Opinion
No. A-11-049.
02-07-2012
DEANNA RYKKEN, APPELLEE, v. TONY RYKKEN, APPELLANT.
Van A. Schroeder, of Bertolini, Schroeder & Blount, for appellant. Steven J. Riekes and David A. Christensen, of Marks, Clare & Richards, L.L.C., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
RYKKEN V. RYKKEN
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 Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.
Van A. Schroeder, of Bertolini, Schroeder & Blount, for appellant.
Steven J. Riekes and David A. Christensen, of Marks, Clare & Richards, L.L.C., for appellee.
IRWIN, SIEVERS, and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Tony Rykken appeals from a decree entered by the district court for Sarpy County, Nebraska, dissolving his marriage to Deanna Rykken. On appeal, Tony challenges the district court's award of alimony and attorney fees, as well as the denial of his motion for new trial based on newly discovered evidence. Finding no abuse of discretion by the district court, we affirm. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
BACKGROUND
Tony and Deanna were married on October 8, 1994. At the time of trial, their two children were ages 13 and 14. Deanna was 46 years old at the time of trial. Deanna has taken some junior college courses and completed an administrative certification which was paid for by the military during the marriage. Due to Tony's military service, the family made seven moves in 10 years, including the last move to Omaha, Nebraska. As a result, Deanna did not work during many of the years of their marriage. Deanna began working for a real estate company in February 2010 as an assistant to the commercial property manager. She earns $15 per hour or approximately $2,600 gross and $2,100 net per month.
At the time of trial, Tony was almost 51 years old. Tony entered the military in 1986. He has two bachelor of science degrees, as well as a master's degree in political science from the U.S. Naval postgraduate school. All of his education occurred prior to the marriage, except for approximately 2 years of the postgraduate school which was paid for by the military.
Tony retired from the military in May 2009. At the time of trial, Tony worked for a defense contracting firm specializing in intelligence. Tony is paid $45.67 per hour and earns approximately $95,000 per year. Tony was deemed disabled by the Department of Veterans Affairs and is paid a benefit of $1,904 per month which will be reduced slightly as the children reach the age of maturity. Tony also receives $4,148 per month from his military retirement pension. Deanna opted to participate in the survivor's benefit plan offered through the military which will pay her 55 percent of Tony's retirement pay from the date of his death until the date of her death. The plan premium is $270.03 per month.
On September 10, 2009, Deanna filed a complaint for dissolution of marriage in the district court for Sarpy County. The district court entered a temporary order on January 4, 2010. Deanna was awarded temporary custody of the children, and Tony was ordered to pay $1,800 per month in temporary child support and $1 per month in temporary alimony. Tony was also ordered to pay all utility bills, the house payment, other outstanding debts, and payments on the automobiles, as well as to maintain his life insurance policy and health insurance for Deanna and the children.
In August 2010, Deanna purchased and moved into her own home. Deanna's mortgage payment is $1,243.05 per month. In order for Deanna to qualify for the mortgage, Tony agreed to refinance their family home in order to assume full responsibility for the mortgage. The refinancing cost approximately $8,000 which was paid by Tony.
A trial was held on September 3, 2010. The parties agreed to a parenting plan whereby they would share joint legal custody, with Deanna having physical custody and Tony having specified parenting time. The parties also agreed, among other things, to a division of certain property and debts, to the provision of health insurance and division of unreimbursed expenses for the children, and to an equal division of the cost of the children's extracurricular activities. Tony agreed to pay half of Deanna's car payment, or $304 per month, until fully paid in 2013. The issues tried to the court included child support, alimony, and attorney fees.
Deanna submitted an exhibit detailing her monthly living expenses, totaling $6,700. Deanna admits, however, that approximately $1,000 of these expenses could be eliminated from the exhibit, including her contribution to a 401K plan, an erroneous amount for her life insurance premium, contribution to college savings for the children, and amounts for extracurricular activities, entertainment, and recreation for the children.
Both parties submitted proposed child support worksheets to the court. In addition, Deanna requested an award of alimony in the amount of $2,500 per month for 96 months. Finally, Deanna requested the district court to order Tony to pay her attorney fees incurred. Deanna submitted an attorney fee affidavit indicating the charges incurred for legal services totaling $12,190.63.
The district court entered a decree of dissolution of marriage on December 2, 2010. The district court ordered Tony to pay $1,980.19 per month in child support and attached a child support worksheet to the decree. The district court also awarded Deanna 35 percent of Tony's military pension which results in $1,422.07 per month. The $269.62 premium for the survivor benefit plan was ordered to be deducted from Deanna's share of the pension. The district court ordered Tony to pay alimony of $1,200 per month for 48 months followed by $800 per month for an additional 48 months. The district court made several factual findings related to alimony. The court found that Deanna gave up educational and career opportunities while raising the children and supporting Tony's military career. The court noted that the parties lived in numerous locations, and Deanna has little, if any, funds in a retirement account outside of her portion of Tony's military retirement. The court found that the military pension awarded to Deanna is a division of property and does not constitute support. The court noted that during the parties' separation, Tony provided significant spousal support by paying significant marital debt, the cost of housing for Deanna during the majority of the separation, and the majority of the car payments on her vehicle. Finally, the court found that "the living expenses claimed by [Deanna] are significant though inflated." Tony was also ordered to pay $2,800 toward Deanna's attorney fees.
On December 9, 2010, Tony filed a motion for new trial alleging that he lost his job after the trial, which he alleged constituted newly discovered evidence which he could not, with reasonable diligence, have discovered and produced at the trial. A hearing was held on December 16, and the district court entered an order denying Tony's request for a new trial. Tony files this timely appeal.
ASSIGNMENTS OF ERROR
Tony alleges that the district court erred in (1) awarding Deanna alimony of $1,200 per month for 48 months plus $800 per month for an additional 48 months, (2) ordering Tony to pay $2,800 in attorney fees to Deanna, and (3) denying Tony's motion for new trial.
STANDARD OF REVIEW
An appellate court's review in an action for dissolution of marriage is 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 custody, child support, division of property, alimony, and attorney fees. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).
An abuse of discretion occurs when the trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Davis v. Davis, 275 Neb. 944, 750 N.W.2d 696 (2008).
ANALYSIS
Motion for New Trial.
Because Tony's last assignment of error, that the trial court should have granted his motion for a new trial, would necessarily require a remand to the trial court if we find merit to such assignment, we discuss it first.
At the hearing on the motion for new trial, Tony's affidavit, dated December 8, 2010, was received into evidence. The affidavit stated that approximately 48 hours after the conclusion of the trial, Tony was informed that he was losing his job with the defense contracting firm where he had been earning $95,000 per year. He further alleged that he had no immediate prospects for re-employment and was currently living off of his military retirement and disability payments. Tony also stated that in today's business climate, his prospects for re-employment were grim and would likely require a pay reduction. The district court denied the motion, reasoning that such matter would be more properly taken up in a motion to modify the decree.
Tony argues that the loss of his job constitutes newly discovered evidence and that the district court erred in failing to grant his motion for a new trial. Newly discovered evidence is evidence in existence at the time of the trial, but which could not, by reasonable diligence, have been procured. Wagner v. Loup River Public Power Dist., 150 Neb. 7, 33 N.W.2d 300 (1948). A new trial will not be granted on the ground of newly discovered evidence where it appears that such evidence was not available at the time of the trial, but, rather, the result of changed conditions since. Id. Further, "[i]n any but a very extraordinary case in which an utter failure of justice will unequivocally result, a verdict on the evidence at the trial will not be set aside and a new trial granted on the basis of evidence of facts occurring subsequent to such trial." Id. at 12, 33 N.W.2d at 304.
We were presented with a similar situation in Thompson v. Thompson, 18 Neb. App. 363, 782 N.W.2d 607 (2010). In that case, the wife, who was ordered to pay alimony to her disabled husband, filed a motion to reopen the evidence after trial but prior to entry of a decree, alleging that she had been notified the previous day that she was being laid off from her employment. The trial court denied her motion, indicating that the proper procedure for modifying a decree was to file an application to modify. Because the wife's termination of employment was a future event and evidence was introduced that she would be eligible for severance, this court concluded that there was a reasonable inference that she would not immediately be without resources. Id. Further, as a longtime employee, she had substantial experience and skills, and "evidence about job replacement and the marketability of her skills and experience after a termination would enable the trial court to more accurately assess how the termination would affect the financial obligations that the decree imposed on her." Id. at 370, 782 N.W.2d at 615. Therefore, we found no abuse of discretion in the denial of the motion to reopen the evidence.
Based on the foregoing case law and the circumstances of this case, we conclude that the district court's denial of Tony's motion for new trial was not an abuse of discretion. The loss of Tony's employment does not constitute newly discovered evidence, as it occurred after the completion of the trial. Tony's remedy is to file a modification proceeding in the event that his lack of employment has continued. Similar to the wife in Thompson, Tony has substantial skills and education. Evidence of Tony's re-employment options and marketability could be presented at a modification hearing. We agree with the district court's conclusion that the circumstances of this case do not show that "an utter failure of justice will unequivocally result" as to require a new trial. However, we hold that in the event a motion to modify because of Tony's loss of his job at the defense contracting firm is filed (or has been filed), such change in circumstances shall not be deemed a change that was in contemplation of, or anticipated by, the parties at the time of trial. See Thompson v. Thompson, supra.
Alimony.
The district court ordered Tony to pay Deanna alimony in the amount of $1,200 per month for a period of 48 months followed by $800 per month for an additional 48 months. On appeal, Tony argues that the award is an abuse of discretion. 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. Kawlkoski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000). In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness. Id.
Factors which should be considered by a court in determining alimony include (1) the circumstances of the parties; (2) the duration of the marriage; (3) the history of contributions to the marriage, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities; 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. See Neb. Rev. Stat. § 42-365 (Reissue 2008).
Awards of alimony are not used to equalize the income of the parties or to punish the party with higher earnings. See Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002). However, disparity in income or potential income may partially justify an award of alimony. Id. The Nebraska Supreme Court has previously noted that in awarding alimony, a court should consider, in addition to the specific criteria listed in § 42-365 and set forth above, the income and earning capacity of each party as well as the general equities of each situation. Bauerle v. Bauerle, supra; Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994). In entering a decree for alimony, the court may take into account the property owned by the parties at the time of entering the decree, and make such award as is proper under all the circumstances disclosed by the record. Bauerle v. Bauerle, supra.
At the time of trial, Deanna was earning approximately $2,600 gross, or $2,100 net, per month. With her share of Tony's pension of $1,152 (after payment of premium) and current child support of $1,980, Deanna's total disposable monthly income is $5,232. Deanna submitted an exhibit of monthly expenses totaling $6,700; however, Deanna admitted that some of the expenses, totaling approximately $1,000, could be eliminated.
According to the child support worksheet adopted by the district court, Tony's monthly net income totaled $9,319.05. After paying child support, Tony's total disposable monthly income is $7,338.86.
This was a nearly 15-year marriage. Due to Tony's military service, the family moved several times. In addition, although Deanna worked periodically and was employed at the time of the trial, she has significantly less education than Tony and does not have much experience due to caring for the children and interruptions due to Tony's career. The discrepancy in their current earnings is significant.
Tony argues that he is already paying spousal support due to the fact that Deanna is receiving a portion of his retirement pay. However, Nebraska law establishes that retirement pay is considered part of the property division and is not equivalent to alimony. See Longo v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003). See, also, Neb. Rev. Stat. § 42-366(8) (Reissue 2008).
Tony further argues that given the child support award, Deanna's share of Tony's military pension, and Tony's agreement to pay one-half of Deanna's car payment, the awards to Deanna were equitable before adding the alimony payments ordered by the court. While the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, the two serve different purposes and are to be considered separately. Venter v. Venter, 249 Neb. 712, 545 N.W.2d 431 (1996). See § 42-365. 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. Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000).
Upon our de novo review of the record, and consideration of the statutory factors, earning capacity, relative economic circumstances of the parties, and the general equities in this case, we cannot say that the district court abused its discretion either in awarding alimony or in the amount and duration of that award. Accordingly, this assignment of error is without merit, and we affirm the district court's award in that regard.
Attorney Fees.
In a dissolution of marriage case, an award of attorney fees is discretionary, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Brunges v. Brunges, 260 Neb. 660, 619 N.W.2d 456 (2000). At trial, Deanna asked for an award of all or part of her attorney fees. Exhibit 9 is an attorney fee affidavit for services rendered between September 2009 and September 2010, totaling $12,190.63. The trial court ordered Tony to pay $2,800 toward Deanna's attorney fees.
An award of attorney fees depends on a variety of factors, including 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). After considering each of these factors, we conclude that the district court did not abuse its discretion in awarding attorney fees.
CONCLUSION
Finding no merit to the errors assigned on appeal, we affirm the judgment of the district court dissolving the marriage, dividing the property between the parties, and awarding alimony and attorney fees.
AFFIRMED.