Voss v. State (In Re Estate of Hasterlik)

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/13/2018 08:34 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF HASTERLIK
Cite as 299 Neb. 630
In re Estate of R ichard A. H asterlik, deceased.
K imberlee Voss, Personal R epresentative
of the Estate of R ichard A. H asterlik,
deceased, appellant, v. State of
Nebraska, appellee.
___ N.W.2d ___
Filed April 13, 2018. No. S-17-592.
1. Decedents’ Estates: Taxation: Appeal and Error. On appeal of an
inheritance tax determination, an appellate court reviews the case for
error appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Decedents’ Estates: Parent and Child: Taxation: Appeal and Error.
Factual findings necessary in determining whether the requisite acknowl-
edged parent-child relationship of Neb. Rev. Stat. § 77-2004 (Reissue
2009) exists should be reviewed for sufficient evidence and should not
be disturbed on appeal unless clearly wrong.
4. Decedents’ Estates: Taxation: Statutes: Proof. Statutes exempting
property from inheritance tax should be strictly construed, and the bur-
den is on the taxpayer to show that he or she clearly falls within the
language of the statute.
5. Decedents’ Estates: Parent and Child: Taxation. The following fac-
tors serve as appropriate guideposts to the trial court in making a deter-
mination of an acknowledged relationship of a parent under Neb. Rev.
Stat. § 77-2004 (Reissue 2009): (1) reception of the child into the home
and treatment of the child as a member of the family, (2) assumption
of the responsibility for support beyond occasional gifts and financial
aid, (3) exercise of parental authority and discipline, (4) relationship by
blood or marriage, (5) advice and guidance to the child, (6) sharing of
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF HASTERLIK
Cite as 299 Neb. 630
time and affection, and (7) existence of written documentation evincing
the decedent’s intent to act as parent.
6. Witnesses: Testimony. The credibility of a witness is a question for the
trier of fact, and it is within its province to credit the whole of the wit-
ness’ testimony, or any part of it, which seemed to it to be convincing,
and reject so much of it as in its judgment is not entitled to credit.
Appeal from the County Court for Dodge County: K enneth
J. Vampola, Judge. Affirmed.
Rebecca Abell Brown, of R. Abell Brown Law, L.L.C., for
appellant.
Linsey Moran Bryant, Chief Deputy Dodge County Attorney,
and Emily A. Beamis for appellee.
Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ.,
and Moore, Chief Judge, and A rterburn, Judge, and Doyle,
District Judge.
Cassel, J.
INTRODUCTION
Kimberlee Voss, personal representative of the estate of
Richard A. Hasterlik, deceased, appeals from the county court’s
determination that she, as an individual beneficiary, did not
qualify for preferential inheritance tax treatment under Neb.
Rev. Stat. § 77-2004 (Reissue 2009). The court found that Voss
failed to prove the decedent stood in the acknowledged relation
of a parent to her. Because the county court’s factual determi-
nation was not clearly wrong, we affirm.
BACKGROUND
The evidence presented to the county court established that
Voss’ biological father passed away in 1983 when she was 25
years old. The decedent became engaged to Voss’ mother 2
years later, but the two never married. Instead, they cohabitated
in Wisconsin and later in Nebraska until Voss’ mother passed
away in 2013.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF HASTERLIK
Cite as 299 Neb. 630
While Voss’ mother and the decedent lived in Wisconsin,
Voss’ family would visit them a few times a year, and she
would often have them stay at her home in Nebraska during
visits. After the couple moved to Nebraska, Voss’ family spent
holidays with them and would see them a few times a week.
Voss’ mother and the decedent would provide money to Voss
“at times,” and they bought her son a car when he graduated
from high school. After Voss’ mother passed away, Voss’ fam-
ily continued to spend holidays with the decedent and would
see him about once a week. They also helped him with grocery
shopping and home maintenance.
Voss’ affidavit indicated that the decedent was protective of
her and would give her “fatherly advice and guidance.” She
further testified that the decedent referred to her as his step-
daughter. She attached a “previous” will to her affidavit, which
showed that the decedent had previously disinherited his bio-
logical daughter and devised his entire estate to Voss’ mother.
Under that will, Voss was to inherit in the event that her mother
predeceased the decedent. Although the affidavit recited that a
more recent will had been executed, neither that will nor any
other county court filings (other than the order being appealed)
were included in the appellate record.
On this evidence, the county court concluded that it was
“unable to differentiate that [the decedent] provided anything
to [Voss] or acted in a manner toward [her] that was above
and beyond the normal circumstances of his companionship
with [Voss’] mother.” Accordingly, it determined that Voss’
inheritance did not qualify for the 1-percent tax rate under
§ 77-2004.
Voss appealed, and we moved the case to our docket.1
ASSIGNMENT OF ERROR
Voss assigns that the county court erred in finding that the
evidence did not establish that she was a person to whom the
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF HASTERLIK
Cite as 299 Neb. 630
deceased, for more than 10 years prior to death, stood in the
acknowledged relation of a parent.
STANDARD OF REVIEW
[1,2] On appeal of an inheritance tax determination, an
appellate court reviews the case for error appearing on the
record.2 When reviewing a judgment for errors appearing on
the record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither arbi-
trary, capricious, nor unreasonable.3
[3] Factual findings necessary in determining whether the
requisite acknowledged parent-child relationship of § 77-2004
exists should be reviewed for sufficient evidence and should
not be disturbed on appeal unless clearly wrong.4
ANALYSIS
[4] Statutes exempting property from inheritance tax should
be strictly construed, and the burden is on the taxpayer to
show that he or she clearly falls within the language of the
statute.5 Section 77-2004 provides that “any person to whom
the deceased for not less than ten years prior to death stood
in the acknowledged relation of a parent” shall receive an
inheritance tax exemption of $40,000 and shall be taxed at
the rate of 1-percent of the clear market value of the property
thereafter. Therefore, it was Voss’ burden to establish that she
was a person “to whom the deceased for not less than ten
years prior to death stood in the acknowledged relation of
a parent.”
[5] The following factors serve as appropriate guideposts to
the trial court in making a determination of an acknowledged
relationship of a parent under § 77-2004: (1) reception of the
2
See In re Estate of Craven, 281 Neb. 122, 794 N.W.2d 406 (2011).
3
Id.
4
In re Estate of Kite, 260 Neb. 135, 615 N.W.2d 481 (2000).
5
In re Estate of Breslow, 266 Neb. 953, 670 N.W.2d 797 (2003).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF HASTERLIK
Cite as 299 Neb. 630
child into the home and treatment of the child as a member
of the family, (2) assumption of the responsibility for sup-
port beyond occasional gifts and financial aid, (3) exercise of
parental authority and discipline, (4) relationship by blood or
marriage, (5) advice and guidance to the child, (6) sharing of
time and affection, and (7) existence of written documentation
evincing the decedent’s intent to act as parent.6
[6] Voss testified that the decedent referred to her as his
stepdaughter. The credibility of a witness is a question for the
trier of fact, and it is within its province to credit the whole of
the witness’ testimony, or any part of it, which seemed to it to
be convincing, and reject so much of it as in its judgment is
not entitled to credit.7 Even if Voss’ testimony would have been
sufficient for the county court to make the necessary finding,
the court was not required to do so.
The evidence offered at trial was sparse and included a
two-page affidavit, the decedent’s previous will, and Voss’
summary answer to a single question. No evidence was offered
concerning the third factor—exercise of parental authority
and discipline—and, though Voss described her mother’s and
the decedent’s relationship as “a close marital type relation-
ship,” no actual blood or marital relationship existed. Neither
Wisconsin law8 nor Nebraska law9 allows for the establish-
ment of common-law marriages, and Voss conceded that they
had not legally married. Therefore, the fourth factor—rela-
tionship by blood or marriage—also weighed against Voss’
entitlement to the § 77-2004 tax rate. No credible evidence was
offered concerning the seventh factor—written documentation
of intent—as Voss offered only a copy of the decedent’s previ-
ous will—not his most recent will. And there is nothing in the
6
In re Estate of Kite, supra note 4.
7
In re Estate of Ross, 19 Neb. Ct. App. 355, 810 N.W.2d 435 (2011).
8
See Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987).
9
See Neb. Rev. Stat. § 42-104 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF HASTERLIK
Cite as 299 Neb. 630
record to show that Voss received the same treatment in the
controlling will as she did under the previous will.
As to the remaining factors, it is apparent from the record
that Voss and the decedent cared for one another and would
spend time together for holidays and regular visits. However,
the county court concluded that the evidence was insufficient
to establish the decedent acted in a manner toward Voss that
went above and beyond the normal circumstances of his rela-
tionship with her mother. We cannot say that the county court
was clearly wrong in determining that Voss failed to carry her
burden of proof.
CONCLUSION
Because the county court’s factual determination was not
clearly wrong, we affirm the order of the county court.
A ffirmed.
Wright and Funke, JJ., not participating.