Applegate v. Applegate

365 N.W.2d 394, 219 Neb. 532, 1985 Neb. LEXIS 962
CourtNebraska Supreme Court
DecidedMarch 22, 1985
Docket83-911
StatusPublished
Cited by16 cases

This text of 365 N.W.2d 394 (Applegate v. Applegate) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Applegate v. Applegate, 365 N.W.2d 394, 219 Neb. 532, 1985 Neb. LEXIS 962 (Neb. 1985).

Opinion

Buckley, D.J.

On appeal from the trial court’s decree of dissolution of the 19-year marriage of Robert and Vera Applegate, Vera assigns as *533 error: (1) Inadequate award of support to her and the two minor children whose custody was awarded to her; (2) Failure to award her alimony; (3) Inadequate award of the assets of the parties; and (4) Exclusion from the determination of marital assets real and personal property acquired by Robert during the marriage by gift or inheritance from his parents.

At the time of their marriage in 1964, Robert was 32 and Vera was 19. Neither brought any property into the marriage.. The couple moved into a house that sat on a 152-acre tract owned by Robert’s parents as tenants in common. Robert and his father farmed this land (tract No. 2), as well as an 80-acre tract (tract No. 1), north and adjacent to tract No. 2, which his father leased. In 1966 Robert and Vera jointly purchased the 80-acre tract on contract. At the time of the trial it was paid for.

In 1973 Robert’s father traded small parcels of land with a party named Drumheller. Robert’s father gave the Drumheller parcel to Robert by having Drumheller convey it directly to Robert. This tract (tract No. 3) contains approximately 14.7 acres and is contiguous to tract No. 1.

In 1978 Robert’s father died. Robert inherited his father’s one-half interest in the 152-acre farm (tract No. 2). Shortly thereafter, Robert’s mother conveyed the one-half interest she had as a tenant in common to Robert and Vera as joint tenants.

The farming operation consisted primarily of raising corn and hay to feed cattle. The cattle were grazed in the summer at a nearby ranch in Sioux County and brought to the farm for wintering.

Three children were born of the marriage, who, at the time of trial, were Diana, age 17, Stephanie, age 16, and Sean, age 14. Although custody of the children appears to have been at issue until trial, the evidence at trial made it clear that the parties were in agreement that Robert should have custody of Diana and Vera should have custody of Stephanie and Sean, and the trial court so decreed. Robert was ordered to pay child support of $350 per month, reduced to $250 per month when his obligation to support Stephanie terminated. Vera was not required to pay child support for Diana.

The trial court determined the value and awarded the assets of the parties as follows:

*534 Item Value Excluded from Marital Estate and Set off to Robert Included in Marital Estate Awarded to Robert Awarded to Vera
Tract No. 1(80 A) $65,000 $65,000
Tract No. 2 (152 A) 90,000 $67,500 22,500
Tract No. 3 (14.7 A) 8,300 8,300-
Farm Machinery 16,495 4,935 11,560
Livestock 37,475 37,475
Unsold Crops 6,800 6,800
1979 Ford Pickup 4,400 4,400
1975 Ford Granada 200 200
Life Ins. Policies 2,100 1,100 $1,000
1981 Mercury Cougar 5,500 5,500
Household Goods 1,000 Bank Accounts_2,000 2,000 1,000
Totals $239,270 $80,735 $151,035 $7,500

Robert was ordered to pay Vera $32,000 as property settlement, $2,000 of which was payable at once and $30,000 payable at $300 per month, with interest at the legal rate on the unpaid balance. Robert was ordered to pay all debts of the parties, which consisted of an ongoing loan from the Scottsbluff National Bank, with a balance at time of trial of $77,096. The net assets awarded to Robert, after deducting the bank loan and the property settlement, are $41,939. The award to Vera, after adding the property settlement, is $39,500. Vera disputes the values fixed by the trial court on most of the assets, but there is no evidence in the record to support the values set out in her brief, except as to the three tracts. There, two appraisal reports were received without testimony from the appraisers. The value placed on each tract by the trial court was higher than Robert’s appraiser and lower than Vera’s appraiser. We are not inclined to change the trial court’s findings on any asset values.

Vera’s major contention is that the trial court was wrong in excluding any of the three farm tracts from the total marital assets for two reasons: (1) That the marital estate includes all property owned by either party no matter how acquired, if it is a marriage of long duration; and (2) That during the marriage she *535 made substantial contributions to all of the property excluded.

In Koubek v. Koubek, 212 Neb. 2, 5, 321 N.W.2d 55, 58 (1982), we said: “How property, inherited by a party during the marriage, will be considered in determining division of property or award of alimony must depend upon the facts of the particular case and the equities involved.”

In Van Newkirk v. Van Newkirk, 212 Neb. 730, 733, 325 N.W.2d 832, 834 (1982), we clarified what we said in Koubek, as follows:

While we have not heretofore said in exact words how property acquired by inheritance or gift during the marriage should be considered, an examination of our previous decisions discloses that when awarding property in a dissolution of marriage, 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. See, Wenger v. Wenger, 200 Neb. 446, 263 N.W.2d 855 (1978); Cozette v. Cozette, 196 Neb. 780, 246 N.W.2d 473 (1976); Johnson v. Johnson, supra. An exception to the rule is 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 inheritance or gift has significantly cared for the property during the marriage. See Rhodes v. Rhodes, 210 Neb. 373, 314 N.W.2d 271 (1982).

In asserting that all property, regardless of how it was acquired, should be a part of the marital estate, Vera asks us to overrule Van Newkirk v. Van Newkirk, supra. Since Van Newkirk, we have addressed the disposition of inherited or gifted property in Ross v. Ross, ante p. 528, 364 N.W.2d 508 (1985), in Lord v. Lord, 213 Neb.

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Bluebook (online)
365 N.W.2d 394, 219 Neb. 532, 1985 Neb. LEXIS 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/applegate-v-applegate-neb-1985.