Brisso v. Brisso
| Decision Date | 12 April 2022 |
| Docket Number | A-21-234 |
| Parties | Mark A. Brisso, Appellant, v. Tracy A. Brisso, Appellee. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: Lori A. Maret Judge. Affirmed in part, and in part reversed and vacated.
Bradley E. Marsicek, of Cordell Law, L.L.P, for appellant.
Jane F. Langan Mach and Alex M. Lierz, of Rembolt Ludtke, L.L.P for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Mark A. Brisso appeals from the Lancaster County District Court's decree dissolving his marriage to Tracy A. Brisso and the subsequent denial of his motion to alter and amend. For the reasons stated herein, we affirm in part, and in part reverse and vacate as more fully set forth herein.
Mark and Tracy were married in June 1995. They had one child who is now an adult. When the parties married, Mark was in his second year of medical school and worked part-time as a pharmacist. Although Tracy was employed full-time as a nurse when the parties married, about 1 year later, she was assaulted at work sustaining nerve and tissue damage to her arm. After the assault, Tracy initially stayed at home to heal from her injuries and care for the parties' minor child who was born in 1997. She returned to work on a part-time basis performing light duty work until she was laid off sometime in 1998. Due to her workplace injury, Tracy was compensated for her lost wages and future medical expenses in the amount of $198, 000.
When Mark completed medical school in 2003, the parties relocated to Illinois for Mark's fellowship program. Tracy obtained part-time employment as a nurse at a jail. The parties resided together for about a year until 2004 when Tracy and the parties' child moved to Council Bluffs, Iowa, due to marital discord. Tracy transferred her employment to work part-time as a nurse in Douglas and Pottawattamie counties. After Mark completed his fellowship in 2006, he obtained a position in Lincoln, Nebraska. Although he stayed with Tracy for three weeks in Council Bluffs, he subsequently purchased a home in Lincoln as his job required him to reside within a certain proximity to the hospital. Despite maintaining separate households, Mark and Tracy remained married, took vacations as a family and as a couple, spent holidays together, and maintained a joint bank account. Additionally, Mark testified that he continued to pay Tracy's monthly expenses of approximately $5, 500 in addition to paying for their child's expenses.
From 2006 until 2010, Tracy was the director of nursing with a company responsible for providing nursing care at the Douglas County Correctional Facilities. During this time, Tracy worked between 30 to 40 hours per week and earned $41, 685 in 2006; $50, 414 in 2007; $65, 621 in 2008; $67, 373 in 2009; and $49, 225 in 2010. She testified that she left that position in 2010 when the company was purchased. She returned to part-time work as a nurse with the Pottawattamie County Jail system from 2010 to 2018.
In September 2018, Mark filed a complaint for dissolution and, in response, Tracy filed an answer and counterclaim for dissolution. In May 2019, Tracy filed a motion for temporary alimony alleging that she was disabled and needed support during the pending litigation. Thereafter, Mark discontinued his monthly payments to cover Tracy's expenses. Following a hearing on Tracy's motion, the court ordered Mark to pay $10, 000 temporary alimony per month retroactive to May 2019, subtracting obligations paid on Tracy's behalf by Mark.
Because the parties disagreed about Tracy's disability status and her earning capacity, during discovery, Tracy filed a motion for temporary expert and attorney fees relating to that issue. In January 2020, the court ordered Mark to pay $2, 500 for Tracy's disability assessment and $7, 500 toward Tracy's legal fees. Mark paid the fees as ordered.
The trial was held over 4 days in June and August 2020. Mark testified on his own behalf and also called as witnesses Bruce Wilkie, an appraiser, and Jack Greene, a vocational expert. Tracy testified on her own behalf and called additional witnesses including Dr. Kelly Pierce, a friend and expert witness; Jane Yaffe-Rowell, a vocational expert; Judy Wilson, an appraiser; and Larry Morris, Tracy's father. The court received numerous exhibits including discovery requests and responses, evidence of payments, joint tax returns, paystubs and earning histories, monthly expenses, evidence of debts, valuation reports, bank account summaries, insurance and retirement accounts, credit reports, tax debt summaries, student loan documents, business information, credit card spending habits and payments, medical reports, invoices, and pictures and documents relating to Tracy's recreational activities and trips.
During trial, Tracy urged that she needed alimony to cover her monthly expenses as she was unable to be employed due to her medical conditions. Tracy's physician and acknowledged friend, Dr. Pierce, testified that, in 2019, he completed an application for Social Security (SSA) disability at Tracy's request. In connection with that application, Dr. Pierce indicated that Tracy had left arm neuropathy relating to a traumatic injury occurring in 1996 and had chronic laryngeal spasms. In a separate report, Dr. Pierce indicated that Tracy was unable to sit for more than 20 minutes, stand for more than 15 minutes, or lift more than 20 pounds. Although Dr. Pierce acknowledged that, prior to October 16, 2019, he had not placed any work restrictions on Tracy, he testified that Tracy was unable to work in a competitive work environment. Dr. Pierce said that Tracy's recreational activities did not change his opinion about her ability to work because "[i]t's my opinion, in conjunction with the patient, to decide what you can and can't do at that point in time" and that "I always [err] on the side of caution and tell my patients . . . if I think they have a medical problem where they can get hurt, I advise them to be careful and tailor their activities to what they know they can and can't do."
Tracy also called Yaffe-Rowell, a vocational expert, to testify regarding Tracy's employability. Yaffe-Rowell opined that Tracy would likely not be able to return to work as a general duty nurse, but that she would be able to perform more sedentary jobs after taking steps to reinstate her nursing license or she could take another suitable job unrelated to nursing. However, Yaffe-Rowell acknowledged that Tracy's laryngeal spasms and mental health would cause her to miss more than 4 days of work per month. Yaffe-Rowell concluded that, if Tracy could manage her breathing episodes, she might be more employable. On cross-examination, Yaffe-Rowell admitted that she did not complete a functional capacity evaluation of Tracy and relied mostly on Dr. Pierce's medical report in rendering her opinion. In response to a question about the connection between alcohol use and Tracy's breathing-related episodes, Yaffe-Rowell further acknowledged that if Tracy experienced breathing issues only in connection with alcohol use, this information could be relevant to Yaffe-Rowell's assessment as to whether the respiratory condition affected Tracy's employability. Although Yaffe-Rowell testified that she was aware of some of Tracy's active lifestyle, she acknowledged she was not aware that Tracy completed multiple kayaking challenges or the full extent of the physicality of the challenges which sometimes lasted between 10 and 12 hours. Further, Yaffe-Rowell acknowledged that she was unaware that 3 weeks prior to Dr. Pierce writing his report, upon which she relied in forming her opinion, Tracy had completed a 72-mile kayaking challenge in 12 hours. Yaffe-Rowell indicated that Tracy could perform lower intensity nursing jobs that did not involve heavy lifting or require the application of fine motor skills with her dominant hand. Further, regarding Tracy's inability to work, Yaffe-Rowell indicated that Tracy could only work if her breathing issues were controlled.
In response, Mark called Greene, a vocational expert, to testify regarding Tracy's employability and earning capacity. Greene testified that many of the medical concerns reported by Tracy and documented by Dr. Pierce were inconsistent with Tracy's demonstrated active lifestyle. Greene testified that, in an interview, Tracy self-reported that she had specific physical limitations such as breathing issues and the inability to reach forward with her upper extremities, to participate in prolonged activities, or to lift items unless they were light such as a dinner plate. However, Greene noted that Tracy's self-reporting was inconsistent with Tracy's demonstrated active lifestyle which included running half marathons, being an avid cyclist participating in a 3-day 100-mile bike ride, and participating in multiple kayak challenges ranging from 50 to 72 miles lasting for extended periods of time. Greene further noted that Tracy's treating physicians had not previously reported Tracy's inability to perform work activities prior to 2019 and opined that Dr. Pierce failed to provide medical evidence of disability. He further testified that Tracy's disability claim was discredited by the SSA's denial of her 2019 application for disability benefits.
Greene ultimately opined that, having reviewed and considered Tracy's medical records, her SSA rejection letter, her history of recreational activities, his interview with Tracy and his research into the steps Tracy would need to pursue to...
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