Marshall v. Marshall
298 Neb. 1
| Neb. | 2017Background
- Amy and Brian Marshall married in 1993; Amy suffered a massive stroke in 2003 that left her with permanent left-sided paralysis and greatly reduced earning capacity.
- Amy and Brian settled a Vioxx personal-injury claim with Merck during the marriage; after attorney fees and costs they received $330,621.14 net, most of which was spent during the marriage.
- Traced expenditures of the settlement included paying off the marital mortgage ($179,604) and major kitchen remodeling, a $20,000 bank deposit (later nearly spent down), and a $33,333 investment in a business.
- At trial the district court applied Parde v. Parde, found the settlement did not fully compensate Amy’s personal losses, traced $179,604 to the marital home, classified that portion as Amy’s nonmarital funds (gave credit to Amy), and divided the remaining marital estate.
- The court computed Brian’s total monthly income for child support at $7,000 (ordering $935/mo child support) and awarded Amy $2,000/mo alimony for 21 years.
- The Nebraska Court of Appeals reversed in part: it held the entire settlement should be marital (requiring recalculation and redistribution), reduced Brian’s income for support to $6,000/mo, and remanded for recalculation of child support and alimony. The Nebraska Supreme Court granted further review.
Issues
| Issue | Plaintiff's Argument (Marshall) | Defendant's Argument (Brian) | Held |
|---|---|---|---|
| Classification of Merck personal-injury settlement | Amy argued Parde allows allocation to compensate purely personal losses and she met her burden by testimony, medical evidence, and tracing expenditures to nonmarital uses | Brian argued the settlement was silent as to allocation and inadequate parsing/evidence meant presumption of marital property should stand | Trial court did not abuse discretion; district court permissibly found a significant portion nonmarital, traced $179,604 to the home, and credited Amy; Court of Appeals reversed on this point was reversed. |
| Division of marital estate after settlement classification | Amy contended district court’s crediting and award of the home was equitable and consistent with Parde | Brian sought inclusion of entire settlement in marital estate and redistribution | Supreme Court affirmed district court’s asset division approach using traced nonmarital credit; remanded Court of Appeals decision reversed and district court decree to be affirmed. |
| Calculation of Brian’s monthly income for child support | Amy maintained a higher income figure based on deposits, in-kind benefits, and capital gains; trial court’s split-the-difference approach reasonable given conflicting evidence | Brian argued his income was lower and Court of Appeals’ $6,000 figure was correct | Supreme Court held no abuse of discretion in district court’s $7,000 finding given conflicting evidence and credibility concerns; reversed Court of Appeals on this issue. |
| Alimony award | Amy preserved alimony award tied to district court’s findings | Brian argued recalculation of estate/income could change alimony | Because Supreme Court affirms estate classification and income finding, no need to revisit alimony; Court of Appeals’ reversal as moot — district court award stands. |
Key Cases Cited
- Parde v. Parde, 258 Neb. 101, 602 N.W.2d 657 (1999) (adopts analytic approach: allocate personal-injury proceeds between personal losses and diminution to marital estate; burden to prove nonmarital portion rests on claimant)
- Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016) (discusses commingling and tracing separate property into marital assets)
- Bandow v. Bandow, 794 P.2d 1346 (Alaska 1990) (recognizes trial courts can reasonably apportion settlement proceeds absent mathematical exactitude)