Kricsfeld v. Kricsfeld, A-97-720

• Decision Date: 05 January 1999
• Docket Number: No. A-97-720,A-97-720
• Parties: Cheryl R. KRICSFELD, appellant and cross-appellee, v. Barry L. KRICSFELD, appellee and cross-appellant.
• Court: Nebraska Court of Appeals

Page 210

588 N.W.2d 210

8 Neb.App. 1

Cheryl R. KRICSFELD, appellant and cross-appellee, v. Barry L. KRICSFELD, appellee and cross-appellant.

No. A-97-720.

Court of Appeals of Nebraska.

Jan. 5, 1999.

Syllabus by the Court

1. Courts: Judgments: A trial court has discretionary inherent power to vacate or modify its judgment anytime during the term in which the judgment was rendered.

2. Alimony: Appeal and Error. 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.

3. Divorce: Property Division: Alimony. In dividing property upon a dissolution of marriage and in determining alimony, a court should consider four factors: (1) the circumstances of the parties; (2) the duration of the marriage; (3) the history of contributions to the marriage, including contributions to the care and education of the children and interruption of personal careers or educational opportunities; and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.

4. Alimony. Disparity in income or potential income may partially justify an award of alimony.

5. Courts: Jurisdiction: Appeal and Error. Generally, once an appeal has been perfected, the trial court has no jurisdiction to determine any issues regarding the subject matter of the litigation.

6. Supersedeas Bonds: Courts: Jurisdiction: Judgments. If a supersedeas bond has not been filed, the court retains jurisdiction to enforce the terms of the judgment.

7. Courts: Appeal and Error. A court may properly consider a motion for an order nunc pro tunc even after an appeal has been perfected.

8. Divorce: Property Division. To the extent that the value of a covenant not to compete is solely dependent on the presence or reputation of an individual, it is not a marital asset.

David A. Domina, of Domina Law, P.C., Norfolk, for appellant.

Steven J. Lustgarten and Patrick A. Campagna, of Lustgarten & Roberts, P.C., Omaha, for appellee.

IRWIN, Chief Judge, and SIEVERS and MUES, Judges.

MUES, Judge.

I. INTRODUCTION

Cheryl R. Kricsfeld appeals from the order of the Douglas County District Court modifying a decree of dissolution. Barry L. Kricsfeld has cross-appealed. For the reasons set forth below, we affirm in part, and in part reverse.

II. BACKGROUND

On November 22, 1995, Cheryl, born September 18, 1948, filed a petition for dissolution of her 27-year marriage to Barry, born January 25, 1946. Trial was held December 4 and 5, 1996, and the following evidence was adduced: Barry and Cheryl were married on December 22, 1968. Three children were born of the marriage: Alan, born August 21, 1972; David, born November 15, 1975; and Michael, born January 7, 1979. At the time of the marriage, Barry and Cheryl were both students. Cheryl was in her junior year of college, and Barry was in graduate school and had applied to medical school. Barry was accepted into medical school in 1969.

Cheryl obtained her teaching certificate in the spring of 1970 and immediately began teaching full time. Cheryl worked for 21/2 years, until she became pregnant with Alan. During this time, Barry's parents continued to pay his educational expenses, and both Barry's and Cheryl's parents assisted with the couple's living expenses until after Barry finished his residency in 1976.

In 1976, Barry began working with a Dr. Collignan at Diagnostic and Internal Medicine Associates (D.I.M.A.), a professional corporation. When Collignan retired in 1979, Barry "bought him out" and acquired 100 percent of the corporate stock. Dr. Stephen Nelson joined Barry in 1982, and they practiced together until Nelson's death in 1993, at which time Barry "had to buy out [Nelson's] portion [of D.I.M.A.] and pay it to his estate." Later that same year, Barry acquired the practice of another physician, Dr. James Knott, for approximately $50,000 to $55,000.

Dr. Evelyn Reher joined Barry in 1994. Reher's employment contract provided that on July 31, 1996, Reher would be eligible to purchase 50 percent of D.I.M.A.'s outstanding shares for $5,000. The contract further provided that if Reher chose to exercise this option, she would have to pay Barry a management fee of $30,000 a year for 4 years. If Reher left D.I.M.A. for any reason, she was obligated to sell the stock back to Barry for $5,000 plus "a sum equal to the product of the number of full months worked over forty-eight (48) times forty percent (40%) of the accounts receivable of [D.I.M.A.]" Barry testified that the stock purchase option was currently available to Reher; however, she had been advised by her attorney not to exercise that option until after the divorce proceedings between Barry and Cheryl were completed.

Wendell Quist, a certified public accountant testifying on Barry's behalf, opined that D.I.M.A. had a fair market value of $61,094. Reed Samson, a certified public accountant testifying on Cheryl's behalf, opined that D.I.M.A. had a fair market value of $352,000. At the time of trial, Barry was grossing between $29,000 and $32,000 a month and estimated that his net income was approximately $18,259.89.

In 1990, Cheryl began working part time as a substitute teacher. Cheryl testified that she could not work full time until she got recertified. According to Cheryl, she needed to complete 16 hours of course study to get her recertification. As of the time of trial, Cheryl had completed 4 of the 16 hours. Cheryl expected to complete her studies in January or June 1998 and stated that the beginning salary for teachers in District 66 was $21,000. Cheryl testified that she would also like to get her master's degree, which would require an additional 20 hours of study. Prior to resuming teaching, Cheryl had devoted her attentions to nurturing her children and performing volunteer work for various civic organizations.

In the May 16, 1997, decree, the trial court determined that Barry had a gross yearly income of $372,000 and a net monthly income of $17,196.23 and that Cheryl had an annual gross earning capacity of $10,400 with a net monthly earning capacity of approximately $762.49 based upon a wage of $5 per hour. The court ordered Barry to pay alimony in the amount of $6,000 a month until Cheryl reaches age 65, dies, or remarries, whichever occurs first. At the time of trial, Cheryl was 48 years of age and Barry was 50 years old.

The court determined that the value of D.I.M.A. was $352,000 and awarded it all to Barry. The court further ordered that certain personal property be divided among the parties. The distribution and valuation of the personal property is not challenged by the parties. Utilizing the values determined by the court, Cheryl received total net property of $640,572.77 and Barry received net property of $909,260.44. In order to equalize the property award, the court ordered Barry to pay Cheryl $134,343.84. The court further ordered that the family residence and certain items of personal property not specifically awarded to either party be sold and that the proceeds be applied toward various debts of the parties. Any proceeds remaining after the debts had been paid were to be divided equally between the parties.

The court ordered Barry to pay Cheryl $18,853.21 in attorney fees and other costs. Because of the contentiousness of the parties, the court had appointed a guardian ad litem for Michael, even though he was nearly 18 years old at the time of trial. The court ordered that the parties each pay 50 percent of the guardian ad litem fees. The parties' agreement on joint custody was approved by the court, and Cheryl was awarded $2,350 a month in child support.

Barry filed a motion for new trial, and a hearing was held June 10, 1997. After hearing arguments of the parties, the court modified the original award of alimony to provide, inter alia, that commencing on the first day of the month after the personal property is sold and the closing of the house sale, the following alimony amounts would be payable: $6,000 per month for 36 months, then $5,000 per month for the next 36 months, then $4,000 per month for the next 60 months; and then $3,000 per month for the next 72 months. The court provided that all alimony would continue until Cheryl reaches age 65, dies, or remarries, whichever occurs first, and "said alimony shall not terminate upon the death of [Barry]." Cheryl's notice of appeal was filed July 8, 1997, and Barry has cross-appealed. After the notice of appeal was filed, several motions were presented to the trial court by Barry, which will be discussed later as necessary to our opinion.

III. ASSIGNMENTS OF ERROR

Cheryl's four assignments of error are condensed for discussion to be: The trial court erred (1) in awarding inadequate alimony and in injecting fault into the decision, (2) in awarding inadequate temporary alimony, and (3) in ruling on certain motions after the appeal had been filed.

Barry cross-appeals, assigning as error that the trial court erred in the amount and term of alimony, in the valuation of D.I.M.A., and by not granting relief sought by him after the notice of appeal was filed.

IV. STANDARD OF REVIEW

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. Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998). See Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996).

With respect to questions of law, an appellate court has an obligation to reach a conclusion independent of the determination made by the court below. See Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998).

V. DISCUSSION

1. TEMPORARY SUPPORT ORDER

Cheryl...