Tyma v. Tyma

• Decision Date: 17 May 2002
• Docket Number: No. S-01-267.,S-01-267.
• Citation: 644 N.W.2d 139,263 Neb. 873
• Parties: Richard F. TYMA, Appellant, v. Judith Ann TYMA, Appellee.
• Court: Nebraska Supreme Court

644 N.W.2d 139

263 Neb. 873

Richard F. TYMA, Appellant, v. Judith Ann TYMA, Appellee.

No. S-01-267.

Supreme Court of Nebraska.

May 17, 2002.

John O. Sennett and Julianna S. Jenkins, of Sennett, Duncan & Borders, Broken Bow, for appellant.

Larry W. Beucke and Marc J. Odgaard, of Parker, Grossart, Bahensky & Beucke, Kearney, for appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Richard F. Tyma appeals from the decree of dissolution entered by the district court for Sherman County which dissolved his marriage to Judith Ann Tyma and divided the marital estate. Richard asserts that the district court erred in its valuation and division of marital property. We reverse, and remand for further proceedings.

STATEMENT OF FACTS

Richard and Judith were married on April 4, 1970. Richard filed for dissolution of the marriage on June 8, 2000. None of the parties' children were minors at the time of the dissolution. Trial was held December 15, 2000, to determine, inter alia, the extent and amount of the marital estate and the division of marital property. In view of our reversal and remand, we do not repeat the evidence in detail. Reference to the evidence is incorporated in the analysis as needed.

At the time of trial, Richard worked as a self-employed general repairman who also bought and sold equipment. Judith had been employed by Litchfield Public Schools since 1983. During the marriage, in 1992 and 1993, Richard inherited money from an uncle and from an aunt. Richard testified that he had used approximately $3,000 of the inheritance from his uncle to build an addition to the family home and approximately $2,000 to $3,000 of the inheritance from his aunt to build a carport onto the family home.

In November 1997, Judith moved out of the family home in Litchfield. At trial, Judith testified that Richard "threw [her] out" of the home and that her departure was not voluntary. Judith moved in with a daughter in Kearney and was living there at the time of the trial.

Richard continued to live in the family home. In interrogatories and at trial, Richard estimated the value of the home to be $17,000. Judith testified that the value of the family home was from $15,000 to $20,000. The documentary evidence of the value of the home was limited to a statement from the Sherman County assessor dated December 15, 2000, which showed a current assessed value of $18,525 for the home.

Judith inherited a half-interest in a house in Silver Creek after her mother died in August 1999. Judith continued to own her portion of the inherited house as a rental property at the time of trial. In addition, Judith had a retirement account through her employment with Litchfield Public Schools. She presented evidence that the value of the account was $17,000.09 when she moved out of the family home in November 1997 and $24,383.91 at the time of the trial.

On January 18, 2001, the district court entered a decree of dissolution in which it found that the marriage was irretrievably broken and should be dissolved. Regarding property division, the district court found that the parties had been separated since November 1997 and determined that because of the "lengthy separation," it would divide the assets and debts as of the date of separation.

The district court found that each party should retain the property currently in his or her possession, except that Judith should receive certain pieces of personal property in Richard's possession which were brought by her into the marriage. The district court assigned values to the marital property possessed by each party according to a chart in the order not repeated here. To equitably divide the property, the district court ordered Richard to pay $2,403 to Judith.

On January 25, 2001, Richard moved for a new trial on the basis, inter alia, that the district court had erred and abused its discretion in the division of property. On February 22, the district court denied the motion for new trial. Richard appeals.

ASSIGNMENTS OF ERROR

Richard generally asserts that the district court abused its discretion in its division of property. Richard asserts, restated, that the district court abused its discretion by (1) valuing the marital estate as of the date of separation rather than the date of dissolution, using inconsistent valuation dates for different properties, and failing to properly "credit" Richard for money he inherited and used to make improvements to the family home and (2) failing to value Judith's pension as of the date of dissolution in contravention of Neb. Rev.Stat. § 42-366(8) (Reissue 1998).

STANDARDS 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. This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).

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. Id.

A judicial abuse of discretion exists when 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. Id.

Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Douglas Cty. Bd. of Comrs. v. Civil Serv. Comm., 263 Neb. 544, 641 N.W.2d 55 (2002).

ANALYSIS

Valuation of Marital Estate.

Richard argues that the district court abused its discretion by using the date the parties separated, rather than the date of trial, to value the marital estate. Richard also argues that it was error for the district court to use inconsistent dates in valuing assets. Finally, he claims that the district court abused its discretion by failing to "credit" him for moneys he inherited and used to make improvements to the family home.

In a divorce action, "[t]he purpose of a property division is to distribute the marital assets equitably between the parties." Neb.Rev.Stat. § 42-365 (Reissue 1998). Equitable property division under § 42-365 is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365. Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).

The marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties. Brunges v. Brunges, 260 Neb. 660, 619 N.W.2d 456 (2000). The date upon which the marital estate is valued should be rationally related to the property composing the marital estate. Id.

In the present case, the district court found that the parties "kept separate finances throughout the marriage" and that they separated in November 1997. The record supports this finding. Under the facts of this case, it was reasonable for the district court to conclude that no property was "accumulated and acquired ... through the joint efforts of the parties," see id. at 665, 619 N.W.2d at 461, after the date of their separation, and the district court did not err in using the date of the separation in November 1997, as opposed to the date of dissolution, as the date upon which to identify the composition of the marital estate. The November 1997 date used for valuation was "rationally related to the property composing the marital estate." See id. at 667, 619 N.W.2d at 462. We conclude that the district court did not abuse its discretion by choosing the date of separation to identify and value the property composing the marital estate.

Richard argues that even if November 1997 was an appropriate date upon which to value the marital estate, the district court erred by using inconsistent dates in valuing items of property. By way of example, he notes that the district court valued Judith's pension as of November 1997, whereas it valued the family home as of the date of trial.

A review of the record shows that during discovery, the parties focused on current valuations rather than valuations as of the date of separation. There is no pretrial order advising the parties that the district court would base its order regarding property division on valuations as of the date of the separation of the parties. At trial, with minor exception, the parties presented evidence regarding the values of assets and debts as of the date of dissolution. Other than the documentary evidence of the value of Judith's pension as of November 1997, there appears to be no direct evidence of values of any assets or debts at the date of separation. The record does not contain evidence supporting the district court's determination of November 1997 values.

We conclude that the valuation of assets and debts of the marital estate by the district court was untenable, unfairly depriving the parties of a substantial right and denying just results in the matter...