Marshall v. Marshall
298 Neb. 1
Neb.2017Background
- Amy and Brian Marshall married in 1993; Amy suffered a massive stroke in 2003 linked to Vioxx and later settled with Merck for net proceeds of $330,621.14, after attorney fees.
- Nearly all settlement proceeds were spent during the marriage; $179,604 was traced to paying off the marital mortgage and remodeling the marital home; other portions funded business investment and bank accounts.
- At trial (2014) disputed issues included classification of the personal-injury settlement (marital vs. nonmarital), valuation/division of marital estate, Brian’s monthly income for child support, and alimony.
- Trial court (district court) applied Parde’s analytic approach, found settlement insufficient to fully compensate Amy’s personal losses, and awarded Amy a $179,604 credit (nonmarital) traced to the marital home; it set Brian’s monthly income at $7,000 and awarded alimony $2,000/month for 21 years.
- Court of Appeals reversed in part: held entire settlement should be marital, recalculated Brian’s income to $6,000/month for child support, and remanded for redistribution and reconsideration of alimony.
- Nebraska Supreme Court on further review reversed the Court of Appeals, affirming the trial court’s classification/tracing of nonmarital settlement funds and its income determination for child support; alimony reversal was rendered moot.
Issues
| Issue | Amy's Argument | Brian's Argument | Held |
|---|---|---|---|
| Classification of Merck personal-injury settlement | Parde analytic approach supports classifying a substantial portion as Amy's nonmarital (pain/suffering, disability, lost future earning capacity); evidence and tracing suffice | Entire settlement is marital because release was silent on allocation and proceeds were inadequate to fully compensate marital losses | Trial court did not abuse discretion: portion ($179,604) traced to home awarded as Amy's nonmarital credit; Parde does not require settlement to specify allocation or expert math breakdown |
| Property division / remand | District court fairly allocated and credited traced nonmarital funds in dividing assets | Court of Appeals erred in setting aside nonmarital portion without specific allocation evidence; argued for full inclusion in marital estate | Nebraska Supreme Court reversed Court of Appeals and remanded with directions to affirm district court division (not patently unfair) |
| Brian's monthly income for child support | Trial court's $7,000 reflects in-kind benefits, deposits, credibility findings and equities; splitting difference reasonable here | Trial court abused discretion; record supports $6,000/month and Court of Appeals should set that figure | Trial court's $7,000 upheld: de novo review gives weight to trial judge's credibility assessments and conflicting evidence; no abuse of discretion |
| Alimony award | No need to disturb; alimony tied to district court's overall equitable determinations | If property and support recalculated, alimony should be reconsidered | Alimony affirmed by Supreme Court as moot reversal by Court of Appeals; no need to revisit because district court decree stands |
Key Cases Cited
- Parde v. Parde, 258 Neb. 101 (1999) (adopts analytic approach to classify personal-injury settlement proceeds; burden on claimant to show nonmarital portion)
- Bandow v. Bandow, 794 P.2d 1346 (Alaska 1990) (trial courts may reasonably apportion settlement proceeds without mathematical precision)
- Tramel v. Tramel, 740 So. 2d 286 (Miss. 1999) (support for courts allocating settlement proceeds based on testimonial and circumstantial evidence)
- Heser v. Heser, 231 Neb. 928 (1989) (property division will not be disturbed on appeal unless patently unfair)