MOORE
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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).
Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge. Affirmed.
John J. Heieck and Matthew Stuart Higgins, of Higgins Law, for appellant.
Debra K. Lyford, P.C., L.L.O., for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Daniel A. Nusser appeals from an order of the district court for Lancaster County, which dissolved his marriage to Charlotte A. Nusser. He assigns error to the court's award of alimony and attorney fees to Charlotte. Because we find no abuse of discretion, we affirm.
BACKGROUND
Daniel and Charlotte were married on April 5, 1981. During their marriage, the parties had two children, both of whom had reached the age of majority by the time of trial.
On May 25, 2011, Charlotte filed a complaint for dissolution of marriage in the district court. On June 8, the court entered a temporary support order, in which it ordered Daniel to (1) pay the $592 monthly payment on Charlotte's vehicle and continue to maintain insurance on the vehicle; (2) provide Charlotte with comprehensive medical, dental, and vision insurance through his employer; (3) pay the rent and utilities on the family residence in Bennett, Nebraska; (4) pay Charlotte $1,000 per month in temporary alimony beginning July 1; and (5) pay Charlotte $1,000 in temporary attorney fees. The parties separated in July.
Trial was held before the district court on January 30, 2012, and began with a recitation of the parties' stipulation as to the division of the marital estate. The court then heard testimony from the parties and received their evidence on the issues of alimony and attorney fees.
Charlotte, who was 51 at the time of trial, graduated from high school in 1980. She has not received any education beyond high school. Charlotte held various jobs during the parties' marriage. In the early 1980's, she worked full time as a salesperson in a retail store, earning minimum wage. From the mid-1980's to March 1988, when the parties' oldest child was born, Charlotte worked full time in the cosmetics and fragrance department of a retail store, earning minimum wage plus commissions for a total of approximately $12 per hour. Sometime during this period, Charlotte also worked 15 hours per week for another company doing merchandising. She did not specify her rate of pay for this work. Charlotte also cleaned homes 10 hours per week for $10 to $12 per hour.
After the parties' first child was born in March 1988, Charlotte decided to stop working outside of the home. Charlotte testified that this was a decision she made jointly with Daniel. Charlotte continued as a full-time homemaker and caregiver after the birth of the parties' second child in February 1990 until the children's grade school years. Charlotte agreed that Daniel assisted with child-raising duties after their first child was born and that he always worked very hard to provide for the family.
Charlotte resumed working outside the home in the mid-1990's. Beginning in 1995 or 1996, she worked for approximately 3 years as a private caregiver for a neighbor for 10 to 15 hours per week earning $9 to $10 per hour. Between the late 1990's and 2011, Charlotte worked at a series of part-time jobs, which included handing out samples at a local grocery store, taking school pictures, working at a nursing home, and assisting various family members who were in need. The record shows that Charlotte's income for 2008 was $8,605. The parties' joint income tax return for 2009 shows total income of $86,587, but because their 2009 W-2's are not in the record, we are unable to determine how much of this income is attributable to Charlotte and how much to Daniel, although Charlotte submitted an income summary exhibit in which she approximated her 2009 income at $6,587 and Daniel's at $80,000. Charlotte testified that the summary exhibit reflected the parties' respective incomes for 2009 to the best of her recollection. Charlotte's income for 2010 was $4,269.44.
From March 2011 through the date of trial, Charlotte was employed as a cook at an elementary school, working 35 hours per week and earning, at the time of trial, $8.86 per hour. She does not receive any paid benefits, such as health insurance; does not receive vacation or sick days; and is paid only when school is in session. Accordingly, there is a period of time during the summer months that Charlotte does not work. Charlotte's W-2 form shows that she earned gross wages of $5,719.46 in 2011.
Charlotte applied for three other jobs in the summer of 2011. The first job for which Charlotte applied was a full-time, year-round cooking job that paid $8 per hour. This employer did not hire Charlotte, and she believed this was because she informed the employer that she would not quit her cooking job at the elementary school. Charlotte also applied for a full-time, year-round caregiving job. This employer did not hire Charlotte because she was not a certified nursing assistant. When Charlotte was asked whether she ever researched what was necessary to obtain such certification, she replied, "I haven't yet, but I believe I will over the summer [of 2012]." Finally, Charlotte applied for an advertised job at a church that consisted of setting up and taking down tables and chairs. Charlotte thought she could have performed the necessary physical labor, but the church hired college students for the job. Charlotte agreed that there were no health or other reasons that would prevent her from working a full-time, year-round job. She also admitted that, despite her intention of returning to school to obtain a 2-year or 4-year college degree, she had not taken any steps to investigate educational opportunities between the filing of the complaint and the time of trial.
Charlotte testified to her monthly living expenses, which she calculated at $2,634. Charlotte's expenses included an estimated $390 for health insurance, which she would have to provide for herself once the divorce was complete. Charlotte also anticipated having to take over the automobile insurance payments, which Daniel had been making prior to trial pursuant to the temporary order. Charlotte's expenses did not include an automobile payment, and the vehicle on which Daniel had been making payments pursuant to the temporary order had been paid off by the time of trial.
Charlotte asked the court to order Daniel to pay alimony of $1,600 per month until she was able to receive Social Security. Charlotte was uncertain what direction her future educational endeavors might take. She testified that she planned to continue living in the same community and working for the school system for the foreseeable future. When asked on cross-examination about the basis for her alimony request, Charlotte testified that she was of an age where it might be difficult to return to the job market and find "anything decent" and where there "might be some health issues coming up" but that "a lot of it" was based on the length of the parties' marriage.
Charlotte testified that she had incurred attorney fees as a result of the divorce action, and the district court received an affidavit from Charlotte's attorney with attached billing statements detailing the attorney fees incurred by Charlotte. The record shows that as of the time of trial, Charlotte had incurred approximately $4,781.25 in attorney fees and had an outstanding balance of $2,181.25, which was anticipated to increase to approximately $3,000 by the end of trial. Charlotte asked that Daniel be ordered to pay half of the outstanding balance of her attorney fees.
Daniel was 52 years old at the time of trial and would turn 53 in July 2012. After graduating from high school, Daniel attended college for 2 years. While in college, Daniel joined the Army Reserve, and between October 1990 and July 1991, he served on active duty during the first Gulf War. In April 1992, Daniel was honorably discharged from the Army.
Before and after his military service, Daniel worked as a full-time truckdriver. In 1998, Daniel secured a full-time position with O'Keefe Elevator Company (O'Keefe). At the time of trial, Daniel was still employed by O'Keefe, earning $38.86 per hour in his then-current position of mechanic. The record shows that he earned $83,689 in 2008. As noted above, the breakdown of the parties' individual earnings in 2009 is unclear, but the record suggests that Daniel earned at least $80,000 in 2009. Daniel earned $86,131.56 in 2010 and $83,662.31 in 2011.
Daniel testified that he planned to work at O'Keefe for another 6 years until age 58, when he could take full retirement under his pension plan. Daniel's arm was in a sling at the time of trial due to a recent work injury to his wrist. Daniel anticipated being off work for 2 to 6 weeks depending on the severity of his injury, the extent of which had not yet been determined. Daniel testified that he had no current health issues other than his wrist injury. As of June 30, 2011, Daniel's accrued pension benefits would pay him a total of $1,384.74 per month. By the time Daniel turns 58, his accrued pension benefit payout will likely total $2,000 per month. The parties stipulated that Daniel's pension benefits should be divided equally between the parties pursuant to an appropriate qualified domestic relations order at their value as of the date the decree was entered. Daniel testified to his understanding that Charlotte would be eligible to receive her share of the pension benefits when she reached age 58 in less than 7 years.
Daniel testified that when the children were young, he encouraged Charlotte to work outside of the home, and that he demanded she do so once the children were older. Daniel testified further that he encouraged Charlotte to obtain education and/or training to obtain better full-time employment but that nothing came of his encouragement.
Daniel testified that his monthly living expenses were $3,183. Daniel omitted from his estimated monthly living expenses the car payment he likely would have to make when he eventually replaced his then-current, high-mileage vehicle. Daniel estimated that, after subtracting expenses from wages, he would have approximately $300 to $400 left at the end of each month. We note that the parties' property settlement stipulation included payment by Daniel to Charlotte of an $8,000 cash equalization payment within 90 days of entry of the decree. Daniel testified that he would have to take out a loan against his 401K plan in order to make that payment and that he had not included a monthly payment on such a loan in his estimated monthly expenses. Daniel chose to make the cash payment to Charlotte rather than divide his 401K with her in the property settlement. Although Daniel described his estimated monthly living expenses as conservative, we note that his estimate included $300 a month for furniture replacement, $700 for groceries, and $200 for entertainment. Further, the amount included for car insurance was for both parties' vehicles. On cross-examination, Daniel stated that the $700 in groceries was for himself and one of the parties' sons who was living with him. Daniel testified that the $200 in entertainment expenses would cover gas expenses for him to visit his mother in a nursing home and that his monthly estimate for gas expenses was otherwise "very small." Daniel also testified that he had spent $3,300 in replacing furniture after the parties divided personal property and that he had taken a loan to do so, which he hoped to repay within 1 year.
Daniel asked the district court to find that neither party should be required to pay alimony to the other. Daniel believed that an award of alimony was unwarranted because Charlotte was able, but unwilling, to work a full-time, year-round job and because he felt that, given his hard work inside and outside the home during the marriage, an award of alimony would be "just punitive." Daniel also expressed concern about being able to meet his living expenses once he retired. In the event that the court did enter an award of alimony, Daniel asked that the court consider the fact that Charlotte would be receiving half of his pension benefits in making any such award.
Daniel also opposed any award of attorney fees to Charlotte because Daniel had incurred $6,300 in attorney fees himself prior to trial and because his attorney performed "all the work preparing and getting the [property distribution] settlement reached." Daniel testified further that the parties would likely receive approximately $8,000 from their joint 2011 tax return in the near future and that Charlotte would have her share of the likely refund available to pay her attorney fees.
On March 16, 2012, the district court entered a decree of dissolution, dissolving the parties' marriage. The court made the following specific findings relative to the issues in this appeal:
The Court finds that this is a marriage of long duration, that [Charlotte] has not worked a significant job for a lengthy duration since the parties' children were born and the parties jointly made the decision that [she] should stay home and raise the children. Over the past several years the parties have had considerable discussion and disagreement over the need for [Charlotte] to be full-time employed. Over the past three years [Charlotte] has earned between $4,300.00 and $8,600.00 per year. During the marriage [Daniel] has been the primary bread winner. He has completed the apprentice program that allows him to be a mechanic for O'Keefe . . . . Over the past four years, [his] income has averaged $85,002.00 per year. [Charlotte's] monthly living expenses total $2,634.00 per month. [Daniel] claims anticipated expenses of $3,183.00 per month. The Court has used each party's estimate of their expenses (though [Daniel's] expenses appear somewhat inflated), [Daniel's] average income for the past four years and an attributed income to [Charlotte] of $17,680.00 per year (that is full time at $8.50 per hour). The Court also considered the property division as announced in the parties' oral stipulation in the courtroom.
[Charlotte] requested an order of $1,600.00 per month in alimony and [Daniel] asserted that no alimony should be awarded. After adjusting each party for the effects of [Charlotte's] alimony request, [Charlotte] will have funds approximately equal to her expenses and [Daniel] will have about $900.00 per month in excess of his stated expenses. The parties have been married nearly 31 years. A $1,600.00 per month alimony award will place [Charlotte's] gross income at about $3,100.00 per month (using the attributed income) and [Daniel's] at $5,480.00 per month. [Daniel] testified that he wishes to retire when he reaches 58 years of age. The Court finds that [Daniel] should pay alimony to [Charlotte] in the amount of $1,600.00 per month for 72 months beginning March 1, 2012, and in the amount of $1,200.00 per month for the following 72 months, beginning March 1, 2018.
The remaining issue the Court considered is the issue of [Charlotte's] attorney fees. The Court finds that [Daniel] should pay a portion of [Charlotte's] attorney fees. [Charlotte] has paid $1,500.00 and [Daniel] has previously paid $1,000.00 toward her fees. Total fees prior to trial amount to $4,781.25. [Charlotte's] attorney estimated that by the end of trial the unpaid balance would be in the neighborhood of $3,000.00. The Court also considered that [Daniel's] position was that no alimony should be paid in the face of a 31 year marriage during which [Daniel] acquired specialized education and [Charlotte] stayed home and raised the children by agreement of the parties. This caused [Charlotte's] attorney fees to be greater than they otherwise would have been. [Daniel] should be required to pay an additional $1,500.00 toward [Charlotte's] attorney fees within six months of entry of this Decree.
After making the above findings, the court ordered Daniel to pay alimony and attorney fees as set forth above. The court ordered that alimony would be due from Daniel until the death of either party, Charlotte's marriage, or until a total of 144 months of alimony had been paid, whichever occurred first.
Daniel subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Daniel asserts that the district court erred in its award of both alimony and attorney fees to Charlotte.
STANDARD OF REVIEW
In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. Id. A judicial abuse of discretion exists when 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. Rutherford v. Rutherford, 277 Neb. 301, 741 N.W.2d 922 (2009).
ANALYSIS
Alimony.
Daniel asserts that the district court erred in awarding Charlotte alimony and in the length and duration of the alimony award.
In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result. Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008). In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness. 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 make it appropriate. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006). In dividing property and considering alimony upon a dissolution of marriage, a court should consider 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 supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. Id. In addition to the specific criteria listed in Neb. Rev. Stat. § 42-365 (Reissue 2008), in dividing property and considering alimony upon a dissolution of marriage, a court is to consider the income and earning capacity of each party, as well as the general equities of each situation. Id. Alimony should not be used to equalize the incomes of the parties or to punish one of the parties. Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004). However, disparity in income or potential income may partially justify an award of alimony. Id.
This is a marriage of nearly 31 years in duration. The parties were in their early 50's at the time of trial and in good health. Their children had reached the age of majority. There was some conflicting evidence about the parties' agreement that Charlotte should stay at home and raise the children. The district court obviously resolved the conflict in Charlotte's favor, and we give weight to the court's decision in that regard. When evidence is in conflict, an appellate court considers, and 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. Millatmal v. Millatmal, supra. The court also found Daniel's estimate of his monthly expenses to be somewhat inflated, a conclusion supported by our own de novo review of the record. Daniel has 2 years of college education, and during the marriage, he received training that allowed him to advance to a position at O'Keefe where he now earns over $80,000 a year. While Daniel's hard work to support his family during the parties' marriage should not be discounted, neither should Charlotte's efforts in raising the parties' children. Charlotte has no education beyond high school and a scattered and varied work history. The alimony award will allow her to pursue further education in support of finding better employment. We find no abuse of discretion in the award of alimony.
Attorney Fees.
Daniel asserts that the district court erred in its award of attorney fees to Charlotte.
The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and general equities of the case. Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008). We have reviewed the record, including the affidavit with attached billing statements provided by Charlotte's attorney and find no abuse of discretion in the court's award of attorney fees.
CONCLUSION
The district court did not abuse its discretion in the award of alimony or attorney fees.
AFFIRMED.