Liming v. Liming

• Decision Date: 03 November 2006
• Docket Number: No. S-06-015.,S-06-015.
• Citation: 723 N.W.2d 89,272 Neb. 534
• Parties: Gail Ann LIMING, appellant v. Lonnie Lee LIMING, appellee.
• Court: Nebraska Supreme Court

723 N.W.2d 89

272 Neb. 534

Gail Ann LIMING, appellant v. Lonnie Lee LIMING, appellee.

No. S-06-015.

Supreme Court of Nebraska.

November 3, 2006.

COPYRIGHT MATERIAL OMITTED

Steffanie J. Garner Kotik, of Kleveland Law Offices, for appellant.

Paul M. Conley, Lincoln, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

Gail Ann Liming and Lonnie Lee Liming were divorced in district court, and Gail appealed the property division and alimony award. The primary issue presented in this appeal is whether Gail waived appellate review of the property division by accepting the benefits of the alimony award while her appeal was pending.

BACKGROUND

Gail and Lonnie were married in 1969. Gail filed a petition for dissolution in the district court on November 24, 2004. The parties had no children, but the case went to trial on the issues of property division and alimony.

At the time of trial, Gail worked full time at a university as a library assistant and earned approximately $10.55 per hour. Lonnie was not employed, but drew $959.70 per month from a postal service retirement benefit and $2,513 per month from a military disability benefit. The primary assets of the marital estate were Gail's retirement account and a house in Lincoln. The value of Gail's retirement account was $62,111.53. There is no dispute that Gail's retirement account was a marital asset.

Gail valued the family house at $160,000, subject to a $60,000 debt. Lonnie valued the house at $155,000, subject to an $80,954 debt. According to Gail, the purchase price of the house had been $157,000, which the parties financed in part with $115,000 that were the proceeds from the sale of the parties' previous residence. Lonnie testified that there had been debt on the previous residence, before Lonnie paid the debt with the $21,000 net proceeds of a winning lottery ticket. Lonnie was still married to Gail when he purchased the lottery ticket, in March 1997.

Also included in the marital estate were a car valued by Gail at $3,000, a motorcycle Gail valued at $20,000, a truck Gail valued at $8,200, a camper Gail valued at $14,000, and a mower Gail valued at $500. Lonnie valued the motorcycle at $12,000, but also claimed secured indebtedness for the motorcycle of $12,461. Similarly, Lonnie valued the camper at $12,000, but claimed secured indebtedness for the camper of $10,845. Gail did not deny Lonnie's evidence of the debts owed on the motorcycle and camper.

The primary issue at trial was the valuation of the family house. Lonnie and Gail each proposed that Lonnie be awarded the house and that Gail be awarded her retirement account. Gail contended that there was $100,000 of equity in the house, based on a $160,000 valuation and $60,000 debt. Thus, Gail proposed that Lonnie be ordered to pay Gail $22,444.50 to equalize what Gail believed to be the difference in the value of the property to be awarded to each party. Lonnie, on the other hand, calculated that there was $53,046 of equity in the house. Lonnie valued the house at $155,000 and subtracted $80,954 of indebtedness. Since Lonnie used his lottery winnings to pay off the parties' previous residence, and the proceeds from the sale of the previous residence were used to purchase the house at issue in this case, Lonnie also subtracted $21,000 in lottery proceeds from the house's equity. Lonnie proposed that the equity in the house would roughly offset the value of the retirement account, without an equalization payment. The parties did not adduce documentation to substantiate their arguments regarding the value of the property, instead relying on their own testimony and the worksheets prepared for trial to establish the basis for their calculations.

The court awarded the house to Lonnie and the retirement account to Gail. No equalization payment was ordered. The court did not make any express finding as to the value of the house, the equity in the house, or how the lottery proceeds might have been considered in such a calculation. The court awarded the motorcycle and a trailer to Lonnie without making specific findings as to their value or equity. The court also awarded the parties the personal property already in their possession, which had the effect of awarding Lonnie the truck and mower, and Gail the car, again without specific findings as to the value of the property. Lonnie was ordered to pay alimony, in the amount of $300 per month for 18 months.

Gail appealed to the Nebraska Court of Appeals, assigning that the district court erred in (1) distributing the parties' marital property in an unequal and inequitable manner and (2) limiting Gail's alimony award to 18 months. In support of her first assignment of error, Gail argued that the property division was inequitable because the $21,000 in lottery proceeds should have been included in the marital estate.

Lonnie filed a motion for summary affirmance on the basis that Lonnie had paid the alimony to the clerk of the district court in a lump sum of $5,400 and Gail had cashed the check issued to her in that amount. Lonnie argued that pursuant to the acceptance of benefits rule as explained in this court's decision in Giese v. Giese, 243 Neb. 60, 497 N.W.2d 369 (1993), Gail waived her arguments with respect to the property division and alimony award by accepting the alimony. The Court of Appeals granted Lonnie's motion for summary affirmance, citing Giese, supra, and we sustained Gail's petition for further review.

ASSIGNMENT OF ERROR

Gail assigns, restated, that the Court of Appeals erred in summarily affirming the judgment of the district court. In sustaining Gail's petition for further review, we directed the parties to file supplemental briefs addressing whether Gail waived her right to argue the issues of property division and alimony by accepting a portion of the district court judgment.

STANDARD OF REVIEW

Whether the Court of Appeals correctly concluded that Gail waived her right to appellate review is a question of law, regarding which we reach a conclusion independent of the determination reached by the Court of Appeals. See Trimble v. Wescom, 267 Neb. 224, 673 N.W.2d 864 (2004).

The division of property is entrusted to the discretion of the trial judge and will be reviewed de novo on the record and affirmed in the absence of an abuse of discretion. See Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).

ANALYSIS

ACCEPTANCE OF BENEFITS RULE

In her supplemental brief, Gail waives her appellate argument with respect to alimony but contends that the Court of Appeals should still have considered the issue she raised with respect to the property division. Because Gail does not take issue with the Court of Appeals' refusal to consider her argument with respect to alimony, we do not consider whether Gail's acceptance of Lonnie's lump-sum alimony payment required her to waive her appellate argument that the alimony award should have been for a longer period of time. Instead, the first issue we address is limited to whether Gail was permitted to accept the lump-sum alimony payment, yet still appeal the division of the marital estate.

The Court of Appeals concluded that Gail waived her appellate arguments based on our decision in Giese, supra. Giese, however, was based in the well-established, more general acceptance of benefits rule: that an appellant may not voluntarily accept the benefits of part of a judgment in the appellant's favor and afterward prosecute an appeal or error proceeding from the part that is against the appellant. See, e.g., Dovel v. School Dist. No. 23, 166 Neb. 548, 90 N.W.2d 58 (1958); State ex rel. Heintze v. County of Adams, 162 Neb. 127, 75 N.W.2d 539 (1956); Nuss v. Nuss, 148 Neb. 417, 27 N.W.2d 624 (1947); Hoesly v. Department of Roads and Irrigation, 143 Neb. 387, 9 N.W.2d 523 (1943) (on rehearing); Larabee v. Larabee, 128 Neb. 560, 259 N.W. 520 (1935); McKee v. Goodrich, 84 Neb. 479, 121 N.W. 577 (1909); Meade Plumbing, Heating &amp Lighting Co. v. Irwin, 77 Neb. 385, 109 N.W. 391 (1906); Weston v. Falk, 66 Neb. 198, 93 N.W. 131 (1903) (on denial of rehearing); Harte v. Castetter, 38 Neb. 571, 57 N.W. 381 (1894); Saxon v. Cain, 19 Neb. 488, 26 N.W. 385 (1886); Gray v. Smith, 17 Neb. 682, 24 N.W. 340 (1885); Hamilton County v. Bailey, 12 Neb. 56, 10 N.W. 539 (1881).

The acceptance of benefits rule, however, has exceptions. An exception to the acceptance of benefits rule exists where the right to the benefit accepted is absolute and cannot possibly be affected by reversal of the judgment. It is the possibility that appeal may lead to a result showing that the party was not entitled to what was received under the judgment appealed from that defeats the right of appeal. See, Dovel, supra; Hoesly, supra; Irwin, supra; Weston, supra. Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from. Dovel, supra.

Thus, the acceptance of benefits rule has no application where one is shown to be so absolutely entitled to the sum collected or accepted that reversal of the judgment or decree will not affect his or her right to it, as in the case of a collection of an admitted or uncontroverted part of his or her demand. See State ex rel. Heintze, supra. See, also, Dovel, supra. The rule does not apply when the appellant is conceded to be entitled to the thing he or she has accepted and where the appeal relates only to an additional claim on his or her part. See id.

In Kassebaum v. Kassebaum, 178 Neb. 812, 135 N.W.2d 704 (1965), we considered the application of the acceptance of benefits rule where the appellant had, after a decree of dissolution was entered, withdrawn $200 from what had been the parties' joint checking account. The appeal challenged the property division and alimony award, and the appellee argued that the appeal was estopped by the appellant's acceptance of the benefits of the property...