Edwards v. Edwards

• Decision Date: 15 January 2008
• Docket Number: No. A-06-1350.,A-06-1350.
• Citation: 744 N.W.2d 243,16 Neb. App. 297
• Parties: Jeffrey L. EDWARDS, appellee and cross-appellant, v. Dianna Y. EDWARDS, appellant and cross-appellee.
• Court: Nebraska Court of Appeals

744 N.W.2d 243

16 Neb. App. 297

Jeffrey L. EDWARDS, appellee and cross-appellant, v. Dianna Y. EDWARDS, appellant and cross-appellee.

No. A-06-1350.

Court of Appeals of Nebraska.

January 15, 2008.

Mark J. Milone, of Govier, Milone & Kinney, L.L.P., Omaha, for appellant.

P. Shawn McCann, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellee.

SIEVERS, CARLSON, and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

The marriage of Jeffrey L. Edwards and Dianna Y. Edwards was dissolved by a decree of the district court for Douglas County. Dianna appeals, and Jeffrey cross-appeals. On our de novo review, we conclude that the district court did not abuse its discretion in its determinations regarding the division of the marital estate, Jeffrey's motion for temporary relief, a supersedeas bond, attorney fees, and custody of the parties' minor children. We further conclude that a premarital agreement entered into by the parties prior to their marriage is valid and enforceable in its entirety. We affirm the district court's decree as modified.

BACKGROUND

Jeffrey and Dianna met in 1994. At the time of their meeting, Dianna was a registered nurse employed by the University of Nebraska Medical Center. In the summer of 1994, Dianna began working for Jeffrey while continuing her employment with the medical center. In 1995, she earned her bachelor of science degree in nursing.

When the parties met, Jeffrey was a physician and the sole shareholder and practitioner of a professional corporation he formed in 1993. He had additional business interests in a winery and in several assisted living facilities.

Approximately 3 months after they met, Dianna moved into Jeffrey's residence, a house that he purchased in 1990. Shortly thereafter, the parties began contemplating marriage. They married in June 1996.

According to Jeffrey, the parties started discussing a premarital agreement approximately 14 months prior to their wedding. They had continuing discussions on the matter until they executed an agreement on May 21, 1996. Jeffrey testified that both he and Dianna were represented by counsel while they negotiated the terms of the agreement. He testified that several drafts of the agreement were prepared before the parties agreed to the final terms. Jeffrey testified that requests by Dianna's attorney prompted the changes that were made to the original draft. Jeffrey's attorney, the author of the premarital agreement, corroborated Jeffrey's testimony and also testified that Dianna was not pressured into signing the agreement.

Dianna testified that she began preparing for the parties' wedding approximately 9 months before it took place. In preparation for the wedding, she reserved a church and decorations for the church, scheduled the reception, purchased her wedding gown, prepared and mailed wedding invitations, and hired someone to bake the wedding cake. Dianna testified that Jeffrey "brought up" the premarital agreement to her about 2 months prior to the wedding. By that time, she had completed all of the preparations mentioned above and had expended approximately $1,500 in anticipation of the wedding. After Jeffrey presented the first draft of the premarital agreement to her, Dianna hired an attorney and spent approximately 1 hour with her attorney discussing the terms of the agreement.

According to Dianna, on the day the parties executed the agreement, Jeffrey called her from work and instructed her to meet him at his attorney's office. Dianna then called her attorney, who informed her that he no longer wished to represent her. When Dianna arrived at the office of Jeffrey's attorney, she told Jeffrey and his attorney that she no longer had legal representation. According to Dianna, Jeffrey responded, "Well, you don't really need [an attorney] and told her to sign the agreement. Jeffrey also informed her that his attorney was leaving town the following day and would not return until after the wedding. Dianna testified that she protested, but still signed the agreement. Jeffrey does not dispute that Dianna's counsel was not present when the parties signed the agreement.

Dianna testified that she was unaware of Jeffrey's income when she signed the agreement and that she felt "significant pressure" to sign the agreement. She also testified that she was taking antidepressant medication prescribed to her by Jeffrey when she signed the agreement. We will further discuss the circumstances surrounding the execution of the premarital agreement as necessary in the analysis section.

The premarital agreement provides that each party had been fully informed as to the other's assets and property. Indeed, exhibits listing the identity and approximate value of each party's assets are attached to the agreement. Jeffrey showed that at the time the agreement was executed, his total assets were valued at approximately $1,710,299.21. Dianna showed her total assets to be valued at $28,463. Jeffrey did not include his income in his declaration of assets.

The agreement states that in the event of divorce, "neither party shall be entitled to any of the separate property of the other, except as set forth in Paragraph 9 hereinafter." Paragraph 9 states that if the parties divorce, Dianna is entitled to the following property: a family car worth at least $15,000, furniture she brought into the marriage, all of her personal effects, and permanent alimony and a lump-sum payment based upon the duration of the marriage. In the event that children were born to the marriage or either party became disabled, subparagraph E of paragraph 9 contemplates temporary alimony or spousal support but limits it to a period of 6 months.

The parties' marriage produced two children: A.E., born in September 1999, and J.J.E., born in October 2001. On February 12, 2003, Jeffrey petitioned the district court for dissolution of the marriage. He sought custody of the children. Dianna filed a cross-petition seeking custody of the children, spousal support, and exclusive possession of the marital residence. On June 5, the district court issued a temporary order awarding Dianna custody of the children, child support, exclusive possession of the family residence, and alimony.

A 5-day trial commenced on November 22, 2004. A considerable amount of testimony was adduced during the trial. We have considered all of the testimony, but summarize only that which is the most pertinent to the issues presented for our resolution.

Both parties testified and called witnesses to testify regarding their parenting abilities. Jeffrey, who was 47 years old at the time of trial, testified that the marriage to Dianna was his second. His first marriage produced two daughters—Me.E. and Ma.E.—and ended in divorce when those children were ages 4 and 3 respectively. Jeffrey was granted sole physical custody of Me.E. and Ma.E. and raised those two girls with the assistance of an in-house nanny. At the time of trial, Me.E. was 21 years old and Ma.E. was 20 years old.

Jeffrey testified that he was still employed by the professional corporation, but that he no longer worked nights or weekends as he had in the past. He testified that if he were awarded custody of A.E. and J.J.E., he intended to hire "a nanny to care for them while he is at work.

Although Jeffrey testified at trial that Dianna is a good provider for A.E. and J.J.E., he also testified extensively about the deficiencies he perceived in Dianna's parenting. He testified that Dianna used inappropriate language in the presence of A.E. and J.J.E. He also testified that Dianna had verbally and physically abused A.E. and J.J.E. However, when pressed to ex plain the alleged physical abuse, he gave the following examples: First, he testified that Dianna allowed her pet dog to lick A.E.'s mouth and did nothing to discourage A.E. from this activity. Second, he testified that Dianna took the children to unnecessary chiropractic appointments. Third, he testified that when he arrived at the marital residence one day during the winter of 2003, he discovered the children alone in a vehicle in the garage. He opined that Dianna left them in the garage after a trip because they fell asleep in the vehicle. Jeffrey further testified that Dianna is an alcoholic. He testified that Dianna had used alcohol in the presence of the children and that on at least one occasion had the children with her while she drove under the influence of alcohol. Jeffrey also testified that Dianna had physically abused Me.E. and Ma.E. in the presence of A.E. and J.J.E.

Jeffrey expressed concern about the condition of the marital residence since his departure upon the parties' separation. Jeffrey testified that he returned to the residence after the separation to inventory some personal items and observed a "foul aroma" that he believed came from animal waste. He testified that after the parties' separation, Dianna had acquired two dogs and two birds. These animals joined two dogs and three cats already living in the home. He testified that he also noticed stains from animal waste throughout the house.

Jeffrey testified that Dianna made decisions about A.E.'s education without consulting him. He explained that Dianna had removed A.E. from the kindergarten to which the parties had agreed to send her without consulting with Jeffrey and eventually enrolled A.E. in preschool. He also testified that Dianna often placed the children in daycare while they were in her custody even though she was not employed outside the home. He testified that during the marriage, Dianna was not at home with the children on a regular basis and frequently used daycare providers even when she was at home. Finally, Jeffrey testified that Dianna lacked financial stability.

Jeffrey called multiple witnesses to testify on his behalf. A longtime friend of Jeffrey's testified that he had observed both Jeffrey and Dianna with their children on many occasions. He testified that when he saw Dianna with the...