Brozek v. Brozek
292 Neb. 681
| Neb. | 2016Background
- Shelley and Kirk Brozek married in 1993, separated December 24, 2011, and later divorced after a trial in April 2014; they have three children (one minor at trial).
- Kirk farms through two closely held corporations: Brozek & Sons, Inc. (owns land, operating company) and Brozek Farms, Inc. (equipment); both spouses hold minority shares—Kirk holds the majority.
- A 2003 Redemption Agreement among Brozek & Sons shareholders set a formula buy-back price and allowed transfers to related stockholders (including spouses) by a separate paragraph.
- The district court found the parties’ corporate shares were Shelley’s separate property but ordered Kirk to purchase Shelley’s shares (court valued Brozek & Sons shares at $50 each, Brozek Farms at ~$315.50), equalized the marital estate (net ~ $2.5M) and denied Shelley alimony and a ‘‘Grace’’ award; each party generally bore their own fees.
- Kirk appealed claiming (inter alia) the Redemption Agreement should control price, the court misvalued/divided assets, failed to credit premarital property, and lacked jurisdiction to award Shelley appellate attorney fees; Shelley cross‑appealed seeking alimony, a Grace award, and attorney fees.
Issues
| Issue | Plaintiff's Argument (Kirk or Shelley as noted) | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Redemption Agreement controlled the price Kirk must pay for Shelley’s Brozek & Sons shares | Kirk: third-paragraph mandatory buy-back price applies, so court must limit purchase price to agreement price | Shelley/court: second-paragraph exception permits transfers to spouse notwithstanding third-paragraph buy-back | Court: second paragraph allows transfers to spouse; court could order Kirk to buy shares at the trial-appraised value ($50/share) despite buy-back provision |
| Proper valuation date for corporate shares | Kirk: use separation date (Dec 2011) — his appraisal | Shelley: use trial/most-recent data — her appraisal | Court: valuation may be rationally related to assets; acceptance of Shelley’s more recent appraisals was not an abuse of discretion |
| Whether Kirk proved tracing to obtain credit for premarital funds, crops, or traded-in machinery | Kirk: substantial premarital farm cash, 1993 crop proceeds, and pre-marital machinery justify credits/set-offs | Shelley/court: funds and assets were commingled over ~18 years; Kirk failed to trace or quantify premarital portions | Court: Kirk bore burden to trace; evidence was speculative/incomplete; no credit awarded |
| Jurisdiction to award attorney fees after appeal filed | Kirk: trial court lost jurisdiction upon his appeal; could not award fees post-appeal | Shelley: § 42-351(2) allows orders in aid of appeal including fees for appellate work | Court: § 42-351(2) authorizes orders in aid of appeal; awarding $10,000 for appellate fees was within court’s authority and not an abuse of discretion |
| Cross-appeal: whether alimony, Grace award, or attorney fees should have been granted to Shelley | Shelley: long marriage, income disparity, and corporate ownership justify alimony, Grace award for inadequate marital estate, and attorney fees | Kirk/court: marriage did not interrupt Shelley’s career; she receives significant cash/assets from forced sale and equalization; marital estate (~$2.5M) is not inadequate; fee evidence was insufficient | Court: denied alimony, Grace award, and fees in decree — no abuse of discretion; temporary appellate fees granted separately |
Key Cases Cited
- Coufal v. Coufal, 291 Neb. 378 (appellate de novo review in dissolution actions)
- Grace v. Grace, 221 Neb. 695 (award for inadequacy of marital estate under extraordinary facts)
- Van Newkirk v. Van Newkirk, 212 Neb. 730 (exception for contributions to nonmarital property value)
- Shafer v. Shafer, 16 Neb. App. 170 (treating a livestock herd as a traceable single asset for premarital tracing)
- Pennfield Oil Co. v. Winstrom, 272 Neb. 219 (enforceability of stock transfer restrictions)