Marshall v. Marshall
298 Neb. 1
Neb.2017Background
- Amy and Brian Marshall married in 1993; dissolution filed February 2013; trial held October 2014 addressing custody, child support, asset division, alimony, and attorney fees.
- Amy suffered a massive 2003 stroke causing permanent disabilities; she and Brian settled with Merck over Vioxx; net proceeds were $330,621.14 after fees.
- Settlement proceeds were largely spent during the marriage; tracing shows funds used to pay mortgage and remodel the marital home, fund a new Brian account, and invest in Elite Fitness.
- District court classified $179,604 of the settlement proceeds as Amy’s nonmarital property and allocated assets accordingly; Brian received other assets, and alimony was awarded.
- Court of Appeals reversed in part, holding the proceeds were not adequately proven nonmarital and remanded for recalculation of the marital estate and related orders.
- Nebraska Supreme Court reversed the Court of Appeals, affirmed the district court’s classification and allocation, and remanded with directions to affirm the decree.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Classify Merck settlement proceeds as marital or nonmarital | Amy met burden to show nonmarital portion | Court of Appeals found no allocation evidence | Supreme Court held Amy established nonmarital share; affirmed district court allocation |
| Impact of settlement on division of marital estate | Nonmarital portion should reduce marital estate value | Settlement mainly compensates both, requiring equitable division | Court did not abuse discretion; allowed nonmarital portion credit against assets |
| Brian’s income for child support | Court should follow de novo analysis to set income | Credit due to conflicting evidence supported by trial court | Court did not abuse discretion; upholds district court income finding for child support |
| Alimony order on remand | Changed asset division may affect alimony needs | Alimony should stand unless changed circumstances | Alimony order reversed as moot in light of affirming decree and remand directions |
Key Cases Cited
- Parde v. Parde, 258 Neb. 101, 602 N.W.2d 657 (Neb. 1999) (analytic approach to allocate settlement proceeds between marital and nonmarital)
- Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (Neb. 2017) (standard of review for property division and discretion in dissolution cases)
- Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (Neb. 2017) (flexible, fact-specific income determination for child support)