Auxier v. Auxier ( 2023 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/05/2023 08:06 AM CDT
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    Nebraska Court of Appeals Advance Sheets
    32 Nebraska Appellate Reports
    AUXIER V. AUXIER
    Cite as 
    32 Neb. App. 230
    Buckley A. Auxier, appellant and
    cross-appellee, v. Natalie C. Auxier,
    appellee and cross-appellant.
    ___ N.W.2d ___
    Filed September 5, 2023.   No. A-22-386.
    1. Divorce: Child Custody: Child Support: Property Division:
    Alimony: Attorney Fees: Appeal and Error. In an action for the dis-
    solution of marriage, an appellate court reviews de novo on the record
    the trial court’s determinations of custody, child support or a modifica-
    tion of an existing order of support, property division, alimony, and
    attorney fees; these determinations, however, are initially entrusted to
    the trial court’s discretion and will normally be affirmed absent an abuse
    of that discretion.
    2. Evidence: Appeal and Error. In a review de novo on the record, the
    court is required to make independent factual determinations based upon
    the record, and the court reaches its own independent conclusions with
    respect to the matters at issue. When evidence is in conflict, the appel-
    late court considers and may give weight to the fact that the trial court
    heard and observed the witnesses and accepted one version of the facts
    rather than another.
    3. Antenuptial Agreements: Proof. The party opposing enforcement of
    a premarital agreement has the burden of proving that the agreement is
    not enforceable.
    4. Judgments: Antenuptial Agreements. Factors that a court might con-
    sider in determining whether a premarital agreement was entered into
    voluntarily include (1) coercion that may arise from the proximity
    of execution of the agreement to the wedding or from surprise in the
    presentation of the agreement; (2) the presence or absence of inde-
    pendent counsel or of an opportunity to consult independent counsel;
    (3) inequality of bargaining power, in some cases indicated by the
    relative age and sophistication of the parties; (4) whether there was
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    AUXIER V. AUXIER
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    full disclosure of assets; and (5) the parties’ understanding of the rights
    being waived under the agreement or at least their awareness of the
    intent of the agreement.
    5. Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.
    6. Statutes. It is not within the province of a court to read a meaning into
    a statute that is not warranted by the language; neither is it within the
    province of a court to read anything plain, direct, or unambiguous out of
    a statute.
    7. ____. If the language of a statute is clear, the words of such statute are
    the end of any judicial inquiry regarding its meaning.
    Appeal from the District Court for Richardson County:
    Julie D. Smith, Judge. Affirmed in part, and in part reversed.
    Douglas J. Stratton, of Stratton, DeLay, Doele, Carlson,
    Buettner & Stover, P.C., L.L.O., for appellant.
    P. Shawn McCann, of McGinn, Springer & Noethe, P.L.C.,
    for appellee.
    Pirtle, Chief Judge, and Moore and Arterburn, Judges.
    Pirtle, Chief Judge.
    INTRODUCTION
    Buckley A. Auxier appeals from an order of the district
    court for Richardson County that found a premarital agreement
    to be enforceable, but found that the alimony provision was
    unconscionable. Buckley challenges the court’s finding regard-
    ing the alimony provision and its award of alimony to Natalie
    C. Auxier.
    Natalie filed a cross-appeal arguing that she proved the
    premarital agreement was unenforceable. Based on the reasons
    that follow, we affirm the trial court’s finding that the premari-
    tal agreement was enforceable but reverse the trial court’s find-
    ing that the alimony provision was unconscionable.
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    AUXIER V. AUXIER
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    BACKGROUND
    Natalie and Buckley met in Colorado in the winter of 2010.
    Natalie lived in Colorado, and Buckley was temporarily work-
    ing there. Natalie moved to Nebraska in August 2011, after
    she and Buckley were engaged. The parties were married on
    October 28, 2011. At the time of the marriage, Buckley was
    50 years old and Natalie was 39 years old. On October 27,
    the day before the wedding, the parties executed a premari-
    tal agreement.
    On May 29, 2019, Buckley filed a complaint for dissolution
    of marriage. This was the third time one of the parties had filed
    for divorce. The parties had separated and reconciled several
    times during the marriage.
    The focus of the dissolution trial was on the validity of the
    premarital agreement. Natalie claimed the premarital agree-
    ment should be declared unenforceable because she did not
    execute the agreement voluntarily, while Buckley claimed the
    agreement was enforceable. Generally, the agreement con-
    tained a list of each party’s assets and debts prior to the mar-
    riage and provided that each party’s premarital property would
    be held and owned by each separately as though each were an
    unmarried person. It also provided that Natalie waived, relin-
    quished, and surrendered any claim to alimony in the event
    of divorce.
    Buckley testified that prior to the marriage, he was a farmer
    and a welder. He owned and farmed 80 acres of land. He also
    had inherited other property from his parents prior to the mar-
    riage. He also had an annuity valued at $50,000 and a pension
    plan valued at $55,000.
    To preserve his premarital assets, he went to an attorney,
    Christopher Halbert, to have a premarital agreement prepared.
    He testified that he first talked to Halbert about the premari-
    tal agreement a few months before his marriage to Natalie.
    Buckley testified that Halbert prepared the premarital agree-
    ment, which reflected an accurate list of Buckley’s premarital
    assets and liabilities.
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    On cross-examination, Buckley testified that when he and
    Natalie first talked about marriage, he told Natalie that he
    wanted a premarital agreement. He also claimed he told her she
    could go see her own attorney regarding the premarital agree-
    ment. He stated that he would have given her money to pay
    for an attorney. Buckley testified Halbert gave him a draft of
    the premarital agreement about 30 days before the day it was
    signed. He also testified that Natalie provided Halbert with her
    financial information for the premarital agreement.
    On redirect, Buckley testified that Natalie went with him
    to meet with Halbert in late September 2011 and that Halbert
    advised Natalie she could hire her own attorney. Buckley tes-
    tified that he and Natalie both received a written draft of the
    premarital agreement a few days after they met with Halbert
    in September. Natalie and Buckley were living together at the
    time the agreement was drafted, and Halbert sent two copies of
    the agreement in the mail. Buckley testified that he offered to
    pay for Natalie’s attorney when they were at Halbert’s office,
    but it was unclear from Buckley’s testimony if his offer to pay
    was at the September meeting or when they went in October to
    sign the document.
    Buckley testified that his list of assets and debts attached
    to the premarital agreement was available to Natalie prior to
    her signing the agreement and that he did not hide any infor-
    mation from her. He testified that he discussed the premarital
    agreement with Natalie and told her that he wanted to keep his
    premarital assets and inheritance that were set out in the agree-
    ment if their marriage would end. Buckley testified that Natalie
    was responsible for preparing her own list of premarital assets
    to be included in the agreement.
    Buckley testified that when he and Natalie were at Halbert’s
    office on October 27, 2011, Natalie never indicated she did
    not understand the terms and conditions of the premarital
    agreement. She did not ask to push back the wedding date
    to allow her more time to review the premarital agreement.
    Buckley also testified that he did not stop Natalie from
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    having an attorney review the agreement and that he never
    led her to believe that Halbert was representing her interests.
    Both parties signed the agreement at Halbert’s office.
    Natalie and Buckley were married at a courthouse the day
    after the premarital agreement was signed. Natalie had picked
    the date for the wedding and made the arrangements at the
    courthouse. Buckley stated he did not care what day the wed-
    ding took place. Buckley testified that if Natalie had wanted
    to postpone the wedding day for any reason, she could have
    done so without a “problem”; there was nothing preventing her
    from picking a different date to be married at the courthouse.
    Buckley acknowledged that Natalie was pregnant at the time
    the agreement was signed and that she was financially depen-
    dent on Buckley. She had moved from Colorado to Nebraska a
    few months prior to the marriage.
    Halbert testified about his involvement in drafting and exe-
    cuting the premarital agreement for Natalie and Buckley. He
    testified that he follows the same process when preparing and
    drafting premarital agreements for clients. He first asks the cli-
    ent for a general idea of his or her expectations as to content
    and what he or she wants to achieve with the premarital agree-
    ment. He also asks the client for a list of property and property
    values. Halbert then prepares a draft of the agreement and
    sends it to his client and the client’s future spouse to review.
    He testified that Buckley first contacted him on September
    29, 2011, about preparing a premarital agreement and that
    he followed his regular process in preparing the agreement
    for Buckley.
    Halbert further testified that part of his normal process
    regarding premarital agreements includes explaining to the
    client’s future spouse that the agreement is binding and that
    he or she can speak with and consult his or her own attorney.
    Halbert testified that he made it clear to Natalie on October
    27, 2011, that he was not her attorney. He told her at least
    twice that she could speak to her own attorney regarding the
    premarital agreement and even gave her the names of several
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    attorneys she could contact. Halbert testified that Natalie chose
    not to seek her own attorney and wanted to proceed with exe-
    cuting the agreement. Halbert did not recall how he obtained
    Natalie’s list of assets.
    Halbert went over the terms and provisions of the pre-
    marital agreement with Natalie and Buckley, explaining each
    paragraph. He also reviewed the list of assets for both parties.
    He further made it clear that if Natalie was going to marry
    Buckley, she would have to sign the premarital agreement,
    but he did not tell her she had to sign it that day. The proc­
    ess of explaining and going over the agreement took about
    an hour.
    Halbert testified there was no indication that Natalie did
    not understand what he was explaining to her. She “spoke flu-
    ently” about assets, responded to questions appropriately, and
    asked appropriate questions. Halbert could not recall Natalie’s
    specific questions, but stated they were about the contents of
    the agreement.
    Halbert had no worries or hesitation that Natalie was not
    in a proper mental condition to execute the agreement. He
    did not observe Buckley threaten or intimidate Natalie in any
    way to get her to sign the agreement, nor did Natalie indicate
    that she was being threatened or intimidated into signing the
    agreement. Halbert stated that had he seen any indication of
    such behavior, he would not have allowed Natalie to sign
    the agreement.
    Natalie testified the premarital agreement should not be
    enforced because she was “tricked” and “coerced” into sign-
    ing it. She testified that the first time she heard about or saw
    the agreement was at Halbert’s office on October 27, 2011.
    Buckley did not tell her before that day that he wanted her to
    sign a premarital agreement, and she did not talk to Halbert
    before that date. She also testified that if a copy of the pre-
    marital agreement was mailed to her before October 27, she
    did not see it because she never checked her mail.
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    Natalie testified that the premarital agreement was confus-
    ing and that she did not understand it. She claimed she does
    not fully understand and comprehend the English language
    because she is from Venezuela. Natalie moved to the United
    States when she was in the third grade. She completed high
    school and earned a college degree in business marketing. She
    subsequently received a teaching certificate and taught school
    for several years. She speaks five languages.
    Natalie also testified that her ability to comprehend the
    agreement was also affected because she was not feeling well
    when she and Buckley were at Halbert’s office. She explained
    that she suffers from epilepsy and takes medication to control
    seizures. When they were at Halbert’s office, it was almost
    time for her to take her next dose of medication, and when she
    gets within an hour or so of her next scheduled dose, she starts
    “not comprehending nothing” and her “brain goes mush.”
    Natalie also testified that she was surprised and scared at
    Halbert’s office on October 27, 2011, and felt forced into the
    premarital agreement because the wedding was scheduled for
    the next day. She stated a lot of arrangements had been made
    for the wedding—her parents were going to virtually attend the
    wedding by “Skype” from two different locations, she had a
    bridesmaid, and a wedding reception was planned at a restau-
    rant. She testified that she had picked that day for the wedding
    because it was her birthday. Also at that time, she was preg-
    nant, she had moved herself and her children from Colorado to
    Nebraska, and she did not have any money.
    Natalie testified that she did not give Buckley or his attor-
    ney a list of her assets and debts and that Buckley never
    asked her for a list. She had no idea how her list of assets was
    obtained. In addition, she claimed the list was not accurate
    or complete.
    She admitted that her signature was on the premarital
    agreement but stated that the signature looked unusual. She
    testified that her signature looked like she signed it quickly
    and under pressure. She testified that she felt rushed into
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    signing the agreement and denied she was told she could have
    her own attorney review it. Rather, she claimed she was told
    she had to sign it if she wanted to get married the next day.
    She also stated that she thought what she was signing was a
    normal part of getting married in court.
    Natalie had an injury-induced stroke during the marriage and
    was disabled and unable to work as a result. She was receiving
    $615 per month in Social Security disability benefits. She was
    asking for spousal support, in part because of her disability that
    occurred during the marriage.
    On cross-examination, Natalie admitted that she had hired
    and worked with attorneys in the past. She had an attorney
    represent her regarding a 1991 automobile accident and in
    her divorce from her first husband. Natalie’s father was also
    an attorney.
    Natalie also testified on cross-examination that Buckley pro-
    vided her premarital asset and debt information to Halbert, but
    then stated that she and Buckley both provided the information
    to him on October 27, 2011, at Halbert’s office. She further
    claimed that whatever Buckley said regarding her assets, she
    felt coerced to agree with him. She also admitted on cross-
    examination that Halbert tried to explain the premarital agree-
    ment to her.
    Following trial, the court entered a decree of dissolution
    finding Natalie had not met her burden of proving that the
    premarital agreement was unenforceable. It also found that the
    alimony provision in the agreement was unconscionable under
    the facts of the case and awarded Natalie alimony. Specifically,
    it awarded her $900 per month for 60 months but ordered
    Buckley to pay the full obligation amount of $54,000 from
    funds held in a trust.
    ASSIGNMENTS OF ERROR
    Buckley assigns, restated, that the trial court erred in find-
    ing the alimony provision was unconscionable and in awarding
    Natalie alimony after determining that Natalie failed to prove
    the premarital agreement was unenforceable.
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    On cross-appeal, Natalie assigns that the trial court erred
    in (1) finding she failed to meet her burden of proving the
    premarital agreement was unenforceable, (2) failing to award
    her an equitable share of the marital estate, and (3) failing to
    find Buckley received and dissipated her 401K account and her
    Colorado automobile accident settlement.
    STANDARD OF REVIEW
    [1] In an action for the dissolution of marriage, an appellate
    court reviews de novo on the record the trial court’s determina-
    tions of custody, child support or a modification of an existing
    order of support, property division, alimony, and attorney fees;
    these determinations, however, are initially entrusted to the
    trial court’s discretion and will normally be affirmed absent an
    abuse of that discretion. Fetherkile v. Fetherkile, 
    299 Neb. 76
    ,
    
    907 N.W.2d 275
     (2018).
    [2] In a review de novo on the record, the court is required
    to make independent factual determinations based upon the
    record, and the court reaches its own independent conclusions
    with respect to the matters at issue. 
    Id.
     When evidence is in
    conflict, the appellate court considers and may give weight to
    the fact that the trial court heard and observed the witnesses
    and accepted one version of the facts rather than another. 
    Id.
    [3] The party opposing enforcement of a premarital agree-
    ment has the burden of proving that the agreement is not
    enforceable. Mamot v. Mamot, 
    283 Neb. 659
    , 
    813 N.W.2d 440
     (2012).
    ANALYSIS
    Alimony.
    Buckley assigns that the trial court erred in finding the ali-
    mony provision was unconscionable and in awarding Natalie
    alimony after determining the premarital agreement was
    enforceable. He argues that because the court found that the
    agreement was enforceable, it was contrary to the plain mean-
    ing of the agreement to award alimony. The premarital agree-
    ment had a specific provision providing that Natalie waived,
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    relinquished, and surrendered any claim to alimony in the
    event of divorce.
    The enforceability of premarital agreements is governed by
    
    Neb. Rev. Stat. § 42-1006
     (Reissue 2016), which provides:
    (1) A premarital agreement is not enforceable if the
    party against whom enforcement is sought proves that:
    (a) That party did not execute the agreement volun-
    tarily; or
    (b) The agreement was unconscionable when it was
    executed and, before execution of the agreement, that
    party:
    (i) Was not provided a fair and reasonable disclosure
    of the property or financial obligations of the other party;
    (ii) Did not voluntarily and expressly waive, in writ-
    ing, any right to disclosure of the property or financial
    obligations of the other party beyond the disclosure pro-
    vided; and
    (iii) Did not have, or reasonably could not have had, an
    adequate knowledge of the property or financial obliga-
    tions of the other party.
    ....
    (3) An issue of unconscionability of a premarital agree-
    ment shall be decided by the court as a matter of law.
    As the party opposing enforcement of the premarital agree-
    ment, Natalie had the burden to prove that the premarital
    agreement was not enforceable. See Mamot v. Mamot, supra.
    Pursuant to § 42-1006, Natalie had to prove either that she
    did not voluntarily execute the premarital agreement or
    that the premarital agreement was unconscionable when it
    was executed.
    [4] Natalie sought to prove that she did not voluntarily
    enter into the premarital agreement. Factors a court might
    consider in determining whether a premarital agreement was
    entered into voluntarily include (1) coercion that may arise
    from the proximity of execution of the agreement to the wed-
    ding or from surprise in the presentation of the agreement;
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    (2) the presence or absence of independent counsel or of an
    opportunity to consult independent counsel; (3) inequality
    of bargaining power, in some cases indicated by the relative
    age and sophistication of the parties; (4) whether there was
    full disclosure of assets; and (5) the parties’ understanding
    of the rights being waived under the agreement or at least
    their awareness of the intent of the agreement. See Mamot v.
    Mamot, supra.
    In considering the factors set out above to determine
    whether the premarital agreement was entered into voluntarily,
    we first note that the agreement was executed in close proxim-
    ity to the wedding date, specifically the day before. However,
    the parties were getting married at the courthouse and no
    elaborate wedding or reception had been planned. As the trial
    court found, had Natalie wanted to consult an attorney before
    signing the agreement, she could have delayed the wedding
    without causing significant problems. Buckley testified that
    he did not care when the wedding took place. Halbert testified
    he did not observe Buckley threaten or intimidate Natalie in
    any way to get her to sign the agreement, nor did Natalie indi-
    cate that she was being threatened or intimidated into signing
    the agreement.
    There was also no evidence of surprise in the presentation of
    the agreement. Halbert testified that Buckley initially contacted
    him about preparing a premarital agreement a month before
    the wedding date and that he prepared a draft and sent it to
    both parties.
    Regarding independent counsel, the evidence shows that
    Natalie knew she could consult her own counsel. She was
    advised by Halbert that he was not representing her and that
    she could have her own attorney review the premarital agree-
    ment before signing it. Halbert even gave her the names of
    several attorneys. Natalie was not unfamiliar with hiring an
    attorney; she testified that she had used attorneys in the past.
    Her father was also an attorney.
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    There was an inequality in bargaining power in some sense,
    in that there was a disparity in the parties’ assets at the time
    they entered into the agreement. The value of Buckley’s assets
    clearly outweighed those of Natalie’s. However, Halbert testi-
    fied that he did not observe Buckley threaten or intimidate
    Natalie in any way to get her to sign the agreement.
    Regarding the next factor, the evidence supports a finding
    that there was a full disclosure of Buckley’s assets. There was
    an itemization of Buckley’s assets and debts attached to the
    premarital agreement when it was signed, with no dispute as
    to the items on the list. Although Natalie claims she did not
    provide the list of her assets and disputes the completeness and
    accuracy of the list, she did not make these claims at the time
    she signed the agreement.
    Natalie testified that she did not understand the terms of the
    agreement, but she is fluent in English, has a college degree,
    and speaks five languages. Halbert testified he explained to
    Natalie that the agreement was binding and that if the marriage
    ended, she and Buckley would each have their own assets.
    Halbert testified that he went through the agreement paragraph
    by paragraph, and page by page, with Natalie and Buckley.
    Natalie spoke fluently about assets, responded to questions
    appropriately, and asked appropriate questions about the agree-
    ment’s contents. Halbert also testified he had no worries or
    hesitation that Natalie was not in the proper mental condi-
    tion to execute the agreement. The trial court, after observing
    Natalie at trial, found that Natalie’s testimony regarding her
    ability to understand the agreement was not credible and “con-
    trary to her ability to testify at trial.”
    Based on our de novo review of the record, we find that
    Natalie did not meet her burden of proof in establishing
    that she did not sign the prenuptial agreement voluntarily.
    Accordingly, we agree with the trial court that the agreement
    is enforceable.
    As previously stated, Buckley argues that because the court
    found that the agreement was enforceable, it is contrary to the
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    plain meaning of the agreement to award alimony when there
    is a provision excluding it.
    In concluding that the alimony provision in the agreement
    was unconscionable, the court reasoned as follows:
    [Natalie] is currently disabled, earning $615.00 per month.
    This places her in poverty. The parties were married more
    than 10 years. Throughout the course of the marriage,
    [Buckley] was the breadwinner. [Natalie] worked very lit-
    tle. [Natalie] left her job in Colorado to come to Nebraska
    to marry [Buckley]. Due to her disability, [Natalie] does
    not have a sufficient earning capacity, as compared with
    [Buckley]. [Buckley] is a skilled welder, capable of earn-
    ing a high wage. . . . Furthermore, he was the sole owner
    of the farmland and equipment, and bulk of the assets
    discussed during the trial are [Buckley’s] property; he has
    the ability to pay alimony. [Natalie] should be awarded
    alimony under these circumstances.
    The trial court took into consideration facts and circum-
    stances that occurred after execution of the agreement and
    during the parties’ marriage. But § 42-1006(1)(b) indicates that
    unconscionableness is to be assessed as of the time the agree-
    ment is executed. The only provision that appears to allow for
    the consideration of postagreement changes is § 42-1006(2),
    which provides:
    If a provision of a premarital agreement modifies
    or eliminates spousal support and that modification or
    elimination causes one party to the agreement to be
    eligible for support under a program of public assistance
    at the time of separation or marital dissolution, a court,
    notwithstanding the terms of the agreement, may require
    the other party to provide support to the extent necessary
    to avoid that eligibility.
    [5-7] Statutory language is to be given its plain and ordi-
    nary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which
    are plain, direct, and unambiguous. County of Lancaster v.
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    County of Custer, 
    313 Neb. 622
    , 
    985 N.W.2d 612
     (2023). It
    is not within the province of a court to read a meaning into
    a statute that is not warranted by the language; neither is it
    within the province of a court to read anything plain, direct, or
    unambiguous out of a statute. 
    Id.
     If the language of a statute
    is clear, the words of such statute are the end of any judicial
    inquiry regarding its meaning. 
    Id.
    Section 42-1006(2) provides that where a premarital agree-
    ment eliminates spousal support and that elimination causes a
    party to be eligible for support under a public assistance pro-
    gram, the court can order alimony to prevent such eligibility
    for public assistance. It is under these specific circumstances
    that a trial court can find that an alimony or spousal sup-
    port elimination provision should not be enforced. Section
    42-1006(2) provides an exception for the enforcement of an
    alimony elimination provision in a premarital agreement, and
    if the Legislature wanted to provide for other exceptions or
    other factors that could be considered, it could have included
    them in the statute, but it did not. We conclude that the trial
    court erred in relying on facts and circumstances that occurred
    after the execution of the premarital agreement in determining
    that the alimony provision was unconscionable.
    We further conclude that the requirements in § 42-1006(2)
    are not met in the present case. The evidence showed that
    Natalie had a stroke during the marriage and was disabled
    and unable to work as a result. At some point after the stroke,
    she applied for and started receiving Social Security disability
    benefits during the marriage. Accordingly, the alimony elimi-
    nation provision did not cause Natalie to be eligible for Social
    Security disability benefits at the time of the marital dissolu-
    tion. There was also no evidence that she was eligible for sup-
    port under any other program of public assist­ance at the time
    of the dissolution because of the alimony provision in the
    premarital agreement. Likewise, there was no evidence that
    any payment of alimony would eliminate Natalie’s need for
    or qualification status for Social Security disability benefits.
    - 244 -
    Nebraska Court of Appeals Advance Sheets
    32 Nebraska Appellate Reports
    AUXIER V. AUXIER
    Cite as 
    32 Neb. App. 230
    Therefore, the trial court erred in finding that the alimony
    provision in the premarital agreement was unconscionable.
    Cross-Appeal.
    Natalie assigns on cross-appeal that the trial court erred in
    finding she failed to meet her burden of proving the premarital
    agreement was unenforceable. She further assigns that if we
    agree and find the premarital agreement was unenforceable, we
    must also address whether the court erred in failing to award
    her an equitable share of the marital estate. Having already
    determined that the trial court did not err in finding the premar-
    ital agreement was enforceable, we need not address Natalie’s
    first two assignments of error on cross-appeal.
    Natalie also assigns that the court erred in failing to find
    Buckley received and dissipated her 401K account and the
    settlement proceeds she received from her Colorado automo-
    bile accident. Natalie testified that she had a 401K from her
    employment in Colorado with a value of $51,200. She did not
    present any evidence to substantiate her claim that she had
    a 401K or the amount. She testified Buckley liquidated her
    401K during the marriage but did not know what happened to
    the money other than it was provided to Buckley to pay farm
    debt. Natalie’s 401K is not included in her list of assets in the
    premarital agreement. She testified the list was not accurate
    or complete, specifically stating her inheritance was not listed
    and “many more things that [she] had brought from Colorado.”
    She did not mention her 401K.
    Regarding her Colorado settlement, Natalie testified she
    received a check for $37,000 and she signed the check over to
    Buckley under coercion and fear. She testified Buckley used the
    money to remodel the house and farm. She stated that he made
    no accounting to her as to how he spent the money. Buckley
    testified that Natalie gave the settlement money to her mother.
    The Colorado settlement is listed as an asset for Natalie in the
    premarital agreement, but the value is “Unknown.”
    - 245 -
    Nebraska Court of Appeals Advance Sheets
    32 Nebraska Appellate Reports
    AUXIER V. AUXIER
    Cite as 
    32 Neb. App. 230
    Although Natalie presented some testimony regarding her
    401K and the settlement proceeds she claimed Buckley con-
    verted, she did not list the 401K as an asset in the premarital
    agreement and Buckley’s evidence refuted her claim regarding
    the settlement proceeds. The trial court found Natalie failed to
    prove any dissipation by Buckley. We find no abuse of discre-
    tion by the trial court regarding the 401K and the settlement
    proceeds. This assignment of error fails.
    CONCLUSION
    We conclude that the trial court did not err in finding the
    premarital agreement was enforceable but did err in finding
    the alimony provision in the premarital agreement was uncon-
    scionable and in awarding Natalie alimony. Accordingly, the
    trial court’s order is affirmed in part, and in part reversed.
    Affirmed in part, and in part reversed.
    

Document Info

Docket Number: A-22-386

Filed Date: 9/5/2023

Precedential Status: Precedential

Modified Date: 9/5/2023