Hart v. Hart, 011921 NECA, A-20-362

Docket NºA-20-362
Opinion JudgeMOORE, JUDGE
Party NameTrina Y. Hart, appellee, v. Hein W. Hart, appellant.
AttorneyRyan Mick Swaroff, of Swaroff Law, L.L.C., for appellant. Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.
Judge PanelPirtle, Chief Judge, and Moore and Arterburn, Judges.
Case DateJanuary 19, 2021
CourtCourt of Appeals of Nebraska

Trina Y. Hart, appellee,

v.

Hein W. Hart, appellant.

No. A-20-362

Court of Appeals of Nebraska

January 19, 2021

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 Douglas County: Gregory M. Schatz, Judge.

Ryan Mick Swaroff, of Swaroff Law, L.L.C., for appellant.

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, JUDGE

INTRODUCTION

Hein W.Hart appeals from a decree entered by the District Court for Douglas County, dissolving his marriage to Trina Y. Hart. Hein challenges certain aspects of the division of property and debts, and the award of attorney fees to Trina. For the reasons that follow, we affirm as modified.

BACKGROUND

Trina and Hein were married on March 14, 2014. Trina had three children from a previous marriage, who resided with the parties during the marriage. At the time of the dissolution, all of the children had reached the age of majority. Trina and Hein attempted to have a child through surrogacy before and during the marriage, but were unsuccessful.

The parties separated, and Trina filed a complaint for dissolution in April 2019. A temporary order awarded Trina exclusive use of the marital residence, and Hein was ordered to maintain the mortgage on the property along with associated household bills, as well as pay Trina's car payment of $822 per month. Trial was held on March 5, 2020. The following evidence was presented at trial.

The parties spent significant sums of money attempting to conceive a child through surrogacy, both during and prior to the marriage. Before the parties got married, Trina transferred $30, 000 from a money market account containing funds inherited from her father into a checking account at Great Western Bank that she held prior to the marriage for the purpose of furthering the parties' surrogacy efforts. According to her testimony and bank statements, in the 2 months prior to the marriage, Trina paid $32, 958.00 towards the efforts of conceiving a child with Hein from the Great Western Bank checking account. The balance of the Great Western Bank checking account on the date of the marriage was $4, 020.22. Shortly after their marriage, Trina and Hein jointly borrowed $100, 000 from Great Western Bank to further fund their plans of surrogacy. This $100, 000 loan was secured by a $100, 000 Certificate of Deposit No. 9245 held in Trina's name. Trina testified that the loan was secured by "borrowing against [her] children's inheritance" and that Certificate of Deposit No. 9245 was funded by combining three other certificates of deposit, jointly owned by Trina and her children, originating from inheritance funds that Trina's children received from Trina's father.

Trina testified that Hein was aware of the transactions made to secure the $100, 000 loan from Great Western Bank and agreed to pay back the funds borrowed from Trina's children. Hein and Trina made monthly payments of $1, 888.80 on the $100, 000 loan for two years. On September 16, 2016, Trina cashed in Certificate of Deposit No. 9245 in order to pay off the balance on the loan. The proceeds of the certificate of deposit, $99, 051.41, was deposited into Trina's Great Western Bank checking account on the same day. Trina then paid the remaining balance of the loan from her Great Western Bank checking account the same day, totaling $59, 852.59. The balance of the proceeds of the certificate of deposit ($39, 198.82) remained in the Great Western Bank checking account, which Trina testified was a reimbursement for her premarital contributions to the surrogacy attempts. At the time the parties separated, the Great Western Bank checking account had a balance of $69, 810.86.

At the time of the marriage and continuing throughout, Hein worked as an insurance salesman for Washington National, which according to Trina was a successful business. Trina and Hein formed Trination, LLC, to operate Hein's insurance business during the marriage. Trination paid Hein's business expenses, as well as some personal expenses including maintenance of a home office, cell phones, and household utilities. Although tax documents indicate Hein is the sole owner of Trination, corporate documents show that Trina and Hein each hold a 50-percent interest in Trination and that Trina was the secretary of the company.

At some point during the marriage, Trina began working as a medical technician and was the part-time bookkeeper for Trination. However, during the pendency of the divorce proceedings, Trina suffered an accident and was unable to work. Trina was able to return to work for a short period of time before suffering a collapsed lung and positive diagnosis for an autoimmune condition. Due to her lung injury, she has restrictions preventing her from working and does not qualify for disability benefits due to her work history.

In March 2019, Trina transferred $10, 000 from a bank account owned by Trination into the Great Western Bank checking account in order to pay bills and have funds while the parties were having marital disputes. Trina testified that she left "at least half" of the amount in the Trination account. Following Trina's withdrawal, the Trination account had a balance of $3, 775.74. Statements from the Trination account show that in March 2019, the account had a beginning balance of $16, 980.47 with deposits of $14, 174.79 during the month and a final balance of $6, 925.

The court entered a decree of dissolution of marriage on April 23, 2020. The decree ordered that the parties sell the marital home, with the balance of the net proceeds going to be used to pay marital debts in this order: $100, 000 to be paid to Trina's adult children as reimbursement for the certificates of deposit used to secure the $100, 000 loan; Great Western Bank in the approximate sum of $21, 608; Barclay (Trina's credit card) in the approximate sum of $2, 163; Bank of America (carpet) in the approximate sum of $3, 051; and Capital One #8259 in the approximate sum of $21, 400. Any remaining net proceeds were to be divided equally between the parties. The court awarded each party the household goods and personal property in their respective possession and further divided itemized personal property between the parties, noting that Hein was receiving $4, 400 more in value than Trina, which was used to offset the value of the vehicle Trina was awarded. Trina was awarded a 2015 Audi Q5 along with any debt attached to the vehicle, while Hein was awarded a 2018 Jeep Grand Cherokee along with any debt attached to the vehicle. Hein was awarded an Edward Jones account in the approximate sum of $5, 571 that he redeemed during the pendency of the marriage. The decree also ordered that Hein pay Trina 50 percent of all residuals or commissions received by Hein or Trination or its successors or assigns for any and all policy or products sold by Hein or anyone else in which he or the business entity receives commissions or residuals for policies or products sold between March 15, 2014 to May 1, 2019. The court ordered each party to assume any debt incurred in their respective names. The decree did not specifically address any other accounts or debts of the parties, nor did it include a chart showing the division of assets...

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