Onstot v. Onstot , 298 Neb. 897 ( 2018 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/02/2018 08:12 AM CST
    - 897 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    M ark A. Onstot, appellant and
    cross-appellee, v.
    M aria D. Onstot,
    appellee and cross-appellant.
    ___ N.W.2d ___
    Filed February 9, 2018.   No. S-17-038.
    1.	 Divorce: Child Custody: Child Support: Property Division: Alimony:
    Attorney Fees: Appeal and Error. 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.
    2.	 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 on the matters at issue. When
    evidence is in conflict, the 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.
    3.	 Divorce: Mental Health: Appeal and Error. An appeal involving sup-
    port for a mentally ill spouse under 
    Neb. Rev. Stat. § 42-362
     (Reissue
    2016) is reviewed de novo on the record and affirmed in the absence of
    an abuse of discretion on the part of the trial judge.
    4.	 Property Division. As a general rule, property which one party brings
    into the marriage is excluded from the marital estate.
    5.	 Property Division: Proof. The burden of proof to show that property is
    a nonmarital asset remains with the person making the claim.
    6.	 Affidavits: Records: Appeal and Error. In order to be considered on
    appeal, any affidavit used on a motion before the trial court must have
    been offered in evidence in the trial court and made part of the bill
    of exceptions.
    7.	 Records: Appeal and Error. The party appealing has the respon-
    sibility of including within the bill of exceptions matters from the
    - 898 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    record which the party believes are material to the issues presented
    for review.
    8.	 ____: ____. A bill of exceptions is the only vehicle for bringing evi-
    dence before the Nebraska Supreme Court. Evidence which is not made
    part of the bill of exceptions may not be considered.
    9.	 Divorce: Mental Health: Alimony. 
    Neb. Rev. Stat. § 42-362
     (Reissue
    2016) empowers the court to order the payment of such support and
    maintenance to a mentally ill spouse as it may deem necessary and
    proper, having due regard to the property and income of the parties.
    10.	 ____: ____: ____. Reasonableness is the ultimate criterion to be applied
    in testing whether support and maintenance is to be awarded a mentally
    ill spouse under 
    Neb. Rev. Stat. § 42-362
     (Reissue 2016) and, if so, the
    amount and duration thereof.
    11.	 Divorce: Alimony: Public Policy: Legislature. The trial court cannot
    condition the termination of spousal support upon cohabitation with
    another person, because such matters are public policy issues for the
    Legislature, not the courts, to decide.
    12.	 Divorce: Alimony: Modification of Decree. Cohabitation, together
    with a showing that such arrangement improved a former spouse’s
    overall financial condition, might warrant a modification of spousal
    support.
    Appeal from the District Court for Sarpy County: William
    B. Zastera, Judge. Affirmed in part as modified, and in
    part vacated.
    Thomas J. Anderson, P.C., L.L.O., for appellant.
    Robin L. Binning, of Binning & Plambeck, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    K elch, J.
    I. INTRODUCTION
    Mark A. Onstot appeals, and Maria D. Onstot cross-
    appeals, from the decree of dissolution entered by the district
    court for Sarpy County, which dissolved the parties’ mar-
    riage, divided their assets and debts, and awarded spousal
    support for Maria. For the reasons set forth below, we affirm
    - 899 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    the district court’s decree in part, as modified herein, and in
    part vacate.
    II. BACKGROUND
    Mark and Maria were married in October 1999. Mark filed
    a complaint for dissolution of marriage in July 2013, and the
    matter proceeded to a bench trial in March and June 2016.
    The contested issues at trial, as relevant to this appeal, were
    (1) the equitable division of the house Mark owned prior to
    the marriage and (2) the determination of appropriate spousal
    support for Maria under 
    Neb. Rev. Stat. § 42-362
     (Reissue
    2016).
    1. M ark’s House
    Prior to the marriage, Mark owned a house located on
    Platte River Drive in Bellevue, Nebraska. Mark testified that
    he purchased the house in 1990 for $58,800, and he believed
    that the mortgage at the time of purchase was $48,000. He
    made some improvements to the house over the following
    years, including installing new siding, constructing a new
    garage, and installing new windows and new flooring, all of
    which was paid for with his own money prior to the marriage.
    Mark testified that he believed the house was worth approxi-
    mately $100,000 at the time of the parties’ marriage in 1999,
    but there was no evidence presented regarding the balance on
    the mortgage at that time. There was also no documentation
    to confirm Mark’s testimony regarding the date of purchase,
    the purchase price, the amount mortgaged, or the value of the
    house at the time of the parties’ marriage. At the time of trial,
    the house was appraised at $200,000 and had a loan balance
    of $32,538.
    Following a bench trial, the district court awarded the house
    to Mark, subject to the remaining mortgage balance of approxi-
    mately $32,500, for which Mark was ordered to be solely
    responsible. It determined that the property was valued at
    $200,000 and had equity in the amount of $167,500, which it
    - 900 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    ordered to be divided equally between the parties. It further
    ordered Mark to refinance, sell, or otherwise remove Maria’s
    financial responsibility for the mortgage, and to pay Maria
    $83,746 for her share of the net equity in the property, within
    60 days from the entry of the decree.
    2. Spousal Support
    After Mark filed his complaint for dissolution, Maria filed
    a motion for the appointment of a guardian ad litem on the
    basis of mental illness, pursuant to § 42-362. In support of the
    motion, she submitted an affidavit from her psychologist, Dr.
    Glenda L. Cottam, who stated that Maria exhibited anxiety
    and mental illness to such a degree that her ability to think
    clearly and engage in appropriate reality testing was compro-
    mised and that she would not be able to act in her own best
    interests, make appropriate decisions, or assist her lawyer in
    preparing her case. The district court granted the motion and
    appointed a guardian ad litem to represent Maria throughout
    these proceedings.
    Shortly thereafter, Maria filed a motion requesting tem-
    porary support in the amount of $3,000 per month, again
    pursuant to § 42-362. The motion itself did not include any
    supporting documentation as to her income or expenses, and
    the record on appeal does not contain a bill of exceptions
    from the hearing. Mark filed an affidavit in resistance to the
    motion for support, stating that Maria did not need $3,000 per
    month and that he could not afford to pay that amount. The
    district court awarded temporary spousal support of $1,500
    per month, beginning on March 1, 2014. Because of the lack
    of record on appeal, it is unclear what evidence the court con-
    sidered in making this determination.
    In August 2015, Mark filed an application to modify spousal
    support, because he had just retired from his employment with
    the railroad and his income had been reduced to only $3,034
    per month in retirement benefits. The court denied his applica-
    tion to modify.
    - 901 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    The evidence at trial showed that Maria had been diagnosed
    with a mood disorder with some transient psychotic features,
    paranoia, depression, anxiety, and post-traumatic stress disor-
    der. Regarding Maria’s symptoms, Dr. Cottam testified that
    Maria becomes very agitated, has hallucinations, and disso-
    ciates from reality. Dr. Cottam further explained that Maria
    was very paranoid at times—she talked about conspiracies,
    “stink bombs” being set off at her place of employment,
    people that were out to get her, a particular woman that was
    always following her, and lights being shone into her apart-
    ment. She has been hospitalized on a number of occasions
    because her anxiety and paranoia cause her blood pressure to
    increase to a level that is medically dangerous. Her anxiety
    causes other physical symptoms as well, including swell-
    ing of her tongue, tingling in her fingers, heaviness in her
    body, loss of her voice, ringing in her ears, changes in her
    vision, and loss of coordination. Dr. Cottam opined that due
    to Maria’s mental health issues, she was not competent to tes-
    tify and was in need of a legal guardian. Because Maria was
    unable to testify, her guardian ad litem testified in her place
    at trial.
    At the time of trial, the evidence showed that Maria’s
    monthly income was $3,453, which included Social Security
    disability benefits, spousal benefits from the railroad, and the
    $1,500 temporary support payment from Mark. Her monthly
    expenses were $3,721, and therefore exceeded her monthly
    income even with Mark’s temporary support payment.
    Mark’s monthly income at the time of trial included $3,602
    in railroad retirement benefits, but he testified that he actu-
    ally received only $3,100 per month after taxes. Mark also
    received $750 per month in rental income, but he testified that
    it was offset by mortgage payments and expenses for the rental
    property. Mark’s monthly expenses were $3,954, although
    he acknowledged that his food expense of $700 per month
    and his gas expense of $400 per month were high due to his
    - 902 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    preferences for eating out frequently and d­riving his truck
    rather than his more gas-efficient car.
    In its decree, the district court found that Maria was mentally
    ill and entitled to protection under § 42-362. It awarded her
    continuing spousal support in the amount of $700 per month,
    beginning July 1, 2016, and continuing so long as she is men-
    tally ill or until she remarries, the death of either party, or fur-
    ther order of the court. Following the entry of the decree, Mark
    filed a motion to alter or amend the decree, requesting that
    his obligation to pay spousal support would cease in the event
    Maria was cohabiting. The district court amended the decree to
    reflect that Maria’s spousal support shall continue until Maria
    is no longer mentally ill, the death of either party, or Maria’s
    remarriage or cohabitation with a significant other.
    III. ASSIGNMENTS OF ERROR
    On appeal, Mark assigns the district court erred (1) in
    awarding any equity in his house to Maria or, alternatively, in
    failing to grant him credit for the home’s value as of the date of
    marriage, and in requiring him to sell the property if he did not
    refinance or otherwise remove Maria’s financial responsibility
    for the mortgage within 60 days and (2) in awarding excessive
    temporary and permanent spousal support to Maria.
    On cross-appeal, Maria assigns that the district court abused
    its discretion in ordering that her spousal support would cease
    upon her cohabitation with a significant other.
    IV. STANDARD OF REVIEW
    [1] In an action for the dissolution of marriage, an appellate
    court reviews de novo on the record the trial court’s determi-
    nations 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.1
    1
    Marshall v. Marshall, ante p. 1, 
    902 N.W.2d 223
     (2017).
    - 903 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    [2] 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 on the matters at issue.2
    However, when evidence is in conflict, the 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.3
    [3] An appeal involving support for a mentally ill spouse
    under § 42-362 is reviewed de novo on the record and affirmed
    in the absence of an abuse of discretion on the part of the
    trial judge.4
    V. ANALYSIS
    1. M ark’s House
    Mark claims the trial court erred in awarding any equity
    in his house to Maria or, alternatively, in failing to grant him
    credit for its value as of the date of marriage, and in requiring
    him to sell the property if he does not refinance or otherwise
    remove Maria’s financial responsibility for the mortgage within
    60 days.
    Mark purchased the residence located on Platte River Drive
    in 1990, approximately 9 years prior to the marriage. He testi-
    fied he paid $58,800 for the property and took out a mortgage
    for the purchase in the amount of $48,000. He opined that
    the residence had a value of $100,000 at the time of the mar-
    riage in 1999. The district court found the entire equity in the
    residence to be marital property and ordered that it be divided
    equally between the parties.
    [4,5] Because he purchased the residence prior to the mar-
    riage, Mark claims that it is entirely premarital or, alternatively,
    that the equity he had prior to the marriage is premarital. As a
    2
    Bergmeier v. Bergmeier, 
    296 Neb. 440
    , 
    894 N.W.2d 266
     (2017).
    3
    
    Id.
    4
    See Black v. Black, 
    223 Neb. 203
    , 
    388 N.W.2d 815
     (1986).
    - 904 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    general rule, property which one party brings into the marriage
    is excluded from the marital estate.5 However, the burden of
    proof to show that property is a nonmarital asset remains with
    the person making the claim.6
    We agree that the equity in the residence at the time of the
    parties’ marriage in 1999 was a nonmarital asset which, if
    established, should be set aside as Mark’s separate property.7
    However, assuming Mark’s testimony established the value
    of the residence at $100,000 at the time of the marriage, he
    did not testify or supply any documentation as to whether the
    residence was either encumbered or unencumbered at that time
    and, if encumbered, to what extent. Because Mark has failed to
    establish that there was any equity in the house at the time of
    the parties’ marriage, he has failed to meet his burden of prov-
    ing that the property is a nonmarital asset. We therefore con-
    clude that the district court did not err in including the entirety
    of the equity in the residence in the marital estate.
    Mark further assigns that the district court erred in order-
    ing him to refinance the residence and pay off Maria within
    60 days of the decree. We acknowledge that the trial court has
    discretion in the amount of time allowed to refinance prop-
    erty. But, here, Mark’s ability to refinance promptly has been
    impaired by his obligation to pay $700 per month in spousal
    support, especially as a retiree with a monthly net income of
    only $3,100. Therefore, we find that under these particular
    circumstances, the district court’s requirement that Mark refi-
    nance the mortgage within 60 days constituted an abuse of
    discretion. We modify the decree to extend the time period for
    Mark to refinance the residence and pay off Maria to 6 months
    from the filing of the mandate in the district court.
    5
    See Heald v. Heald, 
    259 Neb. 604
    , 
    611 N.W.2d 598
     (2000).
    6
    
    Id.
    7
    See Harris v. Harris, 
    261 Neb. 75
    , 
    621 N.W.2d 491
     (2001). See, also,
    Heald v. Heald, 
    supra note 5
    .
    - 905 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    2. Spousal Support
    (a) Temporary Support
    [6] Mark claims the trial court erred in awarding temporary
    spousal support in the amount of $1,500 per month under
    § 42-362. However, the record on appeal does not contain
    any bill of exceptions in regard to the hearing for temporary
    ­spousal support. The transcript does contain a document enti-
    tled “Affidavit in Support of Application to Re-Set Support”
    that was filed with the court. We have long held that an affi-
    davit must be offered as an exhibit and must be made part of
    the bill of exceptions in order to be considered on appeal.8 In
    Peterson v. George,9 we stated:
    The fact that an affidavit used as evidence in the district
    court was filed in the office of the clerk of the district
    court and made a part of the transcript is not important to
    a consideration and decision of an appeal in the cause to
    this court. If such an affidavit is not preserved in a bill of
    exceptions, its existence or contents cannot be known by
    this court.
    Here, we have no record that the “Affidavit in Support of
    Application to Re-Set Support” was received at any pretrial
    hearing. Whether the district court reviewed the affidavit or
    any evidence for purposes of Mark’s pretrial application to
    reset spousal support is unknown.
    [7,8] The party appealing has the responsibility of including
    within the bill of exceptions matters from the record which the
    party believes are material to the issues presented for review.10
    A bill of exceptions is the only vehicle for bringing evidence
    8
    See, Altaffer v. Majestic Roofing, 
    263 Neb. 518
    , 
    641 N.W.2d 34
     (2002);
    Peterson v. George, 
    168 Neb. 571
    , 
    96 N.W.2d 627
     (1959).
    9
    Peterson v. George, 
    supra note 8
    , 
    168 Neb. at 577
    , 
    96 N.W.2d at 631
    .
    10
    See, 
    Neb. Rev. Stat. § 25-1140
     (Reissue 2016); State v. Dunster, 
    262 Neb. 329
    , 
    631 N.W.2d 879
     (2001); State v. Biernacki, 
    237 Neb. 215
    , 
    465 N.W.2d 732
     (1991); State v. Schaneman, 
    235 Neb. 655
    , 
    456 N.W.2d 764
    (1990); State v. Isikoff, 
    223 Neb. 679
    , 
    392 N.W.2d 783
     (1986).
    - 906 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    before the Nebraska Supreme Court. Evidence which is not
    made part of the bill of exceptions may not be considered.11
    Without the benefit of a proper record, we will not consider
    this alleged error.
    (b) Continuing Support
    Next, Mark claims the trial court erred in awarding continu-
    ing spousal support in the amount of $700 per month until
    either party dies, Maria remarries or cohabits with a signifi-
    cant other, or she is no longer mentally ill.
    An appeal involving support for a mentally ill spouse under
    § 42-362 is reviewed de novo on the record and affirmed in
    the absence of an abuse of discretion on the part of the trial
    judge.12 A judicial abuse of discretion exists when 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.13
    Mark does not contest whether Maria suffers from a mental
    illness. And the district court awarded spousal support pursuant
    to § 42-362, which in relevant part provides:
    When a marriage is dissolved and the evidence indicates
    that either spouse is mentally ill, the court may, at the
    time of dissolving the marriage or at any time thereaf-
    ter, make such order for the support and maintenance of
    such mentally ill person as it may deem necessary and
    proper, having due regard to the property and income of
    the parties, and the court may require the party ordered
    to provide support and maintenance to file a bond or oth-
    erwise give security for such support. . . . The order for
    support may, if necessary, be revised from time to time on
    like application.
    11
    See, State v. Manchester, 
    213 Neb. 670
    , 
    331 N.W.2d 776
     (1983); State v.
    Gingrich, 
    211 Neb. 786
    , 
    320 N.W.2d 445
     (1982).
    12
    See Black v. Black, 
    supra note 4
    .
    13
    Marshall v. Marshall, supra note 1.
    - 907 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    [9,10] Section 42-362 empowers the court to order the
    payment of such support and maintenance as it may deem
    necessary and proper, having due regard to the property and
    income of the parties, and, to that extent, parallels the alimony
    contemplated by 
    Neb. Rev. Stat. § 42-365
     (Reissue 2016), but
    provides an additional specific ground to be considered—the
    mental illness of a spouse.14 Further, we have held that in deal-
    ing with spousal support under the provisions of § 42-362,
    reasonableness is the ultimate criterion to be applied in testing
    whether support and maintenance is to be awarded and, if so,
    the amount and duration thereof.15
    The decree does not contain any findings as to why the
    district court chose to award $700 per month in spousal sup-
    port, which was not an amount requested by either party.
    Mark’s gross retirement income was $3,602, but he testified
    that after taxes, he received approximately $3,100. Although
    Maria points out that Mark is now receiving $750 per month
    in rental income, Mark testified this was offset by mortgage
    payments and expenses for the rental property. Mark’s monthly
    expenses after excluding the temporary spousal support pay-
    ment and mortgage payments and expenses for the rental prop-
    erty is approximately $2,000. In addition, Mark acknowledged
    his food and gas expenses were high due to his particular
    lifestyle. It appears the district court found Mark’s credible
    monthly expenses to be less than his monthly income. On the
    other hand, Maria had monthly income of $3,453 and monthly
    expenses of $3,721.
    Here, the court was faced with a long-term marriage, a men-
    tally ill spouse who has no ability at present to work, and, as
    in Black v. Black,16 a spouse who has needs above her income
    which exceed the amount of support and maintenance awarded.
    14
    Stephens v. Stephens, 
    297 Neb. 188
    , 
    899 N.W.2d 582
     (2017).
    15
    Black v. Black, 
    supra note 4
    .
    16
    
    Id.
    - 908 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    Certainly, the $700 spousal support obligation, coupled with
    Mark’s other monthly expenses, may place him at or near his
    net income level. This is concerning and provides no flexibility
    for Mark, but Maria is in an even more difficult financial posi-
    tion. Sadly, when many couples divorce, there is not enough
    money to satisfy the needs of both parties. But in this instance,
    based upon the totality of the circumstances and evidence,
    we cannot find the order of spousal support was an abuse
    of discretion.
    (c) Cross-Appeal
    The district court initially entered a decree which awarded
    Maria spousal support in the amount of $700 per month com-
    mencing July 1, 2016, and continuing so long as Maria is
    mentally ill or until she remarries, the death of either party, or
    further order of the court. Following the entry of the decree,
    the district court partially granted Mark’s motion to alter or
    amend by ordering that the spousal support would further ter-
    minate upon Maria’s cohabitating with a significant other. On
    cross-appeal, Maria contends that it was improper to include
    any provision terminating spousal support if she cohabitates
    with another person. And, at oral argument, counsel for Maria
    agreed that Maria’s cohabitation with another person was not
    within the parties’ contemplation at the time of the entry of
    the decree.
    [11,12] Maria is correct in that we have previously held that
    the trial court cannot condition the termination of spousal sup-
    port upon cohabitation with another person, because such mat-
    ters are public policy issues for the Legislature, not the courts,
    to decide.17 However, cohabitation, together with a showing
    that such arrangement improved a former spouse’s overall
    financial condition, might warrant a modification of spousal
    support.18 Accordingly, that part of the district court’s order
    17
    Else v. Else, 
    219 Neb. 878
    , 
    367 N.W.2d 701
     (1985).
    18
    
    Id.
     See, also, Stephens v. Stephens, 
    supra note 14
    .
    - 909 -
    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    ONSTOT v. ONSTOT
    Cite as 
    298 Neb. 897
    adding Maria’s cohabitation with a significant other to the list
    of conditions terminating Mark’s spousal support obligation is
    hereby vacated.
    VI. CONCLUSION
    We affirm in part the decree entered by the district court,
    as modified to allow Mark 6 months following the date of
    the mandate to refinance the residence and pay off Maria.
    We vacate the portion of the district court’s order stating
    that Mark’s support obligation would terminate upon Maria’s
    cohabitation with a significant other.
    A ffirmed in part as modified,
    and in part vacated.
    Wright, J., not participating.