Dormann v. Dormann, A-99-140.

• Decision Date: 22 February 2000
• Docket Number: No. A-99-140.,A-99-140.
• Citation: 8 Neb.App. 1049,606 N.W.2d 837
• Parties: Randall L. DORMANN, appellant, v. Elvira A. DORMANN, appellee.
• Court: Nebraska Court of Appeals

606 N.W.2d 837

8 Neb.App. 1049

Randall L. DORMANN, appellant, v. Elvira A. DORMANN, appellee.

No. A-99-140.

Court of Appeals of Nebraska.

February 22, 2000.

Edward D. Steenburg, of McQuillan, Steenburg & McQuillan, P.C., Ogallala, for appellant.

Robert M. Brenner, of Robert M. Brenner Law Office, Gering, for appellee.

HANNON and INBODY, JJ., and BUCKLEY, D.J., Retired.

INBODY, Judge.

I. INTRODUCTION

Randall L. Dormann appeals from a decree entered by the district court for Garden County, Nebraska, dissolving his marriage to Elvira A. Dormann. Randall appeals those portions of the decree which relate to custody of the minor child, property division, alimony, and attorney fees.

II. FACTS

Randall and Elvira were married on February 12, 1977. During the course of the marriage, two children were born: David, born May 20, 1977, and William, born May 14, 1981. At the time of the dissolution proceedings, David had reached the age of majority.

Shortly after the parties' marriage, the parties moved from New Mexico to Oshkosh, Nebraska, so that Randall could work for Dormann Ranch, Inc., a closely held family corporation. When the parties first moved to Nebraska, they initially resided with Randall's father. The parties later moved into a residence owned by the corporation. When Randall first began working on the ranch for the corporation, his net monthly salary was $600. Randall also received, at no cost to him, additional benefits from the corporation, including a residence for the family to live in, payment of utilities, vehicles, car insurance, health insurance for the family, payment of Randall's Social Security taxes, fuel, and meat.

On August 28, 1996, Randall filed a petition for dissolution of the marriage in the Garden County District Court. On the same day, the parties entered into a property settlement agreement, which provided for distribution of the parties' property and custody of the minor child. At the time of the execution of the agreement, Randall paid Elvira $750 to assist her in obtaining an apartment and $2,500 as a property settlement. However, the property settlement agreement was never approved by the district court, and the parties did not follow the agreement.

Trial was held on this matter on May 18, 1998. At trial, Elvira testified that she learned that Randall wanted a divorce in August 1996 while she was in New Mexico taking care of her ill father. Elvira further testified that Randall told Elvira that "there was no need ... to come back" to Nebraska. Elvira returned to Nebraska, but was not allowed to return to the marital home. Elvira stayed in a motel for a couple of days until she could locate an apartment to rent. Elvira testified that she had returned to the marital residence only once, when Randall permitted her to take a couch, a table, some plants, and her personal items from the residence.

Elvira further testified that William had remained on the ranch with Randall since the parties' separation and that she had no objections to him staying in Oshkosh and finishing his school there.

Elvira testified that during the marriage, she was the primary caregiver for the children and that she fixed the family meals, took care of the home, and did the laundry. In addition, Elvira testified that throughout the marriage, she did whatever she was asked to do around the ranch, including checking the cattle, fixing fences, cooking meals and taking the meals to the workers in the field, and picking up needed parts for the ranch.

Throughout the marriage, Elvira was also employed in a variety of positions, including working at a nursing home and operating a babysitting service out of her home. At the time of trial, Elvira was employed at Doug's Texaco, where she had been employed for approximately 9 years. Elvira testified that her responsibilities included pumping gas, operating the cash register, and doing some bookkeeping. At the time of trial, Elvira earned $7.25 an hour.

Randall testified that he had worked for the corporation as an employee for over 20 years. The evidence also showed that Randall was also the treasurer of the corporation and had access to the corporate bank accounts from which he could pay for various items, including supplies and his vacations. At the time of trial, Randall's net monthly salary was $758, and Randall continued to receive all the other benefits previously described above.

The evidence further disclosed that on the date of the parties' marriage, Randall owned 81 shares of stock in the corporation. During the marriage, Randall acquired an additional 35 shares, although it is not entirely clear from the record whether these shares were gifted to Randall or given to him as part of his employment benefits. At the time of trial, Randall owned approximately 7 percent of the corporation.

Evidence was also presented through financial records of the corporation that the corporation was valued at $1,495,841. Randall admitted that the valuation of the corporation was correct. Elvira testified that she did not have an opinion regarding the valuation of the corporation, because she was never involved in that "part of the business."

On January 13, 1999, the district court entered an order dissolving the marriage and awarding the parties joint custody of William, with primary physical custody to remain with Randall. Given the financial circumstances of the parties, the district court did not make an award of child support. Randall was further ordered to pay Elvira $250 per month in alimony for 36 months. The district court also divided the parties' marital property, including the value of 35 shares of Dormann Ranch stock that Randall received during the parties' marriage. The court ordered Randall to pay Elvira one-half of the value of the stock or $17,451, to be paid within 120 days from the date of the decree. Finally, the court ordered Randall to pay Elvira $12,810 as equalization, to be paid in three yearly installments beginning June 1, 1999. On January 19, Randall filed a motion for new trial, which was denied. Randall timely filed this appeal.

III. ASSIGNMENTS OF ERROR

On appeal, Randall asserts that the district court abused its discretion (1) in the division of the marital estate, (2) in awarding Randall and Elvira joint custody of William, (3) in awarding Elvira alimony, and (4) in awarding Elvira attorney fees.

IV. STANDARD OF REVIEW

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 court. Kricsfeld v. Kricsfeld, 8 Neb.App. 1, 588 N.W.2d 210 (1999); Halouska v. Halouska, 7 Neb.App. 730, 585 N.W.2d 490 (1998). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Halouska v. Halouska, supra.

V. ANALYSIS

1. DIVISION OF MARITAL ESTATE

Randall asserts that the district court erred in determining the extent and division of the marital estate. Specifically, Randall argues that the district court erred when it included 35 shares of Dormann Ranch stock, a 1996 Firebird, and various items of personal property in the marital estate.

The division of a marital estate in a dissolution case is initially left to the discretion of the trial court and will be reviewed by an appellate court de novo on the record and affirmed absent an abuse of discretion. Halouska v. Halouska, supra.

It has been repeatedly held in this jurisdiction that the marital estate is to be divided so that a spouse receives one-third to one-half. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995); Halouska v. Halouska, supra. However, property division is not subject to a rigid mathematical formula, but, rather, turns upon the facts and circumstances of each case in light of the statutory factors found in Neb.Rev. Stat. § 42-365 (Reissue 1998), and the ultimate test is always one of reasonableness. Halouska v. Halouska, supra. In a dissolution action, the court will consider all pertinent facts in reaching a property division that is just and equitable. Id.

(a) Dormann Ranch Stock

First, we consider whether the district court erred by including 35 shares of Dormann Ranch stock that Randall received during the parties' marriage in the marital estate. In the decree of dissolution, the district court determined that the shares of stock acquired by Randall prior to the marriage were not marital property and therefore set off those shares to Randall. The district court further determined that the shares of stock acquired by Randall during the marriage were "gifts to the marriage" and therefore should be included as marital property. The district court further determined that each share had a value of $997.23 per share or a total value of $34,903 and awarded each party one-half of the total value.

Randall, relying heavily on Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982), argues that Elvira is not entitled to one-half of the stock Randall received during the parties' marriage because she failed to introduce evidence of the value of her contribution toward the improvements or operation of the corporation.

In Van Newkirk, the Nebraska Supreme Court stated:

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

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