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BINDER v. BINDER
Cite as 291 Neb. 255
Glenn W. Binder, appellant, v.
Laura L. Binder, appellee.
___ N.W.2d ___
Filed June 26, 2015. No. S-14-783.
1. Judgments: Alimony: Appeal and Error. Domestic matters such as
alimony are entrusted to the discretion of trial courts. An appellate court
reviews a trial court’s determinations on such issues de novo on the
record to determine whether the trial judge abused his or her discretion.
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.
2. Child Support: Rules of the Supreme Court. The Nebraska Child
Support Guidelines do not apply if the parties have no minor children.
3. Divorce: Alimony. Under Neb. Rev. Stat. § 42-365 (Reissue 2008),
courts should consider four factors relative to alimony: (1) the circum-
stances of the parties, (2) the duration of the marriage, (3) the history of
contributions to the marriage, and (4) the ability of the supported party
to engage in gainful employment without interfering with the interests of
any minor children in the custody of each party.
4. ____: ____. Beyond the specific criteria listed in Neb. Rev. Stat.
§ 42-365 (Reissue 2008), in considering alimony upon the dissolution of
marriage, a court should also consider the income and earning capacity
of each party, as well as the general equities of the situation.
5. Alimony: Appeal and Error. In reviewing an alimony award, an appel-
late court does not decide whether it would have awarded the same
amount of alimony as the trial court. Instead, it decides whether the trial
court’s award is untenable such as to deprive a party of a substantial
right or just result.
6. Alimony. The main purpose of alimony is to assist a former spouse for
a period necessary for that individual to secure his or her own means
of support.
7. ____. In awarding alimony, reasonableness is the ultimate criterion.
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8. ____. A court may consider all of the property owned by the parties—
marital and separate—in decreeing alimony.
9. Judgments: Evidence: Appeal and Error. If credible evidence is in
conflict on a material issue of fact, an appellate court on de novo review
considers and may give weight to the circumstance that the trial judge
heard and observed the witnesses and accepted one version of the facts
than another.
Appeal from the District Court for Pawnee County: Daniel
E. Bryan, Jr., Judge. Affirmed.
Claude E. Berreckman, Jr., of Berreckman & Davis, P.C.,
for appellant.
Andrew M. Ferguson, of Carlson & Burnett, L.L.P., for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
SUMMARY
The court dissolved the marriage of nonagenarians Laura
L. Binder and Glenn W. Binder and ordered Glenn to pay
alimony. On appeal, Glenn argues that the amount of alimony
is a presumptive abuse of discretion because it drives his net
income below the poverty line in the Nebraska Child Support
Guidelines.1 Glenn cites Gress v. Gress,2 where we held that
the subsistence limitation in the guidelines also applied to an
alimony award. Laura argues that Gress does not apply here
because, unlike the parties in Gress, she and Glenn do not have
any minor children.
We conclude that the guidelines do not apply because
Laura and Glenn have no minor children. So, the amount of
alimony is not a presumptive abuse of discretion because it
pushes Glenn’s net income under the poverty threshold in the
1
Neb. Ct. R. § 4-218 (rev. 2015).
2
Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).
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guidelines. Nor can we say that the award is an abuse of dis-
cretion under the circumstances. We therefore affirm.
BACKGROUND
Laura and Glenn married in 1982. Neither was the other’s
first spouse, and their marriage did not produce any children.
At the time of trial, Laura was 95 and Glenn was 94.
Glenn is retired now, but he used to farm and operate a
fertilizer business. Laura did not work outside the home.
According to Glenn, Laura did not help in the fields, although
he stated that she might have retrieved parts for his fertilizer
business. He testified that she helped with the fertilizer busi-
ness only on “a minimal scale.”
Regarding her contributions to the marriage, Laura testi-
fied that she took messages to Glenn, retrieved parts, prepared
lunches, and helped move livestock. She testified that she
answered the telephone for Glenn’s fertilizer business, and
even put a line in the bathroom so that she could take calls
while dressing. Glenn denied that Laura installed a telephone
for this purpose. Laura admitted that she did not help as
much after Glenn’s daughter and son-in-law, Karin and Bruce
Droge, took over the farming operation.
Laura and Glenn initially lived in a brick farmhouse. In
1985, the Droges moved into the farmhouse and Laura and
Glenn moved into a mobile home. Laura stated that she paid
$25,000 for the mobile home. Both Laura and Glenn estimated
that the mobile home was now worth $15,000.
In 1986, Glenn and the Droges executed a farm lease
whereby Glenn rented all the farmland he owned to the Droges.
The lease states that it will be effective for 10 years, but Bruce
testified that he and Glenn “continued it on a verbal basis”
after 1996. Bruce testified that he currently pays an annual rent
of about $100 per acre.
Laura and Glenn maintained separate checking accounts
during their marriage, and each paid half of the couple’s
expenses. Over the years, Laura made numerous loans to
Glenn. Glenn testified that he did not owe Laura any money
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at the time of trial, but Laura thought that he owed more
than $25,000.
Glenn stated that Laura moved into a nursing home in
December 2012. Glenn said that before Laura moved, she was
“incapacitated” and confined to a wheelchair for 2 years and
he cared for her during this period. Glenn continued to live in
the mobile home after Laura left.
Laura initially used her savings to pay for her nursing home
care. After 10 months, she exhausted her savings and Glenn
began paying $3,200 per month. Glenn testified that he has
paid about $30,000 to the nursing home and that he had to
borrow money from the Droges to do so.
Laura has a monthly income of $2,927.40, which consists
of her Social Security benefit, a long-term care insurance
benefit, and a small pension from her prior husband. Laura
has monthly expenses of $6,230, of which $5,369 is for the
nursing home. So, she testified that she ran a monthly deficit
of $3,302.60. Laura has no assets beyond a checking account
worth about $5,000.
According to Glenn, his monthly income is $2,890.73, about
$1,700 of which is rental income. The remainder is his Social
Security benefit.
Glenn owns several farms and part of a residential lot. He
stated that he is the sole trustee of a trust that “holds” the four
parcels of real estate for him. Glenn said that he “can cancel
[the trust] at any time, basically.” Statements from the Pawnee
County assessor for tax year 2013 show that Glenn, as the
trustee of an unnamed trust, was assessed taxes on four pieces
of real estate totaling about 222 acres. The combined taxable
value was nearly $560,000. Laura and Glenn agreed that the
real estate is Glenn’s premarital property.
The court dissolved the marriage and ordered Glenn to pay
$3,302.60 per month in alimony. The court explained that the
alimony was “to offset any costs [Laura] has at the nursing
home.” The decree awarded the mobile home to Glenn but
required him to pay Laura $15,000 for her interest. The court
decided that the “loan issue” was “a wash.”
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Cite as 291 Neb. 255
ASSIGNMENT OF ERROR
Glenn assigns that the court erred by ordering him to pay
an amount of alimony that drives his net monthly income
below the poverty threshold in the Nebraska Child Support
Guidelines.
STANDARD OF REVIEW
[1] Domestic matters such as alimony are entrusted to the
discretion of trial courts.3 An appellate court reviews a trial
court’s determinations on such issues de novo on the record
to determine whether the trial judge abused his or her discre-
tion.4 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.5
ANALYSIS
Glenn argues that the amount of alimony is “presump-
tively an abuse of discretion” because it drives his net income
below the poverty threshold in the Nebraska Child Support
Guidelines.6 He contends that the court did not rebut this pre-
sumption because it “failed to make any specific findings as to
why such a deviation was warranted.”7 Laura argues that the
guidelines are irrelevant because she and Glenn do not have
any minor children.
In a case involving minor children, we held that the amount
of alimony must not force the obligor’s net income below the
poverty line unless the court specifically finds that such an
award is warranted. In Gress v. Gress,8 the court dissolved
the marriage of Pamela Gress and Patrick Gress and ordered
Patrick to pay child support of $1,224 per month. Although
3
See Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).
4
See id.
5
See id.
6
Brief for appellant at 4.
7
Id.
8
Gress v. Gress, supra note 2.
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Patrick had a net income of only $1,433.85 after subtracting
his child support obligation, the court also ordered him to pay
alimony of $1,000 per month.
Patrick argued that the amount of alimony was a presump-
tive abuse of discretion because it left him below the poverty
line in the child support guidelines. At the time, paragraph R
of the guidelines stated that a parent’s support obligation could
not reduce his or her monthly net income below the poverty
line, which was $851 for one person. Paragraph R is now
§ 4-218, which provides:
A parent’s support, child care, and health care obliga-
tion shall not reduce his or her net income below the
minimum of $981 net monthly for one person, or the pov-
erty guidelines updated annually in the Federal Register
by the U.S. Department of Health and Human Services
under authority of 42 U.S.C. § 9902(2), except minimum
support may be ordered . . . .
The guidelines—then in paragraph M and now in Neb. Ct. R.
§ 4-213—also instruct courts to determine alimony from the
income left after the court establishes child support.
We decided in Gress that the subsistence limitation in the
child support guidelines also applied to Patrick’s alimony
obligation.9 So, as a “mirror of our holding on child support
under paragraph R,” an alimony award that drove Patrick’s net
income below the poverty line was presumptively an abuse of
discretion unless the court specifically found that “conformity
with paragraph R would work an ‘unjust or inappropriate’
result.”10 We emphasized that the guidelines prioritized child
support over alimony. Logically, if child support could not
drive the obligor’s net income below the poverty line, then
neither could alimony.
[2] But we conclude that § 4-218 does not apply because
Laura and Glenn do not have any minor children. Our hold-
ing in Gress was “buttressed by the structure” of the child
9
Id. See, also, Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).
10
Gress v. Gress, supra note 2, 274 Neb. at 702, 743 N.W.2d at 80-81.
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support guidelines.11 The aim of the guidelines is to set child
support payments in light of the equal duty of both parents
to contribute to the support of their children in proportion to
their respective net incomes.12 The guidelines have no applica-
tion—structural or otherwise—when the parties have no chil-
dren to support. We derived the rule in Gress from the logic
of the guidelines themselves. In cases where the guidelines are
inapposite, so is their logic.
Furthermore, we are wary of grafting the guidelines’ method
of calculating net income onto cases that involve only ali-
mony. Before awarding child support, the guidelines require
courts to make a detailed calculation of the parties’ income
and expenses.13 In contrast, we have said that there is no
mathematical formula by which alimony awards can be pre-
cisely determined.14 Although detailed findings are certainly
not unwelcome, we are not eager to mandate the same require-
ments in alimony cases.
So, the amount of alimony is not a presumptive abuse of
discretion even though it appears to drive Glenn’s net income
below the subsistence limitation in the child support guide-
lines. But that does not end our inquiry. We must still deter-
mine whether the amount of alimony is unreasonable under
the circumstances of this case.
[3,4] Under Neb. Rev. Stat. § 42-365 (Reissue 2008), courts
should consider four factors relative to alimony: (1) the cir-
cumstances of the parties, (2) the duration of the marriage,
(3) the history of contributions to the marriage, and (4) the
ability of the supported party to engage in gainful employment
without interfering with the interests of any minor children in
the custody of each party.15 Beyond the specific criteria listed
11
Id. at 701, 743 N.W.2d at 80.
12
See, Neb. Ct. R. § 4-201; Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d
300 (2013).
13
See Nebraska Child Support Guidelines, worksheet 1.
14
Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986).
15
See Anderson v. Anderson, supra note 3.
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in § 42-365, a court should also consider the income and earn-
ing capacity of each party, as well as the general equities of
the situation.16
[5-7] In reviewing an alimony award, an appellate court
does not decide whether it would have awarded the same
amount of alimony as the trial court.17 Instead, it decides
whether the trial court’s award is untenable such as to deprive
a party of a substantial right or just result.18 The main purpose
of alimony is to assist a former spouse for a period necessary
for that individual to secure his or her own means of support.19
Reasonableness is the ultimate criterion.20
[8] Applying these factors, we cannot say that the amount
of alimony is an abuse of discretion. Glenn sought to dis-
solve his nearly 32-year marriage to Laura after she began
incurring expenses for essential nursing home care that are
well beyond her means. Laura did not work outside the home
during the marriage, she is not employed now, and there is no
evidence that she has untapped earning capacity. Similarly,
Glenn is retired and has no wage income. But while Laura has
exhausted nearly all her assets, Glenn has the power to dispose
of more than 200 acres of farmland. The land is not irrelevant
to alimony even though it is Glenn’s premarital property. A
court may consider all of the property owned by the parties—
marital and separate—in decreeing alimony.21
[9] As to disputes over matters such as Laura’s contribu-
tions to the marriage, we note that the district court was in
the best position to judge the witness’ credibility. Although
16
See id.
17
See id.
18
See id.
19
See id.
20
See id.
21
See, Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002); Ainslie
v. Ainslie, 249 Neb. 656, 545 N.W.2d 90 (1996); 3 Mercedes Samborsky
& Catherine N. Carroll, Family Law & Practice § 35.03[1][b] (Arnold H.
Rutkin ed., 2014).
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our review is de novo, if credible evidence is in conflict on
a material issue of fact, an appellate court considers and may
give weight to the circumstance that the trial judge heard and
observed the witnesses and accepted one version of the facts
than another.22 This rule is particularly apt here because both
Laura and Glenn had some trouble testifying and the record
does not show to what extent their difficulties were cognitive,
auditory, or other.
CONCLUSION
The Nebraska Child Support Guidelines do not apply
because the parties have no minor children. Thus, the fact
that the amount of alimony apparently exceeds the poverty
line in the guidelines does not make the award a presump-
tive abuse of discretion. Applying the factors for reviewing
alimony awards, we conclude that the court did not abuse
its discretion.
A ffirmed.
22
See, e.g., Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).