Simon v. Simon

770 N.W.2d 683, 17 Neb. Ct. App. 834
CourtNebraska Court of Appeals
DecidedAugust 11, 2009
DocketA-08-1292
StatusPublished
Cited by2 cases

This text of 770 N.W.2d 683 (Simon v. Simon) 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
Simon v. Simon, 770 N.W.2d 683, 17 Neb. Ct. App. 834 (Neb. Ct. App. 2009).

Opinion

770 N.W.2d 683 (2009)
17 Neb. App. 834

Cheryl L. SIMON, appellant,
v.
Richard SIMON, appellee.

No. A-08-1292.

Court of Appeals of Nebraska.

August 11, 2009.

*685 Michael B. Lustgarten, Omaha, and Justin A. Roberts, Senior Certified Law Student, of Lustgarten & Roberts, P.C., L.L.O., for appellant.

Benjamin M. Belmont, Jason C. Demman, Omaha, and Jessica Levine, Senior Certified Law Student, of Brodkey, Cuddigan, Peebles & Belmont, L.L.P., for appellee.

IRWIN, SIEVERS, and CASSEL, Judges.

SIEVERS, Judge.

After 30 years of marriage, Cheryl L. Simon and Richard Simon were divorced by a decree of dissolution entered by the district court for Douglas County on August 1, 2008, that was followed by an order ruling on a motion for new trial and motion to alter or amend on November 4, from which Cheryl files this timely appeal. The principal issue is the proper treatment of Richard's "Early Leaving Incentive Program" (ELIP) moneys that he is entitled to receive as a result of taking early retirement from the Omaha Public Schools (OPS).

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the trial, Cheryl was 51 years of age and Richard was 54 years of age. Richard had three income sources: from OPS in the amount of $58,800 per year for his work as a mathematics teacher; from working for a family business, which was involved in the installation of underground sprinkler systems; and from teaching on an occasional basis at the University of Nebraska at Omaha and a community college. Richard has a bachelor's degree and a master's degree and has taught mathematics for 30 years at Omaha Northwest High School. Richard is eligible to retire from OPS and was set to retire shortly after the trial, effective September 1, 2008. Richard expected to receive his first OPS pension payment on October 1. At the time of his retirement, Richard and Cheryl will divide on an equal basis his OPS pension of $2,940 per month. Richard testified that after his retirement, he will continue to work part time at Brownell-Talbot School, earning $32,000 per year. He testified that he is no longer going to work in the family business, where he has worked since 1987, earning between $4,500 and $7,800 per year.

*686 The parties raised three children, all of whom are now over the age of majority. Cheryl also worked throughout the marriage for various employers as a licensed practical nurse. She last worked providing home health care services, but the exact date such employment ceased is not in the record. Cheryl suffers from diabetes as well as a genetic condition, pseudoxanthoma elasticum, which manifested itself in the 4 years preceding trial and caused her to become nearly blind. Cheryl testified that she cannot drive or read, cannot see anyone's face, and can see only the color yellow and "a few shapes." Cheryl testified that the condition is getting progressively worse and that ultimately she will be completely blind. At the time of trial, Cheryl's income sources were $350 per month temporary alimony plus Social Security disability benefits of $1,239 per month.

The trial court divided the parties' debts and assets equally. The parties did not accumulate a marital estate of consequence after considering debt. Neither party complains about any aspect of the property division, other than discussed below, and the net value of the marital estate would not impact our resolution of the issues presented on appeal. Thus, it is not necessary to detail the fine points of the property division.

The ELIP from OPS provides a benefit of $1,162.12 per month to Richard for 83 months for a total of $96,455.96. The payments will begin September 15, 2008, up to his 62d birthday, when he will become eligible to begin drawing Social Security benefits, if he so elects. The trial court awarded Richard all of the ELIP payments.

The trial court awarded Cheryl alimony of $600 per month, which is reduced to $1 per month upon Richard's retirement, at which point she would begin receiving her agreed-upon 50 percent of his OPS pension, or $1,470 per month. The net effect is that Cheryl will receive the $600 payment from Richard for 1 month.

ASSIGNMENTS OF ERROR

Cheryl assigns two errors: The trial court erred (1) in failing to equally divide the ELIP moneys and (2) in its alimony award to Cheryl.

STANDARD OF REVIEW

[1,2] In actions for dissolution of marriage, 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. This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees. Longo v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003).

ANAYLSIS

Award of OPS ELIP Benefits.

[3] The ELIP payments that were awarded in their entirety to Richard begin September 15, 2008, and continue through July 15, 2015, at the rate of $1,162.12 per month for a total of $96,455.96. Cheryl argues that she should receive half of such payments, whereas Richard argues that such are future "income" to which he is solely entitled.

The only documentation concerning the ELIP payments in the record is Richard's application to OPS for such. While the application refers to "eligibility requirements" for ELIP payments, and Richard, via his signature on the application, acknowledges his understanding of such, the actual eligibility requirements are not in the record. However, Richard admitted in his testimony that he is getting the ELIP payments "because of [his] work for OPS during the course of the marriage" and *687 that such is a "perk" resulting from his work for OPS—all of which occurred during the marriage. OPS approved his ELIP application on June 3, 2008. However, Richard did not disclose the existence of the ELIP benefits until the day of trial—June 16.

[4] Cheryl notes that all assets and debts were divided essentially 50-50. She concedes that other than the ELIP moneys, all of the marital assets and debts were divided in a fair and equitable manner. However, she asserts that the award of the ELIP moneys solely to Richard is unquestionably an abuse of discretion. The trial court did not provide a rationale for the award of the ELIP moneys to Richard. Cheryl's argument for a division of the ELIP payments is based on the general rule that all property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to the general rule. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000). The exceptions that come immediately to mind are property acquired during the course of the marriage by one party through either gift or inheritance. See Heald, supra. And property owned by one party before the marriage is set off to such party if it is traceable, unless the other party has significantly cared for the property during the marriage. See Olson v. Olson, 13 Neb. App. 365, 693 N.W.2d 572 (2005). None of these exceptions to the general rule are involved in this case.

Richard argues the ELIP payments are "an early retirement incentive plan as a replacement for post-separation wages and therefore is separate property or income from wages, not to be included in the equitable division of the marital estate." Brief for appellee at 12.

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Bluebook (online)
770 N.W.2d 683, 17 Neb. Ct. App. 834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-simon-nebctapp-2009.