The standard assignments of error in a dissolution action (regarding child custody, visitation, child support and division of property) are argued in this opinion as the Nebraska Court of Appeals affirms the trial court’s decree in its de novo review.
Glodowski v. Glodowski (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Dissolution:
1. [Appeal and Error:] 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. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). See, Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). This standard of review applies to the trial court’s determinations rega rding custody, child support, division of property, alimony, and attorney fees. Gress, supra. See, Gangwish, supra; Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). 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. Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005); Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 721 (2004). (Conflicting Evidence:) When evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witness and accepted one version of the facts rather than another. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995); Walker v. Walker, 9 Neb. App. 694, 618 N.W.2d 465 (2000).
2. [Child Custody:] When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests. Robb, supra; Mathews, supra; Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
a. (Best Interests:) In determining the best interests of the child in a custody determination, a court must consider, at a minimum, the following:
i. [t]he relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
ii. [t]he desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning (While the wishes of a child who has reached sufficient age, and has the ability to express an intelligent preference, are entitled to consideration, the wishes of the child are not controlling. Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977); Miller v. Miller, 196 Neb. 146, 241 N.W.2d 666 (1976));
iii. [t]he general health, welfare, and social behavior of the minor child; and
iv. [c]redible evidence of abuse inflicted on any family or household member. Neb. Rev. Stat. § 42-364(2) (Reissue 2004). See, Robb, supra; Marcovitz, supra.
b. (Gender Preference: Statutes:) Section 42-364(3) states, “In determining custody arrangements and the time to be spent with each parent, the court shall not give preference to either parent based on the sex of the parent and no presumption shall exist that either parent is more fit or suitable than the other.” In Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977), the trial court awarded the mother custody of her daughter, despite her daughters expressed desire to live with the father. The Nebraska Supreme Court reversed the trial court’s judgment, finding that other than the trial judge’s personal comment, the trial court failed to provide a reason why the daughter should be placed with her mother until maturity.
c. (Joint Custody:) The Nebraska Supreme Court has recognized that joint custody is composed of two elements--legal custody and physical custody. Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). See Kay v. Ludwig, 12 Neb. App. 868, 686 N.W.2d 619 (2004). Joint legal custody has been generally defined as joint authority and responsibility for making major decisions regarding the child’s welfare and that in contrast, join t physical custody has been described as joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time. Id. Under Nebraska law, the trial court may order joint custody only under certain circumstances. See § 42-364(5).
3. [Child Support:] Before determining a parent’s child support obligation, there must be a determination regarding the monthly incomes of the custodial and noncustodial parents. See Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). As a general rule, the income of a self-employed person can be determined from his or her income tax return. Rhoades v. Rhoades, 258 Neb. 721, 605 N.W.2d 454 (2000). In calculating child support, “‘as a general matter, the parties’ current earnings are to be used.” Peter v. Peter, 262 Neb. 1017, 1025, 637 N.W.2d 865, 873 (2002), quoting Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992), disapproved on other grounds, Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006). However, the fifth footnote to worksheet 1 of the Nebraska Child Support Guidelines states, “In the event of substantial fluctuations of annual earnings of either party during the immediate past 3 years, the income may be averaged to determine the percent contribution of each parent . . . .” See, Shiers, supra; Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 721 (2004).
a. (Retroactive:) Whether a child support order should be retroactive is entrusted to the discretion of the trial court and will be affirmed absent an abuse of discretion. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). See Riggs v. Riggs, 261 Neb. 344, 622 N.W.2d 861 (2001). Although the general rule in Nebraska has been to allow a modification of a child support order prospectively from the time of the modification order itself, upon occasion, modification of a child support order retroactive to the filing date of the application for modification has been approved. Sneckenberg v. Sneckenberg, 9 Neb. App. 609, 616 N.W.2d 68 (2000); Laubscher v. Laubscher, 8 Neb. App. 648, 599 N.W.2d 853 (1999).
4. [Division of Property:] Under Neb. Rev. Stat. § 42-365 (Reissue 2004), the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital. 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 § 42-365. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Gress, supra; Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004); Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). ••• The purpose of a property division is to distribute the marital assets equitably between the parties. Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000); Grams v. Grams, 9 Neb. App. 994, 624 N.W.2d 42 (2001). The ultimate test for determining the appropriateness of the division of property is reasonableness as determined by the facts of each case. Id. The division of property is not subject to a precise mathematical formula, but the general rule is to award a spouse onethird to one-half of the marital estate. Meints, supra.
a. (Date of Valuation:) Although there is some authority for the proposition that the date of trial or the date of dissolution is a proper valuation date for marital property, see Else v. Else, 5 Neb. App. 319, 558 N.W.2d 594 (1997), there is no “hard and fast rule” under Nebraska law that prohibits the district court from using other dates for valuation purposes “so long as the value selected bears ‘a rational relationship to the property to be divided upon dissolution.’” Walker v. Walker , 9 Neb. App. 694, 699, 618 N.W.2d 465, 470 (2000), quoting Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
Date Filed and Case No.: March 6, 2007. No. A-06-201.
Court Appealed From: District Court for Colfax County: Mary C. Gilbride, Judge.
Attorneys for the Appeal: L.J. Karel for Richard A. Glodowski, appellant and cross-appellee. Pamela Lynn Hopkins for Lisa M. Glodowski, appellee and cross-appellant.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Irwin, Judge.
Summary: Richard A. Glodowski (Rick) appeals the trial court’s order regarding child custody and property division. He further asserts that the trial judge expressed a preference for granting custody to one parent based upon gender. Lisa M. Glodowski cross-appeals the court’s order regarding visitation, child support, and property division. On appeal, to the Nebraska Court of Appeals, Rick assigned three errors. On cross-appeal, Lisa has assigned four errors.
First, Rick asserts that the trial court erred in awarding custody to Lisa. Second, Rick asserts that the trial court indicated a preference that custody be awarded to one party over the other based upon gender. Third, Rick asserts that the trial court erred in using different dates to determine the value of the marital estate. First, Lisa asserts that the trial court erred in awarding liberal visitation that resulted in de facto joint custody. Second, Lisa asserts that the trial court erred in calculating permanent child support. Third, Lisa asserts that the trial court erred in ordering a retroactive reduction in child support. Fourth, Lisa asserts that the trial court erred in classifying, valuing, calculating, and distributing the marital estate.
Rick’s assignments of error.
Custody:
Did the district court err in Lisa custody of the parties’ two children F.G. and M.G.?
5. Opinion of Children: Rick argued that F.G. and M.G. want to live with him, their opinion is based upon sound reasoning, and the children’s counselors testified that Rick has a stronger relationship with his children than Lisa has. Reviewing the record, the Court could not find that the court abused its discretion. They noted that in contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court’s determination is affirmed or reversed on appeal. Accordingly, because the trial judge heard and observed the witnesses testify, we grant deference to her finding that it is in the children’s best interests that Lisa be awarded custody of F.G. and M.G.
6. Gender Bias: Rick asserts that the trial court erred in granting Lisa custody, because the trial court expressed a preference that the mother be awarded custody based upon her gender. Rick argued that the story told to F.G. and M.G. by the trial judge demonstrated the judge’s loss of neutrality. The Court disagreed. In Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977), the trial court awarded the mother custody of her daughter, despite her daughters expressed desire to live with the father. The Nebraska Supreme Court reversed the trial court’s judgment, finding that other than the trial judge’s personal comment, the trial court failed to provide a reason why the daughter should be placed with her mother until maturity. The Court found the instant case distinguishable from Boroff because the trial judge’s story here does not indicate a gender preference. Unlike Boroff, the trial judge here did not indicate a preference that the children be raised by their mother. Rather, the trial judge, after hearing testimony of the girls’ strained relationship with their mother, acknowledged that she was aware of the children’s preference to live with their father, but that it was important they have an open relationship with both parents. As such, because the evidence supported the finding that the trial judge did not express a preference regarding custody based upon gender, we find no abuse of discretion by the trial court in granting the mother custody.
Division of Property:
1. If the trial court erred in failing to award Rick custody of the children, did the trial court also err in failing to award him the farmstead? Because the Court found that the trial court did not err in granting Lisa custody of F.G. and M.G., it found no merit to Ricks argument.
2. As the parties $29,800 hog operating debt had been paid in full prior to the decree’s entry should Rick be entitled to a credit of $8,427.50 for helping to reduce the debt, because the hog operating debt had been paid, in part, by liquidating the parties’ $16,855 joint CD? The Court disagreed with Rick’s argument, as the trial court determined that the parties would share equally in the estate, it awarded Rick a net estate worth $90,341.66 and awarded Lisa a net estate worth $90,341.66. Because the trial court divided the estate equally, it awarded Rick the same value in assets and liabilities from other areas of the marital estate. As such, the Court found no merit to Rick’s argument that he should have been given credit for one-half of the joint CD account when the trial court awarded Rick an equal amount in assets and debt from different areas of the marital estate. “Under these facts, we find that it makes no difference whether Rick was awarded his share of the assets and debts, in part, through the joint CD account and hog debt or whether he was awarded his share of the assets and debt, in part, through other property” said the Court. “Accordingly, we find that the trial court did not abuse its discretion.”
3. Did the district court err in dividing Lisa’s 401K Plan? In Rick’s final assigned error, he challenges the trial court’s valuation of Lisa’s 401K plan arguing the trial court erred in using the December 2004 value when a more current value was available and when the trial court used a more current value in appraising the farmstead. Because the trial court did not abuse its discretion in using the December 2004 value, the Court found no merit to Rick’s argument.
Lisa’s Assigned Errors on Cross-appeal
Visitation and Child Support:
1. Did the trial court err in its grant of visitation? Lisa asserts that the trial court erred in granting Rick visitation 5 consecutive days out of every 10 days. Because Rick was granted only the right to liberal visitation, and not the equal right to make decisions regarding the best interests of the children, the Court found no abuse of discretion by the trial court “in granting Rick the amount of time it did and such does not constitute a de facto award of joint custody.”
2. Did the trial court the trial court err in failing to consider Rick’s earning capacity in ordering a child support obligation? Lisa asserted that the trial court failed to consider Rick’s earning capacity in ordering a child support obligation of $674 per month. She also argued that the trial court should have averaged Rick’s income from 2002 and 2003 in determining the child support obligation. Because the evidence does not support averaging Rick’s income in this case, the Court disagreed with Lisa.
3. Did the court err in retroactively reducing the child support? Lisa challenged the trial court’s order retroactively reducing child support arguing that the order requiring $674 per month in child support should be effective from the first day of the month following the final order. Reviewing the record, the Court found no abuse of discretion by the trial court. Here on 09/22/04 the trial court entered an order that Rick pay $896 per month in temporary child support. Trial proceedings were conducted from June to July 2005. In February 2006, the trial court entered a dissolution decree, ordering Rick to pay child support of $674 per month and finding that the child support award would be retroactively effective 08/01/05. Similar to the Court’s finding in Laubscher v. Laubscher, 8 Neb. App. 648, 599 N.W.2d 853 (1999), the Court found no abuse of discretion in the trial court’s order to retroactively modify the temporary child support to the first day of the month following the trial.
Division of Marital Estate:
1. Did the trial court err in its equal distribution of the marital estate? Lisa argued that the trial court abused its discretion in failing to award her 60% of the net estate. The Court found no abuse of discretion by the trial court equal distribution of the marital estate. The evidence indicated that both parties contributed to the farm. “As such, we find that a 50-50 division of property is reasonable.” The Court reasoned that: 1) the difference between the trial court’s allocation of debt and assets to Lisa and her proposed allocation of debts and assets is only $2,832. The difference between the trial court’s allocation of debt and assets to Rick and Lisa’s proposed allocation of debts and assets to Rick is $1,498. “Even if the trial court erred in allocating certain debts and liabilities, we find that the overall difference between the trial court’s mar ital estate distribution and Lisa’s proposed marital estate distribution is negligible” they said. 2) as stated above, the evidence supported the finding that both parties contributed to the marital estate. Even if the parties’ contributions to the estate were not equal, each party’s contribution was within the one-third to one-half range. “Therefore, even if the court erred in its distribution, we find no abuse of discretion, because the evidence indicates that each party was entitled to at least one-third and no more than two-thirds of the marital estate.”
Conclusion: The Court concluded that the trial court did not err in granting Lisa custody of F.G. and M.G., did not indicate a preference in granting Lisa custody based upon her gender, did not err in its division of property and debts, did not grant de facto joint custody, did not err in its child support determination, and did not err in retroactively reducing Rick’s child support. AFFIRMED.
The standard assignments of error in a dissolution action (regarding child custody, visitation, child support and division of property) are argued in this opinion as the Nebraska Court of Appeals affirms the trial court’s decree in its de novo review.
Glodowski v. Glodowski (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Dissolution:
1. [Appeal and Error:] 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. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). See, Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). This standard of review applies to the trial court’s determinations rega rding custody, child support, division of property, alimony, and attorney fees. Gress, supra. See, Gangwish, supra; Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). 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. Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005); Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 721 (2004). (Conflicting Evidence:) When evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witness and accepted one version of the facts rather than another. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995); Walker v. Walker, 9 Neb. App. 694, 618 N.W.2d 465 (2000).
2. [Child Custody:] When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests. Robb, supra; Mathews, supra; Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
a. (Best Interests:) In determining the best interests of the child in a custody determination, a court must consider, at a minimum, the following:
i. [t]he relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
ii. [t]he desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning (While the wishes of a child who has reached sufficient age, and has the ability to express an intelligent preference, are entitled to consideration, the wishes of the child are not controlling. Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977); Miller v. Miller, 196 Neb. 146, 241 N.W.2d 666 (1976));
iii. [t]he general health, welfare, and social behavior of the minor child; and
iv. [c]redible evidence of abuse inflicted on any family or household member. Neb. Rev. Stat. § 42-364(2) (Reissue 2004). See, Robb, supra; Marcovitz, supra.
b. (Gender Preference: Statutes:) Section 42-364(3) states, “In determining custody arrangements and the time to be spent with each parent, the court shall not give preference to either parent based on the sex of the parent and no presumption shall exist that either parent is more fit or suitable than the other.” In Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977), the trial court awarded the mother custody of her daughter, despite her daughters expressed desire to live with the father. The Nebraska Supreme Court reversed the trial court’s judgment, finding that other than the trial judge’s personal comment, the trial court failed to provide a reason why the daughter should be placed with her mother until maturity.
c. (Joint Custody:) The Nebraska Supreme Court has recognized that joint custody is composed of two elements--legal custody and physical custody. Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). See Kay v. Ludwig, 12 Neb. App. 868, 686 N.W.2d 619 (2004). Joint legal custody has been generally defined as joint authority and responsibility for making major decisions regarding the child’s welfare and that in contrast, join t physical custody has been described as joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time. Id. Under Nebraska law, the trial court may order joint custody only under certain circumstances. See § 42-364(5).
3. [Child Support:] Before determining a parent’s child support obligation, there must be a determination regarding the monthly incomes of the custodial and noncustodial parents. See Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). As a general rule, the income of a self-employed person can be determined from his or her income tax return. Rhoades v. Rhoades, 258 Neb. 721, 605 N.W.2d 454 (2000). In calculating child support, “‘as a general matter, the parties’ current earnings are to be used.” Peter v. Peter, 262 Neb. 1017, 1025, 637 N.W.2d 865, 873 (2002), quoting Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992), disapproved on other grounds, Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006). However, the fifth footnote to worksheet 1 of the Nebraska Child Support Guidelines states, “In the event of substantial fluctuations of annual earnings of either party during the immediate past 3 years, the income may be averaged to determine the percent contribution of each parent . . . .” See, Shiers, supra; Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 721 (2004).
a. (Retroactive:) Whether a child support order should be retroactive is entrusted to the discretion of the trial court and will be affirmed absent an abuse of discretion. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). See Riggs v. Riggs, 261 Neb. 344, 622 N.W.2d 861 (2001). Although the general rule in Nebraska has been to allow a modification of a child support order prospectively from the time of the modification order itself, upon occasion, modification of a child support order retroactive to the filing date of the application for modification has been approved. Sneckenberg v. Sneckenberg, 9 Neb. App. 609, 616 N.W.2d 68 (2000); Laubscher v. Laubscher, 8 Neb. App. 648, 599 N.W.2d 853 (1999).
4. [Division of Property:] Under Neb. Rev. Stat. § 42-365 (Reissue 2004), the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital. 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 § 42-365. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Gress, supra; Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004); Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). ••• The purpose of a property division is to distribute the marital assets equitably between the parties. Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000); Grams v. Grams, 9 Neb. App. 994, 624 N.W.2d 42 (2001). The ultimate test for determining the appropriateness of the division of property is reasonableness as determined by the facts of each case. Id. The division of property is not subject to a precise mathematical formula, but the general rule is to award a spouse onethird to one-half of the marital estate. Meints, supra.
a. (Date of Valuation:) Although there is some authority for the proposition that the date of trial or the date of dissolution is a proper valuation date for marital property, see Else v. Else, 5 Neb. App. 319, 558 N.W.2d 594 (1997), there is no “hard and fast rule” under Nebraska law that prohibits the district court from using other dates for valuation purposes “so long as the value selected bears ‘a rational relationship to the property to be divided upon dissolution.’” Walker v. Walker , 9 Neb. App. 694, 699, 618 N.W.2d 465, 470 (2000), quoting Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
Date Filed and Case No.: March 6, 2007. No. A-06-201.
Court Appealed From: District Court for Colfax County: Mary C. Gilbride, Judge.
Attorneys for the Appeal: L.J. Karel for Richard A. Glodowski, appellant and cross-appellee. Pamela Lynn Hopkins for Lisa M. Glodowski, appellee and cross-appellant.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Irwin, Judge.
Summary: Richard A. Glodowski (Rick) appeals the trial court’s order regarding child custody and property division. He further asserts that the trial judge expressed a preference for granting custody to one parent based upon gender. Lisa M. Glodowski cross-appeals the court’s order regarding visitation, child support, and property division. On appeal, to the Nebraska Court of Appeals, Rick assigned three errors. On cross-appeal, Lisa has assigned four errors.
First, Rick asserts that the trial court erred in awarding custody to Lisa. Second, Rick asserts that the trial court indicated a preference that custody be awarded to one party over the other based upon gender. Third, Rick asserts that the trial court erred in using different dates to determine the value of the marital estate. First, Lisa asserts that the trial court erred in awarding liberal visitation that resulted in de facto joint custody. Second, Lisa asserts that the trial court erred in calculating permanent child support. Third, Lisa asserts that the trial court erred in ordering a retroactive reduction in child support. Fourth, Lisa asserts that the trial court erred in classifying, valuing, calculating, and distributing the marital estate.
Rick’s assignments of error.
Custody:
Did the district court err in Lisa custody of the parties’ two children F.G. and M.G.?
5. Opinion of Children: Rick argued that F.G. and M.G. want to live with him, their opinion is based upon sound reasoning, and the children’s counselors testified that Rick has a stronger relationship with his children than Lisa has. Reviewing the record, the Court could not find that the court abused its discretion. They noted that in contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court’s determination is affirmed or reversed on appeal. Accordingly, because the trial judge heard and observed the witnesses testify, we grant deference to her finding that it is in the children’s best interests that Lisa be awarded custody of F.G. and M.G.
6. Gender Bias: Rick asserts that the trial court erred in granting Lisa custody, because the trial court expressed a preference that the mother be awarded custody based upon her gender. Rick argued that the story told to F.G. and M.G. by the trial judge demonstrated the judge’s loss of neutrality. The Court disagreed. In Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977), the trial court awarded the mother custody of her daughter, despite her daughters expressed desire to live with the father. The Nebraska Supreme Court reversed the trial court’s judgment, finding that other than the trial judge’s personal comment, the trial court failed to provide a reason why the daughter should be placed with her mother until maturity. The Court found the instant case distinguishable from Boroff because the trial judge’s story here does not indicate a gender preference. Unlike Boroff, the trial judge here did not indicate a preference that the children be raised by their mother. Rather, the trial judge, after hearing testimony of the girls’ strained relationship with their mother, acknowledged that she was aware of the children’s preference to live with their father, but that it was important they have an open relationship with both parents. As such, because the evidence supported the finding that the trial judge did not express a preference regarding custody based upon gender, we find no abuse of discretion by the trial court in granting the mother custody.
Division of Property:
1. If the trial court erred in failing to award Rick custody of the children, did the trial court also err in failing to award him the farmstead? Because the Court found that the trial court did not err in granting Lisa custody of F.G. and M.G., it found no merit to Ricks argument.
2. As the parties $29,800 hog operating debt had been paid in full prior to the decree’s entry should Rick be entitled to a credit of $8,427.50 for helping to reduce the debt, because the hog operating debt had been paid, in part, by liquidating the parties’ $16,855 joint CD? The Court disagreed with Rick’s argument, as the trial court determined that the parties would share equally in the estate, it awarded Rick a net estate worth $90,341.66 and awarded Lisa a net estate worth $90,341.66. Because the trial court divided the estate equally, it awarded Rick the same value in assets and liabilities from other areas of the marital estate. As such, the Court found no merit to Rick’s argument that he should have been given credit for one-half of the joint CD account when the trial court awarded Rick an equal amount in assets and debt from different areas of the marital estate. “Under these facts, we find that it makes no difference whether Rick was awarded his share of the assets and debts, in part, through the joint CD account and hog debt or whether he was awarded his share of the assets and debt, in part, through other property” said the Court. “Accordingly, we find that the trial court did not abuse its discretion.”
3. Did the district court err in dividing Lisa’s 401K Plan? In Rick’s final assigned error, he challenges the trial court’s valuation of Lisa’s 401K plan arguing the trial court erred in using the December 2004 value when a more current value was available and when the trial court used a more current value in appraising the farmstead. Because the trial court did not abuse its discretion in using the December 2004 value, the Court found no merit to Rick’s argument.
Lisa’s Assigned Errors on Cross-appeal
Visitation and Child Support:
1. Did the trial court err in its grant of visitation? Lisa asserts that the trial court erred in granting Rick visitation 5 consecutive days out of every 10 days. Because Rick was granted only the right to liberal visitation, and not the equal right to make decisions regarding the best interests of the children, the Court found no abuse of discretion by the trial court “in granting Rick the amount of time it did and such does not constitute a de facto award of joint custody.”
2. Did the trial court the trial court err in failing to consider Rick’s earning capacity in ordering a child support obligation? Lisa asserted that the trial court failed to consider Rick’s earning capacity in ordering a child support obligation of $674 per month. She also argued that the trial court should have averaged Rick’s income from 2002 and 2003 in determining the child support obligation. Because the evidence does not support averaging Rick’s income in this case, the Court disagreed with Lisa.
3. Did the court err in retroactively reducing the child support? Lisa challenged the trial court’s order retroactively reducing child support arguing that the order requiring $674 per month in child support should be effective from the first day of the month following the final order. Reviewing the record, the Court found no abuse of discretion by the trial court. Here on 09/22/04 the trial court entered an order that Rick pay $896 per month in temporary child support. Trial proceedings were conducted from June to July 2005. In February 2006, the trial court entered a dissolution decree, ordering Rick to pay child support of $674 per month and finding that the child support award would be retroactively effective 08/01/05. Similar to the Court’s finding in Laubscher v. Laubscher, 8 Neb. App. 648, 599 N.W.2d 853 (1999), the Court found no abuse of discretion in the trial court’s order to retroactively modify the temporary child support to the first day of the month following the trial.
Division of Marital Estate:
1. Did the trial court err in its equal distribution of the marital estate? Lisa argued that the trial court abused its discretion in failing to award her 60% of the net estate. The Court found no abuse of discretion by the trial court equal distribution of the marital estate. The evidence indicated that both parties contributed to the farm. “As such, we find that a 50-50 division of property is reasonable.” The Court reasoned that: 1) the difference between the trial court’s allocation of debt and assets to Lisa and her proposed allocation of debts and assets is only $2,832. The difference between the trial court’s allocation of debt and assets to Rick and Lisa’s proposed allocation of debts and assets to Rick is $1,498. “Even if the trial court erred in allocating certain debts and liabilities, we find that the overall difference between the trial court’s mar ital estate distribution and Lisa’s proposed marital estate distribution is negligible” they said. 2) as stated above, the evidence supported the finding that both parties contributed to the marital estate. Even if the parties’ contributions to the estate were not equal, each party’s contribution was within the one-third to one-half range. “Therefore, even if the court erred in its distribution, we find no abuse of discretion, because the evidence indicates that each party was entitled to at least one-third and no more than two-thirds of the marital estate.”
Conclusion: The Court concluded that the trial court did not err in granting Lisa custody of F.G. and M.G., did not indicate a preference in granting Lisa custody based upon her gender, did not err in its division of property and debts, did not grant de facto joint custody, did not err in its child support determination, and did not err in retroactively reducing Rick’s child support. AFFIRMED.
The standard assignments of error in a dissolution action (regarding child custody, visitation, child support and division of property) are argued in this opinion as the Nebraska Court of Appeals affirms the trial court’s decree in its de novo review.
Glodowski v. Glodowski (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Dissolution:
1. [Appeal and Error:] 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. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). See, Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). This standard of review applies to the trial court’s determinations rega rding custody, child support, division of property, alimony, and attorney fees. Gress, supra. See, Gangwish, supra; Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). 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. Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005); Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 721 (2004). (Conflicting Evidence:) When evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witness and accepted one version of the facts rather than another. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995); Walker v. Walker, 9 Neb. App. 694, 618 N.W.2d 465 (2000).
2. [Child Custody:] When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests. Robb, supra; Mathews, supra; Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
a. (Best Interests:) In determining the best interests of the child in a custody determination, a court must consider, at a minimum, the following:
i. [t]he relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
ii. [t]he desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning (While the wishes of a child who has reached sufficient age, and has the ability to express an intelligent preference, are entitled to consideration, the wishes of the child are not controlling. Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977); Miller v. Miller, 196 Neb. 146, 241 N.W.2d 666 (1976));
iii. [t]he general health, welfare, and social behavior of the minor child; and
iv. [c]redible evidence of abuse inflicted on any family or household member. Neb. Rev. Stat. § 42-364(2) (Reissue 2004). See, Robb, supra; Marcovitz, supra.
b. (Gender Preference: Statutes:) Section 42-364(3) states, “In determining custody arrangements and the time to be spent with each parent, the court shall not give preference to either parent based on the sex of the parent and no presumption shall exist that either parent is more fit or suitable than the other.” In Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977), the trial court awarded the mother custody of her daughter, despite her daughters expressed desire to live with the father. The Nebraska Supreme Court reversed the trial court’s judgment, finding that other than the trial judge’s personal comment, the trial court failed to provide a reason why the daughter should be placed with her mother until maturity.
c. (Joint Custody:) The Nebraska Supreme Court has recognized that joint custody is composed of two elements--legal custody and physical custody. Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). See Kay v. Ludwig, 12 Neb. App. 868, 686 N.W.2d 619 (2004). Joint legal custody has been generally defined as joint authority and responsibility for making major decisions regarding the child’s welfare and that in contrast, join t physical custody has been described as joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time. Id. Under Nebraska law, the trial court may order joint custody only under certain circumstances. See § 42-364(5).
3. [Child Support:] Before determining a parent’s child support obligation, there must be a determination regarding the monthly incomes of the custodial and noncustodial parents. See Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). As a general rule, the income of a self-employed person can be determined from his or her income tax return. Rhoades v. Rhoades, 258 Neb. 721, 605 N.W.2d 454 (2000). In calculating child support, “‘as a general matter, the parties’ current earnings are to be used.” Peter v. Peter, 262 Neb. 1017, 1025, 637 N.W.2d 865, 873 (2002), quoting Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992), disapproved on other grounds, Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006). However, the fifth footnote to worksheet 1 of the Nebraska Child Support Guidelines states, “In the event of substantial fluctuations of annual earnings of either party during the immediate past 3 years, the income may be averaged to determine the percent contribution of each parent . . . .” See, Shiers, supra; Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 721 (2004).
a. (Retroactive:) Whether a child support order should be retroactive is entrusted to the discretion of the trial court and will be affirmed absent an abuse of discretion. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). See Riggs v. Riggs, 261 Neb. 344, 622 N.W.2d 861 (2001). Although the general rule in Nebraska has been to allow a modification of a child support order prospectively from the time of the modification order itself, upon occasion, modification of a child support order retroactive to the filing date of the application for modification has been approved. Sneckenberg v. Sneckenberg, 9 Neb. App. 609, 616 N.W.2d 68 (2000); Laubscher v. Laubscher, 8 Neb. App. 648, 599 N.W.2d 853 (1999).
4. [Division of Property:] Under Neb. Rev. Stat. § 42-365 (Reissue 2004), the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital. 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 § 42-365. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Gress, supra; Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004); Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). ••• The purpose of a property division is to distribute the marital assets equitably between the parties. Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000); Grams v. Grams, 9 Neb. App. 994, 624 N.W.2d 42 (2001). The ultimate test for determining the appropriateness of the division of property is reasonableness as determined by the facts of each case. Id. The division of property is not subject to a precise mathematical formula, but the general rule is to award a spouse onethird to one-half of the marital estate. Meints, supra.
a. (Date of Valuation:) Although there is some authority for the proposition that the date of trial or the date of dissolution is a proper valuation date for marital property, see Else v. Else, 5 Neb. App. 319, 558 N.W.2d 594 (1997), there is no “hard and fast rule” under Nebraska law that prohibits the district court from using other dates for valuation purposes “so long as the value selected bears ‘a rational relationship to the property to be divided upon dissolution.’” Walker v. Walker , 9 Neb. App. 694, 699, 618 N.W.2d 465, 470 (2000), quoting Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
Date Filed and Case No.: March 6, 2007. No. A-06-201.
Court Appealed From: District Court for Colfax County: Mary C. Gilbride, Judge.
Attorneys for the Appeal: L.J. Karel for Richard A. Glodowski, appellant and cross-appellee. Pamela Lynn Hopkins for Lisa M. Glodowski, appellee and cross-appellant.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Irwin, Judge.
Summary: Richard A. Glodowski (Rick) appeals the trial court’s order regarding child custody and property division. He further asserts that the trial judge expressed a preference for granting custody to one parent based upon gender. Lisa M. Glodowski cross-appeals the court’s order regarding visitation, child support, and property division. On appeal, to the Nebraska Court of Appeals, Rick assigned three errors. On cross-appeal, Lisa has assigned four errors.
First, Rick asserts that the trial court erred in awarding custody to Lisa. Second, Rick asserts that the trial court indicated a preference that custody be awarded to one party over the other based upon gender. Third, Rick asserts that the trial court erred in using different dates to determine the value of the marital estate. First, Lisa asserts that the trial court erred in awarding liberal visitation that resulted in de facto joint custody. Second, Lisa asserts that the trial court erred in calculating permanent child support. Third, Lisa asserts that the trial court erred in ordering a retroactive reduction in child support. Fourth, Lisa asserts that the trial court erred in classifying, valuing, calculating, and distributing the marital estate.
Rick’s assignments of error.
Custody:
Did the district court err in Lisa custody of the parties’ two children F.G. and M.G.?
5. Opinion of Children: Rick argued that F.G. and M.G. want to live with him, their opinion is based upon sound reasoning, and the children’s counselors testified that Rick has a stronger relationship with his children than Lisa has. Reviewing the record, the Court could not find that the court abused its discretion. They noted that in contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court’s determination is affirmed or reversed on appeal. Accordingly, because the trial judge heard and observed the witnesses testify, we grant deference to her finding that it is in the children’s best interests that Lisa be awarded custody of F.G. and M.G.
6. Gender Bias: Rick asserts that the trial court erred in granting Lisa custody, because the trial court expressed a preference that the mother be awarded custody based upon her gender. Rick argued that the story told to F.G. and M.G. by the trial judge demonstrated the judge’s loss of neutrality. The Court disagreed. In Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977), the trial court awarded the mother custody of her daughter, despite her daughters expressed desire to live with the father. The Nebraska Supreme Court reversed the trial court’s judgment, finding that other than the trial judge’s personal comment, the trial court failed to provide a reason why the daughter should be placed with her mother until maturity. The Court found the instant case distinguishable from Boroff because the trial judge’s story here does not indicate a gender preference. Unlike Boroff, the trial judge here did not indicate a preference that the children be raised by their mother. Rather, the trial judge, after hearing testimony of the girls’ strained relationship with their mother, acknowledged that she was aware of the children’s preference to live with their father, but that it was important they have an open relationship with both parents. As such, because the evidence supported the finding that the trial judge did not express a preference regarding custody based upon gender, we find no abuse of discretion by the trial court in granting the mother custody.
Division of Property:
1. If the trial court erred in failing to award Rick custody of the children, did the trial court also err in failing to award him the farmstead? Because the Court found that the trial court did not err in granting Lisa custody of F.G. and M.G., it found no merit to Ricks argument.
2. As the parties $29,800 hog operating debt had been paid in full prior to the decree’s entry should Rick be entitled to a credit of $8,427.50 for helping to reduce the debt, because the hog operating debt had been paid, in part, by liquidating the parties’ $16,855 joint CD? The Court disagreed with Rick’s argument, as the trial court determined that the parties would share equally in the estate, it awarded Rick a net estate worth $90,341.66 and awarded Lisa a net estate worth $90,341.66. Because the trial court divided the estate equally, it awarded Rick the same value in assets and liabilities from other areas of the marital estate. As such, the Court found no merit to Rick’s argument that he should have been given credit for one-half of the joint CD account when the trial court awarded Rick an equal amount in assets and debt from different areas of the marital estate. “Under these facts, we find that it makes no difference whether Rick was awarded his share of the assets and debts, in part, through the joint CD account and hog debt or whether he was awarded his share of the assets and debt, in part, through other property” said the Court. “Accordingly, we find that the trial court did not abuse its discretion.”
3. Did the district court err in dividing Lisa’s 401K Plan? In Rick’s final assigned error, he challenges the trial court’s valuation of Lisa’s 401K plan arguing the trial court erred in using the December 2004 value when a more current value was available and when the trial court used a more current value in appraising the farmstead. Because the trial court did not abuse its discretion in using the December 2004 value, the Court found no merit to Rick’s argument.
Lisa’s Assigned Errors on Cross-appeal
Visitation and Child Support:
1. Did the trial court err in its grant of visitation? Lisa asserts that the trial court erred in granting Rick visitation 5 consecutive days out of every 10 days. Because Rick was granted only the right to liberal visitation, and not the equal right to make decisions regarding the best interests of the children, the Court found no abuse of discretion by the trial court “in granting Rick the amount of time it did and such does not constitute a de facto award of joint custody.”
2. Did the trial court the trial court err in failing to consider Rick’s earning capacity in ordering a child support obligation? Lisa asserted that the trial court failed to consider Rick’s earning capacity in ordering a child support obligation of $674 per month. She also argued that the trial court should have averaged Rick’s income from 2002 and 2003 in determining the child support obligation. Because the evidence does not support averaging Rick’s income in this case, the Court disagreed with Lisa.
3. Did the court err in retroactively reducing the child support? Lisa challenged the trial court’s order retroactively reducing child support arguing that the order requiring $674 per month in child support should be effective from the first day of the month following the final order. Reviewing the record, the Court found no abuse of discretion by the trial court. Here on 09/22/04 the trial court entered an order that Rick pay $896 per month in temporary child support. Trial proceedings were conducted from June to July 2005. In February 2006, the trial court entered a dissolution decree, ordering Rick to pay child support of $674 per month and finding that the child support award would be retroactively effective 08/01/05. Similar to the Court’s finding in Laubscher v. Laubscher, 8 Neb. App. 648, 599 N.W.2d 853 (1999), the Court found no abuse of discretion in the trial court’s order to retroactively modify the temporary child support to the first day of the month following the trial.
Division of Marital Estate:
1. Did the trial court err in its equal distribution of the marital estate? Lisa argued that the trial court abused its discretion in failing to award her 60% of the net estate. The Court found no abuse of discretion by the trial court equal distribution of the marital estate. The evidence indicated that both parties contributed to the farm. “As such, we find that a 50-50 division of property is reasonable.” The Court reasoned that: 1) the difference between the trial court’s allocation of debt and assets to Lisa and her proposed allocation of debts and assets is only $2,832. The difference between the trial court’s allocation of debt and assets to Rick and Lisa’s proposed allocation of debts and assets to Rick is $1,498. “Even if the trial court erred in allocating certain debts and liabilities, we find that the overall difference between the trial court’s mar ital estate distribution and Lisa’s proposed marital estate distribution is negligible” they said. 2) as stated above, the evidence supported the finding that both parties contributed to the marital estate. Even if the parties’ contributions to the estate were not equal, each party’s contribution was within the one-third to one-half range. “Therefore, even if the court erred in its distribution, we find no abuse of discretion, because the evidence indicates that each party was entitled to at least one-third and no more than two-thirds of the marital estate.”
Conclusion: The Court concluded that the trial court did not err in granting Lisa custody of F.G. and M.G., did not indicate a preference in granting Lisa custody based upon her gender, did not err in its division of property and debts, did not grant de facto joint custody, did not err in its child support determination, and did not err in retroactively reducing Rick’s child support. AFFIRMED.
In this appeal over the tax valuations of 75 separate parcels of real estate, appellant failed to file a separate fling fee for each appeal from a county board of equalization decision to the Tax Equalization and Review Commission (TERC). Because TERC did not timely receive the required fling fee in each of the 75 appeals, it lacked jurisdiction over the appeals which subsequently led to a lack of jurisdiction by the Nebraska Court of Appeals to review the decisions.
1. [Judgments:](Appeal and Error.) Appellate review of a Tax Equalization and Review Commission decision shall be conducted for error on the record.
2. [Valuation:](Real Estate.) For protests of real property in tax valuation cases, a protest shall be led for each parcel.
3. [Jurisdiction:]
a. (Appeal and Error.) The Tax Equalization and Review Commission obtains exclusive jurisdiction over an appeal when (1) the commission has the power or authority to hear the appeal; (2) an appeal is timely led; (3) the ling fee, if applicable, is timely received and thereafter paid; and (4) in the case of an appeal, a copy of the decision, order, determination, or action appealed from, or other information that documents the decision, order, determination, or action appealed from, is timely.
b. [Fees:](Appeal and Error.) A filing fee must be timely received by the Tax Equalization and Review Commission in order for the commission to have jurisdiction over the appeal.
Jurisdiction:
1. [Appeal and Error.] It is not only within the power but the duty of an appellate court to determine whether such appellate court has jurisdiction over the subject matter of an appeal.
Administrative Law:
1. Agency regulations, properly adopted and led with th Secretary of State of Nebraska, have the effect of statutory law.
2. [Jurisdiction:] (Appeal and Error.)When an administrative agency lacks subject matter jurisdiction over a claim, the courts also lack subject matter jurisdiction on appeal.
3. [Statutes.] A legislative enactment may properly confer general powers upon an administrative agency and delegate to the agency the power t make rules and regulations concerning the details of the legislative purpose. ••• In order to be valid, a rule or regulation must be consistent with the statute under which the rule or regulation is promulgated.
Date Filed and Case No.: March 6, 2007. No. A-06-1296.
Court Appealed From: Nebraska Tax Equalization and Review Commission
Attorneys for the Appeal: James Widtfeldt, appellant, pro se. Steven A. Keet for Tax Equalization and Review Commission and Holt County Board of Equalization, appellees.
Judges: Irwin, Carlson and Cassel, Judges
Authored By: Cassel, Judge.
Summary: On 06/30/06, James Widtfeldt filed at least 75 separate valuation protests with the Holt County Board of Equalization (the Board) regarding tax year 2006 values placed on his properties. On July 24, the Board denied his protests.. On August 21, Widtfeldt appealed the Boards denials to the Tax Equalization and Review Commission (TERC) filing a separate appeal form for each decision he appealed; consequently he filed at least 75 separate appeals, one for each parcel of property at issue. Widtfeldt fled a separate appeal form for each decision he appealed. On 10/17/06, TERC’s legal counsel sent a letter to Widtfeldt explaining that TERC received Widtfeldt’s appeals, but that “75 of these appeals” were incomplete because they were missing the required $25 fling fee (at least one other appeal may have been complete.) One of the 75 appeals was also missing a copy of the final decision from which Widtfeldt was attempting to appeal. The letter informed Widtfeldt that because 75 of his appeals were incomplete, TERC was returning the incomplete appeals to him and TERC would be unable to process the appeals because the time for fling them had expired.
On 11/17/06, Widtfeldt fled a petition for review in the Nebraska Court of Appeals pursuant to Neb. Rev. Stat. § 77-5019 (Cum. Supp. 2006). He alleged in his petition that TERC should have allowed him to proceed on all of his appeals with one fling fee instead of requiring a fling fee for each appeal. He requested that the Court enter an order granting him permission to proceed on all of his appeals to TERC with one fling fee.
Did the Nebraska Court of Appeals have jurisdiction to review the TERC decision? The Court ruled that as it has explained on several previous occasions, the Court closely examines all cases in their initial stages to ensure that jurisdiction has been properly conferred and to quickly terminate appeals where we lack jurisdiction. See, e.g., Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004). Because Widtfeldt failed to submit a separate fling fee with each appeal, the TERC lacked jurisdiction over each appeal from the lower tribunal and the Court lacked jurisdiction over Widtfeldt’s attempt to appeal.
Conclusion: The relevant statutes require a separate tax valuation protest for each parcel of real estate and a separate fling fee for each appeal from a county board of equalization decision to TERC. Because TERC did not timely receive the required fling fee in each of the 75 appeals, it lacked jurisdiction over the appeals. It necessarily follows that the Nebraska Court of Appeals lacked jurisdiction over the appeal from TERC. APPEAL DISMISSED.
Tax Equalization and Review Commission, Jurisdiction
In this appeal over the tax valuations of 75 separate parcels of real estate, appellant failed to file a separate fling fee for each appeal from a county board of equalization decision to the Tax Equalization and Review Commission (TERC). Because TERC did not timely receive the required fling fee in each of the 75 appeals, it lacked jurisdiction over the appeals which subsequently led to a lack of jurisdiction by the Nebraska Court of Appeals to review the decisions.
1. [Judgments:](Appeal and Error.) Appellate review of a Tax Equalization and Review Commission decision shall be conducted for error on the record.
2. [Valuation:](Real Estate.) For protests of real property in tax valuation cases, a protest shall be led for each parcel.
3. [Jurisdiction:]
a. (Appeal and Error.) The Tax Equalization and Review Commission obtains exclusive jurisdiction over an appeal when (1) the commission has the power or authority to hear the appeal; (2) an appeal is timely led; (3) the ling fee, if applicable, is timely received and thereafter paid; and (4) in the case of an appeal, a copy of the decision, order, determination, or action appealed from, or other information that documents the decision, order, determination, or action appealed from, is timely.
b. [Fees:](Appeal and Error.) A filing fee must be timely received by the Tax Equalization and Review Commission in order for the commission to have jurisdiction over the appeal.
Jurisdiction:
1. [Appeal and Error.] It is not only within the power but the duty of an appellate court to determine whether such appellate court has jurisdiction over the subject matter of an appeal.
Administrative Law:
1. Agency regulations, properly adopted and led with th Secretary of State of Nebraska, have the effect of statutory law.
2. [Jurisdiction:] (Appeal and Error.)When an administrative agency lacks subject matter jurisdiction over a claim, the courts also lack subject matter jurisdiction on appeal.
3. [Statutes.] A legislative enactment may properly confer general powers upon an administrative agency and delegate to the agency the power t make rules and regulations concerning the details of the legislative purpose. ••• In order to be valid, a rule or regulation must be consistent with the statute under which the rule or regulation is promulgated.
Date Filed and Case No.: March 6, 2007. No. A-06-1296.
Court Appealed From: Nebraska Tax Equalization and Review Commission
Attorneys for the Appeal: James Widtfeldt, appellant, pro se. Steven A. Keet for Tax Equalization and Review Commission and Holt County Board of Equalization, appellees.
Judges: Irwin, Carlson and Cassel, Judges
Authored By: Cassel, Judge.
Summary: On 06/30/06, James Widtfeldt filed at least 75 separate valuation protests with the Holt County Board of Equalization (the Board) regarding tax year 2006 values placed on his properties. On July 24, the Board denied his protests.. On August 21, Widtfeldt appealed the Boards denials to the Tax Equalization and Review Commission (TERC) filing a separate appeal form for each decision he appealed; consequently he filed at least 75 separate appeals, one for each parcel of property at issue. Widtfeldt fled a separate appeal form for each decision he appealed. On 10/17/06, TERC’s legal counsel sent a letter to Widtfeldt explaining that TERC received Widtfeldt’s appeals, but that “75 of these appeals” were incomplete because they were missing the required $25 fling fee (at least one other appeal may have been complete.) One of the 75 appeals was also missing a copy of the final decision from which Widtfeldt was attempting to appeal. The letter informed Widtfeldt that because 75 of his appeals were incomplete, TERC was returning the incomplete appeals to him and TERC would be unable to process the appeals because the time for fling them had expired.
On 11/17/06, Widtfeldt fled a petition for review in the Nebraska Court of Appeals pursuant to Neb. Rev. Stat. § 77-5019 (Cum. Supp. 2006). He alleged in his petition that TERC should have allowed him to proceed on all of his appeals with one fling fee instead of requiring a fling fee for each appeal. He requested that the Court enter an order granting him permission to proceed on all of his appeals to TERC with one fling fee.
Did the Nebraska Court of Appeals have jurisdiction to review the TERC decision? The Court ruled that as it has explained on several previous occasions, the Court closely examines all cases in their initial stages to ensure that jurisdiction has been properly conferred and to quickly terminate appeals where we lack jurisdiction. See, e.g., Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004). Because Widtfeldt failed to submit a separate fling fee with each appeal, the TERC lacked jurisdiction over each appeal from the lower tribunal and the Court lacked jurisdiction over Widtfeldt’s attempt to appeal.
Conclusion: The relevant statutes require a separate tax valuation protest for each parcel of real estate and a separate fling fee for each appeal from a county board of equalization decision to TERC. Because TERC did not timely receive the required fling fee in each of the 75 appeals, it lacked jurisdiction over the appeals. It necessarily follows that the Nebraska Court of Appeals lacked jurisdiction over the appeal from TERC. APPEAL DISMISSED.
