LaBenz v. LaBenz

575 N.W.2d 161, 6 Neb. Ct. App. 491, 1998 Neb. App. LEXIS 30
CourtNebraska Court of Appeals
DecidedFebruary 17, 1998
DocketA-96-982
StatusPublished
Cited by3 cases

This text of 575 N.W.2d 161 (LaBenz v. LaBenz) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LaBenz v. LaBenz, 575 N.W.2d 161, 6 Neb. Ct. App. 491, 1998 Neb. App. LEXIS 30 (Neb. Ct. App. 1998).

Opinions

Hannon, Judge.

This is an appeal from a decree dissolving the marriage between the respondent, Ellen LaBenz, and the petitioner, C.J. LaBenz. Ellen appeals on the grounds the trial court erred (1) in [492]*492determining that an account in the parties’ names jointly, which account contained the proceeds from the sale of a home owned by C.J. at the time of the marriage but lived in by the couple for several years, was primarily nonmarital property and (2) in failing to award alimony. We conclude that the joint account was not marital property and that the trial court did not abuse its discretion in other matters. We therefore affirm.

I. BACKGROUND

Ellen LaBenz and C.J. LaBenz were married on June 12, 1987, and divorced approximately 8 years later on December 29,1995. No children were bom of the marriage. C.J. graduated from medical school in 1975 and later became board certified in obstetrics and gynecology. He introduced evidence showing his net monthly income to be $7,109.05 and his monthly expenses to be $5,117. Ellen is a registered nurse and introduced evidence showing her net monthly income to be $1,765.62 and her monthly expenses to be $2,458.25.

Neither party contested the trial court’s division of the marital property, with the exception of an account containing the net proceeds from the sale of a home which the parties lived in before and during their marriage. C.J. testified he purchased a residential lot in the Lake Candlewood area in 1983 and designed and constructed a home on the lot in 1984. Ellen testified she quit her employment for approximately 3 months because, although the new house was completed, someone needed to be available to let plumbers and other workers into the house. Ellen stated she spent a lot of time with the builder’s wife, who is a decorator, selecting items such as tile, carpeting, brick, appliances, and mirrors for the house. Ellen testified that although she did not financially contribute to the construction of the house, she purchased groceries, cleaning supplies, towels, window treatments, dishes, and similar items. Ellen also stated that she paid no bills or house payments while living in the house.

Ellen and C.J. sold the house in June 1992, and C.J. deposited the proceeds into the “KPSP” investment account that was in both parties’ names. Funds were withdrawn from this account to purchase a condominium. Additional facts regarding [493]*493the circumstances of both parties will be discussed in our analysis.

The district court entered a decree dissolving the marriage of the parties on December 29, 1995. The court refused to award alimony and ordered both parties to pay their respective attorney fees.

The court found that C.J. brought the following property to the marriage: a 1986 Mercedes Benz, farm equipment which was traded to purchase a 1994 Jeep, an IRA worth $301,555, and property worth $127,618. Ellen brought an IRA worth $7,338 to the marriage. Both parties were allowed to keep the household goods and items of personalty in their possession. Except for the condominium, the remainder of the parties’ marital property consisted of various cash accounts. Apparently, the trial court intended to divide the marital property equally and ordered C.J. to pay Ellen $35,000 to equalize the division. The parties do not dispute the division of the marital property, except that Ellen maintains the account containing the proceeds from the sale of the home should have been treated as marital property. The account in question is referred to as the “KPSP account.” The KPSP account contained $167,618.43, and the trial court awarded Ellen $10,000 of the account and C.J. the balance. Ellen maintains the entire account should have been treated as marital property. We have studied the evidence and the court’s distribution of the marital property, but in view of the issues arguéd by the parties, we will avoid the unnecessary publication of the parties’ personal business matters.

II. ASSIGNMENTS OF ERROR

Ellen alleges the district court erred in (1) determining which assets constituted the marital estate and failing to award her an equitable percentage of that marital estate and (2) failing to award alimony.

III. STANDARD OF REVIEW

The division of property and the awarding of alimony are matters entrusted to the discretion of the trial judge and, on appeal, will be reviewed de novo on the record and will be affirmed in the absence of an abuse of the trial judge’s discretion. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995). [494]*494In a de novo review on the record, an appellate court reappraises the evidence as presented by the record and reaches independent conclusions from those of the trial court. Id. However, if evidence is in conflict, the appellate court 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. Id.; Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995).

IV. ANALYSIS

1. Treatment of KPSP Account

Ellen claims the court failed to equitably divide the marital estate. She focuses on the distribution of the KPSP account. This account contained approximately $167,000 from the sale of the Lake Candlewood home. Ellen received $10,000 from this account. Thus, the trial court effectively treated only $20,000 of the KPSP account as marital property and gave each party one-half of that amount. The remaining money in the account was awarded to C.J. as nonmarital property. Ellen admits the account contains the proceeds of the sale of a home C.J. owned at the time the parties were married. Ellen also recognizes the general rule that property owned by a party at the time of the marriage is not marital property. See, Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994); Lord v. Lord, 213 Neb. 557, 330 N. W.2d 492 (1983). Ellen bases her claim that the trial court should have treated the entire account as marital property upon two theories: (1) under the exception to the general rule recognized in Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982), and (2) upon the fact the account was held in joint tenancy.

(a) Van Newkirk Exception

The Van Newkirk exception to the rule that property owned at the time of the marriage is nonmarital property provides that where both of the spouses have contributed to the improvement or operation of such property, it may be treated as marital property.

In the instant case, Ellen does not dispute that C.J. brought the Lake Candlewood home into the marriage. The basis for her claim under Van Newkirk is that she significantly cared for the property during the marriage. Ellen testified that she lived in the [495]*495home and that during construction she let workers into the house and spent time with a decorator selecting tile, carpeting, brick, and various other items.

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Related

Hill v. Hill
634 N.W.2d 811 (Nebraska Court of Appeals, 2001)
Heald v. Heald
611 N.W.2d 598 (Nebraska Supreme Court, 2000)
LaBenz v. LaBenz
575 N.W.2d 161 (Nebraska Court of Appeals, 1998)

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Bluebook (online)
575 N.W.2d 161, 6 Neb. Ct. App. 491, 1998 Neb. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/labenz-v-labenz-nebctapp-1998.