Lisec v. Lisec
A-15-634
| Neb. Ct. App. | Mar 7, 2017Background
- Lynne and James Lisec married in 2006, executed a postnuptial settlement agreement in December 2006, and divorced after Lynne filed for dissolution in June 2011. No children resulted from the marriage.
- Lynne voluntarily dismissed her complaint in September 2012; the court reinstated the case the same term after finding James’ answer functioned as a counterclaim seeking dissolution, property division, and fees.
- At trial both parties asked the court to enforce the parties’ settlement agreement; evidence addressed gifts to Lynne from her mother, joint-account transactions used for a house downpayment, vehicle retitling, and James’ pre-marriage business (FUBAR) funded from his retirement accounts.
- The court treated the settlement agreement as a binding property settlement (ratified at trial), classified and divided assets accordingly, awarded James certain assets (including vehicles and the value of personal property he held), and found FUBAR’s assets nonmarital.
- The court ordered Lynne to pay $8,000 of James’ attorney fees based on prolonged litigation caused by Lynne’s conduct and denied Lynne’s request that James pay a private investigator’s production costs ordered on a motion to compel.
Issues
| Issue | Lisec (Lynne) Argument | Lisec (James) Argument | Held |
|---|---|---|---|
| Whether court could vacate the dismissal and reinstate James’ counterclaim | Lynne: James did not file a separate counterclaim or setoff; voluntary dismissal should have ended case | James: His answer sufficiently pled claims for relief and functioned as a counterclaim under pleading rules | Court: Reinstatement proper; answer met counterclaim pleading requirements and vacatur within same term was authorized |
| Classification and division of house sale proceeds and vehicles | Lynne: Downpayment originated from nonmarital gifts to her; proceeds and half the vehicles’ value should be hers | James: Funds were deposited into joint account and property was titled jointly per settlement; vehicles placed in joint tenancy are marital and divisible | Court: Agreed with James; funds became joint under settlement; assets were marital and court equitably awarded values in division |
| Claim to James’ business (FUBAR) assets | Lynne: Should receive portion of FUBAR assets | James: FUBAR funded by his pre-marital retirement accounts; assets are nonmarital | Court: FUBAR assets nonmarital and not subject to division |
| Attorney fees and discovery costs allocation | Lynne: Should not pay James’ fees; James should pay investigator’s production costs | James: Fees justified by prolonged litigation caused by Lynne; investigator’s bill not James’ responsibility given lack of proof of unreasonable charges | Court: Ordered Lynne to pay $8,000 toward James’ fees (within discretion); did not require James to pay investigator’s bill due to insufficient evidence of cost reasonableness |
Key Cases Cited
- Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (trial court may vacate judgment during same term; abuse of discretion standard)
- Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (court has inherent power to vacate or modify its judgment within the term)
- Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (de novo review in dissolution matters; abuse of discretion standard for trial court rulings)
- Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (postnuptial agreements historically void as property settlements unless concurrent with separation/divorce — distinguished by treating parties’ agreement as settlement ratified at trial)
- Pohlmann v. Pohlmann, 20 Neb. App. 290, 824 N.W.2d 63 (three-step equitable division process under Neb. Rev. Stat. § 42-365)
- Kerr v. Bd. of Regents, 15 Neb. App. 907, 739 N.W.2d 224 (character of a pleading determined by content, not caption)
- Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (factors guiding attorney-fee awards in dissolution cases)