Freyer-Reining v. Reining

• Decision Date: 11 February 2020
• Docket Number: No. A-19-127.,A-19-127.
• Parties: PAMELA J. FREYER-REINING, NOW KNOWN AS PAMELA J. FREYER, APPELLANT, v. JERRY REINING, APPELLEE.
• Court: Nebraska Court of Appeals

PAMELA J. FREYER-REINING, NOW KNOWN AS PAMELA J. FREYER, APPELLANT, v. JERRY REINING, APPELLEE.

No. A-19-127.

NEBRASKA COURT OF APPEALS

February 11, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed in part as modified, and in part reversed.

Angela Lennon, of Koenig Dunne, P.C., L.L.O., for appellant.

Matthew Stuart Higgins, of Higgins Law, for appellee.

PIRTLE, RIEDMANN, and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Pamela J. Freyer-Reining, now known as Pamela J. Freyer, appeals the order of the Sarpy County District Court dissolving her marriage to Jerry L. Reining. On appeal, she contends the district court abused its discretion in failing to award her certain real property and a 401K as her premarital property, failing to find that Jerry dissipated marital assets, awarding her certain real property as a part of the court's property division, and calculating the equalization payment due to Jerry. For the reasons set forth herein, we affirm in part, and in part reverse.

II. STATEMENT OF FACTS

Pamela and Jerry were married in May 2004. Pamela filed a complaint for dissolution of marriage in July 2016. At trial, testimony was elicited, including testimony from Pamela and Jerry. The following is a summary of the evidence adduced at trial relevant to Pamela's assignments of error.

1. IHEART MEDIA 401K

Pamela testified that the entire duration of her employment with iHeart Media took place prior to her marriage to Jerry. During the course of that employment, Pamela established a 401K retirement plan. Pamela also testified she did not make contributions to her iHeart Media 401K at any point during the marriage.

Jerry also provided testimony regarding Pamela's iHeart Media 401K. When asked if Pamela worked at iHeart Media during the marriage, Jerry replied that he was unsure what iHeart Media was but that Pamela had worked at a radio station, KYOR, and a television station.

2. REAL PROPERTY

Prior to the parties' marriage, Pamela acquired real estate known as the Trail Ridge Property. During their marriage, the parties acquired a home together, referred to as the Prairie Ridge Property, and certain other rental properties which served as a source of income to the parties during their marriage. Due to the relevance of the Trail Ridge Property and the Prairie Ridge Property to Pamela's assignments of error, we provide a more detailed recitation of facts relating to each of those properties below.

(a) Trail Ridge Property

Pamela testified she purchased the Trail Ridge property in 1998, and an exhibit showed the property lot was deeded to her and her ex-husband pursuant to a corporate warranty deed. Pamela testified she resided in the home built on the property in 1999 with her ex-husband. Pamela testified she purchased the Trail Ridge property for approximately $210,000 to $220,000 and paid an additional $38,000 to acquire an adjacent lot of land.

Pamela testified that later, when Pamela and Jerry were married, Jerry moved into the Trail Ridge property with her. Pamela testified there was a mortgage on the Trail Ridge property during her marriage to Jerry, but she paid off the remaining $92,000 on the mortgage. When questioned whether Jerry made any contributions to the Trail Ridge property, Pamela testified "I never once said he made no contributions. That did not come out of my mouth. . . . he made contributions. I cannot quantify them because I don't have his proof of what he contributed." Pamela also testified the parties refinanced the Trail Ridge property to buy the Prairie Ridge property. Pamela testified that she and Jerry eventually rented the Trail Ridge property and that the rent money received was deposited into the parties' joint account.

(b) Prairie Ridge Property

During their marriage, Pamela and Jerry purchased and subsequently resided in the Prairie Ridge Property. When asked about the disposition of the Prairie Ridge property, Pamela testified that she was requesting the district court order the property be sold and the net proceeds be equally divided. Pamela testified that because she now resides at the Prairie Ridge property, she would be responsible for getting repairs done to the property, but she asked the cost of the repairs be splitequally. Pamela also testified that, in the alternative, she had no objection to Jerry being awarded the property for $918,000.

Jerry initially testified he did not have any objection to the district court ordering the Prairie Ridge property sold, but he objected to being awarded the property. Jerry testified that he did not want the Prairie Ridge property because he has other properties in which he could live and that he feels uncomfortable at the Prairie Ridge property because Pamela had him arrested the last time he was there. Jerry later testified the district court should not sell the Prairie Ridge property and divide the proceeds but should instead award the property to Pamela because, until trial, that was what she wanted and Pamela had not allowed Jerry to use the property for 2 years.

3. ASSETS GIVEN TO JERRY'S DAUGHTER

Jerry testified that after he separated from Pamela in 2016, he deposited a total sum of approximately $30,000 into his daughter's account which he received from items he sold. The entire record governing this transfer was captured in the following colloquy:

Q. Going to hand you back, Mr. Reining, after you separated from your wife in 2016, were you giving your daughter Crystal cash gifts?

A. No, I was putting money from the items that I sold into an account of hers.

Q. And what was the total sum of money that you put into her account?

A. Approximately $30,000.

4. DISTRICT COURT'S FINDINGS

In September 2018, the district court entered a decree dissolving the parties' marriage. In the decree, the district court outlined the net award of the marital property for Pamela and Jerry as follows:

Pamela

Jerry

Real Property

$ 918,559

$ 977,645

Personal Property

15,500

5,500

Vehicles

39,000

79,510

Bank Accounts

73,470

31,383

Retirement

383,265

149,439

Totals

$1,429,794

$1,243,477

The district court stated: "To equalize this discrepancy, [Pamela] shall pay [Jerry] a property equalization payment of $186,317 within 180 days of the entry of this Decree."

In reaching this determination, the district court treated both Pamela's iHeart Media 401K, valued at $38,262, and the Trail Ridge property as marital assets. In making its property division, the district court awarded the iHeart Media 401K account to Pamela along with certain other retirement property totaling $383,265. The district court then awarded the Trail Ridge property, valued at $213,000, to Jerry and awarded the Prairie Ridge property, valued at $918,559, to Pamela.

Pamela filed a motion for new trial requesting the district court reconsider the allocation of property set forth in the decree. Subsequently, the district court entered an order overrulingPamela's motion for new trial; however, the court did issue an order nunc pro tunc in January 2019. In the nunc pro tunc order, the only change the district court made was to increase the value of Jerry's vehicles from $79,510 to $80,510, as shown below. In its nunc pro tunc order, the district court found:

Pamela

Jerry

Real Property

$ 918,559

$ 977,645

Personal Property

15,500

5,500

Vehicles

39,000

80,510

Bank Accounts

73,470

31,383

Retirement

383,265

149,439

Totals

$1,429,794

$1,244,477

The district court stated: "To equalize this discrepancy, [Pamela] shall pay [Jerry] a property equalization payment of $186,317 within 180 days of the entry of this Decree."

III. ASSIGNMENTS OF ERROR

On appeal, Pamela assigns, restated and renumbered, that the district court abused its discretion in (1) treating her iHeart Media 401K and the Trail Ridge property as marital assets, (2) ailing to find that Jerry dissipated marital assets, (3) awarding Pamela the Prairie Ridge property rather than ordering it be sold, and (4) calculating the equalization payment due to Jerry.

IV. STANDARD OF REVIEW

In a marital dissolution action, 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. Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Id. In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. Id. However, when evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Id. 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. Id.

V. ANALYSIS

1. CLASSIFICATION OF MARITAL ASSETS

Much of what Pamela assigns as error relates to the district court's classification of her iHeart Media 401K and the Trail Ridge property as marital assets.

Regarding the marital estate, the Nebraska Supreme Court has articulated:

Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage. The second step is to value the marital assets and marital liabilities of theparties. The third step is to calculate and divide

...