Logan v. Logan

• Decision Date: 20 January 2015
• Docket Number: No. A–13–1038.,A–13–1038.
• Citation: 859 N.W.2d 886
• Parties: Lori Jean Logan, Appellee, v. Terry Lee Logan, Appellant.
• Court: Nebraska Court of Appeals

859 N.W.2d 886

Lori Jean Logan, Appellee

v.Terry Lee Logan, Appellant.

No. A–13–1038.

Court of Appeals of Nebraska.

Filed January 20, 2015

Craig H. Lane, P.C., for appellant.

Michele M. Lewon, of Kollars & Lewon, P.L.C., for appellee.

MOORE, Chief Judge, and IRWIN and PIRTLE, Judges.

Syllabus by the Court

1. Divorce: Property Division: Alimony: Appeal and Error.An appellate court's review in 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 judge. This standard of review applies to the trial court's determinations regarding division of property and support.

2. Judgments: Words and Phrases.An abuse of discretion occurs when the trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

3. Divorce: Appeal and Error.While in a divorce action the case is reviewed on appeal de novo, the appellate court will give weight to the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the opposite.

4. Divorce: Appeal and Error.Obviously, a trial court weighs the credibility of the witnesses and the evidence and determines what evidence should be given the greater weight in arriving at a factual determination on the merits. The testimony need not be accepted in its entirety and the trier of fact must use a commonsense approach and apply that common knowledgewhich is understood in the community.

5. Property Division.Under Neb.Rev.Stat. § 42–365 (Reissue 2008), the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42–365.

6. Property Division.The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case.

7. Records: Appeal and Error.It is incumbent upon the appellant to present a record supporting the errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors.

8. Rules of the Supreme Court: Appeal and Error.The Nebraska Supreme Court has repeatedly emphasized that Neb. Ct. R. App. P. § 2–109(D)(1) (rev. 2014) requires a party to set forth assignments of error in a separate section of the brief, with an appropriate heading, following the statement of the case and preceding the propositions of law, and to include in the assignments of error section a separate and concise statement of each error the party contends was made by the trial court.

9. Rules of the Supreme Court: Appeal and Error.Headings in the argument section of a brief do not satisfy the requirements of Neb. Ct. R. App. P. § 2–109(D)(1) (rev. 2014).

10. Rules of the Supreme Court: Appeal and Error.When a party on appeal fails to comply with the clear requirements of the court rules mandating that assignments of error be set forth in a separate section of the brief, an appellate court may proceed as though the party failed to file a brief or, alternatively, may examine the proceedings for plain error.

11. Appeal and Error.Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

IRWIN, Judge.

I. INTRODUCTION

Terry Lee Logan appeals an order of the district court for Dakota County, Nebraska, in which order the court dissolved Terry's marriage to Lori Jean Logan, divided marital assets, and ordered each party to pay his or her respective attorney fees. On appeal, Terry challenges the court's valuation of the marital home and a family business, the court's division of other property and debt, and the court's allowance of temporary alimony to the date of the decree. We find no merit to the appeal, and we affirm.

II. BACKGROUND

The parties were married in 1973. During the course of their marriage, they had three children, all of whom are now adults.

At the time of trial, Terry was 61 years of age and Lori was 57 years of age.

In August 2012, Lori filed a complaint seeking dissolution of the parties' marriage. In her complaint, Lori requested an award of temporary and permanent spousal support, an equitable division of marital assets and debts, and attorney fees. In October 2013, the district court entered a decree dissolving the parties' marriage and dividing the parties' assets and debts. Terry has appealed from the decree, and Lori has purported to bring a cross-appeal.

The primary issues raised by Terry in his appeal concern the valuation of the parties' marital home, the valuation of a

business operated by Terry, the division of other property and debt, and an award of temporary alimony during the proceedings below.

1. Marital Residence

Terry and Lori purchased the marital residence in 1998. Lori moved out of the residence in August 2012, and Terry was still residing there at the time of trial. Both parties testified that they wanted to be awarded the marital residence.

Terry testified that he believed that the marital residence was worth $185,000. Lori testified that she believed that the marital residence was worth $198,000. In addition, a real estate broker opined that the marital residence was worth between $193,000 and $203,000.

The primary issue on appeal concerning the valuation of the marital residence relates to indebtedness of two of the parties' sons and how that indebtedness relates to the marital residence. The evidence adduced at trial indicated that the remaining amount of the primary mortgage on the marital residence was approximately $3,353.

In Lori's motion for temporary allowances, she alleged that both sons had loans secured with the parties' home as collateral. Similarly, in his affidavit objecting to temporary allowances, Terry averred that the marital residence was “subject to second mortgages representing additional collateral for two (2) of the parties' sons who could not otherwise purchase homes.” In that affidavit, Terry further opined that “to his recollection, one (1) mortgage was $75,000 and the other mortgage was $80,000.”

At trial, Lori provided exhibits reflecting the two sons' indebtedness to a credit union. She testified that the parties had allowed the two sons to use the marital residence as collateral for loans. At trial, Lori did not want the valuation of the marital residence reduced by the value of the sons' loans, although she agreed that the loans created liens on the residence.

At trial, Terry presented a proposed distribution of assets and liabilities, in which he proposed that the court reduce the value of the marital residence by the primary mortgage

amount and also by the amount of each of the two sons' loans for which the residence was serving as collateral.

In the decree, the district court valued the marital residence at $185,000, which was Terry's proposed value, and awarded the residence to Lori, subject to indebtedness. The court reduced the value of the residence by the amount of the primary mortgage and also by the amount of each of the two sons' loans. The court specifically noted in the decree that both Terry and Lori “argued at trial that these are legitimate deductions to the equity value of the home notwithstanding the fact that the sons have, and likely will, continue to pay their respective mortgages. Since both parties have argued this position, the Court has adopted their positions.”

2. Terry's Business

Terry was employed at a meatpacking company for 22 years, and then at a computer company for 15 years. He operated an individual tax preparation service on a part-time basis while employed at the computer company. When he lost his job at the computer company in 2008, he began operating his tax service on a full-time basis. Terry testified that his tax service primarily involves completion of individual tax returns, earning him approximately $50 per return.

The tax service had been operated as a limited liability company prior to the parties' separation. After the parties' separation, Terry dissolved the limited liability company. Terry testified that he dissolved the limited liability company because Lori had sought and received a protection order which made it impossible for him to continue operating the business in a business relationship with Lori. Terry testified that the dissolution resulted in his having to move the location of the business and incur costs.

Terry estimated that he services between 900 and 1,000 clients through the business. He testified that he has “20 to 25” bookkeeping clients. He testified that he receives between $150 and $200 per month per bookkeeping client and that he averages approximately $50 per return for tax preparation services.

Terry testified that during the first 5 months of 2013, the business had generated over $73,000 in income; this amount was also presented in an exhibit offered by Terry. Terry estimated that bookkeeping revenue for the remainder of 2013 would be between $20,000 and $24,000.

Terry presented expert testimony concerning the valuation of the business from a partner in a certified public accounting firm. Terry's expert indicated that he had provided approximately a dozen business valuations in the past 20 years, and he provided a report which was offered and received by the court. Terry's expert based his opinion of the business' value on a valuation report prepared by another accountant, who had opined that the value of the business was between $52,000 and $70,000. Terry's expert testified that he felt the range was reasonable, and he opined that the business was worth between $0 and $70,000. Terry's expert based his opinion, in part, on the...