Ullerich v. Ullerich

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Monica Ullerich, appellee, v. P.B. Ullerich, appellant.

No. A-23-496

Court of Appeals of Nebraska

April 30, 2024

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: J RUSSELL DERR Judge.

Matthew P. Saathoff and Jacob A. Acers, of Saathoff Group P.C., L.L.O., for appellant.

Kelly T. Shattuck, of Vacanti Shattuck, for appellee.

MOORE BISHOP, and ARTERBURN, Judges. MOORE, Judge.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

INTRODUCTION

P.B. Ullerich (hereinafter "Brad") appeals from the decree of dissolution entered by the district court for Douglas County, dissolving his marriage to Monica Ullerich. Brad primarily challenges the district court's valuation and division of real and personal property. We affirm as modified.

STATEMENT OF FACTS

Monica and Brad were married in March 2001 and have one child, born in May 2005. The parties separated, and Monica filed a complaint for dissolution, in October 2020.

In a temporary order entered in June 2021, the district court awarded the parties joint legal custody of the child but reserved a physical custody determination. The temporary order noted that the child was exclusively residing with Brad and set forth a weekend parenting time schedule.

Another temporary order entered by the district court in April 2022 set Monica's monthly child support obligation at $303. A basic income and support calculation was attached to the order.

On May 11, 2023, Brad filed his "Suggestions to the Court," which requested that the parties be awarded joint legal custody of the child with Brad having final decisionmaking authority. Brad also requested sole physical custody and "no set parenting time, as the minor child will be going to college in the Fall of 2023."

Trial was held before the district court over 2 days in May 2023. The following evidence was adduced, and additional details will be set forth as necessary in our analysis below.

Both parties testified consistently that they would share legal custody of the child and that Brad would be awarded physical custody. The parties noted that the child would be moving out of state to attend college in a few months. Neither party testified to the need for a parenting plan.

Both parties offered proposed child support calculations. Monica's calculation placed her monthly child support obligation at $406. Monica noted that her calculated support had increased from the temporary obligation of $303 because she was no longer carrying Brad on her employer health insurance plan and Brad now had a cost for his own insurance. Brad offered two calculations, depending on whether a bonus of $1,500 Monica had received in 2022 was factored into her income, which set Monica's monthly obligation at either $440 or $450. Brad also offered a third calculation based upon another annual salary estimate which set Monica's obligation at $437. Brad requested that Monica's obligation be retroactive to November 2022, when Monica stopped carrying Brad on her insurance.

The parties own four pieces of real property, all of which were acquired during the marriage. The property includes a marital home and three rental properties: the Northampton Apartments in Omaha, the Entrada Townhome in Utah, and the Redcliff Apartment in Utah.

The parties testified consistently that the rental properties were largely managed by Brad. The management of the Northampton Apartments is Brad's primary source of income. Brad testified that he was licensed to do business in Utah as a vacation rental owner and that he did not believe Monica was similarly licensed. Monica estimated that she had spent at most 8 hours working at the Utah properties since they were purchased by the parties 6 years ago, and 40 hours working at the Northampton Apartments since the complex was purchased 17 years ago. For the last decade Monica has been employed full-time by an Omaha non-profit organization.

Both parties offered their respective proposed property division and corresponding documentation including bank statements, real estate appraisals, and valuations for various vehicles, firearms, and household items. The parties agreed to the valuation of all of their real property. The marital home had an appraised value of $434,000, with no associated debt; the Northampton Apartments had an appraised value of $5,660,000, with $3,722,410 of associated debt; the Entrada Townhome had an appraised value of $950,000, with no associated debt; and the Redcliff Apartment had an appraised value of $505,000, with $176,381 of associated debt. Brad testified that the loans on the Northampton and Redcliff Apartment were held by him exclusively.

The parties jointly offered a stipulation from a tax expert, who, if called, would testify to the sizeable tax implications of a forced sale of the rental properties. Both parties testified that the tax consequences, real estate commissions, and prepayment penalties outweighed the benefits of selling any of the properties.

Monica testified to her amended proposed property division, which would have her receive the marital home, the Entrada Townhome, and the Redcliff Apartment, subject to its debt. Brad would receive the Northampton Apartments, subject to its debt. Monica's proposed division of the real estate would provide her with roughly $1.7 million in net equity and would provide Brad with approximately $1.9 million in net equity. Should the district court award her the Utah properties, Monica testified that she intended to sell the marital home and live in the Entrada Townhome. She also indicated that she had someone interested in buying the Redcliff Apartment.

Brad testified to his proposed property division, by which he would receive the Northampton Apartments and the Entrada Townhome, and Monica would receive the marital home and the Redcliff Apartment. Brad also requested that the district court divide the marital estate into a one-third, two-thirds split rather than evenly, as he believed that the rental properties would not have increased in value if not for his work and that Monica did little to add value to the assets. Brad also requested that the district court allow him 18 months to make an equalization payment to Monica in order for him to refinance the properties.

Brad testified that he also sought an award of the Entrada Townhome for sentimental reasons. Brad has been visiting the Utah property for over 20 years and enjoys hiking, mountain biking, and off-roading. He intended to relocate to the Entrada Townhome should he be granted the property. Brad recalled that in an earlier deposition, Monica did not want "anything to do with [the Utah] properties," and that Monica had spent only 5 nights during the parties' marriage in Utah. Brad believed that Monica intended to sell the Utah properties.

The parties held eight bank accounts across four financial institutions: Charter West Bank, Wells Fargo, Ally Bank, and TD Ameritrade. They agreed that the three Charter West Bank accounts were used to manage the Northampton Apartments. Brad testified that the two Wells Fargo accounts were used to manage the Utah rental properties. An Ally Bank saving account was described by Brad as "another reserve account," which he was using to hold insurance money for repairs to the Northampton Apartments. Brad also held two individual retirement accounts at TD Ameritrade, which he agreed were marital.

Both parties offered bank statements and valuations for the various bank accounts. Brad's offered bank statements were dated April-May 2023. Brad stated that he was providing "the most recent bank statements right before trial" as he was managing an active business with money flowing in and out of the accounts. Monica agreed that the bank accounts associated with the rental properties would fluctuate in value. She offered bank statements dated November-December 2022 and testified that the statements were the most recent copies she had been provided by Brad. Monica's valuation of four of the marital bank accounts was higher than Brad's.

Brad also requested certain household items. Monica indicated that several of Brad's personal items were boxed up and sitting in the garage of the marital home. Monica had asked Brad to pick up the boxes several times during the parties' separation.

On June 8, 2023, the district court entered a decree of dissolution. The court approved the parties' agreement on joint legal custody of the child with Brad being awarded primary physical custody. The court stated that due to the child's age and graduation date, no specific visitation was requested or ordered. The decree set Monica's monthly child support obligation at $406 and denied Brad's request for a retroactive increase. A child support worksheet was not attached to the decree.

The district court found that Monica's valuation of the parties' bank accounts was accurate and it utilized her amended proposed property division for the basis of its distribution of the marital accounts.

The district court also used Monica's amended proposed property division as to the parties' real estate. Monica was awarded the marital home and the two Utah properties, and Brad was awarded the Northampton Apartments. Additionally, the real estate awarded to each party was to be transferred with all personal property contained therein. The decree was silent as to the debt associated with the Northampton and Redcliff Apartments.

In its property distribution, the district court set the total equity of the marital estate "as of December 2022." Brad was ordered to make a $565,145.21 equalization payment to Monica.

During a post-decree hearing in August 2023, the parties ...