Becher v. Becher
| Citation | 897 N.W.2d 866,24 Neb.App. 726 |
| Decision Date | 06 June 2017 |
| Docket Number | No. A-16-054.,A-16-054. |
| Parties | Sonia BECHER, appellee and cross-appellant, v. Mark A. BECHER, appellant and cross-appellee. |
| Court | Court of Appeals of Nebraska |
24 Neb.App. 726
897 N.W.2d 866
Sonia BECHER, appellee and cross-appellant,
v.
Mark A. BECHER, appellant and cross-appellee.
No. A-16-054.
Court of Appeals of Nebraska.
Filed June 6, 2017.
David P. Kyker, Lincoln, and Brad Sipp for appellant.
Sally A. Rasmussen, of Mattson Ricketts Law Firm, Lincoln, for appellee.
Moore, Chief Judge, and Riedmann and Bishop, Judges.
Moore, Chief Judge.
I. INTRODUCTION
In this dissolution of marriage action, the parties agreed to trial before a referee. The referee's report was filed with the district court for Lancaster County, and the parties filed exceptions to the report. The court subsequently entered a decree of dissolution from which the parties have appealed. Mark A. Becher assigns error to the manner in which the district court reviewed and modified the referee's report. Mark challenges certain findings of the court regarding the classification, valuation, and division of the parties' assets and debts; custody and parenting time; child support; alimony; and attorney fees. In her cross-appeal, Sonia Becher assigns
error to the court's allocation of Christmas holiday parenting time and the court's failure to classify certain property as nonmarital. Sonia also seeks summary dismissal of Mark's appeal based upon Mark's acceptance of the benefits of the decree. For the reasons that follow, we affirm as modified, vacating and setting aside certain findings of the district court.
II. BACKGROUND
The parties were married in December 1991. They have three children: Daniel Becher, born in 2000; Cristina Becher, born in 2002; and Susana Becher, born in 2008.
On February 1, 2013, Sonia filed a complaint for dissolution of marriage in the district court, and Mark thereafter filed an answer. Both parties sought custody of the children, child support, alimony, attorney fees, and an equitable division of the parties' property.
The parties entered into a stipulation with respect to temporary matters. On April 19, 2013, the district court approved the stipulation and awarded the parties temporary joint legal custody of the children. Temporary physical custody of the children was awarded to Sonia, subject to Mark's rights of parenting time as set forth in the attached parenting plan. The court ordered Mark to pay temporary child support of $4,000 per month beginning May 1 and spousal support of $6,000 per month. The court also ordered Mark to pay the "school tuition and matriculation fees" for the minor children to attend a particular elementary school and temporary attorney fees on behalf of Sonia of $2,000.
Soon thereafter, Mark filed a motion to modify both temporary custody and support. In his motion, Mark alleged that Daniel's primary physical custody had been maintained with Mark since May 2013. Mark alleged that the temporary child support award should be adjusted to reflect this split custody arrangement. Mark also alleged that the children were attending a different school than that contemplated in the April 2013 temporary order, at a significantly higher cost, and that "[s]upport should be adjusted to reflect the increased education expense."
On November 25, 2013, the district court entered another temporary order. The court awarded Mark temporary custody of Daniel and awarded Sonia parenting time with Daniel. The court denied Mark's motion for a reduction in his child support obligation and reserved that issue for trial. The court
also ordered the parties to complete a custody evaluation by a psychologist, with each party paying one-half of any necessary expenses.
On December 10, 2014, the parties filed a stipulation agreeing to a trial before a referee due to the complex financial and business valuation issues involved in their divorce as well as the issues of parenting time, child support, and alimony. The district court approved the stipulation and appointed a referee.
Trial was held before the referee on multiple dates from December 11, 2014, to July 23, 2015. The voluminous trial record contains more than 2,300 pages of testimony and nearly 200 exhibits. We have set forth the evidence relevant to the parties' assignments of error in the corresponding sections below.
On October 20, 2015, the referee's report and the parties' exceptions thereto were filed with the district court. The referee's detailed and thorough report is 34 pages, excluding the attached parenting plan, child support worksheets, and spreadsheet of the property valuation and division. We have discussed specific findings of fact, analyses, and recommendations made by
the referee as necessary in the analysis section below.
On November 4, 2015, the district court received into evidence the transcribed trial testimony and exhibits from the trial before the referee for purposes of reviewing the record. The court heard Sonia's arguments in support of her exceptions to the referee's report. Mark withdrew his exceptions to the referee's report, but he asked the court to modify the payment schedule for the equalization payment to Sonia. Mark's counsel informed the court that Mark was "am[en]able to having joint custody of his children" but asked the court to change his support obligation accordingly if joint custody was awarded. Finally, he asked the court "to adopt the report with the exception that [he] believe[d] that the court may fashion a different parenting plan or one that the court believes is more in the best interest of these children."
On December 21, 2015, the district court entered a detailed 25-page decree. We have discussed specific findings in the decree in the analysis section below.
Mark filed a motion to determine supersedeas bond. On January 26, 2016, the district court entered an order finding that during the pendency of any appeal by either party, each party shall manage, operate, and control the real estate awarded to that party pursuant to the decree and be entitled to collect and receive all rents due and payable with regard to the real estate awarded. The court also found that during the pendency of any appeal, Sonia shall be entitled to collect and receive all rents due and payable with regard to the three commercial properties awarded to her and each party shall service the debt obligation on the real estate allocated in the decree. Finally, the court found that upon Mark's posting a supersedeas bond of $600,000 to be approved by the court, Mark shall not be required during the pendency of any such appeal to transfer to Sonia any ownership interest he might have in the real estate awarded to Sonia. The record does not show that Mark ever filed a supersedeas bond.
On July 1, 2016, after Mark had perfected his appeal, Sonia filed a motion for summary dismissal of Mark's appeal with this court. She asserted that Mark had accepted the benefits of the decree and had forfeited his right to appeal all issues except those pertaining to the children. We overruled Sonia's motion without prejudice, and we have addressed the issue of acceptance of the benefits in this opinion. On December 14, just prior to oral argument in this case, Sonia filed a renewed motion to dismiss, and we address Sonia's renewed motion as well in the analysis section below.
III. ASSIGNMENTS OF ERROR
Mark asserts, restated, that the district court erred in (1) modifying the referee's report without determining whether the referee's findings were clearly against the weight of the evidence; (2) setting aside certain property to Sonia as
nonmarital; (3) awarding Sonia three commercial properties; (4) valuing Sark Tile, Inc., Lamp & Lighting of Lincoln, Inc. (Lamp & Lighting), and Grab It Hardware; (5) dividing the parties' personal property; (6) treating Sark Tile's shipping containers as personal property; (7) determining marital debt; (8) setting forth conflicting custodial arrangements for Susana; (9) determining the parties' incomes for purposes of child support; (10) failing to prepare a "worksheet 3" in calculating child support; (11) improperly crediting Mark for overpayment of temporary child support; (12) requiring Mark to pay private school tuition; (13) awarding alimony; and (14) awarding attorney fees.
On cross-appeal, Sonia asserts that the district court erred in (1) allocating parenting
time over the Christmas holiday; (2) failing to characterize a life insurance policy purchased by Sonia's father as nonmarital; and (3) failing to award her nonmarital equity in Capitol Park, LLC, Lamp & Lighting, and certain residential rental property.
IV. ANALYSIS
1. SONIA'S MOTIONS TO DISMISS
Before addressing the merits of Mark's assigned errors on appeal, we first address whether he waived his right to appeal from the decree by accepting the benefits of the judgment. Whether a party waived his or her right to appellate review is a...
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