Spady v. Spady ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
SPADY V. SPADY
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).
SANDRA LYNN SPADY, APPELLANT AND CROSS-APPELLEE,
V.
JERRY FRED SPADY, APPELLEE AND CROSS-APPELLANT.
Filed June 7, 2016. No. A-15-426.
Appeal from the District Court for Adams County: TERRI S. HARDER, Judge. Affirmed as
modified.
Nathan T. Bruner, of Bruner Frank, L.L.C., for appellant.
John S. Slowiaczek and Virginia A. Albers, of Slowiaczek, Albers & Astley, P.C., L.L.O.,
for appellee.
INBODY and RIEDMANN, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
Sandra Lynn Spady appeals and Jerry Fred Spady cross-appeals from the order of the
district court for Adams County which dissolved their marriage, divided the marital estate, and
declined to find Jerry in contempt of court. As explained below, we affirm as modified.
II. BACKGROUND
Sandra and Jerry met in Acapulco, Mexico in 1981 and were married in February 1991. At
the time of the marriage, Sandra was 38 years old and Jerry was 55 years old. Prior to meeting
Jerry, Sandra worked as a successful fashion designer in Mexico, where she gained Mexican
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citizenship. She took a leave of absence from her job in 1982 and returned to Nebraska with Jerry.
She never resumed her prior employment or any paid employment throughout the marriage.
Jerry entered the marriage with significant assets including real estate and several
businesses. He was the sole owner of Jerry Spady Pontiac Cadillac (JSPC); Bonnavilla Plaza
Corporation (BPC); the property located on Osborne Drive East in Hastings, Nebraska that houses
JSPC; and a residence in Hastings located on West Prairie Lake Road referred to as “Casa Lolita.”
During the marriage, Sandra and Jerry purchased four properties in Acapulco, a residence in
Florida, and two boats. We will describe the parties’ marital and separate property in greater detail
in the analysis section below.
Sandra filed a complaint for dissolution of marriage in April 2013. The dissolution trial
was held in January 2015. At the same time, the court held a show cause hearing on Sandra’s claim
that Jerry failed to maintain the properties in Mexico as required in a temporary order.
The decree and contempt order were entered on April 17, 2015. The district court rejected
Sandra’s claims that much of Jerry’s premarital property should be classified as marital property,
and Jerry’s premarital property was excluded from the marital estate. One of the Mexico properties
was sold prior to trial, and Sandra was awarded the remaining three properties. Jerry received the
Florida residence and the boats. Although Jerry had been ordered to pay temporary alimony to
Sandra during the pendency of the proceedings, the district court declined to award Sandra
permanent alimony. The court also declined to hold Jerry in contempt but found that Sandra had
paid expenses related to the properties in Mexico that should have been paid by Jerry. Thus, the
court provided a credit of $97,500 to Sandra. After classifying, valuing, and dividing the marital
estate and allowing for the $97,500 credit, the court ordered Sandra to pay an equalization payment
of $260,744 to Jerry. Sandra now appeals and Jerry cross-appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Sandra assigns that the district court erred in (1) failing to include JSPC in the
marital estate, (2) failing to include the Osborne Drive East property in the marital estate, (3)
parceling out BPC and failing to include the totality of BPC in the marital estate, (4) including
Jerry’s loan to pay temporary attorney fees in the marital estate, (5) valuing the debt known as
Account 293, (6) providing Jerry a tax credit for parceling out BPC, (7) failing to award her
alimony, and (8) failing to find Jerry in contempt.
On cross-appeal, Jerry assigns that the district court erred in awarding an excessive amount
of temporary alimony and crediting $97,500 against the equalization payment.
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. Brozek v. Brozek, 292
Neb. 681, 874 N.W.2d 17 (2016). 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.-2-
V. ANALYSIS
1. MARITAL ESTATE
Sandra argues that the district court erred in failing to classify JSPC, the Osborne Drive
East property, and all property owned by BPC as marital property. She also claims that the court
erroneously classified a loan Jerry secured to pay her temporary attorney fees as marital property.
We reject Sandra’s claims as to Jerry’s premarital property but agree with her regarding the loan
for attorney fees. That portion of the decree is therefore reversed, and the equalization payment is
modified as explained below.
In a divorce action, the purpose of a property division is to distribute the marital assets
equitably between the parties. Brozek v. Brozek, supra. Equitable property division is a three-step
process. Id. The first step is to classify the parties' property as marital or nonmarital. Id. The second
step is to value the marital assets and marital liabilities of the parties. Id. The third step is to
calculate and divide the net marital estate between the parties. Id. Our focus is on the first step of
this process.
(a) JSPC
Sandra acknowledges that Jerry owned JSPC prior to the marriage, but she contends that it
should have been included in the marital estate because corporate funds were commingled with
marital property, JSPC was the alter ego of Jerry, and she made significant contributions to the
business during the marriage. JSPC is an automobile dealership Jerry purchased when he was 24
years old. When the parties married, Jerry owned 100 percent of the stock shares. During the
marriage, he gifted stock through Sandra to his son and nephew for estate planning purposes, and
at the time the parties separated, Jerry retained approximately 47.49 percent of the shares. Sandra
estimated the value of Jerry’s remaining JSPC stock to be $1,349,165, an amount Jerry disputed.
(i) Commingling
Generally, all property a spouse acquired before the marriage is excluded from the marital
estate. See Brozek v. Brozek, supra. Separate property becomes marital property by commingling
if it is inextricably mingled with marital property or with the separate property of the other spouse.
Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015). If the separate property continues to be
segregated or can be traced into its product, commingling does not occur. Id.Sandra first claims that commingling occurred when Jerry mixed personal funds with JSPC
funds through an account contained on the JSPC general ledger referred to by the parties as
“Account 293.” Because commingling occurs when separate property is “inextricably mingled”
with marital property, the question becomes whether Jerry’s separate property remained
segregated or can be traced. Jerry testified in the affirmative.
Jerry explained at trial that Account 293 is his personal account. Instead of maintaining a
separate personal bank account, he deposits all of his income into Account 293 and charges the
majority of his expenses to a credit card, which the JSPC bookkeeper then pays using funds from
Account 293. In some instances, personal company checks were written for Jerry’s personal
expenses and then charged to Account 293. In Jerry’s words: “What I receive in income, all my
everything is in that account. And what I spend in income is all personal account and that’s all it
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is.” Exhibits showing the entries made to Account 293 were received into evidence. The account
displays credits for income Jerry received and debits for Jerry’s general, personal expenses.
For purposes of a commingling analysis, a spouse can establish a “tracing link” through
his own testimony, subject to the trial court’s assessment of his credibility. See Brozek v. Brozek,
292 Neb. 681, 701, 874 N.W.2d 17 (2016). In rejecting Sandra’s commingling claim, the district
court clearly found Jerry’s description of Account 293 credible. We find no abuse of discretion in
that determination because, although Jerry’s personal funds and JSPC funds may have been
physically contained in the same account at the bank, Jerry’s personal income and expenditures
were logged separately and, thus, were not inextricably mingled with corporate funds.
Sandra also claims that commingling occurred when Jerry transferred JSPC stock shares
through her to third parties. We disagree.
Jerry’s shares of stock are a representation of his ownership interest in JSPC. Because we
agree with the trial court that Sandra’s contributions to the business are not significant enough to
convert Jerry’s ownership interest to marital property, as explained in more detail below, the fact
that Jerry gifted stock through her to third parties is irrelevant. Jerry owned 100 percent of the
stock shares at the time of the marriage, and during the marriage, he gave away a little over half
of his shares to his son and nephew for estate planning purposes. These acts did not transform
Jerry’s remaining shares into marital property when Sandra has no ownership interest in the
business. Any shares that could be considered “commingled” by way of Jerry gifting them to
Sandra in order for her to gift them to others are no longer owned by Jerry. The shares remaining
in his possession at the time of separation remain titled solely in his name, as they have always
been. Therefore, JSPC was properly excluded from the marital estate.
(ii) Alter Ego
Sandra also claims that JSPC was the alter ego of Jerry, and therefore, the corporation
should be considered a marital asset. A corporation will be looked upon as a legal entity as a
general rule, and until sufficient reason to the contrary appears. Medlock v. Medlock, 263 Neb.
666, 642 N.W.2d 113 (2002). However, in equity, the corporate entity may be disregarded and
held to be the mere alter ego of a shareholder or shareholders in various circumstances where
necessary to prevent fraud or other injustice. Id.When a corporation is or becomes the mere alter ego, or business conduit, of a person, it
may be disregarded. Id. Among the factors which are relevant in determining to disregard the
corporate entity are diversion by the shareholder or shareholders of corporate funds or assets to
their own or improper uses and the fact that the corporation is a mere facade for the personal
dealings of the shareholder and that the operations of the corporation are carried on by the
shareholder in disregard of the corporate entity. Id. Relevant factors also include the insolvency of
the individual and the extent to which the individual’s ostensible poverty is supported by corporate
assets. See id.In Medlock v. Medlock, supra, the Nebraska Supreme Court found the corporation to be
the alter ego of the husband because the husband made extensive personal use of corporate funds
and assets and carried on personal dealings in the name of the corporation. The record also showed
a virtually complete unity of interest between the husband and the corporation. The husband
exercised nearly unfettered control of the corporation and regularly purchased vehicles, travel, and
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other goods and services in the corporate name for his family’s personal use. The record further
demonstrated that the family did not acquire personal property in their own names but in the name
of the corporation, and the husband’s purported poverty conflicted sharply with the affluent
lifestyle he maintained with the use of corporate assets. The husband’s ability to maintain his
family’s manner of living with no reported assets and a meager income was also significant to the
court’s determination that the corporation was the husband’s alter ego.
The same factors are not present in the instant case. Sandra again points to Account 293 to
argue that Jerry’s personal funds were commingled with JSPC funds, but as determined above, we
do not agree. Unlike the husband in Medlock, Jerry relinquished control of JSPC during the
marriage by gifting the majority interest of the corporation to his son, and the record here
establishes that Sandra and Jerry acquired assets in their personal names and under BPC during
the marriage. The couple held significant assets during the marriage, including expensive
properties in Nebraska, Florida, and Mexico, and Jerry continued earning more than $15,000 per
month in income plus annual bonuses from JSPC. Jerry’s hard work prior to the marriage and the
significant assets he owned at that time supported the couple’s lifestyle and ability to acquire
additional property and travel extensively during the marriage. There is no evidence that products
were purchased in JSPC’s name for personal use or that Jerry carried on personal dealings under
the name of JSPC. Accordingly, we cannot find that JSPC was the alter ego of Jerry, and thus, the
district court did not abuse its discretion in finding JSPC to be Jerry’s premarital property.
(iii) Sandra’s Contributions
As noted above, property owned prior to the marriage is generally not part of the marital
estate. See Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). Sandra recognizes this general
principle and agrees that Jerry owned JSPC prior to the marriage. Despite this, she claims that the
court should have classified JSPC as marital property based on the exception set out in Van
Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982).
The Van Newkirk exception applies where both of the spouses have contributed to the
improvement or operation of the property which one of the parties owned prior to the marriage or
received by way of gift or inheritance, or the spouse not owning the property prior to the marriage
or not receiving the gift or inheritance has significantly cared for the property during the marriage.
See Van Newkirk v. Van Newkirk, supra.At trial, Sandra adduced evidence of the extent of her contributions to JSPC such as
working in various roles for the corporation and sitting on its board of directors. However, the
district court found that the impact of Sandra’s contributions was “simply not credible” and
“overstated,” noting that Jerry built a successful business prior to the marriage and had employees
running its daily operations.
Sandra claims her contributions to JSPC were similar to those made by the wife in Plog v.
Plog, 20 Neb. App. 383, 824 N.W.2d 749 (2012). There, we applied the Van Newkirk exception
based on the wife’s contributions to the couple’s farming business. The husband and wife were
both directly involved with the calving, branding, and vaccination of their own animals, and the
wife maintained the bookwork of the farming business and the husband’s veterinary clinic. The
husband and wife worked full-time at these businesses, and their income was earned through that
work.
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To the contrary here, Jerry retired from working at the time of the marriage, and he and
Sandra traveled outside of Nebraska for nine months out of the year, remaining in Hastings for just
three months in the summer. The day-to-day operations of the dealership were conducted by a
general manager and other employees. The income Jerry earned during the marriage was derived
from rent payments JSPC made to him as the owner of the building housing the dealership; neither
he nor Sandra earned a salary or wages from JSPC. Though Sandra may have filled in where
necessary and taken on various roles within JSPC, unlike the wife in Plog, Sandra’s work was not
full-time, day to day in order to earn income to support the couple. Thus, we find the situation in
Plog distinguishable from the present circumstances.
As such, we conclude that the district court did not abuse its discretion in finding that
Sandra’s contributions to JSPC do not rise to the level required to convert Jerry’s separate property
to a marital asset. Accordingly, JSPC was properly excluded from the marital estate.
(b) Osborne Drive East Property
Sandra argues that the district court erred in finding that the Osborne Drive East property
was nonmarital. She acknowledges that the property was deeded to Jerry prior to the marriage but
argues that it should be considered marital property because the construction was completed during
the marriage and she made significant contributions to its construction. The asset referred to as the
“Osborne Drive East” property is the land and building which house the JSPC dealership. Jerry
purchased the land in 1989 and obtained a construction loan to fund construction of the structures,
which was completed early into the marriage. Jerry satisfied the $850,000 balance of the
construction loan with proceeds from the sale of a premarital property he owned in Acapulco. The
district court thus determined that the Osborne Drive East property was Jerry’s premarital property
because he acquired it prior to marriage and used premarital funds to pay off the loan.
The law is that if premarital property can be identified, it is typically set off to the spouse
who brought the property into the marriage. Charron v. Charron, 16 Neb. App. 724, 751 N.W.2d
645 (2008). But when the actual premarital property no longer exists, then the question of whether
there should be a setoff becomes more problematic. Id. The Nebraska Supreme Court has noted
inherent problems with tracing premarital property through disposition and reinvestment during
the marriage. See Rezac v. Rezac, 221 Neb. 516, 378 N.W.2d 196 (1985) (noting that parties tend
to suggest tracing only when there is improvement in value but noting it is not error to restrict
credit to identical property which is retained during marriage or to value of property at time of
marriage or when disposed of during marriage). So long as it can be traced and identified, separate
property remains separate through changes and transitions. See Quinn v. Quinn, 13 Neb. App. 155,
689 N.W.2d 605 (2004).
Here, Jerry’s separate property can be identified and remained separate. Jerry purchased
the land before the marriage and secured a construction loan in order to build the physical
structures which house the dealership. He sold Casa Tanque, a premarital residence, and proceeds
from the sale were used to pay off the construction loan. Documentary evidence supporting the
sale of Casa Tanque and the loan payoff were received into evidence at trial. Thus, premarital
funds were used to fund construction on premarital property. The fact that the building construction
was completed after the date of marriage does not convert the property to a marital asset when
premarital funds were used to purchase the land and pay for the construction.
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Sandra also argues that the Osborne Drive East property should not be considered Jerry’s
premarital property because she significantly contributed to the construction of the property during
the marriage. However, as stated above, the construction was funded by Jerry’s premarital money.
Further, Sandra did not produce evidence of the increase in value her contributions had on the
property as required by the Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982)
exception. See Tyler v. Tyler, 252 Neb. 209, 570 N.W.2d 317 (1997) (when Van Newkirk exception
is applied, it requires evidence of the value of the contributions and evidence that the contributions
were significant). Therefore, the record supports the district court’s conclusion, and we find no
abuse of discretion in classifying the Osborne Drive East property as Jerry’s premarital property.
(c) BPC Property
Sandra asserts that the district court erred when it “parceled out” the assets contained in
BPC and failed to include the totality of BPC in the marital estate. BPC is a corporation Jerry
created in 1977 that holds rental properties. At the time of the marriage, BPC owned several
properties including a mobile home park and two storage buildings. Several properties Jerry and
Sandra purchased during the marriage were ultimately transferred to BPC’s ownership. Thus,
when the parties separated, the marital assets owned by BPC included the residence in Florida and
the three properties in Acapulco which were known as Casa Iguana, Casa Delfin, and 501 Ave del
Parasio. Sandra argues that should have been classified as marital property because Jerry
commingled premarital assets and marital assets under BPC, BPC was the alter ego of Jerry, and
she made significant contributions to the corporation.
Notwithstanding Sandra’s specific assertions, the underlying question is whether Jerry’s
premarital assets remained separate or can be traced. See Coufal v. Coufal, 291 Neb. 378, 866
N.W.2d 74 (2015) (separate property does not become marital property if it continues to be
segregated or can be traced into its product). Even though marital assets ended up under the
ownership of BPC alongside premarital assets, the separate and marital assets are easily
identifiable and the properties themselves remained separate entities. BPC’s assets were listed
separately on the parties’ joint property statement, and their values were appraised individually.
Sandra acknowledged that BPC’s total value is comprised of the sum of the value of its assets, and
the district court found that the parties themselves “parceled out” the corporate assets, a factual
finding which is supported by the record. The three properties located in Mexico were owned by
BPC but always titled in Sandra’s name because she has Mexican citizenship. Sandra argues that
she made significant contributions to BPC, but the contributions she highlights were to the marital
assets owned by BPC. There is no evidence she significantly contributed to or improved the
premarital assets owned by BPC. We therefore find that the district court did not abuse its
discretion in “parceling out” the assets of BPC, awarding some to Jerry as his premarital property
and including the remaining assets in the marital estate.
(d) Jerry’s Loan for Attorney Fees
Sandra’s final claim with respect to the district court’s classification of property is that the
court erred in classifying a loan Jerry secured to pay for Sandra’s temporary attorney fees as a
marital debt because it was incurred after the parties separated. We agree.
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A marital debt is defined as a debt incurred during the marriage and before the date of
separation, by either spouse or both spouses, for the joint benefit of the parties. See Finley-Swanson
v. Swanson, 20 Neb. App. 316, 823 N.W.2d 697 (2012). In Finley-Swanson, we held that the
attorney fees incurred by the parties during the pendency of the dissolution proceedings did not
constitute a marital debt because they were incurred after the parties were estranged and the wife
filed the complaint for dissolution of marriage, and they were clearly not for the parties’ joint
benefit.
The same is true in the present case. In an August 2013 temporary order, the district court
found that $118,000 in attorney fees should be awarded to Sandra along with expert witness fees
of $50,000. Jerry obtained a $168,000 loan in order to satisfy the court’s order, and the loan was
included on his property statement as a marital debt. In the decree, the district court observed that
it entered the temporary order to assure that Sandra had funds available to her to proceed with the
dissolution action but that the award was not “free money” for Sandra. Thus, the court concluded
that it would be equitable to include the $168,000 debt as part of the marital division.
As in Finley-Swanson, the fees awarded to Sandra in the temporary order were incurred
after she and Jerry separated, after she commenced the dissolution action, and were not for their
joint benefit. Further, in the temporary order, the court specifically rejected Jerry’s suggestion that
instead of awarding Sandra attorney fees, the court should order him to “advance funds” to her
which would be counted as a “credit” against the final division of marital property. Yet in the
decree, the court found that it would be equitable to include the attorney fee loan as a marital debt.
We find this to be an abuse of discretion and reverse this portion of the decree. Accordingly, we
reduce the equalization payment due from Sandra to Jerry to $92,744.00.
2. VALUATION OF ACCOUNT 293
Sandra claims that the district court erred in its valuation of Account 293, arguing that
instead of the negative balance of $168,482 imposed by the court, the true value of the account is
a negative balance of $73,621 as reflected on the April 2013 dealer report. We find no abuse of
discretion in the value assigned by the district court.
According to the parties’ joint property statement, Jerry assigned a value of negative
$332,863 to Account 293. He explained at trial that prior to separation, the account had a positive
balance, but after the attorney fees and temporary alimony he was paying, the balance had declined
and the account now represents a debt. Sandra disputed that the account represented a marital debt
because most of the expenses were incurred after separation.
The district court recognized the parties’ dispute and determined that $168,482 of Jerry’s
value was marital, that portion representing the amount paid for the parties’ 2012 tax liabilities
and tax preparation costs. This amount is supported by the general ledger detail for Account 293
for April 2013, which shows that Jerry made two payments for 2012 taxes in the amounts of
$39,857 and $124,018 on April 15; a 2012 tax payment of $3,626.88 on April 17; and paid $980
for tax preparation fees on April 23. Because income tax liability incurred during the marriage is
one of the accepted costs of producing marital income, income tax liability should generally be
treated as a marital debt. Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000).
Sandra bases her argument on the April 2013 dealer report which shows that as of April
30, Account 293 had a negative balance of $73,621.00. This total includes deposits made to the
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account after the 2012 taxes and fees were paid. The district court could have adopted Sandra’s
suggested amount, but it chose not to. Instead, it determined that only the tax liabilities paid from
Account 293 were a marital debt, and we find no abuse of discretion in this factual finding.
3. TAX CREDIT FOR BPC PROPERTY
Sandra asserts that the district court erroneously awarded Jerry a tax credit for the Mexico
properties. The district court awarded Casa Iguana, Casa Delfin, and 501 Ave del Parasio to Sandra
and gave Jerry a credit for the tax consequences that will result when he transfers ownership of the
properties from BPC to Sandra. Sandra claims this credit was erroneous because it was speculative
and places the tax consequences solely on Sandra.
Because the division of property is a matter entrusted to the discretion of the trial judge, a
court’s consideration of the tax consequences of the sale of a business are reviewed for an abuse
of discretion. See Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003). We find no abuse
of discretion here.
The Nebraska Supreme Court has held that it is proper to consider the tax consequences of
the sale of a business when the court finds that the sale is reasonably certain to occur in the near
future or when the property division award will, in effect, force a party to sell his or her business
in order to meet the obligations imposed by the court. See Schuman v. Schuman, supra. Similarly,
the Nebraska Supreme Court concluded that where income tax would eventually have to be paid
on an IRA at issue in the division of marital property, it is proper to consider the future tax
consequences in determining the present value of the IRA. See Buche v. Buche, 228 Neb. 624, 423
N.W.2d 488 (1988). In other words, when tax consequences are fairly certain to arise from the sale
or transfer of property, they may be considered when valuing the property.
Here, the Mexico properties are titled in Sandra’s name, but are listed as assets of BPC. A
certified public accountant testified that there would be tax consequences if Jerry transfers the
Mexico properties from BPC to Sandra, which the court ordered Jerry to do. Thus, the tax
consequences are certain to occur. Sandra asserts that Jerry should not now be allowed the benefit
of the tax consequences when it was his decision to transfer ownership of the properties to BPC,
and that BPC should be kept whole rather than parceling out its assets. As we determined above,
we find no error in the court’s decision to parcel out the assets of BPC, and as Jerry notes, the
Mexico properties are already titled in Sandra’s name and she is the only one who is able to conduct
business in Mexico.
Sandra also argues that the estimated tax consequences are too speculative to be reliable.
She asserts that the fact that the accountant had to prepare six sets of “pretend taxes” to estimate
the potential tax liability is evidence that the taxes are speculative. Brief for appellant at 26.
The accountant explained that when appreciated property is distributed out of an “S”
corporation, it is treated as if the property has been sold. So the gain, which would be passed down
to Jerry’s personal tax return, is calculated as the fair market value less the basis. The accountant
described the methodology he used to calculate the estimated capital gains taxes; namely, he
utilized the average of Jerry’s income from 2011, 2012, and 2013; the agreed upon values for the
properties; and a depreciation schedule to arrive at the estimated taxes. He also testified that a
week prior to trial, he participated in a conference call with Jerry’s counsel, Sandra’s counsel, and
three other certified public accountants to discuss his methodology of calculating the tax
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consequences, and no one objected to his methodology. Six exhibits displaying the calculations
were received into evidence. The accountant prepared a separate report for each of the four Mexico
properties, including the property that had already been sold, and two exhibits showed the total
consolidated calculations. The fact that the numbers provided were estimates does not mean they
are too speculative to support a tax credit, given the accountant’s explanation of his calculations.
We therefore find no abuse of discretion in the court’s awarding Jerry a tax consequence for the
BPC properties.
4. ALIMONY
Sandra claims the district court erred in failing to award her permanent alimony, and on
cross-appeal, Jerry contends the court erred in awarding an excessive amount of temporary
alimony.
In considering alimony, a court should weigh four factors: (1) the circumstances of the
parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4)
the ability of the party seeking support to engage in gainful employment without interfering with
the interests of any minor children in the custody of each party. Brozek v. Brozek, 292 Neb. 681,
874 N.W.2d 17 (2016). In addition to the specific criteria listed in Neb. Rev. Stat. § 42-365(Reissue 2008), a court should consider the income and earning capacity of each party and the
general equities. Id.The statutory criteria for dividing property and awarding alimony overlap, but the two
serve different purposes and courts should consider them separately. Id. The purpose of a property
division is to distribute the marital assets equitably between the parties. Id. 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 § 42-365 make it appropriate. Id.
However, although the division of the marital estate and the award of alimony are separate
inquiries under § 42-365, it does not mean that a party’s resources are irrelevant to her need for
alimony. See id.
In the present case, the district court declined to award Sandra alimony, finding that she is
“very talented and capable and has many marketable skills.” The court also noted that Sandra
received a significant amount of temporary alimony during the two years the divorce was pending
and received three income producing properties in Mexico via the property division.
As the Supreme Court acknowledged in Brozek, the length of Sandra and Jerry’s marriage
and disparity of their incomes favors an award here; however, no children were born during the
marriage, and although Sandra was not monetarily compensated for the work she performed during
the marriage, she contributed to the marriage by helping to build up the Mexico properties and rent
them out for a profit as well as filling in for various roles with JSPC. She presented expert
testimony at trial establishing the compensation she could expect to earn from the various job
duties she performed. In addition, she received significant assets in the property division, including
the four properties in Mexico valued at a total of $1,742,304, and approximately $254,000 in
temporary alimony while the action was pending. We therefore find no abuse of discretion in the
district court’s decision to award no permanent alimony to Sandra.
On cross-appeal, Jerry assigns that the district court erred in awarding an excessive amount
of temporary alimony. Before addressing Jerry’s claim, we must address Sandra’s contention that
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the issue is not properly before us. We have previously found that temporary child support and
alimony obligations are not final and appealable at the time they were entered, but become final
upon entry of the decree dissolving the parties’ marriage. See Kosiske v. Kosiske, 8 Neb. App. 694,
600 N.W.2d 840 (1999). We concluded that the issue of temporary alimony was therefore properly
before us in Kosiske upon the appeal from the final decree. Similarly, Jerry’s claim with respect to
the temporary alimony awarded to Sandra is now properly before this court.
A judgment, order or decree for the payment of temporary alimony may be modified or set
aside upon a proper showing by the court which rendered it, as circumstances may warrant. See
Cain v. Miller, 109 Neb. 441, 191 N.W. 704 (1922). Here, effective May 1, 2013, the district court
ordered Jerry to pay Sandra $8,400 per month in alimony. The court found that Jerry’s income was
$16,800 per month but that he had access to additional cash through his interest in the corporations.
The court decided to set the alimony amount at one-half of Jerry’s monthly income and noted that
it did not select a higher amount because of the other benefits Sandra received in the order which
would normally be paid by alimony. These benefits included the exclusive use of Casa Lolita,
exclusive use of the 2013 Cadillac she had been provided by the dealership at Jerry’s cost, and
$168,000 in attorney and expert witness fees.
Effective September 1, 2014, the temporary alimony award was increased to $15,000 per
month. In modifying the amount, the district court observed that Jerry received $567,649.86 in
in-kind benefits and cash from JSPC in 2013. Although we agree that JSPC is Jerry’s premarital
property, a court may consider all of the property owned by the parties, marital and separate, in
decreeing alimony. See Binder v. Binder, 291 Neb. 255, 864 N.W.2d 689 (2015). At the same time
it modified temporary alimony, the court allowed Sandra to continue using her vehicle but awarded
exclusive use of Casa Lolita to Jerry. Thus, Sandra was required to find new housing at her own
expense. We understand Jerry’s argument that he was ordered to pay almost his entire monthly
income in temporary alimony and that his income had not changed at the time temporary alimony
was increased. However, given the district court’s comments in the first temporary award and
Jerry’s access to additional funds beyond his monthly income of $16,800, we cannot find that the
district court abused its discretion in increasing the temporary alimony award.
5. CONTEMPT
Both Sandra and Jerry challenge the district court’s decision on Sandra’s motion to hold
Jerry in contempt. Sandra argues that the court erred in failing to find Jerry in contempt of court,
and Jerry claims the court erroneously credited Sandra $97,500.
In August 2013, the district court entered a temporary order requiring that Jerry maintain
the Mexico properties and pay their associated expenses. After 1999, the three properties were
rented out for a profit, and a staff cared for the properties while Sandra and Jerry were not there.
The properties required extensive care and maintenance, including payment of all related expenses
such as staff salaries, utilities, and electric and water bills.
Shortly after the court’s temporary order, Jerry attempted to access the properties but was
unable to do so because the locks and codes had been changed. As early as May 2013, Jerry was
negotiating with a man to be the administrator of the Mexico properties, and he ultimately hired
someone to do so in August 2013. The administrator continued to try to access the properties in
order to speak with the staff and retrieve bills that were mailed to the properties, but she was
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repeatedly denied access. Apparently the administrator Jerry hired lacked the proper authority to
work in that capacity in Mexico.
Sandra ultimately filed a motion for order to show cause asking the district court to hold
Jerry in contempt of court, enter an order requiring that Jerry reimburse her for expenses she paid
to maintain the properties, and enter an order of financial sanctions against Jerry. Sandra and Jerry
subsequently filed a temporary stipulation agreeing that Sandra would take over management
authority for the properties and that she would account for all income and expenses associated with
the management of the properties. The court approved the stipulation, making it retroactive to
February 1, 2014.
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which (1) the trial
court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are
reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt
and of the sanction to be imposed are reviewed for abuse of discretion. Hossaini v. Vaelizadeh,
283 Neb. 369, 808 N.W.2d 867 (2012).
First, we must determine whether the district court abused its discretion when it declined
to find Jerry in contempt. When a party to an action fails to comply with a court order made for
the benefit of the opposing party, such act is ordinarily a civil contempt, which requires willful
disobedience as an essential element. Id. “Willful” means the violation was committed
intentionally, with knowledge that the act violated the court order. Id. Outside of statutory
procedures imposing a different standard, it is the complainant's burden to prove civil contempt by
clear and convincing evidence. Id.Here, the record supports the district court’s finding that Jerry’s actions were not done
willfully. Jerry and the administrator each attempted to access the properties on multiple occasions
in order to retrieve bills and pay them, but they were unable to do so. The record reflects that Jerry
communicated with Sandra about ensuring the staff was getting paid and ensuring that his
administrator was allowed to enter the properties. Jerry described his frustration with the inability
to access the properties and negotiate with the staff. He explained,
Bills are sent to the houses down there [in Mexico]. The people in the houses pick up the
mail. That’s how you get a bill. You get in the car and run down and pay the bill. It’s
impossible to operate if you don’t have somebody to do that for you.
After reviewing the record, we conclude it was not an abuse of discretion for the district
court to determine that Sandra failed to prove by clear and convincing evidence that Jerry willfully
violated the court order. Accordingly, we affirm the district court's ruling.
Although the court declined to hold Jerry in contempt, it determined that expenses Sandra
incurred in maintaining the properties should have been paid by Jerry, and Sandra received a credit
of $97,500 against the amount she owed for equalization purposes. On cross-appeal, Jerry argues
the amount was in error because it includes expenses Sandra paid after February 2014 when she
was in sole control of the properties. We find no merit to this argument.
The evidence establishes that the expenses Sandra paid were past due amounts that Jerry
had not paid when he was maintaining the properties and costs incurred to repair the property from
lack of maintenance. It is unclear from the record how the district court arrived at a figure of
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$97,500 when Sandra submitted expenses of $104,106.16; however, Sandra has not appealed the
amount awarded. Because the amount is within the amount requested, we find no error in the
court’s award.
VI. CONCLUSION
We conclude that the district court abused its discretion in classifying the $168,000 loan
Jerry obtained to pay for Sandra’s attorney fees as a marital debt. That portion of the decree is
therefore in error, and the equalization payment owed by Sandra is modified to $92,744.00. The
remainder of the decree is affirmed.
AFFIRMED AS MODIFIED.
PIRTLE, Judge, participating on briefs.
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