Patterson v. Patterson ( 2021 )


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  •                            IN THE NEBRASKA COURT OF APPEALS
    MEMORANDUM OPINION AND JUDGMENT ON APPEAL
    (Memorandum Web Opinion)
    PATTERSON V. PATTERSON
    NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
    AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
    KAMI D. PATTERSON, APPELLANT,
    V.
    FRANK D. PATTERSON II, APPELLEE.
    Filed November 30, 2021.       No. A-21-056.
    Appeal from the District Court for Cherry County: KARIN L. NOAKES, Judge. Affirmed in
    part, and in part reversed and remanded with directions.
    James C. Bocott, of Law Office of James C. Bocott, P.C., L.L.O., for appellant.
    Loralea L. Frank, of Bruner, Frank, Schumacher & Husak, L.L.C., for appellee.
    PIRTLE, Chief Judge, and BISHOP and ARTERBURN, Judges.
    BISHOP, Judge.
    I. INTRODUCTION
    Kami D. Patterson appeals the decree entered by the Cherry County District Court
    dissolving her marriage to Frank D. Patterson II. She claims the district court erred in its calculation
    of Frank’s income for purposes of child support and alimony and in its valuation of gold and silver
    in the marital estate. We agree there was error in calculating Frank’s income. And since child
    support must be recalculated due to the income error, we also reverse the alimony award so that it
    can be determined after the recalculation of child support. We find no error in the balance of the
    divorce decree. Accordingly, we affirm in part, and in part reverse and remand with directions.
    -1-
    II. BACKGROUND
    1. FACTUAL BACKGROUND
    Kami and Frank were married in November 2002, and five children were born during the
    marriage between 2004 and 2013. The parties lived together in Idaho and married while Frank was
    in his second year of university. After Frank received his bachelor’s degree, he enrolled in dental
    school in “the fall of 2007,” and the parties continued to reside in Idaho through Frank’s first year.
    Kami and Frank moved to Omaha, Nebraska, after the end of Frank’s first year of dental school,
    and they lived in Omaha until Frank finished dental school in the “[s]pring of 2011.” Beginning
    with the birth of their first child in 2004, Kami stayed home with the children “full-time” while
    Frank continued his education and worked to support the family.
    After Frank completed dental school in 2011, the parties moved with their children to
    Valentine, Nebraska. The move to Valentine was “[f]or [Frank’s] job,” and Kami testified that
    “there was a dental practice in Valentine . . . where [Frank] wanted to start doing his practice.”
    Over the course of several years, Frank’s dental practice expanded as he formed a business
    partnership with other dentists from Nebraska and South Dakota to operate multiple shared
    practices. His work for these shared practices required him to frequently travel back and forth
    between Valentine and other communities in Nebraska and South Dakota. In addition to Frank’s
    dental practice, the parties acquired several real estate interests for investment purposes, and Frank
    bought, sold, and traded gold and silver throughout the duration of the marriage. Frank was also
    involved for a time in other business ventures, such as a cattle business with Kami’s brother.
    2. TRIAL AND DECREE
    Kami filed a complaint for dissolution on April 17, 2019, and trial was held on November
    23 and 24, 2020. Prior to trial, the parties agreed to a parenting plan in which Kami and Frank
    would share joint legal and physical custody of the minor children. The remaining issues to be
    addressed were the determinations of child support and alimony as well as the valuation and
    division of the marital estate. As relevant to the issues on appeal, the parties offered evidence
    regarding Frank’s income and the property in the marital estate. This evidence included the parties’
    joint tax returns for 2016, 2017, and 2018; a projection of Frank’s average monthly income for
    2020; and several documents concerning the value of gold and silver acquired by Frank over the
    course of the marriage. We will discuss this evidence in further detail in our analysis below.
    The district court entered a decree dissolving the parties’ marriage on December 22, 2020.
    The decree incorporated the parties’ parenting plan and granted Kami and Frank joint legal and
    physical custody of the children. The court found that Frank had “suffered substantial fluctuations
    of annual earnings during the past three years,” noting that his dental practice “endured a shut
    down due to the pandemic” and that Frank had “dissolved his partnership” with the other dentists
    as of December 2019. Due to these circumstances, the court calculated Frank’s average monthly
    income to be $22,926, based on his “projected income for 2020” and “his adjusted gross income”
    from 2017 and 2018. Regarding Kami’s income, the court found that she was “capable of working
    full time” and imputed an average monthly income of $1,560 to her. Based on these amounts, the
    decree ordered Frank to pay Kami $2,170 per month in child support for the five children. The
    decree also required Frank to pay Kami $3,500 per month in alimony for 78 months. Both
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    obligations were set to commence on January 1, 2021. After dividing the marital estate, the decree
    ordered Frank to pay Kami an equalization payment of $198,395. Frank was awarded the marital
    gold and silver at issue in this appeal; its value was determined to be $39,000.
    3. POST-DECREE FILINGS AND APPEAL
    After the entry of the decree, Frank filed a “Motion to Amend or Alter Judgment Pursuant
    to Neb. Rev. Stat. § 25-2001” on January 20, 2021, alleging that Kami caused damage to the
    marital home awarded to Frank in the decree and requesting the equalization payment be reduced
    “by the amount necessary to repair the marital home to its prior condition.” After Kami filed a
    notice of appeal on January 21, the district court entered an order on March 2 in which it ordered
    the hearing on Frank’s motion to be “continued pending appeal.”
    III. ASSIGNMENTS OF ERROR
    Kami claims the district court abused its discretion in using a projection of Frank’s 2020
    income as part of its calculation of Frank’s average monthly income, and that this calculation
    yielded inaccurate and inequitable child support and alimony calculations. She also claims the
    district court abused its discretion in determining the value of the gold and silver in the marital
    estate to be $39,000.
    IV. STANDARD OF REVIEW
    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. Doerr v. Doerr, 
    306 Neb. 350
    , 
    945 N.W.2d 137
     (2020). This standard of review applies to the trial court’s
    determinations regarding custody, child support, division of property, alimony, and attorney fees.
    
    Id.
     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. 
    Id.
    When evidence is in conflict, an appellate court considers, and may give weight to, the fact
    that the trial judge heard and observed the witnesses and accepted one version of the facts rather
    than another. Donald v. Donald, 
    296 Neb. 123
    , 
    892 N.W.2d 100
     (2017).
    V. ANALYSIS
    1. JURISDICTION
    It is the power and duty of an appellate court to determine whether it has jurisdiction over
    the matter before it, irrespective of whether the issue is raised by the parties. State v. Greer, 
    309 Neb. 667
    , 
    962 N.W.2d 217
     (2021). We therefore initially address this court’s jurisdiction in light
    of Frank’s “Motion to Amend or Alter Judgment Pursuant to Neb. Rev. Stat. § 25-2001” filed on
    January 20, 2021, for which no dispositional order was entered prior to the filing of the present
    appeal on January 21.
    Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2020) provides that the appeal time shall be
    terminated “by a timely motion to alter or amend a judgment” under Neb. Rev. Stat. § 25-1329
    (Reissue 2016). However, such a motion would have to be filed no later than 10 days after the
    entry of a judgment. See id. In the present matter, Frank’s motion to “amend or alter judgment”
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    was filed on January 20, 2021; it was clearly filed more than 10 days after the entry of the
    December 22, 2020, decree. However, Frank’s motion to “amend or alter judgment” was not filed
    pursuant to § 25-1329; rather, it was filed pursuant to Neb. Rev. Stat. § 25-2001 (Reissue 2016),
    which provides for the district court’s power to vacate or modify its judgments or orders during its
    term or upon a motion filed within 6 months after entry of a judgment. Accordingly, there is no
    pending motion terminating the appeal time for the December 22 decree and the absence of a
    district court order disposing of Frank’s post-decree motion does not impact this court’s
    jurisdiction over the present appeal.
    2. CALCULATION OF FRANK’S INCOME AND CHILD SUPPORT
    Kami claims the district court’s calculation of Frank’s average monthly income for child
    support purposes was an abuse of discretion. She contends that the court’s use of a projection of
    Frank’s 2020 income based on his dental clinic’s net earnings from April through September of
    that year rendered an inaccurate calculation of Frank’s monthly income, as this period represented
    “an anomalous and severely low six month income sample” that drove down Frank’s income. Brief
    for appellant at 14.
    The record indicates that the state of Frank’s dental practice had changed substantially in
    the period leading up to the entry of the decree. Based on trial testimony and several exhibits,
    Frank’s business partnership had dissolved in December 2019. Pursuant to agreements with his
    former business partners, Frank received 100 percent ownership of the Valentine dental clinic and
    three other limited liability companies related to the clinic’s operation. His interests in the
    partnership’s other dental clinics and business entities were thereafter transferred to his former
    business partners, and he no longer practices dentistry through those clinics. Frank also testified
    that the Valentine clinic closed for a period of time beginning in March 2020 due to the COVID-19
    pandemic. During this shutdown period, Frank “personally” received approximately $12,000 from
    the “Payroll Protection Plan” “for the six weeks that we were not able to work.” He further
    described that he was the only dentist at the Valentine clinic at the time of trial, and the last dental
    hygienist employed by the clinic had left “[p]rior to COVID.”
    The parties’ joint tax returns reported adjusted gross incomes of $649,715 in 2016,
    $391,389 in 2017, and $306,950 in 2018. The parties’ accountant testified that the 2019 joint tax
    return was not complete at the time of trial, and no materials regarding the parties’ 2019 income
    were offered at trial.
    In addition to the joint tax returns, Frank offered exhibit 28, a letter prepared by the parties’
    accountant estimating Frank’s projected monthly income for 2020. According to exhibit 28, Frank
    earned $187,019.48 in “Gross Income” during the second quarter of 2020 (April through June)
    and $296,867.67 during the third quarter (July through September). After reducing these amounts
    by business expenses incurred in the operation of the clinic ($183,121.48 in second quarter;
    $173,755.44 in third quarter), his “Net Income” was $3,898 for the second quarter and $123,112.23
    (hereafter rounded to $123,112) for the third quarter. Combining these totals, exhibit 28 indicated
    that Frank earned $127,010 over the course of these two quarters. By dividing that “Net Income”
    by the 6 months it represented, exhibit 28 estimated Frank’s “Net income per month” to be $21,168
    without factoring in federal and state taxes.
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    In its decree, the district court described that “[t]here is no doubt [Frank] suffered
    substantial fluctuations of annual earnings during the past three years,” noting the Valentine
    clinic’s shutdown in March 2020 and the end of Frank’s business partnership. The court found that
    it was “reasonable to use income averaging” to calculate Frank’s monthly income based on these
    fluctuations. In calculating Frank’s income for child support, the court explained:
    Complicating this calculation is the fact that the parties’ 2019 taxes are not
    complete and 2019 income information was not provided. Therefore, the Court will
    average [Frank’s] projected income for 2020 ($127,010), and his adjusted gross income
    from 2017 ($391,389) and 2018 ($306,950) to determine his average monthly income.
    According to the child support worksheet attached to the decree, the court determined Frank’s
    monthly gross taxable income to be $22,926. This amount is consistent with the method set forth
    above: $127,010 in 2020 + $391,389 in 2017 + $306,950 in 2018 = $825,349 ÷ 3 years = $275,116
    per year average ÷ 12 months = $22,926 per month.
    We find that the district court abused its discretion in determining Frank’s “projected
    income for 2020” to be $127,010 and in using that amount in the calculation of Frank’s child
    support obligation. As we have described, exhibit 28 shows that over the period spanning April
    through September 2020, Frank’s net earnings from the Valentine clinic totaled $127,010 for just
    those 6 months, not the entire year. Neither exhibit 28 nor any other evidence in the record
    indicates that Frank’s projected income for the entire 2020 year was $127,010, and the court’s
    determination of Frank’s average monthly income for child support purposes was therefore not
    adequately supported by the evidence. We therefore find the district court’s calculation of Frank’s
    child support obligation to be in error.
    Although we find that the district court erred in its calculation of Frank’s monthly income
    and child support obligation by incorporating the $127,010 figure as an estimated annual income
    figure rather than just the 6 months it represented, we are not persuaded, as Kami urges on appeal,
    that the court’s chosen methodology for calculating Frank’s income was necessarily an abuse of
    discretion. We agree with the district court that the record in this case complicates the matter of
    calculating Frank’s income for child support purposes. The evidence presented demonstrates that
    Frank’s career and business position has substantially changed within the last few years. The
    dissolution of his business relationships at the end of 2019 may call into question the probative
    value of the parties’ 2016, 2017, and 2018 tax returns, as the figures reported in those returns were
    based on Frank’s ownership in and services rendered through several dental clinics. The absence
    of the parties’ 2019 tax return and of any related materials that would evidence Frank’s 2019
    income further compounds the difficulties in computing Frank’s income in this case.
    Given these circumstances, exhibit 28, which evidences Frank’s earnings over the second
    and third quarters of 2020, would seem to be the most contemporary evidence of Frank’s income
    in light of the dissolution of his business partnership in December 2019. However, while exhibit
    28 accounts for the second and third quarters of 2020, it omits the first quarter (January through
    March), a period for which Frank’s earnings from the Valentine clinic would have been known
    and available to be included as part of the exhibit. The absence of financial information for that
    quarter is puzzling. Per Frank’s testimony that he was closed for a period of time beginning in the
    middle of March 2020, this first quarter would have included approximately 2 weeks in which the
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    Valentine clinic was closed but would have otherwise provided a reliable indication of earnings
    after the partnership dissolution at the end of 2019 and before the downturn triggered by the
    COVID-19 pandemic.
    The evidence reflects that the disparity between the $3,898 net income earned in the second
    quarter and the $123,112 net income earned in the third quarter was primarily attributable to the
    COVID-19 pandemic and the closure of the Valentine clinic during the second quarter. Despite
    the minimal net income earned during the second quarter, business at the Valentine clinic picked
    back up again in the third quarter. This quick turnaround indicates that the reduced level of income
    earned during the second quarter of 2020 is not likely to be repeated.
    In contrast to the second quarter, the record suggests that the Valentine clinic remained
    open during the entire third quarter, as Frank did not testify to any other closures of the Valentine
    clinic. In light of the clinic’s operation appearing to return to a more regular state of affairs, Frank’s
    earnings in the third quarter are more representative of his typical quarterly income in comparison
    to his earnings in the second quarter. Those most recent 3 months of earnings best represent
    Frank’s current earning capacity and nothing in the record suggests that level of earnings would
    not be maintained going forward. And when determining income for child support purposes, it is
    certainly reasonable to consider financial circumstances which have lasted 3 months and can
    reasonably be expected to last for an additional 6 months. See, for example, Neb. Ct. R. § 4-217
    (when modifying child support under the Nebraska Child Support Guidelines, it is a rebuttable
    presumption of a material change of circumstances when financial circumstances have lasted 3
    months and can reasonably be expected to last for an additional 6 months and would result in a
    variation of 10 percent or more upward or downward in a child support obligation). Based on the
    record before us, Frank’s third quarter income in 2020 could reasonably be expected to last for an
    additional 6 months. Therefore, Frank’s third quarter net income of $123,112 could be extrapolated
    to the first and fourth quarters of 2020, which are not accounted for, to provide an annual net
    income of $373,234, or $31,103 per month. Alternatively, the third quarter net income of $123,112
    could be extrapolated over an entire year, resulting in an estimated annual net income of $492,448,
    or $41,037 per month. This higher amount would reflect an earning capacity for a full year of more
    typical earnings since it would disregard the low earnings of the 2020 second quarter, which was
    attributed to the COVID-19 pandemic and is unlikely to be repeated.
    Another alternative would be to use the methodology employed by the district court, but
    with a 2020 income or earning capacity representative of a full 12 months. Using the district court’s
    methodology would mean averaging the 2017 and 2018 adjusted gross incomes with an estimated
    2020 annual net income or earning capacity of either $373,234 or $492,448, as calculated in the
    preceding paragraph. Using $373,234 for 2020 results in a 3-year total income of $1,071,573,
    which divided by 3 years equals $357,191 per year or $29,766 per month. Using $492,448 for
    2020 results in a 3-year total income of $1,190,787, which divided by 3 years equals $396,929 per
    year or $33,077 per month.
    In summary, we conclude the district court erred in determining Frank’s projected annual
    income for 2020 to be $127,010 and in using this figure to calculate Frank’s average income for
    child support purposes. We therefore reverse the district court’s calculation of child support and
    remand this issue to the district court with directions to redetermine Frank’s income and recalculate
    his child support obligation. While we have set forth several alternatives on how that might be
    -6-
    done on the present record, we leave to the district court’s discretion which method it determines
    most appropriate to calculate Frank’s monthly income for purposes of child support.
    3. ALIMONY
    Although Kami argues that the district court’s award of $3,500 in alimony should be
    increased, we need not address her argument in this appeal. The Nebraska Child Support
    Guidelines “intend that spousal support be determined from income available to the parties after
    child support has been established.” Neb. Ct. R. § 4-213. See, also, Hotz v. Hotz, 
    301 Neb. 102
    ,
    
    917 N.W.2d 467
     (2018) (for purposes of alimony, relative economic circumstances of parties are
    to be tested based on income available after child support obligations have been accounted for).
    Accordingly, because we are remanding this matter to the district court for the determination of
    Frank’s average income or earning capacity and recalculation of child support, we also reverse the
    district court’s alimony award and remand the issue with directions to determine alimony after the
    recalculation of child support. See Vanderveer v. Vanderveer, 
    310 Neb. 196
    , 
    964 N.W.2d 694
    (2021) (since matter was remanded for recalculation of child support, it was appropriate to likewise
    reverse alimony award and remand with directions to determine alimony after child support
    obligation is recalculated).
    4. VALUE OF GOLD AND SILVER IN MARITAL ESTATE
    (a) Acceptance of Benefits Rule
    Before we address Kami’s claim that the district court erred in valuing the marital gold and
    silver at $39,000, we note that Frank claims in his brief that Kami “waived her right to prosecute
    an appeal as to the final award amount of the property settlement” because she has accepted the
    benefits of the decree’s division of marital property. Brief for appellee at 24.
    Frank directs our attention to events occurring after Kami filed the notice of appeal in this
    case on January 21, 2021. We note that four supplemental transcripts were filed in this appeal. The
    second supplemental transcript contains a “Praecipe for Execution” filed on May 28 in which Kami
    alleged that $169,754.09 remained due from the equalization payment ordered by the decree and
    requested the clerk of the district court to issue an execution to direct the collection of the
    remaining judgment. That same day, the clerk issued the requested execution. Frank filed an
    objection to the execution on June 15 and requested that the court deny Kami’s request and issue
    a stay of execution due to his “pending motion to alter or amend” the decree, Kami’s appeal from
    the decree, and the parties’ federal tax liability that could impact the equalization payment pursuant
    to an agreement between Kami and Frank. Frank also alleged that he paid $30,310.25 of the total
    equalization payment to Kami on March 30. In an order entered on June 18, the court denied
    Frank’s objection for lack of jurisdiction.
    Under the general acceptance of benefits rule, an appellant may not voluntarily accept the
    benefits of part of a judgment in the appellant’s favor and afterward prosecute an appeal or error
    proceeding from the part that is against the appellant. See Liming v. Liming, 
    272 Neb. 534
    , 
    723 N.W.2d 89
     (2006). However, Nebraska case law provides for several exceptions to the general
    rule. See 
    id.
     An exception to the acceptance of benefits rule exists where the right to the benefit
    accepted is absolute and cannot possibly be affected by reversal of the judgment. 
    Id.
     It is the
    possibility that an appeal may lead to a result showing that the party was not entitled to what was
    -7-
    received under the judgment appealed from that defeats the right of appeal. See 
    id.
     Where there is
    no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the
    judgment appealed from. 
    Id.
    Thus, the acceptance of benefits rule has no application where one is shown to be so
    absolutely entitled to the sum collected or accepted that reversal of the judgment or decree will not
    affect his or her right to it, as in the case of a collection of an admitted or uncontroverted part of
    his or her demand. 
    Id.
     The rule does not apply when the appellant is conceded to be entitled to the
    thing he or she has accepted and where the appeal relates only to an additional claim on his or her
    part. 
    Id.
     Acceptance of part of an award is not inconsistent with an appellant’s claim that the award
    should have been larger. See 
    id.
     There must be unusual circumstances, demonstrating prejudice to
    the appellee, or a very clear intent to accept the judgment and waive the right to appeal, to keep an
    appellate court from reaching the merits of the appeal. 
    Id.
    Neither Kami’s acceptance of $30,310.25 paid by Frank, nor her filing of the “Praecipe for
    Execution” and the issued execution, preclude Kami’s appeal as to the valuation of the marital
    gold and silver. Frank’s payment of $30,310.25 demonstrates that he has conceded Kami’s right
    to that amount. And to the extent that the “Praecipe for Execution” can be considered an acceptance
    of the remaining $169,754.09 owed under the decree, such acceptance is not inconsistent with
    Kami’s position on appeal that the court erred in failing to assign a higher value to the gold and
    silver awarded to Frank. Notably, Frank has not cross-appealed the district court’s determination
    of the property equalization amount. Kami’s claim on appeal is that the property equalization
    payment awarded to her should have been larger based on an alleged improper valuation of the
    parties’ gold and silver. Therefore, the relief Kami seeks on appeal could only increase the amount
    awarded to her under the decree. The acceptance of benefits rule does not apply in this instance
    since Frank does not challenge the property equalization amount ordered, and Kami’s appeal
    relates only to an additional claim on her part. See Liming v. Liming, 
    supra.
     We now address
    Kami’s claim that the district court erred in its valuation of the gold and silver.
    (b) Value of Marital Gold and Silver
    At trial, the parties offered evidence concerning the gold and silver acquired over the course
    of the marriage. Although she could not recall the value or amount, Kami recalled Frank having
    shown her gold and silver kept in a safe in the marital home. Frank testified that the last time he
    had “any gold of value” in his possession was “[o]ver two years ago,” and the only gold in his
    possession was in the form of “gold teeth” that were part of the dental clinic and worth
    approximately “[$]20 or $30 a crown.” Concerning the silver in the marital estate, Frank testified
    that this silver was worth $25,000. He described that he had “[s]old,” “bought,” and “traded” silver
    over the course of the marriage, and he did not keep track of his purchases and sales of silver.
    Frank additionally estimated that he had sold less than $4,000 worth of silver since January 1,
    2019, up through the time of trial. Exhibit 68, a collection of receipts from one vendor offered by
    Kami and obtained via subpoena, indicates that Frank had purchased $157,806.18 in silver from
    that vendor “from March of 2013 through June of 2019.”
    Three documents listing the value of various assets were received at trial. A personal
    financial statement signed by Frank and dated March 9, 2017, represented that the parties’
    “Gold/Silver” was worth $110,000. In a subsequent financial statement also signed by Frank and
    -8-
    dated March 22, 2018, the value of the parties’ “Gold/Silver” was reported to be $150,000. A
    “Statement of Personal Net Worth” dated August 2, 2019, was not signed, but Frank’s testimony
    indicated it was prepared with his input; it valued the “Gold & Silver” at $35,000. Frank denied
    ever having possessed $150,000 in silver, although he acknowledged that he had “bought that
    much” over the course of his trading. Regarding the $150,000 claimed in the 2018 financial
    statement, he testified that he “made a mistake on [the] bank document” and “there might have
    been some miscommunication [with the person who filled out the document] as to how much silver
    [he] had on-hand.”
    The district court determined that the August 2019 statement, which valued the marital
    gold and silver at $35,000, was “the most credible evidence of what remained of the silver at that
    time.” The court also noted that Frank “admitted he sold approximately $4,000 [in silver] between
    January 2019 and April 2020,” and this $4,000 “should be included in the value as there was no
    evidence the proceeds were used for a marital purpose.” The court thereafter found the “marital
    value of the silver to be $39,000.”
    On appeal, Kami directs our attention to the conflicting financial statements and the sharp
    decrease in the reported value of the silver from $150,000 in 2018 to $35,000 in 2019. She also
    highlights that the silver at issue in this case was under Frank’s exclusive control and further asserts
    that the record indicates that Frank “sold or disposed of $120,000 in marital assets and had no
    record of his expenditures.” Brief for appellant at 19.
    While we note the disparate values of the marital gold and silver reported in the 2017,
    2018, and 2019 documents, we cannot say the record affirmatively shows that Frank dissipated the
    gold and silver in the marital estate. Rather, we find the record indicates a conflict in the evidence
    regarding the value of such gold and silver. There is no dispute that Frank bought, sold, and traded
    silver throughout the marriage. Further, the district court was presented with the conflicting
    valuations and Frank’s explanation that the $150,000 valuation of the marital gold and silver
    reported in the 2018 financial statement was the result of a possible “miscommunication” and
    “mistake.” Based on the decree, it is evident the court found Frank’s testimony and the 2019
    valuation to have been credible. When evidence is in conflict, an appellate court considers, and
    may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one
    version of the facts rather than another. Donald v. Donald, 
    296 Neb. 123
    , 
    892 N.W.2d 100
     (2017).
    Giving weight to the trial judge who heard and observed the witnesses on this matter, we cannot
    say there was an abuse of discretion in determining the value of the marital gold and silver to be
    $39,000.
    VI. CONCLUSION
    For the reasons set forth above, we reverse the district court’s determination of Frank’s
    income and the resulting calculation of child support. We also reverse the alimony award. We
    remand these matters back to the district court with directions to (1) determine Frank’s income as
    provided in this opinion, (2) recalculate Frank’s child support, and (3) determine an appropriate
    alimony award based upon Frank’s newly determined income and recalculated child support
    obligation. We affirm the remainder of the decree.
    AFFIRMED IN PART, AND IN PART REVERSED
    AND REMANDED WITH DIRECTIONS.
    -9-
    

Document Info

Docket Number: A-21-056

Filed Date: 11/30/2021

Precedential Status: Precedential

Modified Date: 11/30/2021