Schrier v. Schrier, No. A-05-817 (Neb. App. 12/5/2006)

• Decision Date: 05 December 2006
• Docket Number: No. A-05-817.,A-05-817.
• Parties: TRACY E. SCHRIER, APPELLANT, v. JEFFREY L. SCHRIER, APPELLEE.
• Court: Nebraska Court of Appeals

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TRACY E. SCHRIER, APPELLANT, v.JEFFREY L. SCHRIER, APPELLEE.

No. A-05-817.

Nebraska Court of Appeals.

Filed December 5, 2006.

Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.Affirmed in part, and in part reversed and remanded for further proceedings.

Sally A. Rasmussen, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., for appellant.

Edward D. Hotz, of Hotz, Weaver, Flood, Breitkreutz & Grant, for appellee.

INBODY, Chief Judge, and SIEVERS and CARLSON, Judges.

INBODY, Chief Judge.

I.INTRODUCTION

Tracy E. Schrier appeals the decree dissolving her marriage to Jeffrey L. Schrier.She assigns various errors committed by the district court during the trial and in the entry of the decree.For the reasons set forth herein, we affirm in part, and in part reverse and remand for further proceedings.

II.STATEMENT OF FACTS

Tracy and Jeffrey were married on August 31, 1996.At the time that the parties were married, Jeffrey was 34 years old and Tracy was 32.Two children were born of the marriage: Isaiah M. Schrier, born February 19, 1998, and Ian M. Schrier, born March 11, 1999.Tracy filed a petition for dissolution on February 4, 2003, and trial was held on various dates from January through April 2005.In addition to evidence as set forth in this section, other evidence will be set forth in the analysis section of this opinion.

1.Employment, Income, and Business History

Tracy received a journalism degree from the University of Nebraska-Lincoln and was working at her family's nursery and landscaping business, as well as working in sales and advertising and in the sale of after-market automobile products for a car dealership before doing the same at Jeff Schrier Ford Inc. Tracy earned approximately $38,000 per year at the first car dealership, and she earned more at Jeff Schrier Ford.

Jeffrey is president of Jeff Schrier Ford.When Jeff Schrier Ford was established in 1991, Jeffrey owned 25 percent of the business and his father owned 75 percent.Over the years, Jeffrey received additional shares as gifts, and in October 2000, he purchased additional shares from his father for $1,477,755.50, bringing his ownership percentage to 90 percent.The purchase price of the stock was financed pursuant to a purchase and option agreement and a promissory note.The full amount of the note remained due and owing at the time of trial, because the note required payment of interest only until October 2015.The parties stipulated that Jeffrey's 90-percent interest in Jeff Schrier Ford was worth $1,189,579.

During the marriage, a portion of Jeffrey's salary was used for the purchase of stock of the car dealership from Jeffrey's father.Pursuant to the stock purchase agreement, Jeffrey paid his father annual interest payments of $96,054.11 beginning on October 1, 2001, paid in monthly installments of $8,004.51.Tracy and Jeffrey paid income taxes on the sums paid to Jeffrey's father, and at the time of trial, Jeffrey was current on the stock purchase payments.At trial, Jeffrey testified that in 2001, his salary was increased from $200,000 to $300,000 to compensate for the annual interest payments of approximately $ 96,000 to his father for the stock purchase.

Additionally, Jeffrey holds a 25-percent interest in Triple J Realty, a general partnership holding real estate.Jeffrey also owns a 9.97-percent interest in a general partnership, MSS Realty, which was gifted to him from his father prior to the parties' marriage.With Jeffrey's approval, Jeffrey's father continues to retain Jeffrey's share of the income generated from MSS Realty, despite the fact that Jeffrey and Tracy paid income taxes on that income.The parties' income tax returns show income attributed to MSS Realty of $0 in 1998, $10,215 in 1999, $10,087 in 2000, $10,519 in 2001, $10,314 in 2002, and $ 83 in 2003.

2.Parties' Marriage

Jeffrey testified that Tracy stopped working at his request to provide a home for him and their children.The parties agreed that Tracy would be a stay-at-home mother to the parties' children.Tracy has been the children's primary caregiver since their births, responsible for their feeding, bathing, and dressing and the rest of their daily activities, while Jeffrey worked in the business that he owned.

Jeffrey admitted that Tracy kept a neat and tidy home, that she kept the boys on a good schedule, that she kept the boys neat and clean, that the boys were well attended, and that she monitored their doctor appointments.Further, he had observed Tracy working with the boys on their letters and numbers and reading on numerous occasions.The boys are doing well in school and getting good grades, and they are well adjusted.

When the parties were first married, Jeffrey worked until 8 or 8:30 p.m.Then, for the 3 to 6 months following Isaiah's birth, Jeffrey was working only until 6 or 6:30 p.m., but he went back to working until 8 to 8:30 p.m.When Tracy was pregnant with Ian and was on bed rest, Jeffrey did not come home and assist her.Further, after Jeffrey would come home at 8 or 8:30 p.m., he would shower, change clothes, and then go back out with his friends, sometimes returning in the early morning hours between 5 and 8 a.m.This occurred approximately two nights per week during Tracy's pregnancy with Ian.By March 2003, six or seven nights per week, Jeffrey would not be home by 8:30 p.m.From the time period that Tracy became pregnant with Ian until March 2003, there were at least one or two nights per week when Jeffrey was not home by midnight.Jeffrey moved out of the home in March 2003.

Jeffrey testified that his work schedule is flexible and allows him to be "available" to the minor children.

3.Gambling

Jeffrey testified at trial that, although he"hasn't faired well lately with gambling,"he does not have a gambling problem, he has never had a gambling problem, gambling has not affected his life adversely, and gambling has not hurt him at all.However, in his March 11, 2004, deposition, Jeffrey testified that gambling is "a bad thing.It hurt me."Later, in his trial testimony, Jeffery admitted that gambling had hurt him financially.He has not gotten any counseling for his gambling issue.

Tracy testified Jeffrey would not make any effort to keep his gambling activities secret from Isaiah and Ian and that, in fact, Jeffrey made bets over the telephone within hearing of the boys and that she observed Jeffrey making bets on his computer while the boys were sitting in his lap.Tracy testified that during the football season, Ian wanted to bet on football in the fall of 2004, so Tracy told him she would bet him "a buck" and Ian stated that "it's got to at least be a hundred."When Tracy informed him that "we don't do that," Ian stated that "dad does."The boys have talked to Tracy about gambling, and Ian says that he wants to bet on sports games on television.

4.Religion

Prior to the parties' marriage, Tracy converted to Judaism at Jeffrey's request and the parties agreed to raise any children born of the marriage in the Jewish faith.During the process of Tracy's conversion to Judaism, she never told Jeffrey that she did not believe in the beliefs of the Jewish faith or that she did not want to convert to Judaism.Jeffrey admitted that early in their marriage, Tracy made a good faith effort to be a good Jewish wife and mother.Jeffrey also testified that Tracy knew prayers for the Shabbat and that she attempted to teach the parties' children about Jewish prayers.

Tracy testified that she and Jeffrey attended temple only two or three times, other than weddings, from 1996 through 2003.Jeffrey acknowledged his lack of involvement, which was confirmed by his rabbi.Tracy testified that she educated the minor children about Jewish prayers and traditions to the best of her ability.Tracy further stated that they did Shabbat on a Friday night only twice.

Tracy testified that the parties' conflict over the boys' religious upbringing has had "a disasterous effect" on them and they are "in constant turmoil."Consequently, Tracy decided that she would concede that the children should be raised Jewish because a resolution of the conflict was in the children's best interests.Tracy testified at trial that she had made the determination that "I'm going to end the conflict now.I am going to allow Jeffrey to have the children attend Hebrew schooling and education and classes" and that Jeffrey, and only Jeffrey, should take them to Hebrew classes and education "to show the importance of it that the father is placing upon this."

Tracy requests that if the boys are going to be taken to Hebrew school or a Jewish ceremony, then it should be Jeffrey who personally takes them so that Jeffrey impresses upon the children the importance of their religion.Tracy believes that if Jeffrey has someone else handle the boys' religious training, then they will not get the message that their father places importance on the boys' Jewish religion.

Further, Tracy conceded that if Jeffrey is intent upon having the boys be educated in Judaism and be involved in Jewish ceremony, then she would consent at any time that it would be normal for a reformed Jewish boy to be at the temple or some other place for school, which is usual and customary for reformed Jews, and she would consent to allowing the children to be taken from her possession at such times to allow them to go to such observances if they were in her custody.

At trial, Tracy expressed a willingness to assist in the boys' Jewish education and a desire to participate in that part of their lives.Further, Tracy testified that she was willing to have them raised Jewish and to support them in their faith by "attending the types of things that Jewish moms attend for Jewish kids, either in the way of education or ceremony."Tracy also wants the ability to attend the religious services and any ceremonies that the boys participate in as far as their...