Gleason v. Gleason, 83-654
| Decision Date | 09 November 1984 |
| Docket Number | No. 83-654,83-654 |
| Citation | 218 Neb. 629,357 N.W.2d 465 |
| Parties | Charles D. GLEASON, Appellant and Cross-Appellee, v. Betty L. GLEASON, Appellee and Cross-Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
Alimony. The condition of a spouse's business is not the sole factor in determining proper alimony. Rather, the earning capacity of a spouse operating a business is an element which is to be considered in determining alimony.
Frank E. Piccolo of Murphy, Pederson & Piccolo, North Platte, for appellant and cross-appellee.
George E. Clough of Clough Law Office, North Platte, for appellee and cross-appellant.
Charles D. Gleason (Charles) appeals the judgment of the district court for Lincoln County, namely, alimony claimed to be excessive. Betty L. Gleason (Betty) cross-appeals, claiming that the periodic payments ordered by the district court are not alimony and are exempt from modification. In addition to alimony, the district court ordered Charles to pay certain debts of the parties and to pay child support monthly in the amount of $300 for the teenage daughter of the parties, but on appeal the parties do not contest the debts to be paid by Charles or the child support. We reverse the judgment of the district court concerning alimony.
Charles and Betty were married in December 1953. Charles is 49 years of age, Betty is 47, and both are in good health. Since 1967, Betty has been self-employed as a licensed, practicing beautician and owner of "Betty's Hi-Way Beauty Salon." Charles is an executive whose primary duties consist of management and operation of three corporations, Gleason Truck Sales & Service, Inc.; Big Diesel Warehouse, Inc.; and Gleason Enterprises, Inc. The bulk of the marital estate is comprised of the Gleasons' interest in the three corporations. Charles owns 75 percent of the stock of the corporations, while Betty owns 25 percent. The primary purpose of having three corporations is limitation of potential liability. Gleason Enterprises, Inc., owns the real estate on which the other two corporations operate. Each corporation is operated as a separate entity and files a small business corporation income tax return. Gains or losses from the various small business corporations are reflected on the individual income tax returns of the shareholders.
Recently, revenues of the three corporations have fallen off dramatically. Corporate tax returns for the past 3 years show a combined overall profit of $1,950 in 1980 and $7,560 in 1981, and a net loss of $40,085 in 1982, the year in which the dissolution action was filed.
Net profits of the corporations were distributed to the shareholders. Charles' income is derived from the three corporations, which pay Charles an annual combined salary of $1,300. Living expenses of the family were paid from a "901 account," which enabled Charles and Betty to withdraw money from the corporations as advances against dividends. In 1982, the only year for which complete records are available, approximately $27,000 was withdrawn in this manner.
Although Betty is and has been self-employed as a beautician, there is no information in the record about Betty's income as a beautician. At times Betty has employed as many as four beauticians in her salon.
By the decree, Betty received the beauty shop, valued at $34,000, and the shop contents. Also, Betty received the family home and approximately 14 acres, free and clear, valued at $109,000 and located near North Platte. By the decree of dissolution, Charles is required to satisfy the real estate mortgage on the family home, in the amount of $8,895.37, with monthly installments of $221.42. Betty's monthly utilities for the family home are expected to be $280. Monthly maintenance or repair of the residence is anticipated at $100. As a result of the property division, Charles received total control over the corporations and all corporate assets. Except for a debt of $530 pertaining to the beauty salon, the decree charged Charles with payment of all debts of the parties. Such debts are $278,000.
The decree of dissolution also provided:
[Betty] should have and recover from [Charles] as alimony, the sum of $96, 800.00 at the rate of $800.00 per month for a period of 121 months, commencing forthwith and hereafter due and payable by [Charles] to [Betty] through the Clerk of the District Court of Lincoln County, Nebraska, on the 24th day of each month for a total of 121 months.
Charles claims the amount of alimony is excessive. In her cross-appeal Betty contends that the periodic payments ordered were an adjustment of property, not alimony, and should be exempt from modification or termination.
In appeals concerning dissolution of marriage, the Supreme Court is required to try the case de novo on the record and reach independent conclusions on the issues presented by the appeal without reference to the conclusions or judgment of the district court. Neb.Rev.Stat. § 25-1925 (Reissue 1979); Campbell v. Campbell, 202 Neb. 575, 276 N.W.2d 220 (1979).
Neb.Rev.Stat. § 42-365 (Cum.Supp.1982) provides:
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. Reasonable security for payment may be required by the court. Unless amounts have accrued prior to the date of service of process on a petition to modify, orders for alimony may be modified or revoked for good cause shown, but when alimony is not allowed in the original decree dissolving a marriage, such decree may not be modified to award alimony. Except as otherwise agreed by the parties in writing or by order of the court, alimony orders shall terminate upon the death of either party or the remarriage of the recipient.
While the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, the two serve different purposes and are to be considered separately. The purpose of a property division is to distribute the marital assets equitably between the parties. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate.
The determination of what will constitute proper alimony has been established by a long line of Nebraska cases. In Magruder v. Magruder, 190 Neb. 573, 576-77, 209 N.W.2d 585, 587 (1973), we held:
In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criteria under the statute as well as under the former decisions of this court is one of reasonableness.... [Citations omitted.] The determination of whether it is reasonable to award alimony and if so how much takes into consideration all the circumstances of the parties, as well as the duration of the marriage and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children of the parties in the supported party's custody.
Tax returns of the Gleason corporations for the fiscal year ending January 31, 1982, indicate a net loss of $40,085. Of that loss, $17,021 is directly attributable to the depreciation of assets owned by the corporations. The removal of this noncash loss figure from the overall loss shown by the corporations reveals that the corporations nevertheless suffered a $23,064 loss for 1982. Although...
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