Wiech v. Wiech

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
Chrissie Elaine Wiech, appellee, v.
Craig A llen Wiech, appellant.
___ N.W.2d ___
Filed November 3, 2015. No. A-14-747.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of
marriage, an appellate court reviews de novo on the record the trial
court’s determinations of custody, child 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. Divorce: Property Division: Appeal and Error. The date upon which
a marital estate is valued should be rationally related to the property
composing the marital estate, and the date of valuation is reviewed for
an abuse of the trial court’s discretion.
3. Divorce: Property Division: Equity. The purpose of assigning a date
of valuation in a decree is to ensure that the marital estate is equita-
bly divided.
4. ____: ____: ____. A specific, consistent, and enforceable date of valua-
tion permits the trial court to allocate all the assets of the marital estate
in an equitable and fair manner.
5. Divorce: Property Division. The marital estate includes property accu-
mulated and acquired during the marriage through the joint efforts of
the parties.
6. Property Division: Employer and Employee: Wages. Where an
employee is entitled by agreement to a cash payout of unused vacation,
sick, and compensatory time, those benefits constitute property.
7. ____: ____: ____. Where a collective bargaining agreement provides
for a cash payment of unused vacation, sick, and compensatory time,
such payment is deferred compensation to be included in the mari-
tal estate.
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WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
8. Wages: Words and Phrases. Deferred compensation is defined as com-
pensation which is earned in exchange for services rendered.
9. Divorce: Property Division. Deferred compensation is property for
purposes of determining the marital estate.
10. Divorce: Property Division: Pensions. The marital estate includes any
pension plans, retirement plans, annuities, and other deferred compensa-
tion benefits owned by either party, whether vested or not vested.
11. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2008), the equitable division of property is a three-step process. The first
step is to classify the parties’ property as marital or nonmarital, setting
aside the nonmarital property to the party who brought that property to
the marriage. 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 con-
tained in § 42-365.
12. ____: ____. The ultimate test in determining the appropriateness of the
division of property is fairness and reasonableness as determined by the
facts of each case.
13. Divorce: Property Division: Real Estate: Sales. In an action for dis-
solution of marriage, in order to be credited for the deductibility of a
real estate commission, the proponent must adduce evidence that a sale
of the real estate is imminent or would occur in the foreseeable future,
as well as evidence of the amount of the commission for the property
in question.
14. Property Division: Taxes. Income tax liability incurred during the mar-
riage is one of the accepted costs of producing marital income, and thus,
income tax liability should generally be treated as a marital debt.
15. Property Division. Any income accumulated during a marriage is con-
sidered a marital asset.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Aimee S. Melton and A. Bree Robbins, of Reagan, Melton
& Delaney, L.L.P., for appellant.
Michael N. Schirber, of Schirber & Wagner, L.L.P., for
appellee.
Irwin, Inbody, and R iedmann, Judges.
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Decisions of the Nebraska Court of A ppeals
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WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
R iedmann, Judge.
INTRODUCTION
Craig Allen Wiech appeals the order of the Sarpy County
District Court which dissolved his marriage to Chrissie
Elaine Wiech and divided the marital estate. On appeal, he
challenges the district court’s classification, valuation, and
division of the marital property. For the reasons explained
below, we affirm in part, and in part reverse and remand
with directions.
BACKGROUND
Craig and Chrissie were married on May 26, 2008. They
separated on September 28, 2013, and Chrissie filed a com-
plaint for dissolution of marriage on October 2. There were no
children born during the marriage.
Trial was held in May 2014 to determine, inter alia, the
extent and value of the marital estate and the division of mari-
tal property. The evidence presented will be described in more
detail as needed in the analysis below.
The district court entered the decree on August 5, 2014.
Each party received a vehicle subject to its associated lien:
Chrissie received a 2009 Mazda, and Craig received a 2010
Harley-Davidson motorcycle. Chrissie was awarded the mari-
tal residence, subject to its mortgage, as well as most of
the parties’ personal property. Each party was assigned vari-
ous credit card debts. Chrissie received “a lump sum of
$48,009.81” from Craig’s pension, an amount “representing
the marital portion of the pension in the amount of $42,398.88,
and $5,610.93 of [Craig’s] accumulated sick and vacation time
as evidenced on Trial Exhibit No. 11.” Craig timely appeals to
this court.
ASSIGNMENTS OF ERROR
Craig assigns, summarized, that the district court erred
in its classification, valuation, and division of the mari-
tal property.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
STANDARD OF REVIEW
[1] In an action for the dissolution of marriage, an appel-
late court reviews de novo on the record the trial court’s
determinations of custody, child 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 discre-
tion. Rommers v. Rommers, 22 Neb. Ct. App. 606, 858 N.W.2d
607 (2014).
ANALYSIS
On appeal, Craig generally argues that the district court
erred in its classification, valuation, and division of various
assets owned by the parties. We address his specific arguments
individually below.
Valuation Date of Craig’s Pension.
Craig asserts that the district court erred in valuing his pen-
sion as of March 6, 2014, a date he claims has no rational
relationship to the date of separation or dissolution. We find
no abuse of discretion in the utilization of this date.
[2-4] As a general principle, the date upon which a mari-
tal estate is valued should be rationally related to the prop-
erty composing the marital estate, and the date of valua-
tion is reviewed for an abuse of the trial court’s discretion.
Pohlmann v. Pohlmann, 20 Neb. Ct. App. 290, 824 N.W.2d 63
(2012). The purpose of assigning a date of valuation in a
decree is to ensure that the marital estate is equitably divided.
Id. Because the valuation and distribution of a particular
asset rarely takes place in a vacuum, a specific, consistent,
and enforceable date of valuation permits the trial court to
allocate all the assets of the marital estate in an equitable and
fair manner. See Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d
444 (2008).
In the present case, Craig challenges the decision to value
his pension as of March 2014 instead of September 2013, the
time of the parties’ separation. We note that other assets of
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WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
the marital estate were valued as of early 2014 as well. For
example, evidence was received depicting the balance of the
mortgage on the marital residence as of May 1. Likewise, the
liens on the parties’ two vehicles were valued as of March 31.
The values of Craig’s accrued sick and vacation leave were
established as of May 3. The dissolution trial was held on May
23, and the March 2014 pension statement was the statement
closest to trial. Consequently, we find no abuse of discretion in
valuing Craig’s pension as of March 2014.
Sick, Vacation, and Compensatory Time.
The district court awarded Chrissie a portion of the value
of the sick, vacation, and compensatory (comp) time Craig
had accrued through his employment during the marriage. We
note that although the decree states sick and vacation time
are being awarded, the calculation of $5,610.93 awarded to
Chrissie necessarily includes one-half of Craig’s accumu-
lated comp time. Craig asserts that the district court erred
in considering his accrued leave to be a marital asset. We
find no abuse of discretion in the classification of his unused
sick, vacation, and comp time as marital property. We further
determine that the district court erroneously awarded Chrissie
the value of the entire marital portion of Craig’s accrued
sick leave, instead of an equitable share, and we therefore
reverse, and remand for division. See Millatmal v. Millatmal,
272 Neb. 452, 723 N.W.2d 79 (2006) (stating general rule to
award spouse one-third to one-half of marital estate, polestar
being fairness and reasonableness as determined by facts of
each case).
Craig is employed as a police officer with the city of
Bellevue, Nebraska. The collective bargaining agreement gov-
erning Craig’s employment relationship provides that upon
separation of his employment, Craig shall be promptly paid
all accumulated vacation leave computed on the basis of his
regular pay as of his last day of employment. Similarly, the
agreement provides that employees who retire with at least 5
years of service shall receive a cash payout for accumulated
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WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
sick leave, but such payment shall be one-half of the accu-
mulated sick leave not to exceed 960 hours at the regular pay
at the time of retirement. The portion of the agreement con-
tained in our record does not indicate whether unused comp
time is convertible to cash but Craig testified that if he were
to retire and had comp time available, he would be entitled to
a payout.
Whether an employee’s accrued sick leave, vacation leave,
and comp time is considered marital property is an issue of
first impression in Nebraska. Courts in other jurisdictions are
split on this issue. Compare, Schober v. Schober, 692 P.2d 267
(Alaska 1984) (unused leave, portion of which was convert-
ible to cash on yearly basis, is marital asset); In re Marriage
of Cardona and Castro, 316 P.3d 626 (Colo. 2014) (where
employee spouse has enforceable right to be paid for accrued
sick or vacation leave, such leave earned during marriage
is marital property); Dye v. Dye, 17 So. 3d 1278 (Fla. App.
2009) (cash value of unused sick and vacation leave is marital
asset subject to equitable distribution); Lesko v Lesko, 184
Mich. App. 395, 457 N.W.2d 695 (1990) (banked leave days
are divisible marital asset); Marriage of Williams, 84 Wash.
App. 263, 927 P.2d 679 (1996) (same), with In re Marriage
of Abrell, 236 Ill. 2d 249, 923 N.E.2d 791, 337 Ill. Dec. 940
(2010) (accrued vacation and sick days are not marital prop-
erty subject to distribution in dissolution of marriage action);
Akers v. Akers, 729 N.E.2d 1029 (Ind. App. 2000) (reversing
trial court’s treatment of unused sick days as marital asset);
Bratcher v. Bratcher, 26 S.W.3d 797 (Ky. App. 2000) (accrued
holiday and vacation entitlement is not marital property);
Thomasian v. Thomasian, 79 Md. App. 188, 556 A.2d 675
(1989) (same).
[5] In Nebraska, the marital estate includes property accu-
mulated and acquired during the marriage through the joint
efforts of the parties. Davidson v. Davidson, 254 Neb. 656,
578 N.W.2d 848 (1998). Thus, to determine whether accrued
but unused sick, vacation, and comp time is part of the
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WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
marital estate, we must first determine whether these benefits
are property.
[6-9] “Property” is defined as “1. The right to possess, use,
and enjoy a determinate thing (either a tract of land or a chat-
tel); the right of ownership . . . . 2. Any external thing over
which the rights of possession, use, and enjoyment are exer-
cised . . . .” Black’s Law Dictionary 1335-36 (9th ed. 2009).
Where, as here, an employee is entitled by agreement to a cash
payout of unused vacation, sick, and comp time that employee
has a “right” to those payments, and therefore they constitute
property. We further determine that where a collective bargain-
ing agreement provides for a cash payment of these benefits,
such payment is deferred compensation to be included in the
marital estate. See, Fisher v. PayFlex Systems USA, 285 Neb.
808, 829 N.W.2d 703 (2013) (classifying vacation pay as
additional wages for services performed); Wadkins v. Lecuona,
274 Neb. 352, 740 N.W.2d 34 (2007) (identifying comp time
payments as deferred compensation). Deferred compensation
is defined as compensation which is earned in exchange for
services rendered. Livingston v. Metropolitan Util. Dist., 269
Neb. 301, 692 N.W.2d 475 (2005). Pursuant to the collective
bargaining agreement, Craig earned sick and vacation time
based upon the length of service provided. If he does not use
his sick or vacation time, he is allowed to cash it out pursu-
ant to the formula contained in the agreement. According to
Craig’s testimony, he is also allowed to cash out his comp
time upon retirement. Thus, the sick, vacation, and comp
time pay are deferred compensation. Deferred compensation is
property for purposes of determining the marital estate. Neb.
Rev. Stat. § 42-366(8) (Reissue 2008). See, also, Davidson v.
Davidson, supra.
As the Supreme Court of Colorado observed when address-
ing this issue, an employee who has an enforceable right to
be paid for accrued sick or vacation leave receives compensa-
tion when the employee either uses the time for a permissible
purpose or is paid the value of the accrued leave. See In re
Marriage of Cardona and Castro, 316 P.3d 626 (Colo. 2014).
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
In this situation, sick or vacation days accrued by an employee
are his property because they are, in effect, a debt due to him
as part of the compensation he has earned for work he has
already performed. See In re Marriage of Abrell, 236 Ill. 2d
249, 923 N.E.2d 791, 337 Ill. Dec. 940 (2010) (Garman, J.,
dissenting; Kilbride and Burke, JJ., join).
[10] The fact that the amount of sick, vacation, and comp
time is subject to reduction based upon Craig’s use of it is
of no consequence. Under § 42-366(8), the marital estate, for
purposes of the division of property at the time of dissolution,
includes any pension plans, retirement plans, annuities, and
other deferred compensation benefits owned by either party,
whether vested or not vested.
Prior to the adoption of § 42-366(8), the Nebraska Supreme
Court declined to include pension interests as marital assets
because of the problems inherent in determining their value
and the contingent nature of the interest. See Witcig v. Witcig,
206 Neb. 307, 292 N.W.2d 788 (1980). However, with the
enactment of § 42-366(8), pensions, as well as other deferred
compensation benefits, are to be included in the marital
estate. See, Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d
848 (1998) (including unvested employee stock options and
stock retention shares as marital property when accumulated
and acquired during marriage); Simon v. Simon, 17 Neb.
App. 834, 770 N.W.2d 683 (2009) (holding husband’s early
retirement incentives that resulted from employment during
marriage as marital property subject to equitable distribution
in divorce).
Therefore, the fact that the amount of unused sick, vacation,
and comp time available for payment may change does not
prevent it from being included in the marital estate where the
unused portion was accumulated and acquired during the mar-
riage. Accordingly, we find that the district court did not abuse
its discretion in classifying Craig’s accrued and unused sick,
vacation, and comp time as property for purposes of valuing
and dividing the marital estate.
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WIECH v. WIECH
Cite as 23 Neb. Ct. App. 370
The district court determined that as of May 2014, Craig
had 292.5 hours of unused sick leave. As provided in the col-
lective bargaining agreement, he is entitled to the value of
one-half of those hours upon his retirement. Thus, the value of
146.25 hours at his present rate of pay ($31.79 per hour) equals
$4,649.28. This amount represents the value of the marital por-
tion of Craig’s accrued sick leave. The district court, however,
awarded this entire amount to Chrissie when she is entitled
only to an equitable share. We therefore reverse, and remand
to the district court to equitably divide the marital portion of
Craig’s sick leave. See Millatmal v. Millatmal, 272 Neb. 452,
723 N.W.2d 79 (2006).
The district court found that Craig’s unused vacation hours
accrued during the marriage equaled 35.75 hours. Thus, the
total value of the marital portion of Craig’s vacation time is
$1,136.49. Chrissie was awarded one-half of this amount, and
we affirm.
Finally, the district court awarded Chrissie one-half of its
calculated value of Craig’s accrued comp time for a total of
$393.41, and we affirm. In sum, the district court did not
abuse its discretion in classifying the sick, vacation, and comp
time that Craig accrued during the marriage as marital prop-
erty. However, the court erred in its division of the property.
We affirm the award of $568.24 to Chrissie for her share of
Craig’s vacation leave, and we affirm the award of $393.41
for her share of Craig’s comp time. We direct the district court
on remand to equitably divide the marital portion of Craig’s
unused sick leave.
Equity in Marital Home.
Craig and Chrissie built the marital residence during the
marriage. The district court awarded the home and its mort-
gage to Chrissie, but it did not assign any values to the prop-
erty or the associated debt. Craig asserts that the failure to
value this asset was erroneous, and we agree.
[11,12] Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the
equitable division of property is a three-step process. The first
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step is to classify the parties’ property as marital or nonmarital,
setting aside the nonmarital property to the party who brought
that property to the marriage. 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. Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566
(2015). The ultimate test in determining the appropriateness of
the division of property is fairness and reasonableness as deter-
mined by the facts of each case. Id.
[13] Chrissie opined that the value of the home was approxi-
mately $186,503, which is equal to the 2014 value established
by the county assessor. The balance of the mortgage as of
May 1, 2014, was $181,730.73. Chrissie claims the home has
negative equity after subtracting from the assessed value the
mortgage balance and any anticipated real estate commission
in the event of a sale. Any future real estate commission should
not be considered when determining the value of the marital
residence, however. In Walker v. Walker, 9 Neb. Ct. App. 694, 618
N.W.2d 465 (2000), this court said that to be credited for the
deductibility of a real estate commission, the proponent must
adduce evidence that a sale of the real estate is imminent or
would occur in the foreseeable future, as well as evidence of
the amount of the commission for the property in question.
We held that failure to adduce such evidence would dictate a
finding that there should be no deduction for the real estate
commission. Id.
There was no evidence presented in this case that Chrissie
was planning to sell the home. She merely testified as to her
opinion of the amount of a real estate commission in the event
of a sale. We therefore reverse this portion of the award and
remand the matter to the district court to assign a value to this
asset, calculated as the difference between the value of the
residence and the mortgage balance, and award the property to
either Craig or Chrissie.
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WIECH v. WIECH
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2013 Tax Liabilities.
Craig contends that the parties’ 2013 tax liabilities should
have been treated as a marital debt and divided equitably
between him and Chrissie. We agree.
[14] Because income tax liability incurred during the mar-
riage is one of the accepted costs of producing marital income,
income tax liability should generally be treated as a mari-
tal debt. Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564
(2000). In Meints, the Supreme Court required that the hus-
band’s tax liability amount be treated as marital debt even for
returns the parties filed separately, but any statutory penalties
assessed for delinquent filing is treated as a nonmarital debt
solely attributable to the filing spouse. The court cautioned,
however, that equity may not demand the same result if cred-
ible evidence establishes that the delinquent taxpaying spouse
spent significant funds on nonmarital pursuits. Id.
In the present case, Chrissie argues that because Craig
claimed at least 10 exemptions during the marriage so as to
minimize his tax withholdings, she should not be responsible
for any portion of his tax liability. While Craig may have
attempted to minimize his tax withholdings during the mar-
riage, the additional income he retained benefited both parties
during the marriage, and there is no evidence that he spent
significant funds on nonmarital pursuits. Craig requested
an extension on his 2013 tax return, and thus, at the time
trial was held in May 2014, he had not yet filed his taxes.
There was no evidence presented at trial that he incurred
any statutory penalties for delinquent filing. Craig testified
that as calculated, he would owe at least $6,000 for his tax
debt, and likely more. Chrissie owed federal income taxes
of $800 for 2013. We find that the district court abused its
discretion in failing to equitably divide the $6,800 in tax
liabilities between the parties. Accordingly, we reverse, and
remand to the trial court to equitably divide and assign the
tax liabilities.
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Premarital Debt.
[15] Craig asserts that Chrissie’s portion of the marital estate
should be offset by the premarital debt she brought into the
marriage which was reduced during the marriage using mari-
tal funds. Chrissie acknowledges that she brought premarital
debt, specifically a bankruptcy obligation, into the marriage
and that the balance was reduced during the marriage. But she
claims that she used “[her] income” to pay down the debt, not
marital assets, and that thus, her share of the marital estate
should not be reduced. Any income accumulated during the
marriage, however, is considered a marital asset. See Harris v.
Harris, 261 Neb. 75, 621 N.W.2d 491 (2001). Therefore, even
though Chrissie earned a higher income than Craig during the
marriage, the funds used to pay down Chrissie’s premarital
debt are marital assets.
In Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503
(2004), the wife had approximately $12,000 in student loan
debt at the time of the marriage, and the loans were paid off
with marital funds during the marriage. When dissolving the
parties’ marriage and dividing marital property, the trial court
failed to account for the entirety of the loans that the wife
brought into the marriage. On appeal, the Nebraska Supreme
Court determined that the wife’s portion of the marital estate
should have been reduced by the total student loan debt that
she brought into the marriage because that debt was paid off
with marital assets. Id. The court, however, found no abuse
of discretion under the totality of the circumstances because
the marital estate totaled well over $1 million, and the alleged
mistake constituted less than one-half of 1 percent of this
total. Id.
In the present case, the trial court failed to account for
Chrissie’s premarital debt. She testified that she was required
to pay $1,200 per month toward her bankruptcy obligation
for 60 months beginning in April or May 2007. Accordingly,
Chrissie made payments for approximately 47 months dur-
ing the marriage, for a total of $56,400. Considering the total
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value of the marital estate here, this amount constitutes a
significant portion of the estate; it was therefore an abuse of
discretion to fail to offset this amount from Chrissie’s share.
Likewise, Craig admitted that he brought debt into the mar-
riage of $3,549.95, and thus, it was plain error for the district
court not to offset this amount from Craig’s share of the mari-
tal estate. We therefore remand the matter to the district court
to equitably divide the marital estate and offset Chrissie’s por-
tion by $56,400 and Craig’s portion by $3,549.95.
CONCLUSION
Upon our de novo review of the record, we affirm the dis-
trict court’s decision to value Craig’s pension as of March 2014
and classify his sick, vacation, and comp time as a marital
asset. However, we conclude that Chrissie was erroneously
awarded the entire marital portion of Craig’s sick leave. We
also conclude that the court abused its discretion in failing to
calculate and assign the equity in the marital residence, divide
the 2013 tax liabilities, and offset the parties’ premarital debt.
As a result of these errors, we remand the matter to the dis-
trict court to equitably divide Craig’s sick leave, calculate the
equity in the marital home and assign it to one of the parties,
equitably divide the tax liabilities, and offset each party’s pre-
marital debt from his or her share of the marital estate.
A ffirmed in part, and in part reversed
and remanded with directions.