Connolly v. Connolly , 299 Neb. 103 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/13/2018 01:14 AM CDT
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    299 Nebraska R eports
    CONNOLLY v. CONNOLLY
    Cite as 
    299 Neb. 103
    Valerie K. Connolly, appellant, v.
    Monte D. Connolly, appellee.
    ___ N.W.2d ___
    Filed February 23, 2018.   No. S-16-1174.
    1.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law that an appellate court resolves independently of the
    trial court.
    2.	 Divorce: Appeal and Error. 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.
    3.	 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.
    4.	 Judges: Words and Phrases. A judicial abuse of discretion exists if the
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    5.	 Appeal and Error. Error without prejudice is not a ground for
    reversal.
    6.	 Divorce: Attorney Fees: Appeal and Error. In an action for dissolu-
    tion of marriage, the award of attorney fees is discretionary, is reviewed
    de novo on the record, and will be affirmed in the absence of an abuse
    of discretion.
    7.	 Divorce: Attorney Fees. The award of attorney fees depends on mul-
    tiple 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 the general equities of the case.
    Appeal from the District Court for Scotts Bluff County: Leo
    Dobrovolny, Judge. Affirmed.
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    CONNOLLY v. CONNOLLY
    Cite as 
    299 Neb. 103
    Paul W. Snyder, of Smith, Snyder, Petitt & Hofmeister, G.P.,
    for appellant.
    William E. Madelung, of Madelung Law Office, for
    appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    In this dissolution action, Valerie K. Connolly filed a peti-
    tion for legal separation. Valerie and her husband, Monte D.
    Connolly, then filed a stipulation and agreement, which was
    approved by the district court in its decree of legal separation.
    Monte subsequently filed a motion to amend the complaint
    from legal separation to dissolution of marriage. Following a
    hearing, the district court issued a divorce decree, which dif-
    fered from the decree of legal separation and included both an
    award of alimony and an award of half of the attorney fees to
    Valerie. Valerie appeals. We affirm.
    II. FACTUAL BACKGROUND
    Monte and Valerie were married on April 15, 1974. At
    the time of trial, Monte was 64 years old and Valerie was 61
    years old. Valerie worked from approximately 1976 until 2008,
    when, as a result of two automobile accidents, she became
    medically disabled and required continuing medical treatment.
    Valerie collects, as her sole source of income, approximately
    $1,500 per month in long-term disability payments. Prior to the
    divorce decree, Valerie received medical insurance coverage
    through Social Security, Monte’s health insurance policy, and a
    supplemental policy paid for by Monte.
    Monte also suffers from medical issues that prevent him from
    working. Monte collects long-term disability payments totaling
    approximately $3,600 per month. Monte placed $78,062.74
    from a lump-sum payment of his retirement program in an
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    CONNOLLY v. CONNOLLY
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    299 Neb. 103
    annuity with an insurance company. Together, these form his
    sole sources of income.
    During their marriage, the couple purchased a home as
    joint tenants. Monte placed a value of $250,000 on the marital
    home, while Valerie valued the home at $299,950. As of July
    2016, the home had a mortgage of $182,598. According to
    their 2015 joint income tax return, the couple’s adjusted gross
    income was $20,018.
    On August 15, 2012, Valerie filed the petition for legal sep-
    aration against Monte. On December 12, Monte and Valerie
    filed a stipulation and agreement, agreeing that in the event
    the parties’ marriage dissolved, their jointly owned real estate
    property would be sold and the proceeds would be divided
    equally between the parties. The parties agreed that Monte
    would continue to carry Valerie on his health insurance policy
    and be responsible for the premiums on that policy through
    December 31, 2012. Monte further agreed that commencing
    January 1, 2013, he would pay the premiums on Valerie’s
    Medicare supplemental policy. The parties also agreed that
    neither party shall pay or receive alimony. Furthermore, each
    party agreed to be responsible for one-half of the attorney
    fees incurred in the processing of this action for a legal
    separation. Both parties were using the same attorney at
    the time.
    The parties waived a hearing on the entry of a final decree
    of legal separation. On December 12, 2012, the district court
    issued a decree of legal separation, approving the parties’ stipu-
    lations and granting the parties a decree of legal separation.
    On September 9, 2015, Monte filed a motion to amend the
    complaint from legal separation to dissolution of marriage.
    Valerie filed an answer requesting that the real estate owned
    by the parties be sold; that Monte provide health insurance for
    Valerie until Valerie reached the age of 65 or, in the alternative,
    that Monte pay spousal support; and that Monte pay Valerie’s
    attorney fees. Valerie subsequently filed a separate application
    for attorney fees.
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    On November 15, 2016, following a hearing, the district
    court filed a decree of dissolution. The decree divided the
    marital estate as follows:
    2. . . . [E]ach party shall pay his or her own debts
    to include his or her own medical bills and credit card
    debts, and hold the other party harmless with respect to
    such debts.
    3. . . . [E]ach party shall receive as his or her sep-
    arate property his or her own clothing and personal
    effects, and all personal property presently in his or her
    own possession.
    4. . . . [E]ach party shall receive as his or her separate
    property all bank accounts, retirement accounts, invest-
    ments, and insurance policies currently held in his or her
    name respectively, and any other property currently in
    the party’s possession.
    5. The parties shall list the marital home for sale within
    thirty days. It shall be . . . initially listed for $300,000.00.
    In the event a closing on the property has not occurred
    within 180 days from the listing date, it shall be sold at
    public auction, and the proceeds divided consistent with
    the parties’ legal separation agreement.
    6. Monte shall pay alimony to Valerie in the amount
    of $363.00 per month beginning December 1, 2016, and
    continuing monthly thereafter until the death of either
    party or until Valerie remarries. This amount is the esti-
    mated Medicare supplement premium ($218.00) and
    the prescription supplement premium ($145.00) from
    exhibit 2. . . .
    ....
    8. Monte shall pay one-half of the attorney’s fees of
    Valerie, in the amount of $1,347.57 within sixty days.
    In support of its modification of the legal separation decree,
    specifically as related to alimony, the court found that it was
    not barred from considering an award of alimony, but that
    because it was a modification, it would be necessary for
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    Valerie to show a change in circumstances, which the court
    found she had not done. Despite this, the district court awarded
    Valerie alimony in an amount that equaled the health insurance
    costs which Monte had been paying under the decree of legal
    separation. Valerie appealed.
    III. ASSIGNMENTS OF ERROR
    Valerie assigns, restated and consolidated, that the district
    court erred in (1) determining that Valerie needed to show a
    change of circumstances in order to be entitled to an award
    of alimony in the divorce decree and (2) awarding an insuf-
    ficient amount of attorney fees based on the totality of the
    circumstances.
    Monte asserts several assignments of error in his appellee’s
    brief, but did not comply with this court’s rules regarding the
    filing of a cross-appeal. As such, we do not consider any of
    Monte’s assignments of error.1
    IV. STANDARD OF REVIEW
    [1] Statutory interpretation presents a question of law that an
    appellate court resolves independently of the trial court.2
    [2,3] 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.3 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.4
    [4] A judicial abuse of discretion exists if the reasons or rul-
    ings of a trial judge are clearly untenable, unfairly depriving
    1
    Neb. Ct. R. App. P. § 2-109 (rev. 2014).
    2
    State v. Thompson, 
    294 Neb. 197
    , 
    881 N.W.2d 609
     (2016).
    3
    Stephens v. Stephens, 
    297 Neb. 188
    , 
    899 N.W.2d 582
     (2017).
    4
    Meints v. Meints, 
    258 Neb. 1017
    , 
    608 N.W.2d 564
     (2000).
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    a litigant of a substantial right and denying just results in mat-
    ters submitted for disposition.5
    V. ANALYSIS
    1. Award of A limony
    (a) Whether Parties Need to Show
    Change in Circumstances
    Valerie assigns that the district court erred in requiring that
    she show a change of circumstances in the time between the
    decree of legal separation and the divorce decree in order to
    receive an award of alimony. In the alternative, Valerie argues
    that she has shown a change in circumstances, because her
    costs have increased due to the divorce decree, while Monte’s
    income has increased.
    We begin our analysis with the underlying statutes. The
    availability of an award of alimony is addressed in 
    Neb. Rev. Stat. § 42-365
     (Reissue 2016), which states in pertinent part:
    When dissolution of a marriage is decreed, the court
    may order payment of such alimony by one party to
    the other and division of property as may be reason-
    able, 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 interrup-
    tion of personal careers or educational opportunities,
    and the ability of the supported party to engage in gain-
    ful employment without interfering with the interests of
    any minor children in the custody of such party. . . . A
    proceeding to modify or revoke an order for alimony for
    good cause shall be commenced by filing a complaint
    to modify. . . . Amounts accrued prior to the date of fil-
    ing of the complaint to modify may not be modified or
    revoked. A decree may not be modified to award alimony
    5
    Stephens v. Stephens, 
    supra note 3
    .
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    if alimony was not allowed in the original decree dissolv-
    ing a marriage.
    Actions involving legal separation are considered sepa-
    rately. 
    Neb. Rev. Stat. § 42-347
    (7) (Reissue 2016) provides
    that “[l]egal separation means a decree of a court of compe-
    tent jurisdiction providing that two persons who have been
    legally married shall thereafter live separate and apart and
    providing for any necessary adjustment of property, support,
    and custody rights between the parties but not dissolving
    the marriage.”
    Finally, 
    Neb. Rev. Stat. § 42-368
     (Reissue 2016) states in
    pertinent part:
    When a legal separation is decreed, the court may order
    payment of such support by one party to the other as may
    be reasonable, having regard for the circumstances of the
    parties 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. Orders
    for support may be modified or revoked for good cause
    shown upon notice and hearing . . . .
    This court held in Pendleton v. Pendleton6 that the prohi-
    bition against modifying a decree of dissolution to provide
    alimony when none was awarded in the original decree was
    applicable only in cases involving dissolution, and inapplica-
    ble in the case of legal separation. We explained that the defi-
    nition of legal separation set forth in § 42-347(7) contained
    no provisions similar to the language set forth in § 42-365
    dealing with alimony in a dissolution action. We further
    explained that the language in 
    Neb. Rev. Stat. § 42-366
    (6)
    (Reissue 2016) and § 42-368 specifically stated that the pro-
    hibition against modifying a decree did not apply to a decree
    of legal separation. Finally, we noted that res judicata did not
    preclude the district court from awarding alimony in the dis-
    solution decree.
    6
    Pendleton v. Pendleton, 
    242 Neb. 675
    , 
    496 N.W.2d 499
     (1993).
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    As in Pendleton, we find that because § 42-347(7) contains
    no provisions similar to the language set forth in § 42-365,
    we must construe these statutes separately. And because we
    construe the decree of legal separation and the decree of dis-
    solution separately, we find that an award of alimony in a
    decree of dissolution is not equivalent to a modification of an
    award of alimony in a decree of legal separation such that it is
    modifiable only upon a finding of good cause under § 42-365.
    Furthermore, we note that by its terms, § 42-365 is applicable
    only to an alimony award in a decree of dissolution and makes
    no mention of a decree of legal separation.
    We hold that Valerie was not required to show a change of
    circumstances for purposes of good cause to modify the award
    of alimony awarded in the decree of legal separation. Instead,
    the district court should have determined a reasonable award of
    alimony based on the criteria set forth in § 42-365.
    Valerie’s first assignment of error has merit.
    (b) Whether Alimony Award
    Was Reversible Error
    [5] Next, we turn to whether the district court error was
    prejudicial. Error without prejudice is not a ground for rever-
    sal.7 Both in dividing property and in considering alimony
    upon a dissolution of marriage, a court should consider four
    factors: (1) the circumstances of the parties, (2) the duration
    of the marriage, (3) the history of contributions to the mar-
    riage, and (4) 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 polestar
    being fairness and reasonableness as determined by the facts
    of each case.8
    Monte has a monthly income of approximately $3,600, and
    his monthly living expenses total $2,551. Valerie’s monthly
    7
    Emery v. Mangiameli, 
    218 Neb. 740
    , 
    359 N.W.2d 83
     (1984).
    8
    See, § 42-365; Meints v. Meints, 
    supra note 4
    .
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    income is approximately $1,500, and her monthly budget
    totals $2,341. In the separation order, the judge approved
    the parties’ agreement that Monte would continue to carry
    Valerie on his health insurance policy and be responsible for
    the premiums on that policy through December 31, 2012.
    Monte agreed that thereafter, commencing January 1, 2013, he
    would be responsible for the premiums on Valerie’s Medicare
    supplemental policy. According to Valerie’s monthly budget,
    these costs totaled $363. This calculation formed the basis of
    the judge’s determination in the divorce decree of $363 as the
    amount of alimony.
    Valerie contends that the award of alimony is insufficient,
    because she is now responsible for half of the monthly house
    payments, she pays rent, and she must pay the medical insur-
    ance that was previously provided by Monte. Valerie further
    argues that Monte’s finances have improved due to the lump-
    sum payment of his retirement plan.
    The parties agreed in the stipulation that the retirement
    accounts would remain separate, nonmarital property. Therefore,
    we do not find that the district court abused its discretion in
    failing to take the lump sum from Monte’s retirement plan into
    consideration for purposes of alimony. Nor do we find merit
    in Valerie’s contention that because she is now responsible for
    payment of her supplemental medical policy, half the payments
    on the house, and payment of rent where she lives, the amount
    of alimony was an abuse of discretion.
    Contrary to Valerie’s contention otherwise, the district court
    explicitly took into account Valerie’s payment of her supple-
    mental medical policy in the calculation of the amount of
    alimony in the decree. And Valerie did not include monthly
    house payments in her proposed monthly budget that she sub-
    mitted to the court. It was Valerie’s responsibility to furnish
    this information in the record, and she did not do so.9 In addi-
    tion, as noted above, the decree ordered the parties to sell the
    9
    See Pendleton v. Pendleton, 
    supra note 6
    .
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    house within 6 months and split the proceeds equally; thus,
    this monthly cost for house payments was of short duration.
    Furthermore, as the district court noted, Monte testified that he
    refinanced the real estate mortgage to lower the house payment
    after the separation and has paid approximately $75,000 toward
    the value of the real estate. Accordingly, the net value was to
    be divided equally between the parties. It was not an abuse of
    discretion for the court to omit this cost in its calculation of the
    amount of alimony.
    We further find that the amount of alimony, when consid-
    ered alongside Valerie’s monthly income and the proceeds
    from the sale of the couple’s home, was not an abuse of
    discretion. We note that the district court correctly took into
    account the income and earning capacity of each party and
    any disparity in the incomes between the parties. While Monte
    has a higher monthly income, his income is also based solely
    on disability payments. The disparity between the parties’
    income is not of such a degree that the amount of alimony
    was unfair.
    After consideration of all other facts and circumstances
    of the case, we hold that the district court did not abuse its
    discretion in awarding Valerie $363 per month in alimony
    for her lifetime or until she remarries. We therefore hold
    that any error by the court in its analysis was not prejudicial
    to Valerie.
    2. Attorney Fees
    [6,7] Finally, Valerie assigns that the district court abused
    its discretion in ordering Monte to pay one-half of Valerie’s
    attorney fees. In an action for dissolution of marriage, the
    award of attorney fees is discretionary, is reviewed de novo
    on the record, and will be affirmed in the absence of an abuse
    of discretion.10 The award of attorney fees depends on mul-
    tiple factors that include the nature of the case, the services
    10
    Marcovitz v. Rogers, 
    267 Neb. 456
    , 
    675 N.W.2d 132
     (2004).
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    performed and results obtained, the earning capacity of the
    parties, the length of time required for preparation and pre-
    sentation of the case, customary charges of the bar, and the
    general equities of the case.11
    Based on our de novo review of the record and the general
    equities of the case, we find nothing to indicate an abuse of
    discretion on the part of the district court in its decision to
    award Valerie one-half of her attorney fees. Therefore, the
    district court did not err in awarding Valerie one-half of her
    attorney fees. Valerie’s second assignment of error is with-
    out merit.
    VI. CONCLUSION
    We affirm the order of the district court.
    A ffirmed.
    Wright, J., not participating.
    11
    Bowers v. Lens, 
    264 Neb. 465
    , 
    648 N.W.2d 294
     (2002).