Gerard-Ley v. Ley

• Decision Date: 31 December 1996
• Docket Number: A,No. A-95-760,GERARD-LE,A-95-760
• Citation: 558 N.W.2d 63,5 Neb.App. 229
• Parties: Renet M.ppellee and Cross-Appellant, v. Jonathan H. LEY, Appellant and Cross-Appellee.
• Court: Nebraska Court of Appeals

Page 63

558 N.W.2d 63

5 Neb.App. 229

Renet M. GERARD-LEY, Appellee and Cross-Appellant, v. Jonathan H. LEY, Appellant and Cross-Appellee.

No. A-95-760.

Court of Appeals of Nebraska.

Dec. 31, 1996.

Syllabus by the Court

1. Marriage: Joint Tenancy: Consideration: Gifts: Presumptions. When a husband and wife take title to a property as joint tenants, even though one pays all the consideration therefor, a gift is presumed to be made by the spouse furnishing the consideration to the other.

2. Divorce: Property Division: Gifts. When distributing property in a dissolution proceeding, property acquired by one of the parties through either gift or inheritance should ordinarily be set off to the individual who received the gift or inheritance and not be considered a part of the marital estate; this general rule does not apply, however, if both of the spouses have contributed to the improvement or operation of the property.

3. Divorce: Property Division. All pertinent facts must be considered in reaching a just and equitable award of property in a dissolution proceeding.

4. Property Division. How property, inherited by a party before or during the marriage, will be considered in determining division of property must depend upon the facts of the particular case and the equities involved.

5. Alimony. In determining whether alimony should be awarded, in what amount it should be awarded, and over what period of time it should be awarded, the ultimate criterion is one of reasonableness.

Hal W. Anderson and Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., Lincoln, for appellant and cross-appellee.

R. Kent Radke, Lincoln, for appellee and cross-appellant.

MILLER-LERMAN, C.J., and HANNON and IRWIN, JJ.

IRWIN, Judge.

I. INTRODUCTION

Jonathan H. Ley appeals from the district court order dissolving his marriage to Renet M. Gerard-Ley. On appeal, Jonathan challenges the district court's inclusion of the marital residence and an automobile in the marital estate, alleging that the property was purchased with proceeds from his inheritance. Renet cross-appeals, alleging the district court erred in refusing to award her nominal alimony. For the reasons stated herein, we affirm.

II. BACKGROUND

Jonathan and Renet were married on October 27, 1984. Three children were born of the marriage: Gerard, who was 9 years old at the time of trial; Justin, who was 6 years old; and Lauren, who was 5 years old. Throughout the marriage, Renet was employed as an elementary school teacher in the Lincoln Public Schools. Throughout the marriage, Jonathan was not regularly employed, although he did contribute financially to the marriage with income from stock dividends and interest.

Renet filed a petition for dissolution of the marriage on November 12, 1992. By stipulation of the parties, trial was bifurcated so that custody, visitation, and child support issues were tried separately from property distribution issues. Renet was awarded custody of the three children, and Jonathan was ordered to pay child support in accordance with the child support guidelines. For purposes of this appeal, the portion of the trial regarding property distribution issues is the only part that needs to be discussed in detail.

The primary dispute concerning the property distribution was whether the parties' residence and one of the parties' vehicles, a Nissan Quest van, should have been included in the marital estate. According to the testimony at trial, the parties purchased a home in October 1984, where they lived until they bought the "Campbell property" in June 1990. The Campbell property was purchased for approximately $191,000. The Campbell property is the subject of dispute on appeal. The parties sold their original home and applied a portion of the sale proceeds toward the Campbell property. Additionally, the parties sold a property which Renet brought into the marriage and applied a portion of the sale proceeds toward the Campbell property. The remainder of the purchase price was financed through a bank loan. Title to the Campbell property was taken by Jonathan and Renet as joint tenants, with a right of survivorship.

In January 1992, Jonathan sold some shares of bank stock which he had received from his parents through inheritance and through gifts. In July, Jonathan used some of the proceeds from the stock to pay off the mortgage on the Campbell property. After the initial mortgage was paid off, various other smaller loans were secured with another mortgage on the Campbell property.

In June 1992, the parties purchased a Toyota 4-Runner. Jonathan testified at trial that the 4-Runner was also purchased with proceeds from his stock sale. In July 1993, the 4-Runner was traded in and the van was purchased. According to the testimony at trial, after the allowance for the trade-in of the 4-Runner, an additional $4,000 loan was required to pay for the van. Both Jonathan and Renet testified at trial that Renet had been in exclusive possession of the van and that she used the vehicle to transport herself to and from work and to transport the children to and from school and day care.

In August 1992, Jonathan created a family trust with the remaining proceeds from his stock sale. The trust agreement was designed to provide Jonathan with income, while preserving the corpus of the trust for the parties' children. One provision in the trust agreement dealt with a residential asset. The trust agreement provided that the trust may, at some time, own a residence occupied by Jonathan and Renet. The agreement additionally provided:

In the event of the dissolution of marriage of Jon and Renet Ley, each of them shall have and enjoy an equal one-half interest in the equity in their current residence at 6325 Campbell, Lincoln NE [Campbell property]. In the event of the death of either of them during their marriage, the surviving spouse shall succeed to the full ownership of the residence. Upon the death of the second of them to die, in the event the first of them dies while they are married, the second to die shall convey the residence owned by him or her to this trust by deed or testamentary instrument.

Renet signed the trust agreement containing the above-quoted language. According to the testimony at trial, Renet insisted that the above-quoted language be added to the agreement.

At trial, Renet requested that the court allow her and the children to remain living in the Campbell property. Renet argued that her understanding of the trust agreement was that she would get one-half of the equity in the home if she and Jonathan divorced. Additionally, Renet requested that she be awarded the van, because it was the only vehicle in her possession. Finally, Renet testified that she suffered from various health problems which could, at some point in the future, interfere with her ability to work. As a result, Renet requested the court to award a nominal amount of $1 per year in alimony.

At trial, Jonathan requested that the court set aside both the Campbell property and the van as being nonmarital assets. Jonathan argued that the property was readily identifiable and traceable to his inheritance proceeds. Additionally, Jonathan testified that he was not aware of any health problems which would interfere with Renet's ability to work. As a result, Jonathan requested that the court deny Renet's request for alimony.

On May 31, 1995, the court issued a decree dissolving the marriage. The court found that Jonathan had intended to make a gift of a one-half interest in the Campbell property by including the above-quoted language in the trust agreement. As a result, the court included the Campbell property in the marital estate and awarded the home to Renet. The court also included the van in the marital estate. The court awarded approximately $171,000 worth of assets to Renet, including the Campbell property, and approximately $25,000 worth of assets to Jonathan. To balance the property distribution, the court ordered Renet to pay Jonathan approximately $74,000 in a 5-year property settlement, to be paid in annual installments of $14,500 for 4 years and approximately $16,000 in the fifth year. The court denied Renet's request for alimony.

On June 7, 1995, Jonathan filed a motion for new trial. The court denied Jonathan's motion on June 16. This appeal timely followed.

III. ASSIGNMENTS OF ERROR

On appeal, Jonathan assigns two errors. First, Jonathan asserts that the district court erred in including the Campbell property in the marital estate. Second, Jonathan asserts that the district court erred in including the van in the marital estate.

On cross-appeal, Renet assigns as error the district court's refusal of her request for nominal alimony.

IV. STANDARD OF REVIEW

An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Venter v. Venter, 249 Neb. 712, 545 N.W.2d 431 (1996); Mathis v. Mathis, 4 Neb.App. 307, 542 N.W.2d 711 (1996). The division of the 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. Mellor v. Mellor, 235 Neb. 361, 455 N.W.2d 177 (1990).

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 issues. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995); Mathis v. Mathis, supra. If the evidence as presented by the record is in conflict, an appellate court considers, and may give weight to, the fact that the trial court had the opportunity to hear and observe the witnesses and accept one version of the facts rather than another. Id.

V. ANALYSIS

1. APPEAL

On appeal, Jonathan has assigned as error the trial court's inclusion of the Campbell property and the van in...