Harris v. Harris
| Decision Date | 19 January 2001 |
| Docket Number | No. S-99-914.,S-99-914. |
| Citation | 621 N.W.2d 491,261 Neb. 75 |
| Parties | Robin Aleta HARRIS, Appellee, v. Terry Francis HARRIS, Appellant. |
| Court | Nebraska Supreme Court |
Mark S. Bertolini, of Bertolini, Schroeder & Blount, Bellevue, for appellant.
David Riley, Omaha, for appellee.
Terry Francis Harris appeals from the July 14, 1999, order of the Sarpy County District Court, which dissolved Terry's marriage to Robin Aleta Harris; awarded custody of the parties' two children to Robin, with reasonable rights of visitation granted to Terry; and divided the parties' marital property. Terry challenges the district court's division of certain property. For the reasons stated below, we affirm as modified.
Terry and Robin were married on October 1, 1987. The couple have two children, twin daughters, who were minors at the time of the dissolution. At the time the parties married, Robin was 18 years old and had graduated from high school. Terry was on active duty with the U.S. Air Force, a career he had begun in January 1972. Terry holds a bachelor of arts degree from Bellevue University and an associate degree from Los Angeles Community College.
Robin worked during a large portion of the parties' marriage. Before the birth of the children, she worked for a temporary service, a position she left when the twins were born. In 1989, she worked for approximately 9 months with First Data Resources. She left that position to care for the couple's children. Two years later, she began working for Sears Credit Central in Omaha, but she was forced to leave this employment when Terry was assigned by the Air Force to remote service in Alaska.
In April 1992, Robin began working and studying at the Montclair Nursing and Rehab Center in Omaha, with the goal of becoming a certified nursing assistant. She obtained her certification approximately 6 months later, and in September, Robin started employment at the Huntington Park Care Center in Omaha. In 1999, Robin began working at the Douglas County Hospital, where she was earning $10.51 per hour working approximately 40 hours per week on an on-call basis at the time of trial.
In January 1998, Terry retired from the Air Force after 26 years of service with the rank of senior master sergeant. He was receiving a military pension at the time of trial. During the parties' marriage, Terry had purchased a survivor benefit plan (SBP) in favor of Robin, which plan guaranteed that Robin would receive her share of Terry's pension in the event she survived him. The monthly premium for the SBP was $137.68. After deducting certain payments, Terry's income from his military pension was $1,893 per month. At trial, the parties stipulated that Robin was entitled to 19.7 percent of Terry's military pension.
At the time of trial, Terry was employed by the U.S. Postal Service, working between 32 and 50 hours per week, at a base hourly rate of $13.88, plus a 10 percent nighttime differential. Terry also worked part time for the Omaha Park and Recreation Department as a sports official, for which he earned $2,778 in 1998. Terry was also employed part time as a schoolbus driver for Laidlaw Transit, Inc., where he worked approximately 10 to 12 hours a week at $10.25 per hour.
The family residence is located at 3259 Briar Oak, Omaha, Nebraska, and was purchased by Terry in 1982. The record shows the value of the home in 1982 was $54,500; however, the record does not show what Terry's equity in the residence was at the time of the 1987 marriage. In 1992, the parties encumbered the residence with a mortgage from Chase Manhattan Mortgage Corporation. In 1996, the parties obtained a second mortgage on the residence from Commercial Credit Corporation. At the time of trial, the two debts served by these mortgages were in the approximate amounts of $45,600 and $15,000, respectively. During the divorce proceedings, the parties stipulated that the residence was worth $82,000.
In December 1984, Terry opened a mutual fund savings plan (savings fund). The savings fund was intended to be a 15-year systematic investment plan, with a monthly investment of $300. Prior to the time the parties married, the savings fund contained 186.5 shares, valued at $11.42 per share, for a total value of $2,129.83. During the parties' marriage, Terry continued to make the monthly $300 investment. Robin's name was not added to the savings fund.
Throughout the parties' marriage, the parties maintained essentially separate financial accounts. Terry paid the mortgages and certain household expenses. Robin used her income to buy clothing for herself and the children, to pay for the children's school supplies and activities, and to purchase groceries and other household necessities. Robin was the primary caregiver for the children. The record shows Terry engaged in gambling.
Terry testified that he reported $3,662.50 in gambling winnings on his income taxes in 1995 and $5,600 in 1996. He testified that he had gambling losses but that he could not remember the amounts of those losses for tax years 1995 through 1998.
Beginning in May 1995, Terry began making large withdrawals from the savings fund. Terry deposited all of the amounts that he withdrew into a credit union account in his name. Robin was not an authorized party on the credit union account, nor was she a signatory. Robin testified at trial that she was not aware of these withdrawals. The chart below details the dates and amounts of Terry's withdrawals from the savings fund.
November 8, 1996 6,200.00 January 6, 1997 64,672.00 April 7, 1997 100.00 April 7, 1997 1,073.06 April 21, 1997 1,182.00 June 16, 1997 675.00 July 16, 1997 1,037.25 August 8, 1997 706.00 September 22, 1997 727.00 October 20, 1997 725.00 November 11, 1997 714.00 December 17, 1997 370.00 April 13, 1998 757.50 May 26, 1998 749.00 June 16, 1998 73.75 __________ Total $48,656.56
By June 1998, the savings fund held only 11.184 shares, worth a total of approximately $167.21.
Robin first filed for divorce in 1990, and she and Terry separated for approximately 1 year. The testimony indicates the parties were estranged in 1995. According to the testimony, in April 1995, Robin "asked" Terry for a divorce. On May 27, 1998, Robin again filed to dissolve the parties' marriage.
During the course of the divorce proceedings, the district court entered temporary orders with regard to support and maintenance issues. One such order, entered July 9, 1998, awarded Robin the temporary and exclusive use of the family residence and required that she pay the monthly mortgage statements and utility bills. At some point, Robin apparently fell behind in these payments, and Terry was forced to pay an arrearage of $1,744 (arrearage) to satisfy these obligations. In a temporary order dated November 13, the district court "preserved" the arrearage. During the divorce proceedings, the parties stipulated to the existence and amount of the arrearage attributable to the mortgages and utilities.
Trial was held on Robin's dissolution petition on March 15, 1999. In the decree entered July 14, the district court determined that the parties' marriage was irretrievably broken and should be dissolved. The district court awarded custody of the parties' two children to Robin, with reasonable rights of visitation to Terry. Terry was ordered to pay child support in the amount of $880 per month for two children as well as alimony to Robin in the sum of $1 per year for a period of 10 years. The parties were to split child-care expenses and expenses for health care that were not covered by insurance. Personal property and debts were divided between the parties in accordance with documentary evidence received at trial. None of those provisions of the decree are challenged on appeal. The decree contained further orders pertaining to property with which Terry takes issue. The issues raised by Terry on appeal involve the arrearage incurred during the pendency of the dissolution action, the SBP, the residence, and the savings fund.
The district court awarded Terry the family residence as his sole property, subject to the first and second mortgages, for which Terry was ordered to be solely responsible. The district court awarded Robin $375 per month from Terry's Air Force pension and ordered Terry to continue to pay the cost for the SBP in favor of Robin. The district court also found that Terry had dissipated the parties' savings fund and ordered Terry to pay Robin $24,000, representing Robin's share of the savings fund before dissipation. In connection with this determination, Terry was ordered to pay to Robin installments of $500 per month for a period of 48 months. It is from these various provisions of the decree that Terry appeals.
Terry filed his notice of appeal on August 11, 1999. Additional facts will be set forth below where pertinent to our analysis of Terry's assignments of error.
Terry assigns five errors which combine to form four. Terry claims, restated, that the district court erred (1) in failing to order Robin to repay Terry the amount of the arrearage which Terry paid during the pendency of the dissolution proceedings due to Robin's failure to comply with a temporary order entered by the district court; (2) in requiring Terry to pay for the SBP; (3) in failing to set off as Terry's separate property the savings fund and the parties' residence; and (4) assuming arguendo that the savings fund was marital property, in finding that Terry had dissipated the parties' savings fund and ordering Terry to pay Robin $24,000 as Robin's share of the dissipated savings fund.
In actions for dissolution of marriage, an appellate court reviews the case de novo on the...
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