Marshall v. Marshall
| Decision Date | 16 August 2016 |
| Docket Number | No. A–15–035.,A–15–035. |
| Citation | 885 N.W.2d 742,24 Neb.App. 254 |
| Parties | Amy Marshall, appellee, v. Brian W. Marshall, appellant. |
| Court | Nebraska Court of Appeals |
Donald A. Roberts and Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., Omaha, for appellant.
Anthony W. Liakos, of Govier & Milone, L.L.P., for appellee.
Brian W. Marshall appeals from a decree of dissolution entered by the district court, which decree dissolved Brian's marriage to Amy Marshall; divided the marital assets and debts; awarded Amy sole physical custody of the parties' minor child; and ordered Brian to pay child support, alimony, and a portion of Amy's attorney fees. On appeal, Brian asserts that the district court erred in calculating and dividing the marital estate, in calculating his income for child support purposes, in admitting into evidence certain documentation about personal injury settlement proceeds received by the parties during the marriage, and in awarding Amy alimony in the amount of $2,000 per month for 21 years.
Upon our de novo review of the record, we find that the district court erred in failing to include all of the proceeds from the personal injury settlement in the marital estate and in calculating Brian's current income. As a result of these errors, we remand the matter to the district court to recalculate the value of the parties' marital estate, redistribute the assets and debts between the parties, and recalculate Brian's child support obligation. In addition, we reverse the district court's determination concerning Amy's alimony award, because the court should reconsider this award in light of any changes to the marital estate and to the calculation of Brian's child support.
Brian and Amy were married on August 20, 1993. Two children were born of the marriage; however, by the time of the dissolution proceedings, only one child remained a minor, the parties' daughter, born in August 1996.
On February 8, 2013, Amy filed a complaint for dissolution of marriage. In the complaint, Amy specifically asked that the parties' marriage be dissolved; that their marital assets and debts be equitably divided; that she be awarded custody of the parties' daughter; and that she be awarded child support, alimony, and attorney fees.
On March 4, 2013, Brian filed an answer and cross-complaint for dissolution of marriage. In his cross-complaint, he asked that he be awarded custody of the parties' daughter, child support, and attorney fees.
On March 21, 2013, the district court entered a temporary order awarding Amy sole physical custody of the parties' daughter and awarding Brian and Amy joint legal custody of her pending a trial. Brian was ordered to pay temporary child support in the amount of $514 per month. In addition, he was ordered to maintain health insurance for the family and to pay the real estate taxes for the marital home.
Trial was held in October 2014. At trial, both Brian and Amy agreed that they would continue to share legal custody of their daughter and that Amy would retain sole physical custody. As a result of this agreement, the issues left to be resolved at trial included division of the parties' assets and debts, child support, alimony, and attorney fees. The parties' trial testimony centered on their current financial circumstances. In particular, a great deal of testimony focused on the disabling effects of a stroke Amy suffered in 2003 and a personal injury settlement that Brian and Amy received as a result of Amy's stroke. More specific details about this testimony will be discussed as necessary in our analysis below.
After the trial, the district court entered a decree of dissolution. In the decree, the court ordered Brian to pay $935 per month in child support. In addition, the court ordered Brian to pay Amy alimony in the amount of $2,000 per month for 21 years and $5,000 of her attorney fees. The court calculated and divided the marital estate such that Amy received the marital home and her personal vehicle and Brian received a rental home owned by the parties; two trucks and two boats; his interest in a business referred to as “Elite Fitness”; and his 49–percent interest in his family's business, Marshall Enterprises. The court divided equally the cash value of various life insurance policies held by Brian. The court also set aside a portion of the personal injury settlement from Amy's stroke as Amy's nonmarital property and set aside a smaller portion of that settlement as Brian's nonmarital property.
Brian appeals from the decree of dissolution here.
On appeal, Brian assigns four errors: He asserts, restated, that the district court erred in calculating and dividing the marital estate; in calculating his income for child support purposes; in admitting into evidence exhibit 81, which contained documents relating to the settlement proceeds Brian and Amy received as a result of Amy's stroke; and in awarding Amy alimony in the amount of $2,000 per month for 21 years.
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 court. This standard of review applies to the trial court's determinations regarding custody, child support, division of property, and alimony. See, Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006) ; Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006).
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. Adams v. Adams, 13 Neb.App. 276, 691 N.W.2d 541 (2005).
Brian first asserts that the district court abused its discretion in its calculation and division of the marital estate. Specifically, he argues that the court erred in setting aside any portion of the personal injury settlement proceeds as non-marital property and in determining that an airboat he paid for after the parties separated was marital property. Brian also argues that the court erred in inequitably dividing the marital estate. Upon our de novo review of the record, we find that Amy failed to sufficiently demonstrate that any portion of the settlement proceeds were nonmarital property. Accordingly, we reverse the court's categorization of these proceeds. All of the settlement proceeds should be considered marital property. We also find that there was sufficient evidence presented to demonstrate that Brian's airboat was marital property. As such, we affirm the court's categorization of the airboat as marital property. However, given our reversal of the court's exclusion of any portion of the personal injury settlement proceeds from the marital estate, we remand the matter to the district court to recalculate the value of the estate and to reconsider the division of the assets and debts.
Before we address Brian's specific assertions with regard to the court's calculation and division of the marital estate, we briefly recount the legal principles which control our review of this issue. When there is no settlement agreement between the parties on the issue of property division, the trial court is obliged to order an equitable division of the marital estate. Neb.Rev.Stat. § 42–366(8) (Reissue 2008). The equitable division of marital property is a three-step process: The first step is to classify the parties' property as marital or non-marital, the second step is to value the marital assets and marital liabilities of the parties, and the third step is to calculate and divide the net marital estate between the parties in accordance with statutory principles. See Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). The marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties. Nygren v. Nygren, 14 Neb.App. 1, 704 N.W.2d 257 (2005).
In April 2003, when she was 34 years old, Amy suffered a “massive stroke ” which left her with permanent disabilities, including limited use of her left hand and left leg. Immediately after the stroke, Amy was hospitalized for 1 week and was then transferred to an inpatient rehabilitation center for 1 month. After her release, she participated in outpatient rehabilitation for 4 years. Prior to Amy's stroke, she co-owned and operated “Amy's Salon.” After the stroke, she is no longer able to work full time as a hairdresser. She does work a couple of hours per week out of a salon in the basement of the marital home and has about 10 regular clients. However, most of these clients are family and close friends, because Amy requires assistance in cutting, coloring, perming, styling, or braiding hair. Amy also requires assistance in performing basic grooming for herself and in completing household chores.
As a result of Amy's stroke, Brian and Amy initiated a lawsuit against Merck & Co., Inc. (Merck), a pharmaceutical company which distributed the anti-inflammatory drug Vioxx. Amy had used Vioxx on almost a daily basis for the 4 years prior to her stroke. Brian, Amy, and Merck ultimately settled their lawsuit after Merck agreed to pay to Brian and Amy approximately $490,000. The settlement was paid in two lump sums and was not specifically broken down so as to allocate any certain amount to Amy's pain and suffering, lost wages, or medical expenses or to Brian's derivative claims. After paying for attorney fees and costs, Brian and Amy received settlement proceeds in the amount of $330,621.40. Almost all of this money had been spent on marital expenses by the time of the dissolution proceedings. In particular, Brian and Amy spent $84,000 of the proceeds paying off the mortgage on the marital home. In addition, they spent approximately $95,000 on making improvements to...
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