Lockwood v. Lockwood, 42670

• Decision Date: 01 April 1980
• Docket Number: No. 42670,42670
• Citation: 290 N.W.2d 636,205 Neb. 818
• Court: Nebraska Supreme Court
• Parties: Fred A. LOCKWOOD, Appellant and Cross-Appellee, v. Connie L. LOCKWOOD, Appellee and Cross-Appellant.

Page 636

290 N.W.2d 636

205 Neb. 818

Fred A. LOCKWOOD, Appellant and Cross-Appellee, v. Connie L. LOCKWOOD, Appellee and Cross-Appellant.

No. 42670.

Supreme Court of Nebraska.

April 1, 1980.

Syllabus by the Court

1. Witnesses: Fees. A witness who testified as an expert on a subject requiring special knowledge and skill is, in the absence of a contract for those services, entitled only to the statutory witness fee.

2. Divorce: Alimony: Property. When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property 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.

3. Divorce: Alimony: Property: Appeal and Error. The fixing of alimony or distribution of property rests in the sound discretion of the District Court and, in the absence of an abuse of that discretion, will not be disturbed on appeal.

4. Divorce: Child Support. In determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent; the status, character, and situation of the parties; and attendant circumstances thereof.

5. Divorce: Child Support. Other than ordering child support payments, the trial court cannot award any specific property belonging to the parent to a child as child support.

Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellant and cross-appellee.

Wright & Simmons and John A. Selzer, Scottsbluff, for appellee and cross-appellant.

Heard before KRIVOSHA, C. J., BRODKEY and HASTINGS, JJ., and FAHRNBRUCH and CLARK, District Judges.

BRODKEY, Justice.

This matter involves an appeal by Fred A. Lockwood (Fred) and a cross-appeal by Connie L. Lockwood (Connie) from a decree entered by the District Court for Scotts Bluff County, Nebraska, dissolving the marriage of the parties; distributing the property of the marriage; and awarding child support, alimony, attorney's fees, and witness' fees. We affirm as modified.

The parties were married on September 3, 1961. The record does not indicate the amount of property which the parties possessed at the time they entered into this union. However, both parties attained postsecondary education degrees shortly before the marriage, Fred receiving a bachelor of science in business administration and Connie receiving a nursing certificate. Two children, Jon Thorval and Tracy Ann, were born as issue of the marriage on November 21, 1963, and December 29, 1969, respectively. The care and custody of these children were placed in Connie with reasonable rights of visitation to Fred, which award is not involved here.

During the marriage, the parties prospered financially. Some time in the early part of 1964, Fred began practicing as a certified public accountant. His practice grew over the years and he eventually became associated with a statewide accounting firm. Fred became a partner in that firm in July 1969 and remained a partner until January 1977, at which time he withdrew from the partnership and again started his own practice. Shortly thereafter, Fred formed a partnership with two other accountants. At the time of trial, his ownership interest in the partnership was 78 percent.

Connie does not appear to have contributed monetarily to the marriage to the extent that Fred did. She devoted her time to the task of being a mother, although she did work as a nurse early in the marriage and from the time the parties separated in 1978 until the time of trial.

Evidence with reference to the aforementioned background, as well as to the value of the various assets of the marital estate, was adduced at trial. The evidence presented was, in some respects, conflicting and such evidence as is necessary to resolve the assignments of error in this matter will be set out in the discussion of the respective assignments. On the basis of the evidence adduced, the trial court, in its decree, after dissolving the marriage and awarding custody of the children to Connie subject to rights of visitation, ordered Fred to pay child support in the amount of $300 per month per child until the child dies, marries, attains majority, or becomes self-supporting or until further order of the court; and to pay the medical, dental, and prescription eyeglass expenses of the children. The court also ordered that Fred should have all the property of the parties except the life insurance on Connie's life, the residence and the household goods and furnishings therein, and the 1974 Pontiac, all of which were assigned to Connie. The court ordered Fred to pay all the debts except those on Connie's life insurance policies and further ordered Fred to retain his ownership interests in the children's life insurance policies, to immediately pay the loans on them, not to borrow on them in the future, to pay the premiums thereon, and to assign the policies to the children when his support obligation terminates. The court also ordered that, in lieu of further division of property, Fred should pay to Connie $66,775 in 10 annual installments of $6,677.50, with interest at 8 percent per annum on the unpaid balance, payments to commence on May 1, 1979, and to continue on the first day of May of each year thereafter until paid, with the privilege to prepay the principal in whole or in part at any time. In addition, the court, in its decree, ordered that commencing April 1, 1979, and on the first day of each month thereafter for a total of 121 months, Fred shall pay Connie alimony through the clerk of the court in the sum of $1,100 per month. The court also ordered Fred to pay the sum of $2,000 to apply upon Connie's attorney's fees and also to pay the costs of trial, including expert witness' fees in the sum of $1,100 for Connie's expert witness, George Blundell, an accountant, as well as appraiser's fees for Connie's appraiser in the sum of $275.

Fred has prosecuted this appeal from that decree, making two assignments of error in his brief: (1) That it was error to tax the accountant's and appraiser's fees as costs; and (2) that the total award to Connie and the children was excessive. Connie has cross-appealed, claiming: (1) That the trial court undervalued Fred's interest in an accounting partnership; (2) that the trial court undervalued Fred's stock in a certain closely-held corporation; (3) that the trial court should have ordered interest to be attached to any unpaid installment payments; and (4) that the further property division should have been made payable within 10 years. We first examine the errors raised in Fred's appeal.

Fred contends that the trial court erred in taxing Connie's accountant's and appraiser's fees as costs to Fred. It has long been the rule that a witness who testifies as an expert on a subject requiring special knowledge and skill is, in the absence of a contract for those services, entitled only to the statutory witness fee. See, Anderson v. State, 184 Neb. 467, 168 N.W.2d 522 (1969); Hefti v. Hefti, 166 Neb. 181, 88 N.W.2d 231 (1958); Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387 (1952); s. 33-139, R.R.S.1943.

In this action, the accountant who was Connie's expert witness testified that the accounting firm of which he was a partner was employed by Connie to examine certain documents furnished to Connie by Fred in preparation for trial. These documents dealt with the financial status of the various marital assets and were, in large part, accepted as evidence at trial. He testified that the documents were examined in preparation for the accountant's testimony as a witness in the dissolution proceedings and also testified as to the value of the services rendered. From this testimony, we conclude that there was a contract for those services and that the taxing of the accountant's fees in the amount of $1,100 as costs was proper.

The same may be said for the cost of the appraisal of the marital residence and of certain farm property. Section 42-367, R.R.S.1943, provides, in part: "When dissolution of marriage or a legal separation is decreed, the court may decree costs against either party and award execution for the same, * * *." The fees for appraising the family residence and the farm property were taxed as costs in the amount of $275. While no oral testimony was adduced from the appraiser, it is clear that that person was under an obligation to Connie to use his expertise in valuing the house and the farm property. The appraisal reports received in evidence contained the amount of his charges. We reject Fred's first assignment of error.

Fred next contends that the total award to Connie and the children was excessive and therefore error. Fred apparently concedes that the provisions of the decree with reference to child support, alimony, and property distribution, when taken individually, are not unreasonable. However, it is his contention that when those three provisions are examined together, the total award becomes excessive and unreasonable. Section 42-365, R.R.S.1943, provides, in part: "When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property 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...