Kellner v. Kellner

• Decision Date: 20 April 1999
• Docket Number: No. A-98-338,A-98-338
• Citation: 593 N.W.2d 1,8 Neb.App. 316
• Parties: Nancy KELLNER, Appellee, v. Dennis P. KELLNER, Appellant.
• Court: Nebraska Court of Appeals

Page 1

593 N.W.2d 1

8 Neb.App. 316

Nancy KELLNER, Appellee, v. Dennis P. KELLNER, Appellant.

No. A-98-338.

Court of Appeals of Nebraska.

April 20, 1999.

Syllabus by the Court

1. Evidence: Records: Appeal and Error. Before an appellate court can consider an issue of fact, evidence must have been offered at the trial court and embodied in the bill of exceptions filed with the appellate court.

2. Property Division: Alimony: Appeal and Error. The division of property and the awarding of alimony are matters entrusted to the discretion of the trial judge and, on appeal, will be reviewed de novo on the record and will be affirmed in the absence of an abuse of the trial judge's discretion.

3. Evidence: Appeal and Error. In a de novo review on the record, an appellate court reappraises the evidence as presented by the record and reaches independent conclusions from those of the trial court. If the evidence is in conflict, the appellate court may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

4. 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.

5. Judgments: Appeal and Error. In reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

6. Property Division. The ultimate test for determining an appropriate division of marital property is one of fairness and reasonableness as determined by the facts in the case.

7. Property Division. Where growth of the marital estate cannot be attributed to 8. Divorce: Property Division. There is no statute authorizing a court in a dissolution action to order a sale of all the parties' property.

one party more than to another, the trial court may divide the estate equally.

9. Divorce: Property Division: Judicial Sales. A court in a dissolution action may provide for the sale of all or part of the parties' assets in lieu of dividing them, if to do so is reasonable in the light of the facts, the circumstances of the parties, and the nature of their property.

10. Divorce. It is not reasonable for a court in a dissolution action to unnecessarily interfere with the respective desires of the parties and their way of life.

11. Judicial Sales: Property. To force the sale of a farmer's, or other small business person's, property with no chance for that person to buy it is unreasonable, even when the circumstances justify a sale.

12. Property Division: Judicial Sales: Taxes. For a court to force one or both parties to incur substantial income tax liability by a forced sale is unreasonable, unless the sale is necessary to accomplish the necessary division.

13. Appeal and Error. Plain error may be noted by an appellate court on its own motion.

14. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

15. Receivers. Neb.Rev.Stat. § 25-1086 (Reissue 1995) provides that no person shall be appointed a receiver who is a party, solicitor, or in any manner interested in the suit.

16. Property Division: Judicial Sales: Words and Phrases. The general power of a court to order the sale of the parties' property is usually referred to as a "judicial sale."

17. Judicial Sales: Real Estate. In a judicial sale, a court should not appoint a person to sell real estate when that person is interested in the suit or the property.

18. Property Division: Proof. The burden of proof to show that property is nonmarital is on the person making the claim.

19. Alimony. The ultimate criterion in deciding whether alimony should be awarded, in what amount, and over what period of time is one of reasonableness.

20. Alimony: Appeal and Error. The awarding of alimony is a matter entrusted to the discretion of the trial judge, and on appeal, the award will be reviewed de novo on the record and will be affirmed in the absence of an abuse of the trial judge's discretion.

21. Alimony. In determining whether alimony should be awarded, the trial court should consider what effect, if any, the marriage has had upon the ability of one party to secure employment in the future and the earning capacity of the other party. Alimony is not to be used simply to equalize the income of the parties or to punish one of the parties. It may be used to assist the other party during a reasonable time to bridge that period of unavailability for employment or for that period to get proper training for employment.

John W. Ballew, Jr., of The Bruckner/Ballew Law Firm, P.C., Lincoln, for appellant.

John H. Sohl and Becky J.W. Dias, of Edstrom, Bromm, Lindahl & Sohl, Wahoo, for appellee.

Before IRWIN, Chief Judge, and HANNON and SIEVERS, Judges.

HANNON, J.

This is a dissolution action between Nancy Kellner, petitioner, and Dennis P. Kellner, respondent. The Kellners were married for 23 years and had accumulated considerable property. The issues litigated have to do with the property division and alimony. The trial court awarded Dennis as his "separate property" his clothing and personal effects The decree goes on to provide that Dennis shall convey all his interests in the parties' property "not specifically set forth above" to Nancy, that Nancy shall hold title to one-half of such property as trustee and the other one-half in her own name, and that she shall sell all of the tangible property and pay one-half of the net proceeds to the clerk of the district court for Dennis' benefit. The effect of this order is to order all the parties' land, livestock, and farm equipment to be sold by Nancy within a specified timeframe and the proceeds to be divided.

the 1989 Chevrolet Sierra, and some intangible property in his possession. The court awarded Nancy her clothing and personal effects, some household effects, and memorabilia listed on exhibit 24.

The decree does not clearly distribute all of the parties' considerable intangible personal property. Dennis was also ordered to pay Nancy $200 per month alimony for 121 months and other sums set forth later in this opinion. Dennis appealed, in summary arguing that the court erred in liquidating the marital estate, in allowing Nancy to do so, and in awarding alimony.

We find that the facts in this case justify an equal division of the parties' marital property, which facially the trial court did, but because the court's decree did not provide for distribution of the considerable intangible personal property, the true effect of the decree is open to dispute. We find that it was an abuse of discretion for the trial court not to clearly provide for distribution of all of the parties' intangible property, to order the sale of all their tangible property, to authorize Nancy as a fiduciary to sell that property or buy it herself, and to award Nancy alimony.

We, therefore, in part reverse, and remand with directions to provide for an equal distribution of all of the parties' marital estate, which shall be by in-kind distribution in so far as possible under the facts existing at the time of remand; for sale of the property that cannot be divided in kind under the direction of the court by someone not interested in either party; and for vacating the judgment for alimony. But we otherwise generally affirm as modified.

SUMMARY OF EVIDENCE

At the time of the trial on October 10, 1997, Nancy was 42 and Dennis was 45. They married on September 7, 1974, and they had two children, who have reached the age of majority. Both parties graduated from high school but neither attended college. During most of their marriage, they farmed, raising cattle and crops. At one time, they farmed 1,000 acres of row crops and had 300 acres of pasture. They owned some of the land but rented most of it.

Since 1992, they have leased their land out for $90 an acre. They also leased an additional 100 acres which they have sublet for an additional $1,500 per year profit. The Kellners' rent payment was $3,750 payable twice a year on March 1 and December 1, 1993. At the time of their separation, they continued to run a small herd of stock cows, and they owned considerable machinery, several vehicles, tools, hay, feed, and grain.

Land Purchases.

Dennis purchased 80 acres of land in 1973 before their marriage for $32,000, using "about $9,000" of his premarital assets as a downpayment on the tract of land. In 1995, the parties conveyed this land to themselves as joint tenants. At the time of trial, the property was still subject to a $16,955 mortgage. On September 15, 1977, they paid $44,000 for 40 acres of land located about 1 1/2 miles from the 80-acre tract. At the time of the decree, the 40-acre tract of land was subject to a mortgage of $49,997. Their home was situated on the 40 acres, and they lived there until Nancy moved out on June 30, 1996, when they separated. Dennis continued to reside there.

Marital History.

Before they were married, Nancy worked full time as a secretary for the Lincoln Public Schools and at a Denny's restaurant as a waitress, and Dennis farmed. During the marriage and until 1992, Nancy primarily kept the parties' home and cared for their children, along with helping out with labor on the farm and taking care of the finances. She stated that she took care of killing the thistles, repairing the fences, and milking the cows. When Dennis was away from home Dennis worked full time as a farmer until 1992. He...