Reichert v. Reichert

• Decision Date: 27 May 1994
• Docket Number: No. S-92-979,S-92-979
• Citation: 246 Neb. 31,516 N.W.2d 600
• Parties: Jean-Daniele REICHERT, Appellee, v. Rickey Murl REICHERT, Appellant.
• Court: Nebraska Supreme Court

Page 600

516 N.W.2d 600

246 Neb. 31

Jean-Daniele REICHERT, Appellee, v. Rickey Murl REICHERT, Appellant.

No. S-92-979.

Supreme Court of Nebraska.

May 27, 1994.

Syllabus by the Court

1. Divorce: Property Division: Alimony: Attorney Fees: Appeal and Error. In actions for dissolution of marriage, an appellate court reviews the case 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, alimony, and attorney fees.

2. Evidence: Appeal and Error. In conducting de novo review, when evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

3. Property Division. The marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties.

4. Property Division. With some exceptions, the marital estate does not include property acquired by one of the parties through gift or inheritance.

5. Property Division: Pensions. Military pensions are included in the marital estate.

6. Property Division: Pension. The marital estate includes only that portion of a pension which is earned during the marriage.

7. Property Division. Though generally a division of one-third to one-half of the marital estate is appropriate, property divisions are not subject to any rigid mathematical formula.

8. Property Division. In determining the appropriateness of a division of marital property, the ultimate test is one of reasonableness.

9. Property Division: Alimony. In dividing property upon a dissolution of marriage and in determining alimony, a court should consider four factors: (1) the circumstances of the parties; (2) the duration of the marriage; (3) the history of contributions to the marriage, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities; and (4) 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.

10. 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 make it appropriate. Alimony should not be used to equalize the incomes of the parties or to punish one of the parties.

11. Alimony. In determining whether alimony should be awarded, a court should consider what effect, if any, the marriage had on the ability of the wife to secure gainful employment in the future and the earning capacity of the husband.

12. Property Division: Alimony. As with a division of property, the ultimate test for an award of alimony is one of reasonableness.

13. Alimony. When a spouse sacrifices seniority for the sake of a marriage, a court may consider that loss of seniority as favoring an award of alimony.

14. Divorce: Attorney Fees. In dissolution proceedings, an award of attorney fees depends on a variety of factors, including the amount of property and alimony awarded, the earning capacity of the parties, and the general equities of the situation.

Carl I. Klekers, Omaha, for appellant.

Donald A. Roberts of Lustgarten & Roberts, P.C., Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

PER CURIAM.

Rickey Murl Reichert (husband) appeals from a decree of dissolution. We affirm as modified.

In 1972, the parties were married in Gibraltar. In 1992, Jean-Daniele Reichert (wife) filed a petition for dissolution of the marriage. No children were born of the marriage.

After a trial, the district court entered its decree of dissolution. By way of property division, the court awarded to husband a pickup truck and other personal property. The court awarded to wife a Jeep, other personal property, and the marital residence. In addition, the court awarded wife $335 per month from husband's military pension and $1,000 in insurance proceeds to repair the garage roof. The court evenly divided the savings account used by husband, 43 savings bonds, and husband's thrift savings account. As alimony, the court awarded wife $300 per month for 120 months. As attorney fees, the court awarded wife $500, in addition to the $250 attorney fees it had awarded in an earlier temporary order.

Husband appealed and, under our authority to regulate the caseload of the appellate courts of this state, we removed the matter to this court. Husband alleges that the district court erred in awarding wife (1) an inequitable amount of the property, (2) alimony, and (3) attorney fees.

In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993); McWha v. McWha, 241 Neb. 355, 488 N.W.2d 357 (1992); Stover v. Stover, 240 Neb. 391, 482 N.W.2d 244 (1992). In conducting such de novo review, when evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. McWha, supra; Stover, supra. This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees. See, Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992) (property division, attorney fees); Larimore v. Larimore, 240 Neb. 13, 480 N.W.2d 192 (1992) (property division); Ziebarth v. Ziebarth, 238 Neb. 545, 471 N.W.2d 450 (1991) (alimony, attorney fees); Murrell v. Murrell, 232 Neb. 247, 440 N.W.2d 237 (1989) (alimony).

Husband first asserts that the trial court inequitably divided the property. Specifically, husband argues that the trial court erred in awarding wife one-half of his savings account, the $1,000 insurance check, and one-half of the 43 savings bonds because, he claims, those items do not exist.

There being no settlement agreement between the parties, the trial court was obliged to order an equitable division of the marital estate. Neb.Rev.Stat. § 42-366(8) (Reissue 1988). The marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties. See, Grummert v. Grummert, 195 Neb. 148, 237 N.W.2d 126 (1975); Tavlin v. Tavlin, 194 Neb. 98, 230 N.W.2d 108 (1975); Jablonski v. Jablonski, 173 Neb. 544, 114 N.W.2d 1 (1962). With some exceptions not relevant here, the marital estate does not include property acquired by one of the parties through gift or inheritance. See, Preston, supra; Buche v. Buche, 228 Neb. 624, 423 N.W.2d 488 (1988); Sullivan v. Sullivan, 223 Neb. 273, 388 N.W.2d 516 (1986).

In the present action, the marital estate indisputably includes the family residence, a pickup truck, a Jeep, a thrift savings account, husband's military pension, and assorted items of tangible personal property. The disputed items are a savings account, an insurance check, and some savings bonds. Husband's argument regarding these disputed items amounts to a claim that the marital estate does not include these items. We address each disputed item in turn, reserving for the moment the question of whether the items were equitably divided.

The trial court awarded wife "one-half of the savings account used by [husband], which one-half equals $300.00." There is no evidence of such an account. The trial court erred in considering such a savings account as part of the marital estate and awarding a portion thereof to wife. The decree should be modified by striking out this award.

The trial court awarded wife "the $1,000.00 insurance check ... but if the same is not in existence, [husband] shall pay to [wife] the sum of $1,000.00." Wife testified that the garage roof was damaged 2 years ago, that the damage was covered by insurance, and that the insurance company sent a check for approximately $1,000, which husband appropriated. Wife further testified that the damage has not been repaired. Husband did not dispute the existence of the check. Husband instead testified that he had repaired the garage roof several times and that he thought it no longer leaked.

The trial court clearly determined that the insurance check existed and was kept by the husband. The check was a part of the marital estate because it was property accumulated during the marriage through the parties' joint ownership of the house. The court did not err in considering the insurance check a part of the marital estate.

The trial court awarded wife "one-half of the value of the 43 savings bonds owned by the parties." Wife testified that, for 20 years, she and her husband regularly purchased savings bonds. On the list of assets which she entered into evidence, wife claimed 43 savings bonds with a total value of $4,300. When asked why she had listed 43 bonds, wife testified that those were the only ones she could find and that to her knowledge, they still exist. Husband testified that after he had been served with notice of the dissolution action, he had used a number of savings bonds to license and register the pickup truck; according to husband, there were only six or seven bonds left. Husband also testified that the type of bonds he purchased could not be cashed for 6 months, that their prematurity cash value was $50, and that their value upon maturity was $100.

The trial court clearly determined that 43 savings bonds existed. Because the testimony of husband and wife directly conflicted on this point, we choose to give weight to the fact that the trial court observed the witnesses and believed one version of the facts rather than another. Accordingly, the trial court did not err in including the 43 savings bonds as part of the marital estate. However, the trial court made no...