Snow v. Snow

• Docket Number: A-22-897
• Decision Date: 26 December 2023
• Parties: Stephanie L. Snow, appellee, v. Ronald L. Snow, appellant.
• Court: Nebraska Court of Appeals

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32 Neb.App. 513

Stephanie L. Snow, appellee,
v.
Ronald L. Snow, appellant.

No. A-22-897

Court of Appeals of Nebraska

December 26, 2023

1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, 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 custody, child support, division of property, alimony, and attorney fees.

2. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Divorce: Property Division: Equity. Neb. Rev. Stat. § 42-365 (Reissue 2016) authorizes a trial court to equitably distribute the marital estate according to what is fair and reasonable under the circumstances.

4. Divorce: Property Division. In a marital dissolution action, the purpose of a property division is to distribute the marital assets equitably between the parties.

5. __: __. In a marital dissolution action, there is no mathematical formula by which property awards can be precisely determined, but as a general rule, a spouse should be awarded one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case.

6. __: __. Generally, all property accumulated and acquired by either spouse during a marriage is part of the marital estate. Exceptions include property that a spouse acquired before the marriage, or by gift or inheritance.

7. Divorce: Property Division: Proof. The burden of proof rests with the party claiming that property is nonmarital.

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[32 Neb.App. 514] 8. Divorce: Property Division: Presumptions. Accrued investment earnings or appreciation of nonmarital assets during the marriage are presumed marital unless the party seeking the classification of the growth as nonmarital proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is not due to the active efforts of either spouse.

9. Divorce: Property Division. The appreciation or income of a nonmari-tal asset during the marriage is marital insofar as it was caused by the efforts of either spouse or both spouses.

10. __: __. The active appreciation rule sets forth the relevant test to determine to what extent marital efforts caused any part of an asset's appreciation or income.

11. Property Division: Words and Phrases. Appreciation caused by marital contributions is known as active appreciation, and it constitutes marital property.

12. __: __. Passive appreciation is appreciation caused by separate con tributions and nonmarital forces.

13. Divorce: Property Division. Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate property.

14. __: __. The original value of an asset may be nonmarital, while all or some portion of the appreciation of that asset may be marital. 15.: . The oft-cited three-step process of a marital property divi sion must account for appreciation, which may be treated separately from the original capital or value of an asset.

16. __: __. In a marital dissolution action, the equitable division of property is a three-step process. The first step is to classify the parties' property as either marital or nonmarital, setting aside the nonmarital property or nonmarital portion of the property to the party who brought the property to the marriage. 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 equitably between the parties.

17. __: __. The active appreciation rule applies to agricultural land or farmland. 18.: . The term "Grace award" has been described as a device to fairly and reasonably divide a marital estate where the prime asset in contention is one spouse's gifted or inherited stock or property in a family agriculture organization.

19. 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 2016) make it appropriate.

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[32 Neb.App. 515] 20. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.

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

22. __. There are four factors that are relevant to alimony: (1) the circum stances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, 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 each party.

23. __. In determining whether alimony should be awarded, a court should consider the income and earning capacity of each party and the general equities of the situation.

24. __. Alimony should not be used to equalize the incomes of the parties or punish one of the parties, but disparity in income or potential income may partially justify an award of alimony.

Appeal from the District Court for Adams County: Morgan R. Farquhar, Judge. Affirmed in part, and in part reversed and remanded with directions.

Adam R. Little, of Nebraska Legal Group, for appellant.

Jack W. Besse, of Parker, Grossart &Bahensky, L.L.P., for appellee.

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

Pirtle, Chief Judge.

I. INTRODUCTION

The district court for Adams County dissolved the marriage of Stephanie L. Snow and Ronald L. Snow and divided the parties' property and debts. On appeal, Ronald challenges the district court's division of property and its award of alimony to Stephanie. Based on the reasons that follow, we affirm in part, and in part reverse and remand with directions.

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[32 Neb.App. 516] II. BACKGROUND

Stephanie and Ronald were married in June 1981. They had two children who are no longer minors and, therefore, are not affected by these proceedings. When the parties married, Ronald was farming with his father, and they raised hogs. The farm ground was owned by Ronald's parents. Stephanie testified that she worked on the farm and worked at the grain elevator during harvest time. Around 1985, Ronald and his father stopped farming. Ronald opened a mechanic shop located in a building on his parents' land and Stephanie helped him in the shop. He had the shop for about 15 to 20 years, but it was never profitable.

Ronald's father had an antique store that he started almost 40 years prior to trial. The antique store was also located in a building on Ronald's parents' property. Stephanie helped with the store by arranging and displaying the antiques, as well as pricing the items. She would also go with Ronald's father to auctions to purchase antiques for the store.

In the late 1980s, Stephanie opened her own business that repaired and restored wicker furniture. This business was also located on Ronald's parents' property.

In the mid-1990s, Stephanie started a residential and commercial cleaning business. At the time of trial, she was still running the cleaning business and it was her only source of income. She was earning $400 to $500 per week.

During the parties' marriage, they lived in a home owned by Ronald's parents and located on 10 acres of their property, referred to as "the cabin."

In December 2006, Ronald's parents titled two parcels of real property in Ronald's name, reserving a life estate for themselves. The first parcel was 176 acres of cropland that was cash-rented by a third party. This parcel included the cabin; the house where Ronald's parents lived; the buildings that housed the mechanic shop, the antique store, and the furniture repair business; and a building where Ronald's father displayed his own antique collection. The second parcel was

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[32 Neb.App. 517] 57 acres that consisted primarily of pasture ground, which was also rented to a third party. Ronald's mother died in 2016 and his father died in 2019, thereby ending the life estate.

Stephanie filed a complaint for dissolution of marriage in May 2021. Trial was held in September 2022. At the time of the trial, Stephanie was 60 years old and Ronald was 61 years old. Stephanie and Ronald both testified, as well as Michael Paul Wilken, a certified general appraiser.

Stephanie testified that since 2006, she had spent time and effort improving the cabin, as well as Ronald's parents' house. She testified that she installed ponds around the cabin, did landscaping, and remodeled Ronald's parents' bathroom. She also presented photographs indicating that she hand painted a ceiling and tiled the kitchen in the cabin. She also had a washhouse moved into the yard by the cabin and spent time fixing it up and decorating it. Stephanie also testified that after Ronald's father died in 2019, she did other landscaping, including moving large rocks and planting flowers and bushes. She also repainted a fence. She believed that the improvements she made increased the value of the property at the time. She testified, however, that at the time of trial, the area around the cabin was covered in weeds and there was nothing left of the flowers and bushes she planted. Stephanie stated she did not want to be awarded the cabin because...