Burgardt v. Burgardt

27 Neb. Ct. App. 57, 926 N.W.2d 452
Nebraska Court of Appeals·Decided April 9, 2019·No. A-17-1116·Published·Cited by 28 cases

Opinion

Arterburn, Judge.

*457 *59 I. INTRODUCTION

Shirley L. Burgardt appeals from the decree of dissolution entered by the district court for Adams County, which dissolved her marriage to Harlan D. Burgardt. On appeal, she argues that the district court abused its discretion in finding portions of Harlan's 401K and inherited farm were nonmarital property. She also argues that the alimony award she received is insufficient. Harlan cross-appeals, arguing that the district court abused its discretion by not dividing certain tax liabilities between the parties and by ordering him to pay excessive alimony. We affirm the district court's findings with regard to the amount of alimony awarded to Shirley. However, we hold that the court erred in finding that Harlan proved the amount of his inheritance or the value of any premarital interest he may have had in his 401K. We also find that the district court should have considered the postseparation payment of 2015 tax estimates and the refunds received thereon in dividing the marital estate. We therefore reverse as to the district court's division of property.

II. BACKGROUND

Harlan and Shirley were married on April 12, 1992. No children were born from the marriage, but Shirley and Harlan each had children from previous relationships. Harlan, age 73 at the time of trial, has various medical issues related to his back, leg, and knee and also experiences high blood pressure and chronic obstructive pulmonary disease. He testified that he requires some assistance getting dressed due to those issues. Harlan also testified that he has very poor hearing and wants to purchase hearing aids but feels he cannot afford them. Harlan takes a variety of prescription medications and testified that there are some additional medications he cannot afford and does not purchase even though they are prescribed to him. Harlan's daughter, son-in-law, and two grandsons now live with him and help with household chores and other tasks, but *60 they maintain mostly separate expenses. They do not pay rent to Harlan.

Shirley, age 66 at the time of trial, also has various medical issues. She had a "5 bypass heart surgery" and has encountered subsequent complications. Shirley testified that she will not be able to work again in the future due to her medical issues. She has lived with her son since her bypass surgery in April 2015. Shirley worked during the first 14 years of the marriage, primarily in hardware stores. She stopped working when Harlan retired and they moved back to Nebraska from Colorado in 2006.

Harlan began working for what is now called Kinder Morgan in April 1978. He started out as a laborer but was promoted to "junior engineer" after receiving additional training and education throughout his career. The focus of his work throughout his career was corrosion control. Harlan initially worked in Lakin, Kansas, but was transferred to Hastings, Nebraska. He met Shirley while living in Hastings. Shortly after the parties married in 1992, Harlan accepted a transfer to Glenwood Springs, Colorado, where he worked until retiring in May 2006. Kinder Morgan provided Harlan with retirement benefits in the form of both a pension plan and a 401K.

Harlan was given three options related to his pension benefits. The first option paid the most but only paid Harlan while he was alive. The second option paid less than the first and would pay him during his lifetime and then pay Shirley half as much from the date of Harlan's death until *458 the date of her death if she survived him. The third option, which Harlan ultimately chose, paid less than either of the two previous options. It pays Harlan during his lifetime and then will pay Shirley an equal amount from the date of Harlan's death until the date of her death. Harlan noted that this pension benefit designation cannot be changed even due to divorce or remarriage. He testified that he made that election because he did not want Shirley to "end up totally broke." *61 Throughout Harlan's career, including for the period of time before his marriage to Shirley, contributions were made to his 401K. Harlan testified that his 401K was valued at $130,000 on the date of his marriage to Shirley in 1992, stating that the number "sticks out in my mind just plain as day." However, he acknowledged that there was no documentation to support this valuation and stated that he had contacted the company but was told it did not keep records dating back to 1992. Harlan also testified that he did not begin contributing to the 401K until 1985. Shirley testified that she was unaware of any 401K belonging to Harlan that was valued at $130,000 at the time of their marriage.

In 2006, Harlan's father died, leaving Harlan an interest in a quarter section of farmland including the farmstead in Kansas referred to as the "home farm." Although a "Transfer on Death Deed" transferred the home farm from Harlan's father to Harlan and his sister only, Harlan and his two living siblings agreed that the entirety of their father's intestate estate should be divided into four equal portions, one for each of the siblings and a fourth for the two sons of their deceased brother. Harlan testified that his inherited share translated into a $60,000 credit, which he combined with cash to buy the home farm in its entirety at a total cost of $157,500. On cross-examination, Harlan acknowledged that he used marital assets to purchase the portion of the home farm that he had not inherited.

When Harlan retired from Kinder Morgan in 2006, he converted his 401K into a traditional IRA. That account was valued at $445,000 in 2010. Harlan subsequently liquidated the IRA, using the proceeds to purchase a second farm in 2010, improve the home farm, purchase a compact tractor and other equipment, and purchase gold and silver coins.

Harlan and Shirley traveled back and forth between their residence in Holdrege to the home farm from 2006 to 2010, fixing up the property together and moving into the house.

*62 Harlan testified that improvements included the addition of fencing, a new irrigation well, and irrigation equipment. Near the time of the parties' separation, Harlan and Shirley sold the home farm and their farm equipment for a total of $358,000 in July 2015, depositing the proceeds into their joint account. Harlan subsequently withdrew $190,000 from the joint account and deposited it into his separate account at a different bank. He also withdrew $168,000 from the joint account and deposited it into his separate account at a credit union. Harlan acknowledged that he basically emptied their joint account and placed all the funds into accounts in his name alone.

Earlier, at the end of 2014, Harlan and Shirley sold the second farm, which was reflected by a $151,492.95 deposit into their joint account. Shirley testified that the proceeds from selling the second farm were used to purchase a home in Hastings. According to Harlan, Harlan and Shirley purchased the Hastings home for $135,000. Harlan moved there in the summer of 2015 and continues to reside there.

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Burgardt v. Burgardt, 27 Neb. Ct. App. 57, 926 N.W.2d 452 (Neb. Ct. App. 2019).

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