Buche v. Buche, 86-350

• Decision Date: 27 May 1988
• Docket Number: No. 86-350,86-350
• Citation: 423 N.W.2d 488,228 Neb. 624
• Court: Nebraska Supreme Court
• Parties: Janie Rae BUCHE, Appellant and Cross-Appellee, v. John Jeffrey BUCHE, Appellee and Cross-Appellant.

Page 488

423 N.W.2d 488

228 Neb. 624

Janie Rae BUCHE, Appellant and Cross-Appellee, v. John Jeffrey BUCHE, Appellee and Cross-Appellant.

No. 86-350.

Supreme Court of Nebraska.

May 27, 1988.

Syllabus by the Court

1. Divorce: Appeal and Error. The Supreme Court's review of a judgment dissolving a marriage is de novo on the record to determine whether there has been an abuse of discretion. When the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

2. Property Division. When awarding property in a dissolution of marriage, property acquired by one of the parties through gift or inheritance ordinarily is set off to the individual receiving the inheritance or gift and is not considered a part of the marital estate. An exception to the rule is where both of the spouses have contributed to the improvement or operation of the property which one of the parties owned prior to the marriage or received by way of gift or inheritance, or the spouse not owning the property prior to the marriage or not receiving the inheritance or gift has significantly cared for the property during the marriage.

3. Alimony. Alimony is an allowance for support and maintenance and is a substitute for marital support. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness. One consideration is the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children.

4. Child Support. In determining the amount of child support to be awarded, the status, character, and situation of the parties and attendant circumstances must be considered. The financial position of the husband as well as the estimated costs of support of the children must be taken into account.

5. Child Support: Appeal and Error. The amount of child support ordered in a dissolution of marriage action is initially left to the sound discretion of the trial court, is reviewed de novo on the record in this court, and is affirmed absent an abuse of discretion.

W. Gerald O'Kief, Valentine, for appellant and cross-appellee.

Forrest F. Peetz of Peetz and Peetz, O'Neill, for appellee and cross-appellant.

BOSLAUGH, WHITE, and SHANAHAN, JJ., and GITNICK and GARDEN, District Judges.

PER CURIAM.

This is an appeal in a proceeding for the dissolution of a marriage. The trial court dissolved the marriage; divided the property and debts of the parties; awarded custody of the two minor children of the parties to the petitioner; awarded child support to the petitioner in the amount of $400 per month, which is reduced to $250 per month if only one child is entitled to support; awarded $2,000 alimony to be paid in two equal payments without interest; and awarded the petitioner $700 in attorney fees.

The petitioner has appealed and contends the trial court erred in dividing the property and the debts, in awarding inadequate child support and alimony, and in the amount of attorney fees allowed. The respondent has cross-appealed and contends the trial court erred in sustaining an objection to the testimony of an expert witness and by including 36 shares of G.F. Buche Company stock as marital property.

The Supreme Court's review of a judgment dissolving a marriage is de novo on the record to determine whether there has been an abuse of discretion. When the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Gerber v. Gerber, 225 Neb. 611, 407 N.W.2d 497 (1987). See, also, Brandt v. Brandt, 227 Neb. 325, 417 N.W.2d 339 (1988).

The record shows that the petitioner, Janie Rae Buche, and the respondent, John Jeffrey Buche, were married on January 3, 1975. They separated in February 1985.

At the time of the marriage, both parties were employed at the Buche Company's grocery store in Mitchell, South Dakota. The company was founded by the respondent's grandfather in 1905.

The principal assets of the parties are a residence in Ainsworth, Nebraska, purchased in 1984 for $22,700; 36 shares of stock in the Buche Company; an IRA; two automobiles; a camper; a golf cart; and furniture.

The indebtedness of the parties consists of the $6,297 mortgage on the residence; a $17,000 bank loan used in the purchase of the residence; $21,916.22 due the Buche Company for groceries and clothing charged by the parties; $1,000 due for marriage counseling; $150 due J.C. Penney Co.; and $202.18 due Sears.

The trial court assigned one-half of the value of the residence and one-half of the mortgage and bank debt to each of the parties; included 36 shares of the Buche Company stock in the marital estate; and valued the IRA at its current value. Although the value of the residence and the debt attributed to it were divided in half, the entire marital estate was assigned two-thirds to the respondent and one-third to the petitioner.

Each party received an automobile. The Buche Company stock, the IRA, the camper, and the golf cart were assigned to the respondent. The furniture was assigned to the petitioner.

The principal controversy concerns the Buche Company stock, which the trial court valued at $500 per share, and the valuation of the IRA.

Although 36 shares of the Buche Company stock were acquired by the respondent during the marriage, the record shows that they were actually a gift or bequest from his grandfather.

In 1970 or 1971, when the senior Buche died, his stock in the Buche Company was placed in a trust for his five grandsons, one of whom is the respondent. Under the grandfather's bequest, the respondent was allowed to purchase 51 shares of the company stock with funds supplied by the company. Once a year for 10 years each recipient received a dividend which was used to buy the stock from the trust at $350 per share plus 4 percent interest. Any obligation of the respondent for the purchase of stock has been satisfied and certificates representing his 51 shares have been issued.

The respondent claims that the trial court erred by including 36 shares of Buche Company stock in the marital estate. The respondent relies upon Sullivan v. Sullivan, 223 Neb. 273, 388 N.W.2d 516 (1986), and Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982), where we held:

While we have not heretofore said in exact words how property acquired by inheritance or gift during the marriage should be considered, an examination of our previous decisions discloses that when awarding property in a dissolution of marriage, property acquired by one of the parties through gift or inheritance ordinarily is set off to the individual receiving the inheritance or gift and is not considered a part of the marital estate.... An exception to the rule is where both of the spouses have contributed to the improvement or operation of the property which one of the parties owned prior to the marriage or received by way of gift or inheritance, or the spouse not owning the property prior to the marriage or not receiving the inheritance or gift has significantly cared for the property during the marriage.

212 Neb. at 733, 325 N.W.2d at 834.

Furthermore, in Ross v. Ross, 219 Neb. 528, 531, 364 N.W.2d 508, 509 (1985), we stated that "if the inheritance can be identified, it should be set off ... and eliminated from the marital estate to be divided." However, we have also held that "[t]he Van Newkirk rule itself does not purport to be an ironclad, rigid rule for all circumstances," Grace v. Grace, 221 Neb. 695, 699, 380 N.W.2d 280, 284 (1986), and that " '[w]hile the source of funds brought into a marriage is a consideration in the division of property, it is not an absolute.' " Id. at 701, 380 N.W.2d at 285, citing Ulmer v. Ulmer, 205 Neb. 351, 287 N.W.2d 685 (1980).

The parties were married in 1975, 3 years after the respondent had begun acquiring the Buche Company stock. Neither the respondent nor the petitioner contributed any of his or her own money to acquire the stock. There is no evidence that the petitioner "contributed to the improvement or operation of the property" or that she "significantly cared for the property during the marriage." Since the stock is readily identifiable...