Kramer v. Kramer

• Decision Date: 06 April 1993
• Docket Number: No. A-91-155,A-91-155
• Citation: Kramer v. Kramer, 510 N.W.2d 351, 1 Neb.App. 641 (Neb. App. 1993)
• Parties: Kathleen J. KRAMER, Appellee and Cross-Appellant, v. Kenneth J. KRAMER, Appellant and Cross-Appellee.
• Court: Nebraska Court of Appeals

Page 351

510 N.W.2d 351

1 Neb.App. 641

Kathleen J. KRAMER, Appellee and Cross-Appellant, v.Kenneth J. KRAMER, Appellant and Cross-Appellee.

No. A-91-155.

Court of Appeals of Nebraska.

April 6, 1993.

Robert J. Hovey, P.C., Bellevue, for appellant.

Peter C. Bataillon, of Sodoro, Daly & Sodoro, Omaha, for appellee.

SIEVERS, C.J., and CONNOLLY and WRIGHT, JJ.

SIEVERS, Chief Judge.

This appeal involves the amount of alimony payable by Kenneth J. Kramer to his former wife, Kathleen J. Kramer, as well as whether the trial court correctly used alimony as the proper vehicle by which to divide Kenneth's military pension.In Kenneth's appeal, he claims the trial court erred in awarding too much alimony and also in awarding attorney fees.In Kathleen's cross-appeal, she claims the trial court improperly handled her interest in Kenneth's military pension.

The parties were married August 24, 1965, and their two children are both emancipated.At the time of the trial in May 1990, Kenneth was 47 years of age and employed as a software engineer with TRW in Bellevue, Nebraska, earning a gross annual salary of approximately $57,148, based on the biweekly figures provided in the record.Kenneth had previously served in the Air Force from June 1962 to June 1984.As a result, he was also receiving military retirement benefits in a gross amount of $1,620 per month, with a net of $1,344.46.

Kathleen was also 47 years of age at the time of the trial.She did not work outside of the family home until 1981, when she began a series of jobs in the mental health field, including part-time and volunteer work.In her last full year of employment, 1989, she worked for Richard Young Psychiatric Hospital, earning a gross amount of $7,337.92.At the time of the trial, Kathleen said she was enrolled at Metro Community College in a paralegal program and was hoping to graduate at the end of 1991.She projected an earning capacity in this field of $18,000 to $24,000 per annum.Although during the marriage Kathleen had acquired nearly all of the required credits for a bachelor's degree in psychology, she indicated that it was a "very difficult and a very hard field to work in" and that now she desired a career change into paralegal work.

The trial court made two separate awards of alimony.The first is what might be called traditional alimony and involved an award of $1,200 per month for 1 year, to be automatically reduced to $900 per month thereafter.This alimony was only terminable upon the death of either Kathleen or Kenneth or upon the remarriage of Kathleen.Kenneth contends that the traditional alimony award is too much for too long.

The second award of alimony dealt with Kathleen's interest in Kenneth's military pension.Although the trial court awarded Kenneth all rights and entitlement to his military retirement pension, it proceeded to award additional alimony to Kathleen in the nature of that approved in Pyke v. Pyke, 212 Neb. 114, 212 Neb. 114, 321 N.W.2d 906(1982), where the Nebraska Supreme Court held that a husband's military retirement could be considered as a fund available to the husband from which to pay alimony.However, Pyke was decided under the direction of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589(1981), and before the adoption in 1982 of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1401 et seq.(1988 & Supp. II 1990)(USFSPA).The USFSPA permitted state courts to once again award a husband or wife an interest in his or her spouse's military pension, thereby superseding McCarty, which had held that federal law precluded a state court from awarding a nonmilitary spouse a portion of the military spouse's pension.The net result in Nebraska was that the enactment of the USFSPA effectively returned the military pension to its status as a marital asset subject to division under Neb.Rev.Stat. § 42-366(Reissue 1988).

In this case, however, the trial court's order provided that Kenneth would pay Kathleen $750 per month until the death of either party, but made it a modifiable award by stating:

[T]his award of alimony is not to terminate automatically upon the remarriage of the Petitioner.This alimony may be modified upon a change of circumstances to be considered by the court at some future date, together with any other relevant circumstances in regard to the earning capacity of either of the parties.

That in consideration of the provision, Respondent is awarded all rights and entitlement to his United States Air Force Military Retirement Pension.

The standard of review in an appeal involving an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial court.In the absence of an abuse of discretion, the judgment will be affirmed.Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204(1990).

Neb.Rev.Stat. § 42-365(Reissue 1988) provides that alimony may be ordered

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.

The Supreme Court in Gleason v. Gleason, 218 Neb. 629, 357 N.W.2d 465(1984), held that the ultimate test for determining appropriate alimony is reasonableness.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 § 42-365 make it appropriate.Ritz v. Ritz, 229 Neb. 859, 429 N.W.2d 707(1988).

We first turn our attention to the traditional alimony of $1,200 per month for 1 year followed by $900 per month until the death of either party or remarriage of Kathleen.This alimony is in essence a lifetime award, unless Kathleen remarries.Given modern life expectancies, Kenneth could quite likely pay Kathleen alimony for 25 years or more (longer than they were married), if he lives a normal life expectancy and she does not remarry.In Ritter, the court stated that in addition to the statutory criteria listed in § 42-365, the income and earning capacity of each party, as well as the general equities of the situation, must be considered.

In the circumstances present here, Kathleen acquired virtually all of the credits toward a bachelor's degree in psychology during the marriage, plus had considerable work experience, albeit not great income, during the marriage.She appears to be well launched toward a second career as a paralegal, and she has no minor children to care for, which would otherwise operate as an impediment upon her ability to work.Fortunately, she is not incapacitated in any way.Nonetheless, excluding consideration of the military pension and its proper division, the earning capacities of the parties are still quite disparate.At the time of the trial, Kenneth's gross income from TRW was approximately $57,148 per year, and assuming Kathleen becomes employed as a paralegal at her maximum estimated salary of $24,000, she would still be earning only 42 percent of Kenneth's salary.Thus, although we do not attempt to equalize earnings, we must examine income and earning capacity under Ritter, and having done so, we believe alimony is clearly appropriate in this situation.However, it should not extend beyond a reasonable period of time, and certainly not into Kenneth's retirement, when his earnings will obviously be substantially reduced.Although we believe the amount of monthly alimony awarded is appropriate, we do not believe a lifetime award of alimony, terminating only if Kathleen remarries, is appropriate.In our view, there is no tenable reason shown by this record to require Kenneth to potentially pay alimony through his sixties and perhaps well into his seventies or eighties.Accordingly, we affirm the award of traditional alimony found in paragraph III of the court's decree, except that it shall be modified to provide that alimony shall continue to be paid on the first day of each month after June 1, 1990, in the amount of $900 per month "until the death of the petitioner or the respondent, or upon the remarriage of the petitioner, or until June 1, 2005."This is 15 years of alimony, and when it terminates, both parties will be 62 years of age, unless it is previously terminated by the death of either party or Kathleen's remarriage.

Kathleen's cross-appeal is based upon the use of Pyke alimony to deal with Kenneth's military pension, which at the time of trial was $1,620 per month, or $19,440 per annum.Kathleen was married to Kenneth 19 of the 22 years that he served in the Air Force.The trial court's award of Pyke alimony is equal to 46 percent of the monthly pension payment, which takes into account the increase in January 1990 from $1,547 per month to $1,620 per month, but does not and will not take into account future increases.Expert testimony adduced by Kathleen established the value of the military pension at between $181,725 and $261,206.

Section 42-366 provides that pension and retirement plans are to be included in the marital estate.In 1982, Congress enacted the USFSPA, and the Nebraska Supreme Court thereafter held in Taylor v. Taylor, 217 Neb. 409, 413, 348 N.W.2d 887, 889(1984), that ...