Thiltges v. Thiltges

• Decision Date: 10 February 1995
• Docket Number: No. S-92-811,S-92-811
• Citation: 247 Neb. 371,527 N.W.2d 853
• Parties: Deborah Lee THILTGES, Appellant, v. Frederick John THILTGES, Appellee.
• Court: Nebraska Supreme Court

Page 853

527 N.W.2d 853

247 Neb. 371

Deborah Lee THILTGES, Appellant, v. Frederick John THILTGES, Appellee.

No. S-92-811.

Supreme Court of Nebraska.

Feb. 10, 1995.

Syllabus by the Court

1. Evidence: Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witness and accepted one version of the facts rather than another.

2. Property Division: Alimony: Appeal and Error. The division of property and the awarding of alimony is a matter entrusted to the discretion of the trial judge and, on appeal, will be reviewed de novo on the record and will be affirmed in the absence of an abuse of the trial judge's discretion.

3. Property Division: Words and Phrases. Present value is the current worth of a certain sum of money due on a specified future date after taking interest into consideration.

4. Property Division. The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case. The division of property is not subject to a precise mathematical formula, but the general rule is to award a spouse one-third to one-half of the marital estate.

5. Property Division: Interest: Time. Neb.Rev.Stat. § 45-103 (Reissue 1993) does not require that a marital property distribution payable in installments be entitled to interest running from the date of the entry of judgment.

6. Property Division: Interest. A district court can exercise its discretion and award interest on deferred installments payable as part of a marital property distribution.

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

8. Alimony. Although alimony is not to be used simply to equalize the income of the parties, a court may consider the relative economic circumstances of the parties when awarding alimony. Disparity in income or potential income may partially justify an award of alimony.

9. Alimony. The condition of a spouse's business is not the sole factor in determining proper alimony. Rather, the earning capacity of a spouse operating a business is an element which is to be considered in determining alimony.

Dana L. Leach, Lincoln and Louie M. Ligouri, of Ligouri Law Office, Auburn, for appellant.

Patricia A. Lamberty, of Zweiback, Hotz & Lamberty, P.C., Omaha, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, LANPHIER, and WRIGHT, JJ.

LANPHIER, Justice.

We granted further review of a decision of the Nebraska Court of Appeals, Thiltges v. Thiltges, 94 NCA No. 24, case No. A-92-811, 1994 WL 259486 (not designated for permanent publication). Deborah Lee Thiltges appealed to that court from certain orders contained in the decree entered by the district court for Richardson County dissolving her marriage to the respondent-appellee, Frederick John Thiltges. Appellant argues that the district court did not equitably divide the parties' marital estate because it failed to require the payment of interest on appellant's deferred property award, which was payable over 12 years. Finding that an award of interest will not impose an undue burden on appellee, we modify the decree of the district court to require interest to be paid from the date of the decree. Secondly, with regard to the Court of Appeals' failure to award alimony, appellant asserts that the Court of Appeals failed to consider appellee's actual earning capacity rather than the profitability of his farming

operations in determining the propriety of an award of alimony. Although we agree that the Court of Appeals erred in failing to consider both spouses' actual earning capacities, we hold that the record does not support an award of alimony. We remand the cause with directions to modify the division of property as hereinafter stated.

BACKGROUND

Deborah and Frederick Thiltges were married on August 18, 1976, and have one child, John, born October 20, 1979. On February 7, 1992, appellant filed a petition for the dissolution of the marriage of the parties.

Appellee is a farmer and works primarily in partnership with his brother. At trial, evidence regarding the land, equipment, and cash owned by the parties was adduced. Some of the farm-related assets were purchased by the parties during their marriage, and others were inherited from appellee's relatives.

Appellant is a registered nurse, and during the parties' marriage, she worked intermittently as a nurse and earned approximately $80,000 over the term of the marriage. She also helped with the farmwork by cooking for hayers and sheep shearers, walking beans, cutting thistles, taking care of lambs, mowing, etc. At the time of the divorce decree, appellant was 3 hours short of obtaining a teaching certificate. Two weeks prior to the trial of this matter, appellant began full-time employment at a nursing home and was earning $13.50 per hour or approximately $27,000 per year. However, she planned to seek employment as a teacher upon obtaining her teaching certificate. Appellant testified that she wanted to be a teacher so that she could spend time with her 12-year-old son and avoid the evening and weekend hours required by her nursing position. Appellant testified that a teacher's starting salary is approximately $18,000.

In its decree, the district court set off several parcels of land as appellee's nonmarital property. The court decreed four parcels of land, valued at a total of $194,000, to be marital property. Other assets, including individual retirement accounts, automobiles, and household goods, were also deemed to be marital assets. The asset value of the total marital estate equaled $292,997.

Appellee testified that he owned approximately $39,000 in machinery, equipment, and livestock at the time of the parties' marriage in 1976. Stating there was no clear showing of which of these assets remained or their value, the court deemed them to be marital assets.

The parties' land was mortgaged to the extent of $127,000. Other marital debt totaled $56,482. Therefore, the net value of the marital estate equaled $109,515.

The district court awarded personal property and household goods valued at $6,005 to appellant. The real property and the remaining assets, valued at $286,992, were awarded to appellee. All indebtedness was assigned to appellee, and he was ordered to hold appellant harmless with respect to the debts.

At trial, appellant testified that she preferred a cash award rather than any part of the farming operation. She stated that she was agreeable to an order that would provide for a sum to be paid over a period of time. The district court decreed:

That in order to equitably adjust the difference in net value of the property awarded the parties herein, respondent receiving the greater portion and value thereof, and to provide support for petitioner, respondent should pay alimony to petitioner in the amount of $300 a month for a period of 12 years, the first such payment being due September 1, 1992, and a like amount on the first day of each month thereafter until paid in full. Such alimony shall be deemed vested and not terminable on the death of either party or remarriage of petitioner.

The monthly payments total $43,200. Accordingly, the net value of the marital estate awarded to appellee equaled $60,064. The total net value of the deferred property settlement and the $6,005 of personal property awarded to appellant equaled $49,205.

In her arguments to the Court of Appeals, appellant asserted that the district court's order directing appellee to pay her a sum She did not challenge the district court's attempt to award alimony for the dual purposes of maintenance and a division of property. However, appellant contended that the district court failed to separately consider each purpose to arrive at an equitable settlement award. Appellant asserted that the circumstances dictated an award reflecting a property division of one-third to one-half in addition to a sufficient amount for her support and maintenance.

[247 Neb. 375] of $43,200 in monthly increments for a period of 12 years fails to equitably divide the marital estate when the net present value of the award is considered. Appellant asserted that the present value of the award was less than one-third of the marital estate.

The Court of Appeals affirmed the district court's order directing appellee to pay a sum of $43,200 to appellant, that amount to be paid in $300 monthly increments for a period of 12 years. However, the Court of Appeals decreed that the amounts to be paid appellant were to be considered a division of property, rather than alimony. The Court of Appeals concluded that the evidence did not support an award of alimony to appellant. We granted appellant's petition for further review.

ASSIGNMENTS OF ERROR

Appellant asserts that the Court of Appeals erred in (1) treating $300 a month payable over a period of 12 years the same as $43,200 net worth; (2) considering solely the earning capacity of appellant in denying alimony and changing the district court's alimony award which was, in part, to provide support for appellant; and (3) failing to consider appellee's actual earning capacity rather than the profitability of appellee's personal farming operations in determining the propriety of an award of alimony.

STANDARD OF REVIEW

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. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995); Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994); Baratta v. Baratta, 245 Neb. 103, 511 N.W.2d 104 (1994)....