Wiech v. Wiech, A–14–747.

• Decision Date: 03 November 2015
• Docket Number: No. A–14–747.,A–14–747.
• Citation: 23 Neb.App. 370,871 N.W.2d 570
• Parties: Chrissie Elaine Wiech, appellee, v. Craig Allen Wiech, appellant.
• Court: Nebraska Court of Appeals

23 Neb.App. 370

871 N.W.2d 570

Chrissie Elaine Wiech, appellee,

v.Craig Allen Wiech, appellant.

No. A–14–747.

Court of Appeals of Nebraska.

Filed November 3, 2015.

Aimee S. Melton and A. Bree Robbins, of Reagan, Melton & Delaney, L.L.P., La Vista, for appellant.

Michael N. Schirber, of Schirber & Wagner, L.L.P., Papillion, for appellee.

Irwin, Inbody, and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

Craig Allen Wiech appeals the order of the Sarpy County District Court which dissolved his marriage to Chrissie Elaine Wiech and divided the marital estate. On appeal, he challenges the district court's classification, valuation, and division of the marital property. For the reasons explained below, we affirm in part, and in part reverse and remand with directions.

BACKGROUND

Craig and Chrissie were married on May 26, 2008. They separated on September 28, 2013, and Chrissie filed a complaint for dissolution of marriage on October 2. There were no children born during the marriage.

Trial was held in May 2014 to determine, inter alia, the extent and value of the marital estate and the division of marital property. The evidence presented will be described in more detail as needed in the analysis below.

The district court entered the decree on August 5, 2014. Each party received a vehicle subject to its associated lien: Chrissie received a 2009 Mazda, and Craig received a 2010 Harley–Davidson motorcycle. Chrissie was awarded the marital residence, subject to its mortgage, as well as most of the parties' personal property. Each party was assigned various credit card debts. Chrissie received "a lump sum of $48,009.81" from Craig's pension, an amount "representing the marital portion of the pension in the amount of $42,398.88, and $5,610.93 of [Craig's] accumulated sick and vacation time as evidenced on Trial Exhibit No. 11." Craig timely appeals to this court.

ASSIGNMENTS OF ERROR

Craig assigns, summarized, that the district court erred in its classification, valuation, and division of the marital property.

STANDARD OF REVIEW

In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion. Rommers v. Rommers, 22 Neb.App. 606, 858 N.W.2d 607 (2014).

ANALYSIS

On appeal, Craig generally argues that the district court erred in its classification, valuation, and division of various assets owned by the parties. We address his specific arguments individually below.

Valuation Date of Craig's Pension.

Craig asserts that the district court erred in valuing his pension as of March 6, 2014, a date he claims has no rational relationship to the date of separation or dissolution. We find no abuse of discretion in the utilization of this date.

As a general principle, the date upon which a marital estate is valued should be rationally related to the property composing the marital estate, and the date of valuation is reviewed for an abuse of the trial court's discretion. Pohlmann v. Pohlmann, 20 Neb.App. 290, 824 N.W.2d 63 (2012). The purpose of assigning a date of valuation in a decree is to ensure that the marital estate is equitably divided. Id. Because the valuation and distribution of a particular asset rarely takes place in a vacuum, a specific, consistent, and enforceable date of valuation permits the trial court to allocate all the assets of the marital estate in an equitable and fair manner. See Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008).

In the present case, Craig challenges the decision to value his pension as of March 2014 instead of September 2013, the time of the parties' separation. We note that other assets of the marital estate were valued as of early 2014 as well. For example, evidence was received depicting the balance of the mortgage on the marital residence as of May 1. Likewise, the liens on the parties' two vehicles were valued as of March 31. The values of Craig's accrued sick and vacation leave were established as of May 3. The dissolution trial was held on May 23, and the March 2014 pension statement was the statement closest to trial. Consequently, we find no abuse of discretion in valuing Craig's pension as of March 2014.

Sick, Vacation, and Compensatory Time.

The district court awarded Chrissie a portion of the value of the sick, vacation, and compensatory (comp) time Craig had accrued through his employment during the marriage. We note that although the decree states sick and vacation time are being awarded, the calculation of $5,610.93 awarded to Chrissie necessarily includes one-half of Craig's accumulated comp time. Craig asserts that the district court erred in considering his accrued leave to be a marital asset. We find no abuse of discretion in the classification of his unused sick, vacation, and comp time as marital property. We further determine that the district court erroneously awarded Chrissie the value of the entire marital portion of Craig's accrued sick leave, instead of an equitable share, and we therefore reverse, and remand for division. See Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006) (stating general rule to award spouse one-third to one-half of marital estate, polestar being fairness and reasonablenessas determined by facts of each case).

Craig is employed as a police officer with the city of Bellevue, Nebraska. The collective bargaining agreement governing Craig's employment relationship provides that upon separation of his employment, Craig shall be promptly paid all accumulated vacation leave computed on the basis of his regular pay as of his last day of employment. Similarly, the agreement provides that employees who retire with at least 5 years of service shall receive a cash payout for accumulated sick leave, but such payment shall be one-half of the accumulated sick leave not to exceed 960 hours at the regular pay at the time of retirement. The portion of the agreement contained in our record does not indicate whether unused comp time is convertible to cash but Craig testified that if he were to retire and had comp time available, he would be entitled to a payout.

Whether an employee's accrued sick leave, vacation leave, and comp time is considered marital property is an issue of first impression in Nebraska. Courts in other jurisdictions are split on this issue. Compare, Schober v. Schober, 692 P.2d 267 (Alaska 1984) (unused leave, portion of which was convertible to cash on yearly basis, is marital asset); In re Marriage of Cardona and Castro, 316 P.3d 626 (Colo. 2014) (where employee spouse has enforceable right to be paid for accrued sick or vacation leave, such leave earned during marriage is marital property); Dye v. Dye, 17 So.3d 1278 (Fla.App. 2009) (cash value of unused sick and vacation leave is marital asset subject to equitable distribution); Lesko v. Lesko, 184 Mich.App. 395, 457 N.W.2d 695 (1990) (banked leave days are divisible marital asset); Marriage of Williams, 84 Wash.App. 263, 927 P.2d 679 (1996) (same), with In re Marriage of Abrell, 236 Ill.2d 249, 923 N.E.2d 791, 337 Ill.Dec. 940 (2010) (accrued vacation and sick days are not marital property subject to distribution in dissolution of marriage action); Akers v. Akers, 729 N.E.2d 1029 (Ind.App. 2000) (reversing trial court's treatment of unused sick days as marital asset); Bratcher v. Bratcher, 26 S.W.3d 797 (Ky.App. 2000) (accrued holiday and vacation entitlement is not marital property); Thomasian v. Thomasian, 79 Md.App. 188, 556 A.2d 675 (1989) (same).

In Nebraska, the marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties. Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998). Thus, to determine whether accrued but unused sick, vacation, and comp time is part of the marital estate, we must first determine whether these benefits are property.

"Property" is defined as "1. The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership.... 2. Any external thing over which the rights of possession, use, and enjoyment are exercised...." Black's Law Dictionary 1335–36 (9th ed. 2009). Where, as here, an employee is entitled by agreement to a cash payout of unused vacation, sick, and comp time that employee has a "right" to those payments, and therefore they constitute property. We further determine that where a collective bargaining agreement provides for a cash payment of these benefits, such payment is deferred compensation to be included in the marital estate. See, Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013) (classifying vacation pay as additional wages for services performed); Wadkins v. Lecuona, 274 Neb. 352, 740 N.W.2d 34 (2007) (identifying comp time payments as deferred compensation). Deferred compensation is defined as compensation which is earned in exchange for services rendered. Livingston v. Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475 (2005). Pursuant to the collective bargaining agreement, Craig earned sick and vacation time based upon the length of service provided. If he does not use his sick or vacation time, he is allowed to cash it out pursuant to the formula contained in the agreement. According to Craig's testimony, he is also allowed to cash out his comp time upon retirement. Thus, the sick, vacation, and comp time pay are deferred compensation. Deferred compensation is property for purposes of determining the marital estate. Neb.Rev.Stat. § 42–366(8) (Reissue 2008). See, also, Davidson v. Davidson, supra .

As the Supreme Court of Colorado observed when addressing this issue, an employee who has an enforceable right to be paid for accrued sick or vacation leave receives compensation when the employee either uses the time for a permissible...