Opinion
No. A-10-971
08-02-2011
MICHELLE R. SENSTOCK, APPELLANT, v. TRACY A. SENSTOCK, APPELLEE.
David P. Kyker for appellant. Christopher A. Furches, of Furches Law Offices, for appellee.
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: Jeffre Cheuvront, Judge. Affirmed.
David P. Kyker for appellant.
Christopher A. Furches, of Furches Law Offices, for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
IRWIN, Judge.
I. INTRODUCTION
Michelle R. Senstock appeals an order of the district court for Lancaster County, Nebraska, overruling her motion for new trial after entry of a decree dissolving her marriage to Tracy A. Senstock. On appeal, Michelle challenges the district court's alimony award and denial of her request for attorney fees. We find no abuse of discretion by the district court in the alimony award or the denial of attorney fees on the record presented in this case, where the parties accumulated significant debt during the course of the marriage and Tracy was ordered to pay more than 80 percent of it. We affirm. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
II. BACKGROUND
Michelle and Tracy were married in June 1984. There were two children born of the marriage, and both were adults at the time of the proceedings in this case. The parties entered a stipulation concerning the distribution of their marital property, and the primary issues for the court were distributing the marital debt, determining an appropriate award of alimony, and determining whether to award attorney fees.
Shortly after the parties' marriage, Tracy entered military service. Tracy worked in a precision measurement equipment laboratory and then worked in information technology. In late 2004 or early 2005, he received a bachelor's degree in information technology. Tracy retired from the military in January 2006. He then began working as a systems engineer security designer in Nebraska.
As a result of Tracy's military service, the parties moved approximately every 3 years during the marriage. Throughout the marriage, Michelle worked various jobs, including many minimum-wage jobs. For approximately 8 or 9 years prior to the time of trial, she worked in the banking industry. She began as a part-time teller and worked her way up to being a customer service manager with a bank. At the time of trial, she was employed by a banking software company.
The parties separated sometime between December 2007 and February 2008. At the time, the parties had accumulated credit card debt totaling more than $81,700. The parties owned a home with an outstanding mortgage in excess of $118,300; the court valued the property at $135,000.
When the parties separated, Tracy was earning a yearly salary of approximately $73,000. In addition, he was receiving military retirement and disability benefits totaling approximately $18,240 annually. Tracy testified that Michelle asked him to move to California in an attempt to salvage their marriage and that he requested his employer allow him to transfer to an office in California. Tracy's employer agreed, and he moved to California; 2 weeks prior to his move, Michelle decided not to go. Tracy's employer increased his annual salary to approximately $117,000 to adjust for the cost of living in California compared to Nebraska. At the time of trial, Michelle was earning approximately $35,000 annually working for a banking software company.
The parties presented testimony and exhibits concerning the marital assets and debt and their respective financial situations. The parties entered an oral stipulation resolving most issues. The issues left for the court to resolve included valuation of some marital assets, as well as valuation and distribution of marital debt, alimony, and attorney fees.
Pursuant to the parties' stipulation, Tracy was awarded the marital residence, along with its outstanding mortgage. Evidence adduced at trial indicated that Tracy had leased the home to a renter after moving to California and that the monthly lease income was less than the monthly mortgage obligation. The court valued the marital home at $135,000, and there was an outstanding mortgage exceeding $118,300.
The court found that Michelle had incurred postmarital debts, including an obligation to Household Finance and an obligation related to a new automobile. The court held that these debts should be considered nonmarital and Michelle's obligation.
Pursuant to the parties' stipulation, the court awarded Michelle 50 percent of Tracy's military retirement benefits.
The court determined that the parties had accumulated marital debts, including credit card debts, student loans, and other unsecured debts, totaling over $119,600. The court ordered Michelle to be responsible for three of these debts, totaling approximately $20,740. The court ordered Tracy to be responsible for the remaining debts, totaling nearly $99,000. As such, the court ordered Michelle to pay approximately 18 percent of the marital debt and ordered Tracy to pay approximately 82 percent. This distribution was comparable to the distribution proposed by Tracy, except that the court found Michelle's postmarital debts to be nonmarital and ordered her responsible for approximately $11,000 more in marital debt than Tracy had proposed.
The court then tackled the alimony and attorney fee issues. In doing so, the court held as follows:
The court finds that the parties are good people who have incurred an excessive amount of debt. Whether this was due to a failure to adhere to a frugal budget or to the cost of educating their sons is of no importance. The fact is, they have little in assets and too much expensive debt which the court can do little to resolve. If it were not for the debt, it would be a classic case of a substantial award of alimony. However, as long as the debt remains, there is insufficient income for [Tracy] to pay the majority of indebtedness and also pay a substantial amount of alimony. For this reason, the court has set the alimony at a nominal amount which allows for a future modification should the parties' financial situations change, such as bankruptcy.The court awarded Michelle $5 per month alimony for a period of 144 months. In addition, the court ordered each party to pay its own attorney fees.
Michelle filed a motion for new trial. In the motion, she challenged the division of the marital estate and the award of alimony. At the hearing on her motion, Michelle argued that the court should reevaluate its findings with respect to alimony. She argued that a substantial award of alimony was justified in this case. Tracy argued that the court's alimony award was appropriate.
The court denied Michelle's motion for new trial. The court iterated that the lack of assets and the substantial debt of the parties made this a difficult case. The court specifically recognized the discrepancy in earnings between the parties, but also recognized that Tracy's annual income was increased to reflect a higher cost of living incurred in his move to California, at Michelle's request, in an attempt to salvage the marriage. The court also concluded that it had essentially ordered Tracy to pay all joint marital debts and had ordered Michelle to pay only debts that she had incurred. The court concluded that there were simply insufficient resources to handle the debt and pay a substantial award of alimony. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Michelle challenges the district court's award of alimony, the court's denial of her motion for new trial, and the court's denial of her request for attorney fees.
IV. ANALYSIS
1. ALIMONY AND NEW TRIAL
Michelle first challenges the district court's award of alimony and denial of her motion for new trial. Because her motion for new trial was based on her assertion that the court's award of alimony was insufficient, we will address these issues together. Michelle asserts that a substantial award of alimony was warranted in this case, and she challenges the court's consideration of marital debts in determining whether alimony was appropriate. We find Michelle's assertions to be meritless.
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. Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002). This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees. Id. 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 exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system. Bauerle v. Bauerle, supra; Heald v. Heald, supra.
Neb. Rev. Stat. § 42-365 (Reissue 2008) provides that the trial court may order alimony as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, and history of contributions to the marriage by each party. Section 42-365 also indicates that the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, but that the two serve different purposes and are to be considered separately. Section 42-365 specifies that the purpose of alimony is to provide for continued maintenance or support of one party by the other when the relative economic circumstances and other criteria make it appropriate.
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 so untenable such as to deprive a party of a substantial right or just result. Id. In considering the criteria of § 42-365 concerning an award of alimony, a court's polestar must be fairness and reasonableness as determined by the facts of each case. Bauerle v. Bauerle, supra. Stated another way, in determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is reasonableness. Id.
There is no dispute that this was a marriage of long duration. The parties were married for nearly 25 years when they separated, and they raised two children to the age of majority during the marriage. Both parties were engaged in gainful employment, and there are no longer any interests of minor children to consider. In addition, there is no dispute that both parties made significant contributions to the marriage and the raising of the children. The district court's alimony award did not diminish or neglect these considerations; rather, the courts' alimony award was limited primarily by the significant debt incurred by the parties and made Tracy's responsibility in the decree.
There is no dispute that there is a significant difference in the parties' incomes. However, 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). 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, 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.
In this case, the district court did its best to reach a fair and equitable resolution where the parties' marriage was dissolved without significant assets but substantial debt. Although the specific criteria in § 42-365 would support a substantial award of alimony, the economic realities of this case indicate that the disparity in income is balanced by the substantial debt obligation Tracy has incurred. The parties divorced with nearly $250,000 of debt. As a result of the decree, Tracy is responsible for over $217,000 of that debt. His monthly income, while substantially higher than Michelle's, does not allow both servicing of this substantial debt and payment of a substantial alimony award.
An appellate court is not inclined to disturb the trial court's award of alimony unless it is patently unfair on the record. Bauerle v. Bauerle, supra; Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996). In this case, Michelle was relieved of the burden of more than 80 percent of the parties' marital debt and was awarded nominal alimony so that a modification proceeding could be brought if the economic realities of the parties changes in the future. We do not find this to be patently unfair or an abuse of discretion, and we find no merit to Michelle's assertions on appeal that the court committed reversible error in its award of alimony or its denial of her motion for new trial.
2. ATTORNEY FEES
Michelle also asserts that the district court erred in denying her request for attorney fees. She argues that an award of attorney fees was justified "in light of the astronomical difference in income and resources of the parties." Brief for appellant at 28. In light of the difference in obligations of the parties, as discussed above, we find no merit to this assertion.
In an action for dissolution of marriage, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008). 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. Id.
As noted above, this was a difficult case in which the parties accumulated very little in assets but amassed substantial debt. The district court ordered Tracy to pay a substantial portion of the debt, and the obligations and economic realities of the case are such that Tracy's obligations related to the parties' marital debt leaves very little additional income. On this record, we do not find an abuse of discretion by the court in ordering each party to pay its own attorney fees.
V. CONCLUSION
In this case, the parties were married for nearly 25 years before separating. During that time, they raised two children to the age of majority, amassed substantial marital debt, and accumulated very little in marital assets. In light of his higher earnings, the court ordered Tracy to pay the vast majority of marital debts and awarded nominal alimony, preserving the ability of Michelle to seek a modification if the parties' relative economic circumstances change. We find no abuse of discretion by the court in its award of alimony, its denial of the motion for new trial, or its denial of Michelle's request for attorney fees. We affirm.
AFFIRMED.