Priest v. Priest

• Decision Date: 08 November 1996
• Docket Number: No. S-94-222,S-94-222
• Parties: LeAnna Faye PRIEST, Appellee, v. Ronald Edward PRIEST, Appellant.
• Court: Nebraska Supreme Court

Page 792

554 N.W.2d 792

251 Neb. 76

LeAnna Faye PRIEST, Appellee, v. Ronald Edward PRIEST, Appellant.

No. S-94-222.

Supreme Court of Nebraska.

Nov. 8, 1996.

Syllabus by the Court

1. Divorce: Appeal and Error. In the Supreme Court's further review of dissolution of marriage actions, our review is de novo on the record to determine if there was an abuse of discretion by the trial judge or the Nebraska Court of Appeals on the issues contained in the parties' assignments of error in this court.

2. Appeal and Error. An appellate court has the inherent power to consider plain error.

3. Appeal and Error: Words and Phrases. Plain error exists where there is error, plainly evident from the record but not complained of at trial or before the Nebraska Court of Appeals, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

4. Divorce: Alimony: Property Division. 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. The purpose of a property division is to distribute the marital assets equitably between the parties. 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 this section make it appropriate. Neb.Rev.Stat. § 42-365 (Reissue 1993).

5. Alimony: Appeal and Error. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness, and this is initially entrusted to the discretion of the trial judge. An appellate court is not inclined to disturb the trial court's award unless it is patently unfair on the record.

6. Property Division: Interest: Appeal and Error. Nebraska's statute providing for interest on judgments does not require interest to be charged on a marital deferred property distribution. However, it is within the discretionary power of the district court to award interest on deferred installments payable as part of a marital property distribution, and those decisions will be upheld absent an abuse of discretion.

7. Debtors and Creditors: Interest. In the absence of a contract or statute, compensation in the form of compound interest is not permitted to be computed on a debt.

8. Divorce: Attorney Fees: Appeal and Error. The awarding of attorney fees in a dissolution proceeding is initially entrusted to the discretion of the trial court and, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of discretion.

9. Divorce: Attorney Fees. The award of attorney fees in a dissolution proceeding depends on multiple factors that include the nature of the case, the amount of property divided and alimony awarded, the earning capacity of the parties, the services performed and results obtained, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case.

10. Property Division: Pensions. In a marriage dissolution, the marital estate includes only that portion of the pensions earned during the marriage.

11. Property Division: Pensions. Contributions to pensions before marriage or after dissolution are not assets of the marital estate and not subject to a division.

Chris Abboud, for appellant.

Mark A. Klinker, Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

FAHRNBRUCH, Justice.

This is a further review of the decision of the Nebraska Court of Appeals in a marriage dissolution proceeding involving LeAnna Faye Priest and Ronald Edward Priest.

ASSIGNMENTS OF ERROR

Restated, the wife claims the Court of Appeals erred in (1) eliminating the alimony awarded her by the trial court; (2) providing that her husband's lien on the family home should bear interest of 8 percent, compounded annually; and (3) failing to award her attorney fees in the Court of Appeals. We hold that the Court of Appeals erred in eliminating the wife's alimony award and in allowing compound interest on the husband's lien on the family home. In all other respects, we affirm the Court of Appeals' determinations.

FACTS

After a trial, the district court for Sarpy County granted a dissolution of the parties' marriage and awarded the wife (1) alimony of $250 a month for 154 months, terminable upon the death of either party, the remarriage of the wife, or the retirement of both parties; (2) the family home, subject to a commercial mortgage and subject to a $20,144 non-interest-bearing lien in favor of the husband, both of which, under the decree, the wife is required to pay; (3) attorney fees; and (4) 50 percent of the husband's pension payments when he begins receiving those payments. The husband was awarded 50 percent of the wife's pension payments when she begins receiving her payments. Certain other personal property was set over unto each party, and certain debts were allocated to each party for payment. Neither party, on the appeal to the Court of Appeals or in this court, has contested such distribution of personal property or allocation of debts, and those items will not be discussed further.

Additional facts necessary for the disposition of this further review will be set forth in our analysis of this cause.

APPEAL TO COURT OF APPEALS

The husband appealed certain of the trial court's determinations to the Court of Appeals. Changes made by the Court of Appeals to the trial court's decree included (1) elimination of the wife's alimony award and (2) that the husband's $20,144 lien on the couple's home should bear interest at 8 percent, compounded annually. The Court of Appeals affirmed the trial court's award of attorney fees to the wife, but denied her request for attorney fees for the appeal to the Court of Appeals. Although the issue was not raised by the parties, the Court of Appeals, citing plain error, reversed the trial court's distribution of the parties' pension benefits, and that issue was remanded to the trial court for further proceedings. See Priest v. Priest, 96 NCA No. 4, case No. A-94-222, 1996 WL 23349 (1996) (not designated for permanent publication). Neither party has claimed there was error with the Court of Appeals' treatment of the parties' pension benefits.

We granted the wife's petition for further review to consider the wife's three assigned errors and the Court of Appeals' granting of compound interest.

STANDARD OF REVIEW

In our further review of dissolution of marriage actions, our review is de novo on the record to determine if there was an abuse of discretion by the trial judge or the Court of Appeals on the issues contained in the parties' assignments of error in this court. See, Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994); Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992); Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992). The Supreme Court also has the inherent power to consider plain error. Plain error exists where there is error, plainly evident from the record but not complained of at trial or before the Court of Appeals, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would

cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. See, Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996); In re Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995); In re Estate of Soule, 248 Neb. 878, 540 N.W.2d 118 (1995); First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 168 (1994).

ANALYSIS

Alimony

In this case, the trial court ordered the husband to pay the wife $250 per month alimony for 154 months, terminable upon the death of either party, the remarriage of the wife, or the retirement of both parties. We find that the Court of Appeals erred in eliminating the wife's alimony award, because the trial court did not abuse its discretion in awarding the wife alimony.

Neb.Rev.Stat. § 42-365 (Reissue 1993) provides in relevant 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....

... The purpose of a property division is to distribute the marital assets equitably between the parties. 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 this section make it appropriate. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness, and this is initially entrusted to the discretion of the trial judge. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995); Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991). An appellate court is not inclined to disturb the trial court's award unless it is patently unfair on the record. See, Koubek v. Koubek, 212 Neb. 2, 321 N.W.2d 55 (1982); Johnson v. Johnson, 209 Neb. 317, 307 N.W.2d 783 (1981).

In applying the criteria of § 42-365 to determine whether the trial court...