, if such was

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