Connolly v. Connolly

Decision Date23 February 2018
Docket NumberNo. S-16-1174,S-16-1174
Citation907 N.W.2d 693,299 Neb. 103
Parties Valerie K. CONNOLLY, appellant, v. Monte D. CONNOLLY, appellee.
CourtNebraska Supreme Court

Paul W. Snyder, Scottsbluff, of Smith, Snyder, Petitt & Hofmeister, G.P., for appellant.

William E. Madelung, of Madelung Law Office, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Heavican, C.J.

I. INTRODUCTION

In this dissolution action, Valerie K. Connolly filed a petition for legal separation. Valerie and her husband, Monte D. Connolly, then filed a stipulation and agreement, which was approved by the district court in its decree of legal separation. Monte subsequently filed a motion to amend the complaint from legal separation to dissolution of marriage. Following a hearing, the district court issued a divorce decree, which differed from the decree of legal separation and included both an award of alimony and an award of half of the attorney fees to Valerie. Valerie appeals. We affirm.

II. FACTUAL BACKGROUND

Monte and Valerie were married on April 15, 1974. At the time of trial, Monte was 64 years old and Valerie was 61 years old. Valerie worked from approximately 1976 until 2008, when, as a result of two automobile accidents, she became medically disabled and required continuing medical treatment. Valerie collects, as her sole source of income, approximately $1,500 per month in long-term disability payments. Prior to the divorce decree, Valerie received medical insurance coverage through Social Security, Monte’s health insurance policy, and a supplemental policy paid for by Monte.

Monte also suffers from medical issues that prevent him from working. Monte collects long-term disability payments totaling approximately $3,600 per month. Monte placed $78,062.74 from a lump-sum payment of his retirement program in an annuity with an insurance company. Together, these form his sole sources of income.

During their marriage, the couple purchased a home as joint tenants. Monte placed a value of $250,000 on the marital home, while Valerie valued the home at $299,950. As of July 2016, the home had a mortgage of $182,598. According to their 2015 joint income tax return, the couple’s adjusted gross income was $20,018.

On August 15, 2012, Valerie filed the petition for legal separation against Monte. On December 12, Monte and Valerie filed a stipulation and agreement, agreeing that in the event the parties’ marriage dissolved, their jointly owned real estate property would be sold and the proceeds would be divided equally between the parties. The parties agreed that Monte would continue to carry Valerie on his health insurance policy and be responsible for the premiums on that policy through December 31, 2012. Monte further agreed that commencing January 1, 2013, he would pay the premiums on Valerie’s Medicare supplemental policy. The parties also agreed that neither party shall pay or receive alimony. Furthermore, each party agreed to be responsible for one-half of the attorney fees incurred in the processing of this action for a legal separation. Both parties were using the same attorney at the time.

The parties waived a hearing on the entry of a final decree of legal separation. On December 12, 2012, the district court issued a decree of legal separation, approving the parties’ stipulations and granting the parties a decree of legal separation.

On September 9, 2015, Monte filed a motion to amend the complaint from legal separation to dissolution of marriage. Valerie filed an answer requesting that the real estate owned by the parties be sold; that Monte provide health insurance for Valerie until Valerie reached the age of 65 or, in the alternative, that Monte pay spousal support; and that Monte pay Valerie’s attorney fees. Valerie subsequently filed a separate application for attorney fees.

On November 15, 2016, following a hearing, the district court filed a decree of dissolution. The decree divided the marital estate as follows:

2. ... [E]ach party shall pay his or her own debts to include his or her own medical bills and credit card debts, and hold the other party harmless with respect to such debts.
3. ... [E]ach party shall receive as his or her separate property his or her own clothing and personal effects, and all personal property presently in his or her own possession.
4. ... [E]ach party shall receive as his or her separate property all bank accounts, retirement accounts, investments, and insurance policies currently held in his or her name respectively, and any other property currently in the party’s possession.
5. The parties shall list the marital home for sale within thirty days. It shall be ... initially listed for $300,000.00. In the event a closing on the property has not occurred within 180 days from the listing date, it shall be sold at public auction, and the proceeds divided consistent with the parties’ legal separation agreement.
6. Monte shall pay alimony to Valerie in the amount of $363.00 per month beginning December 1, 2016, and continuing monthly thereafter until the death of either party or until Valerie remarries. This amount is the estimated Medicare supplement premium ($218.00) and the prescription supplement premium ($145.00) from exhibit 2....
....
8. Monte shall pay one-half of the attorney’s fees of Valerie, in the amount of $1,347.57 within sixty days.

In support of its modification of the legal separation decree, specifically as related to alimony, the court found that it was not barred from considering an award of alimony, but that because it was a modification, it would be necessary for

Valerie to show a change in circumstances, which the court found she had not done. Despite this, the district court awarded Valerie alimony in an amount that equaled the health insurance costs which Monte had been paying under the decree of legal separation. Valerie appealed.

III. ASSIGNMENTS OF ERROR

Valerie assigns, restated and consolidated, that the district court erred in (1) determining that Valerie needed to show a change of circumstances in order to be entitled to an award of alimony in the divorce decree and (2) awarding an insufficient amount of attorney fees based on the totality of the circumstances.

Monte asserts several assignments of error in his appellee’s brief, but did not comply with this court’s rules regarding the filing of a cross-appeal. As such, we do not consider any of Monte’s assignments of error.1

IV. STANDARD OF REVIEW

Statutory interpretation presents a question of law that an appellate court resolves independently of the trial court.2

In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.3 In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue.4

A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.5

V. ANALYSIS
1. AWARD OF ALIMONY
(a) Whether Parties Need to Show Change in Circumstances

Valerie assigns that the district court erred in requiring that she show a change of circumstances in the time between the decree of legal separation and the divorce decree in order to receive an award of alimony. In the alternative, Valerie argues that she has shown a change in circumstances, because her costs have increased due to the divorce decree, while Monte’s income has increased.

We begin our analysis with the underlying statutes. The availability of an award of alimony is addressed in Neb. Rev. Stat. § 42-365 (Reissue 2016), which states in pertinent part:

When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party.... A proceeding to modify or revoke an order for alimony for good cause shall be commenced by filing a complaint to modify.... Amounts accrued prior to the date of filing of the complaint to modify may not be modified or revoked. A decree may not be modified to award alimony
if alimony was not allowed in the original decree dissolving a marriage.

Actions involving legal separation are considered separately. Neb. Rev. Stat. § 42-347(7) (Reissue 2016) provides that "[l]egal separation means a decree of a court of competent jurisdiction providing that two persons who have been legally married shall thereafter live separate and apart and providing for any necessary adjustment of property, support, and custody rights between the parties but not dissolving the marriage."

Finally, Neb. Rev. Stat. § 42-368 (Reissue 2016) states in pertinent part:

When a legal separation is decreed, the court may order payment of such support by one party to the other as may be reasonable, having regard for the circumstances of the parties and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party. Orders for support may be modified or revoked for good cause shown upon notice and hearing....

This court held in Pendleton v. Pendleton6 that the prohibition against modifying a decree of dissolution to provide alimony when none was awarded in the original decree was applicable only in cases involving dissolution, and inapplicable in the case of legal separation. We explained that the...

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  • Seivert v. Alli
    • United States
    • Nebraska Supreme Court
    • May 21, 2021
    ...interpretation presents a question of law that an appellate court resolves independently of the trial court. Connolly v. Connolly , 299 Neb. 103, 907 N.W.2d 693 (2018).IV. ANALYSIS1. SEIVERT'S CROSS-APPEAL (a) § 42-378We begin with Seivert's argument that the district court erred when it de......
  • Alberts v. Alberts
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    • Nebraska Court of Appeals
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    ...for preparation and presentation of the case, customary charges of the bar, and the general equities of the case. Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018). The parties' attorney fee affidavits do not appear to have been included in the massive record on appeal (we have not ......
  • Schieffer v. Schieffer
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    • Nebraska Court of Appeals
    • June 2, 2020
    ...is discretionary, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018). The award of attorney fees depends on multiple factors that include the nature of the case, the services performed a......
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    ...interpretation presents a question of law that an appellate court resolves independently of the trial court. Connolly v. Connolly , 299 Neb. 103, 907 N.W.2d 693 (2018). The decision of whether to grant a motion to stay a trial is vested in the discretion of the trial court, and its decision......
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1 books & journal articles
  • Review of the Year 2019 in Family Law: Case Digests
    • United States
    • ABA General Library Family Law Quarterly No. 53-4, January 2020
    • January 1, 2020
    ...of personal jurisdiction. Second, the husband lacked standing to complain about an error he created. Nebraska. Connolly v. Connolly , 907 N.W.2d 693 (Neb. 2018). Wife iled for legal separation from her husband. She then iled a stipulation agreement. Husband iled to amend the complaint to as......

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