Preston v. Preston

Decision Date31 July 1992
Docket NumberNo. S-89-1495,S-89-1495
Citation486 N.W.2d 902,241 Neb. 181
PartiesSue E. PRESTON, Appellee, v. Richard H. PRESTON, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Divorce: Appeal and Error. In a dissolution of marriage appeal, an appellate court's review is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion; when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

2. Divorce: Property Division. In a dissolution of marriage action, property acquired by one of the parties through gift or inheritance ordinarily is set off to the party receiving the inheritance or gift and is not considered a part of the marital estate, except where both parties have contributed during the marriage to improving or operating the property, or where a party, not owning the property prior to marriage or receiving the inheritance or gift, has significantly cared for such property during the marriage.

3. Divorce: Property Division. In a dissolution of marriage action, if an inheritance can be identified, it is to be set off to the inheriting spouse and eliminated from the marital estate to be divided.

4. Property Division. The ultimate test for determining an appropriate division of marital property is one of reasonableness.

5. Property Division. Property division is not subject to a rigid mathematical formula, but, rather, turns upon the facts and circumstances of each individual case in light of the factors set forth in Neb.Rev.Stat. § 42-365 (Reissue 1988).

6. Property Division. In dividing marital property in a marriage of long duration where the parties are the parents of all the children, the award should generally be from one-third to one-half of the marital estate.

7. Divorce: Property Division. In a dissolution of marriage action, the debts of the parties should be considered in making a property division.

8. Alimony. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in Neb.Rev.Stat. § 42-365 (Reissue 1988) make it appropriate.

9. Alimony. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness.

10. Alimony. One consideration in the awarding of alimony is the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children.

11. Divorce: Attorney Fees: Appeal and Error. The award of attorney fees in a dissolution of marriage action is discretionary with a trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

12. Divorce: Attorney Fees. The award of attorney fees in a dissolution of marriage action depends on a variety of factors, among them the amount of property and alimony awarded, the earning capacity of the parties, and the general equities of the situation.

Robert M. Brenner of Robert M. Brenner Law Office, Gering, for appellant.

George P. Burke of Van Steenberg, Myers, Burke & Wilson, Kimball, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

In this dissolution of marriage action, the respondent- appellant husband, Richard H. Preston, charges that the trial court erred in its (1) failure to cancel the judgment against him arising from the temporary allowance of child support to the petitioner-appellee wife, Sue E. Preston; (2) property and debt allocations; (3) award of alimony to the wife; and (4) award of an attorney fee to the wife. We affirm as modified.

II. FACTS

The issues presented by the assignments of error are such that a detailed summary of the record is necessary. The marriage took place on June 15, 1963, and produced four children: Galen, born February 8, 1966; Lara, born August 10, 1968; Christopher, born June 8, 1974; and Daniel, born November 23, 1975. On the date of the trial, November 13, 1989, the husband was 47 years old. While the record does not reveal the wife's exact age, it suggests that at the time of the trial, she too was in her late forties. Unfortunately, as the following paragraph and succeeding pages will reveal, this is not the only area in which the record is less than precise.

In any event, the wife presumably filed this action sometime in late 1988; we say "presumably" because the copy of the petition in the transcript bears no filing stamp. All the record tells us in this regard is that the wife signed the petition in the presence of a notary public on October 5, 1988.

The record does tell us that the husband graduated from college in the fall of 1964 with a bachelor of science degree in philosophy, with minors in physics and mathematics. From 1964 until 1966, he worked as a draftsman and in the area of electrical engineering until he left to enter a seminary in January 1966. He graduated in the spring of 1969 with a master of divinity degree. Beginning in the late 1960's, he also began taking various courses in emergency medicine and advanced emergency medicine technology.

Upon graduation from the seminary, he accepted his first call to yoked parishes in two Iowa towns. He remained at these churches from 1969 until June 1972, when he transferred to a Presbyterian church in Kansas, where he remained until 1978. In April 1978, he was transferred to a Presbyterian church in Sidney, Nebraska, where he served until October 1987. The record does not reflect why this position ended. He has not served as a pastor since that time, but testified he would not be opposed to accepting a call from a church, should one arise. He stated, however, that there is a surplus of ministers and that it takes a search of approximately 24 months to generate a call.

In 1987, the husband purchased a corporation through which he operated an ambulance service, but this business failed and left him unemployed from May to September 1989. At the time of trial, he was employed by a telemarketing firm in Lincoln, where he worked 30 hours a week and earned an average of $5.50 an hour. In addition, he was temporarily employed for approximately 15 hours a week with a group which raises funds and support for ecological causes, where he earned $7 per hour.

Although the husband testified that he was interested in pursuing a doctorate in health and education in preparation for working as a minister with patients and families, he had not taken any courses in furtherance of this goal.

The wife attended college for four semesters and has, in addition, taken a few business school courses and various continuing education courses in the health and ambulance fields through the technical college in Sidney. She recently completed a 35-hour nurse's aide certification course.

Prior to her marriage, the wife worked for a municipal court doing clerical work and then as a bookkeeper and salesclerk for a jeweler. It appears that after the parties were married, the wife continued to work at various jobs, including clerical and bookkeeping work. The record is unclear, however, as to whether she was employed consistently from 1963 to 1969. The record does tell us that while the parties were in Iowa from 1969 until 1972, she did not work outside the home. During the 6 years that the parties lived in Kansas, the wife was employed in various capacities, including as a nurse's aide in a nursing home, an executive secretary for a development corporation, and an office manager, personnel director, and accountant for a foundry. When the parties moved to Nebraska, the wife continued to work in various temporary jobs, including as a busdriver, a telephone salesperson, a nurse's aide, and a florist's apprentice. In October 1987, she became employed as a nurse's aide and was so employed at the time of trial. Although there is no testimony as to what she earned when she started such work, other than a reference to "minimum," she did testify to various pay increases, and at the time of the trial was earning $4.50 an hour. In addition, she operates a telephone answering service out of her home, at which she currently earns approximately $250 a month.

At the time of trial, the parties owned no real property, and there is little in the record with regard to personal property owned by them with which the trial court concerned itself. The parties had divided their household goods between themselves. The wife kept china, silver, crystal, and many of the household furnishings with an estimated value of $5,500; the husband kept tools, computer equipment and software, various professional and other books, some amateur radio equipment, and other miscellaneous items with a stipulated value of approximately $10,000. He testified that he brought into the marriage a number of items, including a 1959 automobile worth $800, some amateur radio equipment worth $600, books worth $850, tools worth $250, electronic test equipment worth $300, and a life insurance policy with a $5,000 face value.

The parties also owned a 1969 Volkswagen automobile titled in the wife's name, a 1967 Mercedes automobile titled in both their names, a 1980 Mazda automobile titled in the husband's name, and a 1984 Jeep Cherokee vehicle titled in the husband's name. The Volkswagen had an estimated value of between $750 and $1,000. It was awarded to the wife. The husband was awarded the Jeep Cherokee, which he estimated had a value of $3,200, although he acknowledged that the blue book value was $6,000. The trial court ordered him to pay the wife $2,000 in monthly installments of $150 to "equalize the division of vehicles." The parties stipulated that their...

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24 cases
  • Kellner v. Kellner
    • United States
    • Nebraska Court of Appeals
    • April 20, 1999
    ...should be awarded, in what amount, and over what period of time. The ultimate criterion is one of reasonableness. Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992); Buche v. Buche, 228 Neb. 624, 423 N.W.2d 488 (1988); Pyke v. Pyke, 212 Neb. 114, 321 N.W.2d 906 (1982). The awarding of ......
  • Stephens v. Stephens
    • United States
    • Nebraska Supreme Court
    • July 14, 2017
    ...205 Neb. 357, 287 N.W.2d 690 (1980) (consideration of inherited property depends on equities involved).25 See, Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992) ; Ross v. Ross, 219 Neb. 528, 364 N.W.2d 508 (1985) ; Van Newkirk v. Van Newkirk , supra note 1.26 Van Newkirk v. Van Newkir......
  • McGuire v. McGuire
    • United States
    • Nebraska Court of Appeals
    • October 1, 2002
    ...were or were not marital debts or at least whether they should be treated as the joint obligation of the parties. In Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992), the husband had inherited property and $22,342 of it was traced to his purchase of a corporation through which he ope......
  • Boamah-Wiafe v. Rashleigh
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    • Nebraska Court of Appeals
    • July 25, 2000
    ...case, the novelty and difficulty of questions, and the customary charges for similar services are all considered. Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992); Murrell v. Murrell, 232 Neb. 247, 440 N.W.2d 237 (1989); Hamm v. Hamm, 228 Neb. 294, 422 N.W.2d 336 (1988). It is well r......
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