Halouska v. Halouska, A-97-546
| Decision Date | 06 October 1998 |
| Docket Number | No. A-97-546,A-97-546 |
| Citation | 7 Neb.App. 730,585 N.W.2d 490 |
| Parties | Sandra J. HALOUSKA, Appellee, v. Ronald L. HALOUSKA, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Divorce: Property Division: Alimony: Attorney Fees: Appeal and Error. 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 judge. This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees.
2. Divorce: Property Division: Appeal and Error. 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.
3. Evidence: Appeal and Error. 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 matters at issue.
4. Evidence: Appeal and Error. 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 heard and observed the witnesses and accepted one version of the facts rather than another.
5. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, 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.
6. Child Support: Presumptions. It is appropriate to consider overtime wages in setting child support only when overtime is a regular part of the employment and the employee can actually expect to earn regularly a certain amount of income from working overtime.
7. Child Support: Rules of the Supreme Court. In determining the amount of child support to be paid by a parent, the court must consider the earning capacity of each parent and apply the Nebraska Child Support Guidelines adopted by the Nebraska Supreme Court.
8. Child Support: Rules of the Supreme Court. The Nebraska Child Support Guidelines provide that in the event of substantial fluctuations of annual earnings of either party during the immediate past 3 years, the income may be averaged to determine the amount of child support owed by each parent.
9. Alimony: Appeal and Error. A decision whether to award alimony must be made on the particular facts and equities of each individual case, and the court must consider all of the facts and equities, in addition to those factors specifically enumerated in Neb.Rev.Stat. § 42-365 (Reissue 1993). The ultimate test for determining correctness in the amount of alimony is reasonableness, and the trial court's determination will normally be affirmed in the absence of an abuse of discretion.
10. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.
11. Alimony. In addition to the specific criteria listed in Neb.Rev.Stat. § 42-365 (Reissue 1993), a court setting alimony is to consider the income and earning capacity of each party, as well as the general equities of each situation.
12. Divorce: Property Division. A marital estate is to be divided so that a spouse receives one-third to one-half. However, property division is not subject to a rigid mathematical formula, but, rather, turns upon the facts and circumstances of each individual case in light of the statutory factors found in Neb.Rev.Stat. § 42-365 (Reissue 1993).
13. Divorce: Property Division. In a dissolution action, the court will consider all pertinent facts in reaching an award that is just and equitable. The ultimate test for determining an appropriate division of marital property is one of reasonableness. The division must, most of all, be reasonable.
14. Divorce: Property Division. In cases where the growth of the marital estate cannot be attributed to one party more than to another, the trial court may divide the estate equally.
15. Divorce: Property Division. The debts of the parties should be considered in making a property division in a dissolution of marriage action.
16. Divorce: Property Division. The date upon which the marital estate is valued should be rationally related to the property composing the marital estate.
17. Bankruptcy. The dischargeability of a debt is a question of federal bankruptcy law.
18. Bankruptcy: Alimony: Child Support. Pursuant to 11 U.S.C. § 523(a)(5)(B) (1994), a designation of a debt by a state trial court as alimony, maintenance, or support to a spouse, former spouse, or child will render it nondischargeable only if such liability is actually in the nature of alimony, maintenance, or support.
19. Bankruptcy: Alimony: Child Support. The critical issue in determining whether a debt constitutes alimony, maintenance, or support for purposes of the exception to discharge provided in 11 U.S.C. § 523(a)(5)(B) (1994) is the intent of the parties and the function the award was intended to serve at the time of the divorce.
20. Bankruptcy: Alimony: Child Support. Although a trial court's designation of debts as support might be one indication of the function the award was intended to serve, it is not conclusive. A declaration that the debts are nondischargeable in bankruptcy is not binding on the bankruptcy court.
21. Guardians Ad Litem: Fees: Appeal and Error. The allowance, amount, and allocation of a guardian ad litem fee are matters within the initial discretion of the trial court, necessarily involve consideration of the equities and circumstances of each particular case, and will be set aside on appeal only when there appears to be an abuse of discretion by the trial court.
Michael E. Piccolo, of Clough, Dawson & Piccolo, North Platte, for appellant.
Susan C. Williams, North Platte, for appellee.
This is an appeal from a decree dissolving the marriage of Ronald L. Halouska and Sandra J. Halouska. Ronald appeals on the grounds that the trial court erred in (1) computing the parties' net monthly incomes, (2) computing child support, (3) computing the amount and duration of alimony, (4) determining the values of marital assets and debts, (5) dividing the marital estate, (6) assessing all of the guardian ad litem fees to him, and (7) ordering that the debts assigned to him are nondischargeable in bankruptcy.
Ronald and Sandra were married on August 2, 1975. Two children were born of the marriage, Jody, age 21 at the time of trial, and Jill, age 13 at the time of trial. On July 3, 1996, Sandra filed for divorce, and an ex parte nonhypothecation order was entered ordering that Ronald "be restrained from selling, assigning, concealing, or liquidating any or all of the real estate or personal assets of the parties, individually or collectively, except in the usual course of business during the pendency of this action." On August 5, the court granted Sandra's motion that Ronald be excluded from the family home, granted a restraining order against him, and entered a temporary nonhypothecation order for the pendency of the divorce.
Trial was held on March 25, 1997. Ronald and Sandra were the only witnesses. The trial court awarded joint physical and legal custody of Jill to the parties, with physical custody to rotate every 6 months. Using the parties' 1996 incomes, the trial court ordered Ronald to pay child support of $142 per month until Jill reaches the age of majority, dies, becomes emancipated, marries, or until further order of the court. The court also ordered Ronald to pay alimony of $400 for 120 months or until the death of either party or the remarriage of Sandra, attorney fees of $1,000, costs, and the entire guardian ad litem fee of $763.75. Sandra was awarded one-half of the value of Ronald's "Tier II Railroad Retirement" which accrued during their marriage.
In addition to the retirement account, according to the trial court's calculations Sandra was awarded property the value of which was $157,781.27 and debts of $97,691.89, for a total net award of $60,089.38 (51 percent); Ronald was awarded assets valued at $64,864.24 and debts of $6,538.85, for a total net award of $58,325.39 (49 percent). Included in Ronald's property award were a Pacific Brokerage Services account valued at $3,655.48 which he testified had been liquidated and used to pay marital debt; a Euro-Atlantic Securities account valued at $5,223.08 which he testified had been liquidated to pay real estate taxes on the parties' rental house in which he was living; five credit card accounts the balances of which were listed as "unknown" in the court's schedule awarding property; and two credit cards at balances which were substantially lower than those proposed by Ronald. All the debts assigned to Ronald were declared by the court to be in the nature of support and maintenance and thus, nondischargeable in bankruptcy.
Ronald appeals to this court, asserting that the trial court erred in determining the parties' net monthly incomes, consequently erring in child support and alimony calculations; in determining or failing to determine the value of marital assets and debts and in dividing those assets and debts; in assessing all of the guardian ad litem fees to him; and in ordering that the debts assigned to him are nondischargeable in bankruptcy.
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...
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