Gerritsen v. Gerritsen ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
GERRITSEN V. GERRITSEN
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).
STEVEN GERRITSEN, APPELLANT AND CROSS-APPELLEE,
V.
SUZANNE GERRITSEN, APPELLEE AND CROSS-APPELLANT.
Filed May 28, 2013. No. A-12-353.
Appeal from the District Court for Adams County: TERRI S. HARDER, Judge. Affirmed.
Vikki S. Stamm, of Stamm & Associates, P.C., L.L.O., for appellant.
Gregory C. Damman, of Blevens & Damman, and Robert J. Parker, Jr., of Seiler &
Parker, P.C., L.L.O., for appellee.
SIEVERS, PIRTLE, and RIEDMANN, Judges.
PIRTLE, Judge.
INTRODUCTION
Steven Gerritsen appeals, and Suzanne Gerritsen cross-appeals, from an order of the
district court for Adams County dissolving the parties’ marriage. Steven and Suzanne both
challenge various aspects of the trial court’s division of the marital estate and the court’s failure
to award either party attorney fees. Steven also argues that he should have been awarded
alimony. Because we find no merit to either party’s assignments of error, we affirm.
BACKGROUND
Steven and Suzanne met through an Internet dating site in 2008. At the time, Steven lived
in Nebraska and had his own business as an auctioneer and appraiser. Suzanne lived in Michigan
and was a special education teacher. Steven proposed in December, and they got married in June
2009. The parties separated in February 2010, and Steven filed a complaint for dissolution of
marriage in April. Suzanne subsequently filed an answer and cross-complaint. No children were
born during the marriage.
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At the hearing on the dissolution action, Steven testified that in April 2009, prior to the
marriage, he and Suzanne decided to buy property in Ayr, Nebraska. The parties took out a loan
with Harvard State Bank to purchase the property, and Steven issued a check for $10,000 to the
bank as a downpayment for the loan. The bank also took a security interest in a house owned by
Suzanne, located in Prosser, Nebraska. The Prosser house was previously owned by Steven’s
mother, but she deeded it to Suzanne shortly after the parties were married. The agreement with
the bank was that Steven was going to fix up the Prosser house and then sell it, and the proceeds
would be applied to the loan on the Ayr property.
The Ayr property consisted of a house and 87 acres of land. At the time the parties
purchased the Ayr property, 50 acres of the property was farm ground and the remaining
property was pasture. Steven testified that he made extensive improvements to the land, such as
leveling, terracing, and tree removal, which increased the number of acres that could be used for
farm ground from 50 to 77. He testified that he took out additional loans to pay for the
improvements.
Steven and Suzanne purchased multiple animals after they were married, with the intent
of opening a petting zoo for handicapped children on the Ayr property. The animals included
horses, goats, alpacas, donkeys, a bull, and a potbellied pig. After the parties separated and
during the pendency of the divorce, Steven cared for the animals on his own.
Following the hearing, the trial court entered a decree dissolving the parties’ marriage
and dividing the marital estate. Specifically, the trial court treated the Prosser house as a marital
asset and awarded it to Suzanne. It ordered that the Ayr property be sold and that any remaining
balance, after the loan from Harvard State Bank is paid, be divided equally between the parties.
Although both parties claimed that they should receive credit for the $10,000 downpayment on
the Ayr property, the trial court awarded neither party a premarital offset. The trial court also did
not allow Steven any credit for improvements he made to the Ayr property, and it denied his
claim to be reimbursed for expenses he incurred in caring for the parties’ animals.
As to personal property, the court found that Steven had disposed of certain premarital
items of Suzanne’s, including a carousel horse, and entered judgment against Steven for the
value of those items. The trial court also entered judgment against Steven for unpaid monthly
fees for the storage unit where Steven had stored Suzanne’s personal property. Finally, the trial
court denied Steven’s request for alimony and ordered each party to pay their own attorney fees.
Both parties filed motions for new trial, which were denied.
ASSIGNMENTS OF ERROR
Steven assigns that the trial court erred in (1) determining that the Prosser property was
marital property, rather than his separate property; (2) failing to give him credit for the $10,000
downpayment on the Ayr property; (3) failing to give him credit for improvements he made to
the Ayr property; (4) failing to equally split all the debt owed on the Ayr property; (5) failing to
order Suzanne to reimburse him for money spent caring for the parties’ animals; (6) entering
judgment against Steven for the monthly storage fee for Suzanne’s personal property; (7) finding
that a carousel horse, valued at $2,000, was a premarital asset of Suzanne’s; (8) failing to award
him alimony; and (9) failing to award him attorney fees.
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On cross-appeal, Suzanne assigns that the trial court erred in (1) determining that the
Prosser property was marital property, rather than her separate property; (2) failing to find that
the $10,000 downpayment on the Ayr property was her premarital property; and (3) failing to
award her attorney fees.
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. Jensen v. Jensen, 20 Neb. Ct. App.
167, 820 N.W.2d 309 (2012).
ANALYSIS
Prosser House.
Both parties assign that the trial court erred in determining that the Prosser house was a
marital asset. Steven claims it should be his separate property because it was a gift from his
mother. Suzanne claims that it should be her separate property, because Steven’s mother gave it
to her alone and it was deeded to her individually.
Based on the testimony of Steven’s mother, she transferred the property to Suzanne
shortly after the parties were married for two reasons. The first reason was to welcome Suzanne
to the family. The other reason was to allow Steven and Suzanne to use the property as collateral
in purchasing the Ayr property and to avoid Steven’s creditors in doing so. A former vice
president of Harvard State Bank also testified that the Prosser house was pledged as collateral
when Steven and Suzanne obtained the loan for the Ayr property. He testified that Steven and
Suzanne were fixing up the Prosser house at the time and were going to sell it, with the proceeds
being used to pay down the loan on the Ayr property. The bank vice president testified that
Suzanne was present and agreed to this arrangement in June 2009 when the loan was signed.
When awarding property in a dissolution of marriage, the property acquired by one of the
parties through gift or inheritance ordinarily is set off to the individual receiving the inheritance
or gift and is not considered a part of the marital estate. Marcovitz v. Rogers, 267 Neb. 456, 675
N.W.2d 132 (2004). The burden of proof to show that property is nonmarital remains with the
person making the claim in a dissolution proceeding. Gress v. Gress, 271 Neb. 122, 710 N.W.2d
318 (2006). The trial court found that based on the “mixed” nature of the transfer, Steven’s
mother gifted the property to both parties. Therefore, the court treated it as a marital asset. The
evidence supports the trial court’s determination that the Prosser house was gifted to both parties.
Both Steven’s and Suzanne’s assignments of error challenging such determination are without
merit.
Downpayment on Ayr Property.
Next, Steven and Suzanne both argue that they should receive credit for the $10,000
downpayment made on the Ayr property, because the funds came from premarital property. The
trial court did not award either party a $10,000 premarital offset, finding that neither party
proved his or her claim by a preponderance of the evidence.
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Steven testified that in April 2009, prior to the parties’ marriage, he issued a check for
$10,000 to Harvard State Bank as a downpayment on the Ayr property. The check was written
on his business account, and he claims the money in the account was his own premarital funds. A
copy of the check issued by Steven to the bank was entered into evidence.
In contradiction to Steven’s testimony, Suzanne testified that the $10,000 downpayment
on the Ayr property was made with her premarital funds. She testified that before the parties’
marriage and while she was still living in Michigan, she and Steven discussed the Ayr property
and decided to buy it. She testified that Steven told her he needed money for a downpayment, so
she sent Steven three valuable rings for him to sell. Steven acknowledged receiving the rings
from Suzanne and selling them at an auction. Suzanne claims it was the proceeds from the sale of
the rings that were used for the downpayment on the Ayr property. Steven claims, however, that
he gave Suzanne cash from the sale of the rings and that that money was not used for the
downpayment. He did not remember how much the rings sold for.
The burden of proof to show that property is a nonmarital asset remains with the person
making the claim. Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001). Both parties presented
evidence to show that they used premarital funds for the $10,000 downpayment on the Ayr
property. The evidence is conflicting, and there is no clear answer as to where the $10,000 came
from. Accordingly, we cannot conclude that the trial court abused its discretion in finding that
neither party met their burden of proof and denying both parties a $10,000 premarital offset for
the downpayment.
Improvements to Ayr Property.
Steven next assigns that the trial court erred in failing to give him credit for
improvements he made to the Ayr property while the parties were separated. Steven testified that
he made extensive improvements to the land, such as leveling, terracing, and tree removal, which
increased the number of acres that could be used for farm ground. In order to pay for such
improvements, he obtained additional loans from Harvard State Bank. He argues that the
improvements he made increased the value of the property and that therefore, he should receive
more than 50 percent of the proceeds when the Ayr property is sold.
Although Steven testified that he obtained additional loans for the purpose of making
improvements to the Ayr property and testified in general about what those improvements were,
he failed to present receipts, invoices, or other evidence to show the expenses he incurred with
the various improvements.
More important, Steven failed to show that his improvements increased the value of the
land. The record contains an appraisal of the land at the time the parties purchased it, showing an
appraised value of $280,000, but there is no evidence as to the value of the Ayr property at the
time of the hearing.
Because the evidence does not support the conclusion that Steven’s improvements
increased the property’s value, Steven’s claim that he should be awarded more than 50 percent of
the proceeds from the sale of the Ayr property must fail. This assignment of error is without
merit.
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Debt on Ayr Property.
Steven also assigns that the trial court erred in failing to equally split all the debt owed on
the Ayr property, including the loans obtained for improvement. However, he fails to argue this
alleged error. In order to be considered by an appellate court, the alleged error must be both
specifically assigned and specifically argued in the brief of the party asserting the error. Bedore
v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). Accordingly, we need not address this
assignment of error further.
Expenses in Caring for Animals.
Steven next assigns that the trial court erred in failing to order Suzanne to reimburse him
for money he spent caring for the parties’ animals after the parties separated. Steven testified that
he took care of these animals without any assistance from Suzanne from February 2010 until
November 2011. He claims that during that time, he spent $136,000 to feed the animals and for
veterinary services. He argues that Suzanne should have to reimburse him for half of his
expenses in caring for the animals.
Steven testified that he kept the animals after the parties separated because he did not
believe he could sell the animals during the pendency of the divorce. However, in contrast to that
testimony, he also testified that he did sell a couple of the animals during the pendency of the
divorce, because they kept getting out of their enclosure.
More important, Steven has failed to present any evidence of the expenses he claims to
have incurred. He testified that he spent $136,000 for animal food and veterinary services, but he
did not present receipts, invoices, or any proof whatsoever of his expenses.
Steven also testified that his income was reduced during the time he was caring for the
animals because caring for them was very time consuming and limited the time he had available
to work. His lack of income during the separation is documented by his tax return. However, he
did not explain how he was able to pay $136,000 in expenses for the animals when his income
was limited.
We conclude that the trial court did not err in failing to order Suzanne to reimburse
Steven for money he claims to have spent caring for the parties’ animals during the pendency of
the divorce.
Personal Property.
Steven assigns that the trial court erred in entering judgment against Steven for the
monthly storage fee for Suzanne’s personal property. During the pendency of the divorce, Steven
put Suzanne’s personal property in a storage unit. He paid the monthly fee until June 2010 and
has not paid the fee since then. Steven testified that he put the property in storage, because mice
were ruining it and he was trying to protect it.
Suzanne, on the other hand, testified that Steven put her property in storage after breaking
into the Prosser home, where she was living, and taking all of her possessions.
Rather than ordering Steven to pay the balance owed to the storage unit so Suzanne could
get her property, the trial court entered a judgment in the amount of $500 (10 months at $50 per
month) against Steven and in favor of Suzanne. We find no error in the trial court entering
judgment against Steven for the monthly storage fee for Suzanne’s personal property.
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Carousel Horse.
Steven assigns that the trial court erred in finding that a carousel horse, valued at $2,000,
was a premarital asset of Suzanne’s. Steven claims that he purchased the carousel horse prior to
marriage and that it was a gift to his mother, not to Suzanne. Steven admitted that the carousel
horse had been at the Prosser house after the parties separated, but that he took it because he did
not want her to sell it and that it was at his mother’s house. Steven’s mother testified that the
carousel house was put in her storage shed “some months ago” and that she thought Steven
purchased it for her because she collects carousel horses.
Suzanne claims that Steven gave her the carousel horse as a Christmas gift in 2008,
before they were married, and that he brought it to Michigan. Steven denied that the carousel
horse was a gift to Suzanne and denied taking it to Michigan. However, he admitted to writing
Suzanne a note in May 2010 in which he admitted the carousel horse’s connection to Christmas
and its special meaning.
The evidence shows that Steven purchased the carousel horse before the marriage, that it
had a connection to Christmas, and that it had been at the Prosser house until Steven removed it.
Based on the evidence, we cannot conclude that the trial court erred in finding that the carousel
horse was Suzanne’s premarital asset.
Alimony.
Steven claims that the trial court erred in failing to award him alimony. He contends he is
entitled to alimony because he had to forgo employment opportunities as an auctioneer and
appraiser during the time he was taking care of the parties’ animals. As previously stated, Steven
contends that caring for the animals was very time consuming and limited the time he had
available to work, thereby reducing his income. He argues that his 2010 tax return reflects his
limited income during the time he was caring for the animals.
Neb. Rev. Stat. § 42-365 (Reissue 2008) provides:
[A] court may order payment of such alimony by one party to the other . . . as may be
reasonable, having regard for the circumstances of the parties, duration of the marriage, a
history of the contributions to the marriage by each party, including contributions to the
care and education of the children, and interruption of personal careers or educational
opportunities, and the ability of the supported party to engage in gainful employment
without interfering with the interests of any minor children in the custody of such party.
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 this
section make it appropriate. Id. Steven argues that his situation in caring for the animals was an
“interruption of personal career,” entitling him to alimony.
We conclude that the district court did not err in denying Steven’s request for alimony.
None of the statutory criteria for an award of alimony are present in this case. This was a very
short marriage, and no children were born of the marriage. Both parties had long careers before
they met, and they are both able to continue working as they did prior to the marriage. Steven
was an auctioneer and appraiser for years before the parties met and continued in that career
during the short marriage and while the parties were separated. He indicated at trial that he
planned to continue working as an auctioneer and appraiser. Even if his income was affected
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during the time he was caring for the animals, it will not be affected any longer, as he is no
longer caring for the animals. There is nothing in the record to support Steven’s request for
alimony.
Attorney Fees.
Finally, Steven and Suzanne both assign that the trial court erred in failing to award either
of them attorney fees. Both parties presented exhibits at trial showing the attorney fees they have
incurred. Suzanne’s exhibit shows she had incurred $28,635 in attorney fees at the time of trial,
part of which amount she attributes to Steven’s “unreasonable obstructive and delaying tactics.”
Steven’s exhibit shows that he had incurred $10,783.01 in attorney fees.
The award of attorney fees depends on multiple factors that include the nature of the case,
the services performed and results obtained, the earning capacity of the parties, the length of time
required for preparation and presentation of the case, customary charges of the bar, and general
equities of the case. Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).
Based on our de novo review of the record, we conclude that the trial court did not abuse
its discretion in failing to award either party attorney fees.
CONCLUSION
Finding no merit to the errors assigned on appeal and cross-appeal, we affirm the
judgment of the district court dissolving the marriage, dividing the property between the parties,
and refusing to award alimony and attorney fees.
AFFIRMED.
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