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					                                   No. A-09-612

                    IN THE NEBRASKA COURT OF APPEALS

                          SUSAN KAYE THOMPSON,

                                             Appellant,

                                        v.

                              GARY DEAN THOMPSON,

                                             Appellee.




    APPEAL FROM THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA

                      HONORABLE GREGORY M. SCHATZ




                               BRIEF OF APPELLAI'ff!'£




Prepared and Submitted Bv..                               KLUTZNICK LAW L1BR)\I<\
                                                             CREIGHTON UNIVERSITY
Michael B. Lustgarten, #18602
Justin A. Roberts, #24188
Of LUSTGARTEN & ROBERTS, P.C., L.L.O.
1625 Farnam Street, Suite 900
Omaha, Nebraska 68102
(402) 346-1920
Attorneys for Appellarre eQ.
                                        TABLE OF CONTENTS

                                                                                                   PAGE

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     iii

Statement of the Basis of Jurisdiction of the Appellate Court. . . . . . . . . .                    1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       1

         1.      The Kind of Action or Nature of the Case. . . . . . . . . . . . . .                1

        2.       The Issues Actually Tried in the Court Below. . . . . . . . . . . .                1

        3.       How the Issue Was Decided and What Judgment
                 or Decree was Entered by the Trial Court. . . . . . . . . . . . . .                1

        4.       The Scope of the Court of Appeals Review. . . . . . . . . . . . .                 2

Propositions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      2-9

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    10

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..          26

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..   28

        I.       THE TRIAL COURT CORRECTLY FOUND APPELLANT
                 FAILED TO PROVE THE ALLEGATION THAT APPELLEE
                 DISSIPATED MARITAL ASSETS. . . . . . . . . . . . . . . . . . . .                  28

        II.     THE TRIAL COURT'S DIVISION OF THE MARITAL
                PROPERTY WAS FAIR AND EQUITABLE. . . . . . . . . . . . . . .                       31

        III.    THE TRIAL COURT CORRECTLY DETERMINED
                APPELLEE'S CHILD SUPPORT OBLIGATION. . . . . . . . . . . .                         33

        IV.     THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
                IN AWARDING ALIMONY TO THE APPELLEE                                                36

        V.      THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
                IN AWARDING ATTORNEYS FEES TO APPELLEE. . . . . . . .                              38

                                                     i.
                                                                                                    PAGE

        VI.      THE TRIAL COURT CORRECTLY DENIED APPELLANT'S
                 MOTIONS TO REOPEN THE CASE TO RECEIVE
                 ADDITIONAL EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . .                39

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    40




                                                       ii
                              TABLE OF AUTHORITIES
                                                                                PAGE

Cases Cited:

Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004). . . . . . ..           5, 34

Corman v. Musselman, 232 Neb. 159, 439 N.W.2d 781 (1989) . . . ..               9, 39

Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998). . . . . .            4,31

Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). . . . . . . . .          2

Gangwish v. Gangwish, 267 Neb. 901,678 N.W.2d 503 (2004). . . . .               3,31

Gress v. Gress, 274 Neb. 686,743 N.W.2d 67 (2007). . . . . . . . . . ..         2, 6, 7,
                                                                                8,34,
                                                                                36, 38

Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001) . . . . . . . . . ..    3, 28

Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002). . . .           6,7, 34,
                                                                             36

Jessen v. DeFord, 3 Neb. App. 940, 536 N.W.2d 68 (1985). . . . . . . .          9, 39

Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000) .. ,           8, 37

Sears v. Larson, 259 Neb. 760, 612 N.W.2d 474 (2000). . . . . . . . ..      35

Shockley v. Shockley, 251 Neb. 896, 560 N.W.2d 777 (1997) . . . . .         8,38

Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995). . . . . . .      4,32

Ward v. Ward, 7 Neb. App. 821, 585N.W.2d 551 (1998) . . . . . . . .         36

Statutes Cited:

Neb. Rev. Stat. Section 4-204                                         .     5, 34, 35

Neb. Rev. Stat. Section 25-1911                                       .     1

Neb. Rev. Stat. Section 42-365                                        .     7, 37

                                         iii.
    STATEMENT OF THE BASIS OF JURISDICTION OF THE APPELLATE COURT

      A Decree of Dissolution of Marriage was entered May 22, 2009 (T87-102).

The Decree of Dissolution of Marriage is a final order, and therefore this Court has

the jurisdiction to review the order pursuant to Neb. Rev. Stat. Section 25-1911.

                             STATEMENT OF THE CASE

      1.     THE KIND OF ACTION OR NATURE OF THE CASE: This is an appeal

from a Decree of Dissolution of Marriage which determined custody and visitation

for the minor child, the Appellee's child support obligation, property division,

alimony, and attorney's fees between the parties.

      2.     THE ISSUES ACTUALLY TRIED IN THE COURT BELOW: At trial on

October 8, 2008 and January 5, 2009, the issues tried included child support,

alimony, property division, and attorney's fees.

      3.     HOW THE ISSUE WAS DECIDED AND WHAT JUDGMENT OR DECREE

WAS ENTERED BY THE TRIAL COURT: On May 22, 2009, a Decree of Dissolution

of Marriage was entered by the trial court (T87-1 01). Appellant was awarded legal

and physical custody of the minor child, Sarah Jean Thompson, subject to

Appellee's right of parenting time. Parenting time was to be agreed upon between

Appellee and the minor child: Appellee is legally disabled and therefore should pay

the statutory minimum child support under the Nebraska Child Support Guidelines.

Appellant was to maintain health and dental insurance coverage on the minor child

and continue to maintain health and dental insurance coverage on Appellee for the

six months following the entry of the Decree. Appellee's proposed division of the


                                           1
marital estate as set forth in Exhibit 62 is fair and equitable and the values

contained therein are supported by the evidence offered at trial. Appellant should

pay Appellee $300.00 per month as alimony until such time as Appellee is no

longer disabled or Appellee turns 60 years of age, and that Appellant should pay

$3,000.00 towards Appellee's attorney's fees (T87-1 01).

      4.     THE SCOPE OF THE COURT OF APPEALS REVIEW: Domestic matters

such as child custody, division of property, child support, and alimony are

entrusted to the discretion of trial courts. A trial court's determinations on such

issues are reviewed "de novo on the record to determine whether there has been

an abuse of discretion by the trial judge." Under this standard, an appellate court

conducts its "own appraisal of the record" to determine whether the trial court's

judgments "are untenable such as to have denied justice." Gress v. Gress, 274

Neb. 686, -743 N.W.2d 67 (2007). When evidence is in conflict, the appellate

court considers and may give weight to the fact that the trial judge heard and

observed the witnesses and accepts one version of the facts over another. Elsome

v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).

                              PROPOSITIONS OF lAW

                                          I.

             DISSIPATION OF MARITAL ASSETS IS ONE SPOUSE'S USE OF

             MARITAL PROPERTY FOR A SELFISH PURPOSE UNRELATED TO THE

             MARRIAGE AT THE TIME WHEN THE MARRIAGE IS UNDERGOING

             AN IRRETRIEVABLE BREAKDOWN.


                                          2
Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001).

                                       II.

            MARITAL ASSETS DISSIPATED BY A SPOUSE FOR PURPOSES

            UNRELATED TO THE MARRIAGE AFTER THE MARRIAGE IS

            IRRETRIEVABLY BROKEN SHOULD BE INCLUDED IN THE MARITAL

            ESTATE IN DISSOLUTION ACTIONS.

Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001).

                                      III.

            UNDER SECTION 42-365, THE EQUITABLE DIVISION OF PROPERTY

            IS A THREE-STEP PROCESS. THE FIRST STEP IS TO CLASSIFY THE

            PARTIES' PROPERTY AS MARITAL OR NON-MARITAL. THE SECOND

            STEP IS TO VALUE THE MARITAL ASSETS AND MARITAL

            LIABILITIES OF THE PARTIES. THE THIRD STEP IS TO CALCULATE

            AND DIVIDE THE NET MARITAL ESTATE BETWEEN THE PARTIES IN

            ACCORDANCE WITH THE PRINCIPLES CONTAINED IN SECTION 42-

            365.

Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).

                                      IV.

            THE PURPOSE OF A PROPERTY DIVISION IS TO DISTRIBUTE THE

            MARITAL ASSETS EQUITABLY BETWEEN THE PARTIES.

Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).




                                       3
                                       V.

            AS A GENERAL RULE, 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. SUCH EXCEPTIONS INCLUDE PROPERTY

            ACCUMULATED AND ACQUIRED THROUGH GIFT OR INHERITANCE,

            OR PROPERTY HELD IN TRUST BY A THIRD PERSON. PROPERTY

            OBTAINED THROUGH ONE OR BOTH SPOUSES' EMPLOYMENT,

            HOWEVER, IS NOT SUCH AN EXCEPTION.

Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).

                                      VI.

            DIVISION CAN OCCUR IN SEVERAL WAYS: SELL EVERYTHING AND

            DIVIDE THE MONEY, AWARD EACH PARTY SPECIFIED PROPERTY

            WITH OR WITHOUT AN EQUALIZING MONEY JUDGMENT, OR

            AWARD ONE PARTY ALL PROPERTY AND THE OTHER MONEY. THE

            ULTIMATE TEST IN DETERMINING THE APPROPRIATENESS OF THE

            DIVISION OF PROPERTY IS FAIRNESS AND REASONABLENESS AS

            DETERMINED BY THE FACTS OF EACH CASE.

Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995).

                                      VII.

            IN GENERAL, CHILD SUPPORT PAYMENTS SHOULD BE SET

            ACCORDING TO THE NEBRASKA CHILD SUPPORT GUIDELINES,


                                       4
            WHICH COMPUTE THE PRESUMPTIVE SHARE OF EACH PARENT'S

            CHILD SUPPORT OBLIGATION.

Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).

                                     VIII.

            UNDER THE NEBRASKA CHILD SUPPORT GUIDELINES, IF

            APPLICABLE, EARNING CAPACITY MAY BE CONSIDERED IN LIEU

            OF A PARENT'S ACTUAL, PRESENT INCOME AND MAY INCLUDE

            FACTORS SUCH AS WORK HISTORY, EDUCATION, OCCUPATIONAL

            SKILLS, AND JOB OPPORTUNITIES. EARNING CAPACITY IS NOT

            LIMITED TO WAGE EARNING CAPACITY, BUT INCLUDES MONIES

            AVAILABLE FROM ALL SOURCES.

Neb. Rev. Stat. Section 4-204.

                                     IX.

            EARNING CAPACITY MAY BE USED AS A BASIS FOR AN INITIAL

            DETERMINATION OF CHILD SUPPORT UNDER THE NEBRASKA CHILD

            SUPPORT GUIDELINES WHERE EVIDENCE IS PRESENTED THAT THE

            PARENT IS CAPABLE OF REALIZING SUCH CAPACITY THROUGH

            REASONABLE EFFORT.

Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).

                                     X.
            A NON-CUSTODIAL PARENT IS ENTITLED TO A CREDIT AGAINST A

            MONTHLY CHILD SUPPORT OBLIGATION FOR SOCIAL SECURITY


                                      5
            BENEFITS PAID TO HIS OR HER MINOR CHILD AS A RESULT OF THE

            NON-CUSTODIAL PARENT'S DISABILITY.

Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002); Gress v. Gress,

257 Neb. 112, 596 N.W.2d 8 (1999).

                                      XI.

            SOCIAL SECURITY BENEFIT PAYMENTS WHICH ARE THE RESULT OF

           THE OBLIGOR'S DISABILITY ARE A SUBSTITUTE FOR THE

           OBLIGOR'S LOSS OF EARNING POWER AND HIS OR HER

           OBLIGATION TO PAY FOR THE SUPPORT OF HIS OR HER

           DEPENDENTS.

Henderson v. Henderson, 264 Neb. 916,653 N.W.2d 226 (2002); Gress v. Gress,

257 Neb. 112,596 N.W.2d 8 (1999).

                                     XII.

           A NON-CUSTODIAL PARENT IS ENTITLED TO A CREDIT AGAINST A

           MONTHLY CHILD SUPPORT OBLIGATION FOR SOCIAL SECURITY

           BENEFITS PAID TO HIS OR HER MINOR CHILD AS A RESULT OF THE

           NON-CUSTODIAL PARENT'S DISABILITY.

Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002); Gress v. Gress,

257 Neb. 112, 596 N.W.2d 8 (19991.

                                     XIII.

           SOCIAL SECURITY BENEFIT PAYMENTS WHICH ARE THE RESULT OF

           THE OBLIGOR'S DISABILITY ARE A SUBSTITUTE FOR THE


                                      6
            OBLIGOR'S LOSS OF EARNING POWER AND HIS OR HER

            OBLIGATION TO PAY FOR THE SUPPORT OF HIS OR HER

            DEPENDENTS.

Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002); Gress v. Gress,

257 Neb. 112, 596 N.W.2d 8 (1999).

                                     XIV.

            WHEN A DISSOLUTION OF MARRIAGE IS DECREED, THE COURT

            MAY ORDER PAYMENT OF SUCH ALIMONY BY ONE PARTY TO THE

            OTHER AND DIVISION OF PROPERTY AS MAY BE REASONABLE,

            HAVING REGARD FOR THE CIRCUMSTANCES OF THE PARTIES,

            DURATION OF THE MARRIAGE, A HISTORY OF THE

            CONTRIBUTIONS TO THE MARRIAGE BY EACH PARTY, INCLUDING

            CONTRIBUTIONS TO THE CARE AND EDUCATION OF THE

            CHILDREN, AND INTERRUPTION OF PERSONAL CAREERS OR

            EDUCATIONAL OPPORTUNITIES, AND THE ABILITY OF THE

            SUPPORTED PARTY TO ENGAGE IN GAINFUL EMPLOYMENT

            WITHOUT INTERFERING WITH THE INTERESTS OF ANY MINOR

            CHILDREN IN THE CUSTODY OF SUCH PARTY.

Neb. Rev. Stat. Section 42-365.

                                     XV.

            IN DETERMINING WHETHER ALIMONY SHOULD BE AWARDED, IN

            WHAT AMOUNT, AND OVER WHAT PERIOD OF TIME, THE


                                      7
            ULTIMATE CRITERION IS ONE OF REASONABLENESS. THE

            PURPOSE OF ALIMONY IS TO PROVIDE FOR THE CONTINUED

            MAINTENANCE OR SUPPORT OF ONE PARTY OVER THE OTHER

            WHEN THE RELATIVE ECONOMIC CIRCUMSTANCES MAKE IT

            APPROPRIATE.

Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000).

                                    XVI.

            IN A DISSOLUTION OF MARRIAGE CASE, AN AWARD OF

           ATTORNEY'S FEES IS DISCRETIONARY, IS REVIEWED DE NOVO ON

           THE RECORD, AND WILL BE AFFIRMED IN THE ABSENCE OF AN

           ABUSE OF DISCRETION.

Shockley v. Shockley, 251 Neb. 896, 560 N.W.2d 777 (1997).

                                   XVII.

           THE AWARD OF ATTORNEY'S FEES IN A DISSOLUTION ACTION

           DEPENDS ON MULTIPLE FACTORS THAT INCLUDE THE NATURE OF

           THE CASE, THE SERVICES PERFORMED AND RESULTS OBTAINED,

           THE EARNING CAPACITY OF THE PARTIES, AND THE LENGTH OF

           TIME REQUIRED FOR PREPARATION AND PRESENTATION OF THE

           CASE, CUSTOMARY CHARGES OF THE BAR, AND GENERAL

           EQUITIES OF THE CASE.

Gress v. Gress, 271 Neb. 122,710 N.W.2d 318 (2006).




                                     8
                                    XVIII.

            THE REOPENING OF THE CASE TO RECEIVE ADDITIONAL EVIDENCE

            IS A MATTER WITHIN THE DISCRETION OF THE DISTRICT COURT

            AND WILL NOT BE DISTURBED ON APPEAL IN THE ABSENCE OF AN

            ABUSE OF THAT DISCRETION.

Corman v. Musselman, 232 Neb. 159, 439 N.W.2d 781 (1989).

                                    XIX.

            AMONG THE FACTORS TRADITIONALLY CONSIDERED IN

            DETERMINING WHETHER TO ALLOW A PARTY TO REOPEN A CASE

            TO INTRODUCE ADDITIONAL EVIDENCE ARE: (1) THE REASON FOR

            THE FAILURE TO INTRODUCE THE EVIDENCE, I.E. COUNSEL'S

            INADVERTENCE, A PARTY'S CALCULATED RISK OR TACTIC, OR

            THE COURT'S MISTAKE; (2) THE ADMISSIBILITY AND MATERIALITY

            OF THE NEW EVIDENCE TO THE PROPONENT'S CASE; (3) THE

            DILIGENCE EXERCISED BY THE REQUESTING PARTY IN PRODUCING

            THE EVIDENCE BEFORE HIS OR HER CASE IS CLOSED; (4) THE TIME

            OR STAGE OF THE PROCEEDING AT WHICH THE MOTION IS MADE;

           AND (5) WHETHER THE NEW EVIDENCE WOULD UNFAIRLY

            SURPRISE OR UNFAIRLY PREJUDICE THE OPPONENT.

Jessen v. DeFord, 3 Neb. App. 940, 536 N.W.2d 68 (1985).




                                     9
                                STATEMENT OF FACTS

      Appellant, Susan Kaye Thompson, filed her Complaint for Dissolution of

Marriage on August 1,2007 (T1-4). Appellant testified that she physically

separated from her husband, Appellee, on August 1, 2006 (42: 18-20). Appellant

has an associate's degree in business management (43:9-14). Appellant had

maintained employment with Commercial Federal Bank, now Bank of the West, for

the last 25 years (43:15-18).

      Appellee's employment history during the marriage consisted of time spent in

the Army Reserve National Guard. He owned a few businesses that dealt with

construction or home improvement. Appellee retired from the National Guard in

March, 1999 (188:8-11). At various times, Appellee was employed to do contract

work for ConAgra Frozen Foods; to do computer work at Oriental Trading Company

for a couple of years; and by a property management company for three years

(188:12-22).

      Prior to trial, the parties agreed that Appellant would get sole legal and

physical custody of their daughter, Sarah, and that parenting time would be agreed

upon between the child, Sarah, and Appellee (46:6-25; 47: 1-9),

      Appellant did not bring any property of substantial value into the marriage

with Appellee (48: 1-3). Appellant had a 401 (k) at Commercial Federal at the time

she was married to Appellee (48:4-12). Appellant testified that she knew a little

bit of her 401 (k) was accumulated before the marriage, but she had no idea how

much (58:9-25), Appellee brought his military pension into the marriage (48: 13-


                                          10
19). Neither party received any property during the marriage by gift or inheritance

(48:20-24).

       On December 13, 2007, Appellant filed a motion to disqualify Appellee's

legal counsel, Richard Berkshire, on the basis that Appellee's counsel was a

material witness in the dissolution proceedings (T18-20). Appellee filed a

resistance to Appellant's motion to disqualify counsel as a witness on December

17, 2007 (Supplemental Transcript 16-18). Appellant filed a seven-page Affidavit

in support of her motion to disqualify Appellee's attorney on December 18, 2007

(T24-T30). The trial court held a hearing on Appellant's Motion to Disqualify on

December 18,2007 (5:16-25; 7:1-13). In support of Appellant's motion,

Appellant alleged Appellee's attorney was a "necessary witness," and the

attorney's testimony was material and relevant to the issues of disability from

employment, earning capacity, and income (T18-19). Appellant alleged that such

evidence was unobtainable anywhere else (T19). Appellant further alleged that

disqualification of Appellee's attorney would not work a substantial hardship on

Appellee and that such disqualification was foreseeable (T19, Paragraph 8).

Appellee had incurred about $18,000.00 in attorney's fees owed to Mr. Berkshire

(217:5-18, E52, E56).

      The trial court entered an Order on the Motion to Disqualify Appellee's legal

counsel granting Appellant's motion on December 20, 2007 (T31-32). Mr.

Berkshire was disqualified from representing Appellee (33:6-17). However, at the




                                         11
onset of trial on October 8, 2008, Appellant's counsel stated it was not her intent

to call Mr. Berkshire as a witness (33: 18-25; 34: 1-13).

       At trial, Fred Wohlenhaus, a real estate appraiser, testified as to his opinion

of the value of the parties' marital residence (21 :8-25; 22:1). Mr. Wohlenhaus

testified he performed a physical inspection of the property, looked at multi-listing

information in Omaha, looked at county record information, and looked at

comparable sales in the area in arriving at his value of the home (22:10-22). Mr.

Wohlenhaus estimated the value of the family residence at $122,000.00 as of

August 25, 2008 (23: 13-18), Mr. Wohlenhaus testified that he believed the house

could be sold for this price in a competitive and open market within a 90-day period

(24: 14-25; 25: 1-17). Mr. Wohlenhaus took into account all of the defects

Appellant pointed out during the appraisal such as the partially finished basement,

plumbing problems, squirrel damage, and the overall condition of the property in

determining the value of the home at $122,000.00 (28:5-25; 29: 1-20). Mr.

Wohlenhaus believed that lenders in the Omaha metro area would give a mortgage

loan based upon the appraisal he gave and with the comparables he listed and used

to determine the value of the home (31 :3-14),

      Appellant's most recent position with her employer as of trial was as

Operations Manager in the Consumer Lending Division of the Bank of the West

(43: 19-23). Appellant testified she believed Bank of the West gave mortgage loans

based on appraisals with comparables (43:24-25; 44: 1-3). Appellant testified that

Bank of the West does appraisals on 95 percent of the properties they give


                                          12
mortgage loans for, but all comparables had to be within six months (44:6-8).

Appellant testified that Bank of the West was looking to change their policy to

consider only the comparables sold within three months because of the economic

conditions (44:8-10). Appellant testified that she believed the bank she worked for

would "[m]ost likely not" give a mortgage loan based on Mr. Wohlenhaus's

appraisal with the six-month comparables (44: 12-19).

      Appellant testified that she was present at the time Mr. Wohlenhaus did the

appraisal and that she escorted him through the residence to show him defects in

the home (35:25; 36: 1-21). Appellant disagreed with Mr. Wohlenhaus's value of

the residence and she believed the repairs would cost between $25,000.00 and

$30,000.00 (37:5-20). Even though Mr. Wohlenhaus was shown the defects in

the property by Appellant and took them into account before arriving at the

$122,000.00 figure, Appellant testified that her estimate of the cost of repairs

should be deducted from Mr. Wohlenhaus's figure to arrive at her figure of

$95,000.00 (38:4-13). Appellant testified she thought the assessed value of her

residence was around $120,000.00, but when Appellee's counsel suggested it

might be $125,000.00, she admitted "it might be" (90:9-18). Appellant was

asking the Court to award her the family home and the remaining debt against the

home (58:3-8).

      As for the debt against the residence, the home was encumbered by a

mortgage loan from Bank of America with a balance of somewhere between

$32,000.00 and $33,000.00 at the time of trial (49:21-25; 50:1-5). The parties


                                         13
used this mortgage to purchase the property in June of 1990 (50:24-25; 51: 1-13).

Throughout the marriage, the parties took out a total of three second mortgages on

the property (51:14-19).

      The first second mortgage in the amount of $60,000.00 was obtained in

1994 (51 :20-25; 52: 1-13). According to Appellant, Appellee had been "kiting

checks" for a total of roughly $35,000.00 (52:4-5). Appellant did not present any

documentation to the Court in support of her allegation that $35,000.00 of the

first second mortgage was specifically to pay for Appellee's "check-kiting" (92:3-

12), The remainder of the loan was to consolidate debts owed on a car, a truck,

and an unsecured loan (52:6-13).

      The first second mortgage was paid after the parties took out a second

second mortgage in the year 2000 which consolidated another $30,000.00 in

credit card debt (53:8-25; 54: 1-6). Appellant testified that the $30,000.00 credit

card debt was not incurred for a marital purpose (92: 16-25; 93: 1). Appellant

reasoned that the credit card debt could not be for a marital purpose, because

nothing tangible was purchased such as furniture (93:5-12),

      The second second mortgage was paid after the parties took out the third

second mortgage in 2003 for $50,000.00 (54:7-12). Appellant alleged the third

second mortgage was used to payoff credit card debt that was not incurred for a

marital purpose, but again she did not have any documentation to prove that

allegation (94:3-9). Appellant testified the money used to pay the third second




                                         14
mortgage came from Appellee (94: 10-1 2). The third mortgage was completely paid

two months before Appellee separated from Appellant {56: 1-7}.

       Appellant claimed that she was unaware of how Appellee ran up these debts

and testified that Appellee may have been using this money to pay bills while he

was not working (54:9-20), Appellant testified that she did not believe Appellee

had a gambling problem (63:9-11), Appellant testified Appellee had good jobs

during the marriage, but often quit the jobs before having another job and

attempted to start various businesses (55: 15-25),

      Appellant testified that Appellee rented three or four different office spaces

without telling Appellee he was doing so (66: 10-23), Appellant testified that a lot

of the debt was accumulated by Appellee's pursuing an online coin trading

business, but she had no proof of this allegation (81 :8-19),

      Appellant testified that he rented office space in various locations throughout

Omaha to establish his web site design business (117:19-25; 118:1-3), Appellee

took out office space on 49 th and Douglas in Omaha to operate a construction

business (120: 15-22). Appellee paid rent at that office space out of income he

received by doing construction work (120:23-25), Appellee paid for the office

space with cash advances and money he was earning from his jobs (118:4-8), At

one point, the law firm of Berkshire and Burmeister allowed Appellee to use an

office to conduct his web site business rent-free (121: 1-25; 123: 1-2),

      The credit card debt that existed as of the date of separation was

$25,657,11 (206:4-8), Appellant testified that he used his credit cards for


                                          15
business expenses such as gas, truck payments, supplies, and materials for home

improvement before the date of separation (206: 18-25; 207: 1). Since the date of

separation, the credit card balance increased substantially from $25,657.11 to

more than $72,000.00 due to late fees and over-the-limit fees which averaged

about $1,000.00 per month (208:24-25; 209: 1-8). Appellant asked the Court to

order Appellee to pay the $ 72,000.00 in debt that had been accumulated as of the

date of trial, because she "did not charge it" and she "did not know what the funds

were used for" (81 : 1-7).

      Appellee testified that he incurred the debt on materials and supplies at

Home Depot to do remodeling jobs (11 6:2-10). Appellee used the proceeds from

these jobs to pay credit cards and living expenses (116: 11-21). For the web-based

business, Appellee was investing funds in various domain names and purchasing

server space to host th-e web sites from other companies (118:18-25; 119:1-19).

Appellee s intent was to make agreements with various merchants to sell
         I




advertising or put advertising on the web site which he testified would eventually

generate a stream of commissions from online sales (119:20-25).

        Appellant testified that Appellee using debt to fund his businesses was not

a marital purpose, because she did not receive a benefit from the businesses

(93: 13-19). However, if the businesses were making money, Appellant admitted

she would be asking for a piece of the businesses "depending on how much money

it was making" (93:21-25; 94: 1).




                                        16
      Appellant testified she should be compensated for the debts paid by the

second mortgages because she believed Appellee's actions constituted a

dissipation of the marital estate {94:16-25; 95:1-6}. Appellant could not quantify

the amount she should be compensated for, but testified that she should receive all

the equity in the home, all of her 401 {k} account {95:7-10}, and for Appellee to pay

$72,000.00 in debt {81 :1-7}. Under Appellant's proposal, she would get

approximately $200,000.00 for her 401 (k) retirement account and equity of

$90,000.00 in the marital home {97: 19-25; 98: 1-3}.

      In exchange for these assets, Appellant suggested that Appellee keep his

military retirement {95:23-25; 96: 1-5}. Appellant did not dispute that 70 percent

of the military retirement was accumulated prior to her marriage to Appellee

{96:22-25; 97: 1-3}. Appellant agreed that her interest in the marital portion of

Appellee's military retirement would' equal approximately a couple hundred dollars

per month (97:4-18).

      In 2005, due to physical problems, Appellee decided to work on a web-

based business from home (188: 1-7). Appellee owned a corporation that was in

existence at the time of trial named "Icon Mountain.com" {153:22-25}. Appellee

testified that the business was dormant, because he was not working with it

(154:6-9). The only activity Appellee had engaged in with the business was to

renew the domain name in 1995. He applied for the corporation name and paid the

fees in 2006 (154: 10-16). Appellee characterized Icon Mountain as a business "in

limbo," because it maintained its corporate status even though there was no


                                         17
income or expenses to pay except the expense to keep the web site domain name

active (1 57: 1-6). Appellee testified that the value of Icon Mountain was limited to

the annual domain fee which was $19.95 a year (157:11-13).

       Appellee testified that he is disabled from engaging in gainful employment

(105:5-7). After July of 2007, Appellee had not done any work that generated

income (189: 10-17). In February, 2006, Appellee filled out an application for

disability with Social Security (190: 1-4). Appellee considered himself disabled at

that time due to severe anxiety, heart palpitations, and his knee problems (190:5-

1 8). Appellee explained that his disability is based on major depression, severe

anxiety, cognitive problems, short-term memory loss, upper extremity carpal tunnel

trigger lock, and degenerative joint disease in his knees (105:8-12).

      Appellee speculated that his disability "probably began" in April or May of

2003 (232: 19-22). Appellee saw Dr. Williams on" a continued basis every couple

of months for two years before August 1, 2006 for various physical problems he

was experiencing (233: 1-20). Appellee testified that he knew his disability began

at some point in the year 2005 (105: 13-23). Appellee took numerous prescription

medications to deal with various problems associated with his disabilities (106: 1-

22), Appellee testified that in August of 2006, Dr. Williams sent him a letter

declaring him disabled (233:21-25; 234: 1-5). Appellee testified that he could no

longer service computers because his upper extremity carpal tunnel trigger lock will

not allow him to type anymore (155: 13-25; 156: 1-4).




                                          18
       Appellant testified she was unaware of any disability affecting Appellee

during the marriage (59: 16-20). Appellant became aware Appellee was applying

for disability benefits when he provided documentation through his attorney to

Appellant's attorney (62: 19-25). Appellant testified that she believed Appellee's

disability was based on depression or anxiety (63:4-8). The only evidence

Appellant offered to dispute Appellee was 100 percent disabled was her opinion,

that "[he] was fine" until she filed for divorce (102:15-25; 103:1-3).

       Appellee testified that his understanding was he cannot have both Social

Security benefits and VA benefits at the same time (203 :4-7). Appellee had to

choose either one or the other (203:8-9). Appellee chose the VA benefits, because

he gets free medical insurance and prescriptions through the VA (203: 10-19).

       Appellee obtained certified records from the VA to provide substantiation as

to the extent of Appellee's disability {1 94: 18-23, E66, and E67'}. The V A

determined that Appellee was totally and permanently disabled (199: 15-17, E66).

Appellee had Exhibit No. 67 generated to provide proof that Appellee provided

copies of the VA records to Appellant's counsel, Ms. Milone (220: 13-25; 221: 1-6).

Based on the offer of the document (Exhibit 67), Appellant's counsel, Ms. Milone,

attempted to make an oral motion to disqualify Appellee's counsel as a witness

(221 :2-4).

       Appellant had provided health insurance coverage to Appellee while they

were separated (74:2-6). Appellant incurred an additional expense of $100.00 per

month for providing this coverage to Appellee (74:7-15). Appellant testified that


                                          19
she believed that Appellee had access to V A medical benefits, but all of his medical

claims were still processed through her insurance, because she received notices of

all of his medical visits (74:16-25; 75:1).

       Appellee explained that he sent his health care claims through his wife's

insurance, because the V A required him to collect whatever insurance he could to

keep the costs for the system down (158: 19-25). The Veterans Administration

paid Appellee $985.00 a month at the time of trial and provided medical care

(163 :4-11). Appellee applied for some benefits on behalf of his children from the

Veterans Administration (164:2-14).

       As a result of Appellee's VA disability, the remaining minor child was entitled

to receive benefits starting retroactively from December 1, 2007 (199:21-25;

200: 1-23). As of the date of trial, the VA had not made a determination as to

what benefits Sarah would receive based on Appellee's disability (229: 14-25;

230: 1).

       Appellee's monthly expenses as of the date of trial were $2,276.75

(150: 11-13, E59). This figure excluded an elastic debt service which was

$1,454.00 per month for a credit card debt that was not being paid at the time of

trial (1 50: 16-18). Also, there was debt on an Omaha Housing Authority apartment

for $232.75 per month in rent that was also not being paid (150:21-25, E59). At

the time of trial, Appellee was unemployed (151:24-25; 152:1).

       Appellee's son sold his coin collection without his permission (125:6-25).

Appellee believes his son received $6,500.00 in sales proceeds for the coins


                                          20
(126: 1-3). Appellee testified that he has not attempted to get the coins back or

the money back from his son, because he owed his son some money so the coins

were taken as payment of that debt (127:3-23). Appellee placed the value of the

coins for $6,500.00 on his side of the ledger in his proposed property division to

the court, even though the coins are no longer in his possession (214:1-3). There

were thousands of coins so Appellee did not have an inventory or an appraisal of

the coins (137:5-25; 138:1-20).

      Appellee asked the Court to divide the marital assets 50/50, which included

whatever the value of the 401 (k) is worth on the day of trial, as opposed to a

specific dollar amount (218: 16-25; 219: 1). Appellee asked that any survivor

spouse annuity cost be deducted from Appellant's portion of Appellee's military

pension (219:11-19).

       After trial, which was held on October 8, 2008 and January 5, 2009, the

trial court issued its findings in a file-stamped letter dated January 16, 2009 (T33-

34). The Court found that Appellant should have legal and physical custody,

subject to Appellee's rights of parenting time, and that parenting time would be

agreed on between Appellee and Sarah, the minor child (T33). The Court found

that the Appellee was legally disabled, and therefore should pay the statutory

minimum child support under the Nebraska Child Support Guidelines ($118.00 per

month), and that the figures from Exhibit 3 as to the Appellant's incomes and

deductions should be used to calculate the child support (T33). The Court found

that Appellee s child support obligation would be satisfied by Veterans
             I




                                         21
Administration benefits payable directly to Sarah, the minor child, retroactive to

December 1, 2007, until she reached the age of majority (T34). Appellant was

ordered to maintain health and dental insurance for the minor child, Sarah, as long

as the coverage was available to her through her employment, and that Appellant

would continue to provide health and dental insurance coverage for Appellee for

the six-month interlocutory period following the entry of the Decree (T34). The

Court ordered Appellant to be responsible for any non-covered medical and dental

expenses of Sarah due to Appellee's disability (T34). The Court found that

Appellee's proposed division of the marital estate as set out in Exhibit 62 was fair

and equitable and that the values contained in Exhibit 62 were supported by the

evidence offered at trial (T34). The Court assigned a valuation date on Appellant's

401 (k) retirement account as of the date of the Decree for purposes of a Qualified

Domestic Relations Order ("QDRO") (T34). The trial court ordered Appellant to pay

Appellee $300.00 per month in alimony beginning the first full month following the

Decree, and continuing until Appellee is "no longer disabled, or reaches his 60 t h

birthday, whichever might occur first" IT34). Appellant was ordered to pay the

sum of $3,000.00 toward Appellee's attorney's fees (T34).

        Appellee filed a motion and notice on March 11, 2009 asking the Court to

clarify its rulings made in the January 16, 2009 Decision Letter (T35-37). Appellee

asked for clarification on three issues (the monthly amount of Appellee's child

support obligation, the start date for the payment of Appellee's child support

obligation, and whether language should be included in the order establishing


                                          22
Appellant's alimony obligation) (T35-37). Appellant filed a Motion to Compel on

March 11, 2009 asking for an Order compelling the Appellee to sign an

authorization to enable Appellant to access information and documentation

regarding VA disability benefits for the parties' minor child, Sarah (T47-48).

Appellant filed a Motion to Reopen Evidence on April 8, 2009, asking for an order

to reopen evidence about two Centris credit accounts she believed Appellee was

fraudulently concealing from her and the Court (T49-61).

      A proceeding was held April 10, 2009, on a Motion to clarify the rulings

from January 16, 2009 and the Appellant's motions (244:23-25; 245: 1). The first

finding clarified was Appellee's child support obligation which was $118.00 per

month based on his poverty level triggering the basic sustenance limitation (245:2-

25; 247: 1-22). The Court agreed that Appellee's child support obligation should be

$118.00 per month (248: 1-8; E70, E73). The second point to be clarified was the

start date of the child support obligation (248:9-15). The Court determined that

the child support obligation should commence on the first full month following the

entry of the Decree (248:9-25; 249:1-2). The third point of clarification was

whether to include the language regarding death of either party or remarriage of

Appellee as it relates to the Appellee's alimony award pursuant to Section 42-365

(249:3-7). Appellant did not object to this language being added to the Decree and

the judge approved its inclusion (249:9-14). The Court ordered Mr. Thompson to

sign the authorization giving Appellant access to information about V A benefits

(266:23-25; 267: 1).


                                         23
       Also, on April 10, 2009, Appellant asked the Court to reopen evidence based

on her discovery of two Centris accounts Appellant claimed she was unaware of

which had insufficient funds (250: 10-25). Those accounts were provided in

discovery and offered and received into evidence at trial (251 :2-9). Appellee

voluntarily assumed payment of both obligations (251 :7-15).

       Appellant filed a motion to compel on April 27, 2009, asking the Court for

an Order compelling Appellee to account for and turn over benefits awarded by the

Veterans Administration on behalf of the parties' minor child, Sarah, and to execute

documentation to insure continuation of the Veterans benefits for Sarah (T62-65).

Appellee filed a motion on April 29, 2009, asking the Court to enter the Decree of

Dissolution of Marriage prepared by his counsel (T66-67).

      On April 30, 2009, the trial court entered an Order on Appellee's Motion for

Clarification of the trial court's rulings, Motion for Entry of Decree, Appellant's

Motion to Compel Appellee to authorize release of information and documents

relating to the minor child, Sarah, and Appellant's Motion to reopen evidence (T77-

78). The Order adopted Exhibit 73 as showing Appellee's child support obligation

at $118.00 per month, and that such obligation should commence on the first day

of the first full month following the entry of the Decree, and the language proposed

by Appellee should be added to the Decree which established Appellant's alimony

obligation (T77-78). The trial court found that the Motion to Compel Appellee to

sign an authorization was granted by agreement and that the Motion to reopen




                                           24
evidence should be denied (T77-78). Appellee was ordered to submit a revised

Decree for the Court's approval (T78).

      Appellant received a signed copy of the authorization from Appellee on May

5,2009 (267:2-15). On May 6,2009, a hearing was held on Appellant's Motion

to Compel Appellee to turn over benefits to the minor child, Sarah (254:9-19).

Appellant called the parties' 20-year-old daughter, Lindy Thompson, to the stand to

testify about the VA benefits she had received (254:9-19). Lindy testified that she

received a check for $1,636.00 for the retroactive VA benefits, but Appellee held

back $2,000.00 because he was concerned he would have to pay some of that

money back to the VA (256:18-25; 257:1-15). Lindy testified that her younger

sister, Sarah, received $3,336.00 in retroactive VA benefits from Appellee

(259: 17-23). Lindy admitted that she had a disagreement with Appellee about the

retroactive benefits and was getting a lawyer and contacting the VA to try to

resolve the matter (260:6-16). By a May 6, 2009, docket entry, the court ruled

the Motion to Compel was moot (T34),

      On May 15, 2009, Appellant filed a Response to Appellee's Motion to Enter

Decree (T79-84), Appellant's motion contained 19 different reasons she was

opposed to the entry of the proposed Decree (T79-83). On May 20, 2009,

Appellant filed a second Motion to Reopen Evidence, this time based on a

notification Appellant received on May 19, 2009, that she was being laid off from

her employment (T85-86).




                                         25
       On May 20, 2009, a proceeding was held on Appellee's Motion to Enter

Decree (278:21-25; 279: 1-7). At this hearing, Appellant's counsel requested time

to review the Decree and advised the Court that Appellant had been laid off from

her employment (280: 1-7). The Court advised Appellant that the proper procedure

for modifying a decree was to file an Application to Modify Decree (280:8-9).

       The hearing on the Motion to Enter Decree was held on the following day,

May 21, 2009 (281: 1-18). At that hearing, Appellant's counsel had numerous

disagreements with the wording of Appellee's Decree (282:9-25; 294: 1-5).

Appellee addressed all of the issues Appellant's counsel raised, except for those

that were "too insignificant and irrelevant to even address" (294:6-25; 296: 1-2).

The Court found the Decree reflected the Court's intentions in its findings of

January 16, 2009, and adopted Appellee's proposed Decree (296:3-6). Also,

during this hearing, Appellant's second Motion to Reopen Evidence was denied

because Appellant's layoff is not newly discovered evidence, because the event

occurred after the trial (298:9-18).

      On May 28, 2009, the trial court entered an order denying Appellant's

second Motion to Reopen Evidence (T103). A Decree of Dissolution of Marriage

was entered based on the trial court's January 16, 2009 Decision Letter, and the

trial court's ruling on the Appellee's motion to clarify those rulings (T87-T1 01).

                             SUMMARY OF ARGUMENT

      The trial court did not abuse its discretion in the resolution of property

division, child support, alimony and attorney's fees in this case. The trial court's


                                          26
resolution of the property division was appropriate, if not generous to the

Appellant, because the court lacked evidence that Appellee dissipated marital

assets for a selfish purpose when the marriage was undergoing an irretrievable

breakdown. The trial court correctly determined Appellee's child support

obligation, because a trial court must consider all sources of income and Appellee's

disability in determining what calculations should be used in establishing the child

support obligation. The trial court's award of alimony was appropriate in this case,

because the parties had been married for approximately 20 years, Appellant had a

successful and stable career, and Appellee was declared completely disabled by the

Veterans Administration. An award of attorney's fees to Appellee was appropriate,

because Appellant filed a Motion to Disqualify Appellee's counsel after Appellee

incurred $18,000.00 in attorney's fees, Appellant delayed the final resolution of

the dissolution proceedings, and Appellant had significantly more income and future

earning capacity than Appellee at the time of trial. The trial court did not abuse its

discretion because the evidence supported the trial court's findings.

      The trial court did not abuse its discretion in denying two of Appellant's

Motions to Reopen the Case to receive additional evidence. The additional

evidence regarding the Centris accounts was discoverable, and was offered and

received into evidence at trial. Appellant's loss of employment took place well

after the trial had concluded. Appellant should not be permitted to delay the

conclusion of the dissolution proceedings through frivolous motions to reopen a

case to offer additional evidence. The Appellant's loss of employment occurred


                                          27
subsequent to the trial court issuing its findings from the trial. The Appellant's loss

of employment would be more properly considered in a modification proceeding.

                                     ARGUMENT

I.     THE TRIAL COURT CORRECTLY FOUND APPELLANT FAILED TO PROVE

       THE ALLEGATION THAT APPELLEE DISSIPATED MARITAL ASSETS.

       Appellant failed to establish that Appellee dissipated marital assets for a

selfish purpose unrelated to the marriage, because Appellee's debts were incurred

for legitimate business purposes and were incurred before the marriage was

undergoing an irretrievable breakdown. The trial court was correct in not punishing

Appellee for his business failures with an inequitable division of the marital

property. The marital residence, the Appellant's retirement account, the coin

collection, and the personal property items in storage were properly included in the

marital estate.

       "Dissipation of marital assets" is one spouse's use of marital property for a

selfish purpose unrelated to the marriage at the time when the marriage is

undergoing an irretrievable breakdown. Harris v. Harris, 261 Neb. 75, 621 N.W.2d

491 (2001). Marital assets dissipated by a spouse for purposes unrelated to the

marriage after the marriage is irretrievably broken should be included in the marital

estate in dissolution actions. Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491

(2001 ).

       In this case, Appellee incurred a substantial amount of debt at various times

throughout the marriage. Appellee testified that he used this debt to fund the


                                          28
various businesses he attempted to establish during the marriage. To manage this

debt, the parties elected to consolidate these debts, and other debts such as car

loans (which were marital debts), by taking out a series of second mortgages.

Appellant testified that if the Appellee's businesses were successful, she would be

asking the Court to award her a portion of the value of these businesses as part of

her marital estate.

      There was no evidence that any of the debts were incurred by Appellee for a

selfish purpose that was unrelated to the marriage. Appellee testified that he

rented office space to operate his construction businesses and later the web-based

businesses. Appellee used the credit cards to pay for business expenses such as

gas, truck payments, supplies, and materials. The proceeds from the construction

jobs were used as payment on some of the second mortgages and for the parties'

living expenses. Appellee used debt to purchase domain names and server space

for his web-based company. Under the facts of this case, Appellant failed to show

Appellee used marital assets for a selfish purpose.

      Appellant also failed to prove that the marital assets were dissipated at a

time when the marriage was undergoing an irretrievable breakdown. The first

second mortgage was obtained in 1994, 12 years before the parties separated.

The second second mortgage was obtained six (6) years before the parties

separated and the loan consolidated a portion of the first second mortgage. The

second second mortgage was paid by a portion of the third second mortgage, and

the third second mortgage was completely paid off two months before the parties


                                         29
even separated. Based on the evidence admitted at trial, the trial court could not

have possibly accounted for the amount due to Appellant based on these second

mortgages, whether those amounts occurred during the irretrievable breakdown, or

whether such an award was warranted at all. The trial court was correct in not

considering the second mortgages as a dissipation of marital assets under Nebraska

case law.

       The trial court included Appellee's coin collection in the marital estate,

presumably because the coin collection was accumulated by the use of marital

funds during the course of the marriage and was dissipated in the time leading up

to trial. However, Appellee's son, who was in possession of the coin collection,

sold the coin collection without either of the parties' permission. According to

Appellee, there were thousands of coins which made taking an inventory or doing

an appraisal extremely difficult. Appeilee's son received $6,500.00 in sales

proceeds for the unlawful sale of the coins. Appellee made no attempt to collect

these proceeds or seek the return of the coins from the coin dealer, because he had

a legitimate debt to his son.

      Arguably, these coins or the value thereof ($6,500.00), should not have

been included in the marital estate and not included on Appellee's side of the ledger

for purposes of property division. There was no evidence that Appellee's debt to

his son was not a marital debt, and there was no evidence that Appellee acted

voluntarily to dissipate the coins for a selfish purpose. The trial court would have

been well within its discretion to leave the value of the coins out of the marital


                                          30
estate, but the trial court included the value in the division of the property on

Appellee's side of the ledger.

II.    THE TRIAL COURT'S DIVISION OF THE MARITAL PROPERTY WAS FAIR

       AND EQUITABLE.

       Under Section 42-365, the equitable division of property is a three-step

process. The first step is to classify the parties' property as marital or non-marital.

The second step is to value the marital assets and marital liabilities of the parties.

The third step is to calculate and divide the net marital estate between the parties

in accordance with the principles contained in Section 42-365. Gangwish v.

Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). The purpose of a property

division is to distribute the marital assets equitably between the parties.   ~


       As a general rule, 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. Such exceptions include property accumulated and acquired

through gift or inheritance, or property held in trust by a third person. Property

obtained through one or both spouses' employment, however, is not such an

exception. Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).

      Division can occur in several ways: Sell everything and divide the money,

award each party specified property with or without an equalizing money judgment,

or award one party all property and the other money. The Nebraska Supreme Court

has repeatedly stated that the ultimate test in determining the appropriateness of




                                          31
the division of property is fairness and reasonableness as determined by the facts

of each case. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995).

       In this case, Appellant's proposal for the property division was for the trial

court to give her almost all the marital property and Appellee all of the marital debt

with the exception of the first mortgage on the home. Appellant's proposal was

completely unreasonable under the facts of this case. The trial court resolved the

property division between the parties by adopting Appellee's proposal as it

appeared in trial Exhibit No. 62. A close examination of trial No. Exhibit 62 will

reveal that Appellee's proposal was fair and reasonable, if not generous to

Appellant.

      Appellant was awarded all the equity in the marital residence ($89,923.00),

household goods and miscellaneous personal property ($5,000.00), her 401 (k)

retirement account ($234,366.00), and the 15-percent marital interest in

Appellee's military pension. Appellant was required to transfer 50 percent of the

value of the 401 (k) retirement account to Appellee as of the date of trial, and

Appellee was awarded a lien against the marital home for $40,000.00.

      The marital residence was valued at $122,000.00 based on the appraiser's

expert testimony. The expert's testimony or value was not seriously questioned at

trial. The appraiser's value minus the mortgage against the property ($32,000.00)

resulted in $89,923.00 in marital equity in the home. Appellee asked for only

$40,000.00 of this equity in the form of a lien. The value of the coin collection

($6,500.00) was included on Appellee's side of the ledger for the property division,


                                          32
even though Appellee had a reasonable argument the value of these coins should

not be included in the marital estate. See argument above. Also in Appellee's

proposal, Appellee asked that only $25,657.00 of the $72,000.00 in credit card

debt be included in the proposed division of the marital estate. As of the date of

trial, Appellee owed over $72,000.00 in credit card debt, which had been

accumulating at a rate of over a thousand dollars ($1000.00) per month. The

$72,000.00 balance was attributable, at least in part, to the credit card balance

owed at the date of the parties' separation in August of 2006.

       With respect to Icon Mountain, Inc., the evidence shows Appellee's

corporation "Icon Mountain" was worthless as of the date of trial. The corporation

and all of the corporation's assets, consisting of a domain name ($19.95), were in

Appellee's name. There was no reason to dispose of such asset.

       Appellee's proposed division of the marital estate to the trial court was very

generous to Appellant. There is no reason to change the trial court's resolution of

the property division.

III.   THE TRIAL COURT CORRECTLY DETERMINED APPELLEE'S CHILD SUPPORT

       OBLIGATION.

       There was no credible evidence offered at trial to dispute the Veterans

Administration's determination that Appellee was completely disabled. The trial

court was acting within its discretion and properly exercised jurisdiction in

considering Appellee's disability and benefits paid to the minor child in calculating

Appellee's child support obligation.


                                          33
       In general, child support payments should be set according to the Nebraska

Child Support Guidelines, which compute the presumptive share of each parent's

child support obligation. Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533

(2004). Under the Nebraska Child Support Guidelines,

              Iilf applicable, earning capacity may be considered in lieu of a

              parent's actual, present income and may include factors such as work

              history, education, occupational skills, and job opportunities. Earning

              capacity is not limited to wage earning capacity, but includes monies

              available from all sources.

Neb. Rev. Stat. Section 4-204.

       Earning capacity may be used as a basis for an initial determination of child

support under the Nebraska Child Support Guidelines where evidence is presented

that the parent is capable of realizing such capacity through reasonable effort.

Claborn   v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).

       A non-custodial parent is entitled to a credit against a monthly child support

obligation for Social Security benefits paid to his or her minor child as a result of

the non-custodial parent's disability. Henderson v. Henderson, 264 Neb. 916, 653

N.W.2d 226 (2002); Gress v. Gress, 257 Neb. 112, 596 N.W.2d 8 (1999). Social

Security benefit payments which are the result of the obligor's disability are a

substitute for the obligor's loss of earning power and his or her obligation to pay

for the support of his or her dependents. lQ.




                                            34
       In this case, Appellee had no earning capacity whatsoever other than his

disability benefits and his future pension benefits, because he was declared

completely disabled by the Veterans Administration. Appellee had not engaged in

any activity that produced income since 2007. The trial court was well within its

discretion in accepting the Veterans Administration's determination that Appellee

was disabled. The disability finding was supported by the opinion of Appellee's

doctor and Appellee's testimony. Appellant's opinion that "he was fine" is not

credible, because she has no basis for such claim and she was biased.

       The trial court's jurisdiction to order a child support obligation between the

parties was not seriously questioned anywhere in Appellant's Brief, and it could not

be. The trial court never attempted to exercise jurisdiction over the Veterans

Administration in any manner. The trial court merely took the income from the

Veterans Administration into account in calculating child support. If the trial court

failed to do so, it would be in error.

       The trial court has the ability to include monies available from all sources.

See Neb. Rev. Stat. Section 4-204. The trial court can consider any source of

funds in crafting an order for a party's child support obligation. As an illustration,

the trial court does not have jurisdiction over student loan obligations in a

dissolution of marriage action, but it may consider one parent's student loan

payments in determining an appropriate child support obligation. See Sears v.

Larson, 259 Neb. 760, 612 N.W.2d 474 (2000). Also, the trial court does not

have jurisdiction over Social Security benefits in a dissolution of marriage


                                          35
proceeding, but the trial court can consider Social Security benefits and even credit

the amount received by the minor child dollar for dollar. See Ward v. Ward, 7 Neb.

App. 821, 585 N.W.2d 551 (1998).

      This case is similar to Henderson or Gress, supra, because the minor child,

Sarah, was getting paid VA benefits based on the non-custodial parent's disability.

In those cases, the court credited the amount paid to the minor child which was

based on the non-custodial parent's disability. The only difference between these

cases and this case is the source of the disability benefits, Veterans Administration

as opposed to Social Security. Had Appellee applied for benefits through Social

Security and not the Veterans Administration, this case would be indistinguishable

from Henderson or Gress. The trial court correctly determined Appellee's child

support obligation based on existing case law.

IV.   THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING

      ALIMONY TO THE APPELLEE.

      The trial court did not abuse its discretion in awarding alimony to the

Appellee, because of the Appellee's disability, of the 20-year duration of the

marriage, and the Appellee's lack of an ability to financially support himself.

      When a dissolution of marriage is decreed, the Court may order payment of

such alimony by one party to the other and division of property as may be

reasonable, having regard for the circumstances of the parties, duration of the

marriage, a history of the contributions to the marriage by each party, including

contributions to the care and education of the children, and interruption of personal


                                          36
careers or educational opportunities, and the ability of the supported party to

engage in gainful employment without interfering with the interests of any minor

children in the custody of such party. Neb. Rev. Stat. Section 42-365. In

determining whether alimony should be awarded, in what amount, and over what

period of time, the ultimate criterion is one of reasonableness. The purpose of

alimony is to provide for the continued maintenance or support of one party over

the other when the relative economic circumstances make it appropriate.

Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000).

      In this case, Appellant had a stable 25-year career with Bank of the West

and held the position of operations manager at the time of trial. Appellee was

completely disabled and had not done any work that had produced income since

2007. The Veterans Administration declared Appellee 100-percent disabled.

Appellee's disability was never seriously in question throughout the trial. The

parties were married for approximately 20 years leading up to their separation in

August of 2006. Appellee was 54 years of age at the time of trial. The trial court

ordered alimony until the age of 60 (which was the age he would start drawing in

his pension), or when he was no longer disabled, to terminate upon the death of

either party or the remarriage of the Appellee pursuant to 42-365.

      The evidence at trial established Appellant had a long, stable, and successful

career and that Appellee was completely disabled. The relative economic

circumstances between these two parties make the trial court's alimony award to




                                         37
Appellee, which was limited to a maximum period of six years and subject to a

modification upon the improvement in Appellee's health, very reasonable.




V.     THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING

       ATTORNEY'S FEES TO APPELLEE.

       In a dissolution of marriage case, an award of attorney's fees is

discretionary, is reviewed de novo on the record, and will be affirmed in the

absence of an abuse of discretion. Shockley v. Shockley, 251 Neb. 896, 560

N.W.2d 777 (1997). The award of attorney's fees in a dissolution action depends

on multiple factors that include the nature of the case, the services performed and

results obtained, the earning capacity of the parties, and the length of time required

for preparation and presentation of the case, customary charges of the bar, and

general equities of the case. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318

(2006).

      The trial court's award of $3,000.00 in attorney's fees to Appellee was

within the trial court's discretion. Appellant's income was significantly higher than

Appellee's income. Appellant unnecessarily disqualified Appellee's counsel as a

witness after Appellee had incurred over $18,000.00 in attorney's fees. The

disqualification of counsel resulted in higher attorney's fees for Appellee.

Appellant's counsel attempted to disqualify Appellee's second counsel by oral

motion during the trial.




                                          38
       The general equities of this case support an award of attorney's fees to

Appellee, because the trial court found that Appellee was completely disabled and

without any way to generate income. Appellee was required to pay over

$72,000.00 in credit card debt, and Appellant had minimal debt and stable

employment. The trial court's award of attorney's fees to Appellee was not an

abuse of discretion.

VI.    THE TRIAL COURT CORRECTLY DENIED APPELLANT'S MOTIONS TO

       REOPEN THE CASE TO RECEIVE ADDITIONAL EVIDENCE.

      The reopening of the case to receive additional evidence is a matter within

the discretion of the district court and will not be disturbed on appeal in the

absence of an abuse of that discretion. Corman v. Musselman, 232 Neb. 159, 439

N.W.2d 781 (1989). Among the factors traditionally considered in determining

whether to allow a party to reopen a case to introduce additional evidence are: (1)

the reason for the failure to introduce the evidence, i.e. counsel's inadvertence, a

party's calculated risk or tactic, or the court's mistake; (2) the admissibility and

materiality of the new evidence to the proponent's case; (3) the diligence exercised

by the requesting party in producing the evidence before his or her case is closed;

(4) the time or stage of the proceeding at which the motion is made; and (5)

whether the new evidence would unfairly surprise or unfairly prejudice the

opponent. Jessen v. DeFord, 3 Neb. App. 940, 536 N.W.2d 68 (1985).

      In this case, there was no reason to reopen the case to receive additional

evidence. The evidence with respect to the Centris accounts was not new,


                                          39
because evidence of the accounts was offered and received at trial. With respect

to Appellant's loss of employment, the events took place well after the trial court

had issued its rulings in January of 2009. Appellant's loss of employment was

something that should be addressed in a modification proceeding, because that

event took place after the trial, after the Court issued its rulings, and after Appellee

filed a motion to enter the Decree. Appellant should not be permitted to delay trial

by disqualifying Appellee's attorney, delay the completion of trial by not finishing

presentation of the Plaintiffs/Appellant's case in the allotted time for the trial, and

delay entry of the Decree through a series of frivolous motions, only to add

evidence to a matter that should have been concluded by 2008, over a year before

this event related to her employment had occurred. The trial court did not abuse it

discretion in denying Appellant's motions to reopen the case.

                                      CONCLUSION

      For the reasons stated above, Appellee respectfully asks this Court to affirm

the trial court's May 22, 2009 Decree of Dissolution of Marriage.




                                 Respectfully submitted,

                                 GARY DEAN THOMPSON, Appellee

                                 By                                          _
                                      Michael B. Lustgarten, #18602
                                      Justin A. Roberts, #24188
                                      LUSTGARTEN & ROBERTS, P.C., L.L.O.
                                      1625 Farnam Plaza, Suite 900
                                      Omaha, NE 68102
                                      (402) 346-1920


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