Onstot v. Onstot
906 N.W.2d 300
Neb.2018Background
- Mark and Maria Onstot married in 1999; Mark filed for dissolution in 2013 and a bench trial occurred in 2016.
- Mark owned a Bellevue house purchased in 1990; at trial it was appraised at $200,000 with a ~$32,500 mortgage.
- Mark claimed the house (or its premarital equity) was nonmarital property, but produced no documentation of mortgage balance or value at the 1999 marriage.
- Maria was found to suffer from serious mental illness; a guardian ad litem represented her and she received temporary support during proceedings.
- Trial court awarded the house to Mark but divided the full $167,500 equity equally, ordering Mark to pay Maria ~$83,746 or refinance/sell within 60 days.
- Trial court awarded Maria continuing spousal support under Neb. Rev. Stat. § 42-362 of $700/month, and then amended the decree to terminate support on remarriage, death, or cohabitation; the cohabitation termination was later challenged.
Issues
| Issue | Plaintiff's Argument (Mark) | Defendant's Argument (Maria) | Held |
|---|---|---|---|
| Division of house equity / premarital credit | House (or premarital equity) was nonmarital; court should credit value at marriage and not divide whole equity | Entire equity is marital because Mark failed to prove there was any premarital equity (no documentation) | Court affirmed inclusion of full equity in marital estate because Mark failed to prove existing premarital equity at marriage |
| Deadline to refinance / pay Maria | 60-day refinance/sale requirement is unreasonable given Mark’s limited retiree income | Court can set prompt deadline to remove Maria’s liability | Court found 60 days an abuse of discretion here and modified deadline to 6 months from mandate |
| Temporary spousal support (procedural) | Trial court erred in awarding $1,500/month temporary support | Maria sought temporary support; affidavit existed but record on appeal incomplete | Appellate court refused to consider alleged error due to absence of bill of exceptions for the temporary-support hearing |
| Continuing spousal support and termination on cohabitation | $700/month continuing support is excessive and should be reduced or terminated; postdecree cohabitation should terminate support | Support appropriate under § 42-362 due to mental illness and Maria’s needs; court may consider cohabitation effect on finances | Court upheld $700/month continuing support as not an abuse of discretion, but vacated the clause automatically terminating support on cohabitation (cohabitation can be considered for modification, not an automatic termination) |
Key Cases Cited
- Marshall v. Marshall, 902 N.W.2d 223 (Neb. 2017) (standard: de novo review of family law determinations with deference to trial court)
- Bergmeier v. Bergmeier, 296 Neb. 440 (Neb. 2017) (premarital property generally excluded from marital estate)
- Black v. Black, 223 Neb. 203 (Neb. 1986) (§ 42-362: court may order support for mentally ill spouse and reasonableness is controlling)
- Heald v. Heald, 259 Neb. 604 (Neb. 2000) (trial court discretion in property division and time allowed to refinance)
- Else v. Else, 219 Neb. 878 (Neb. 1985) (court may not condition spousal-support termination on cohabitation as a matter of public policy)
- Stephens v. Stephens, 297 Neb. 188 (Neb. 2017) (discussing interplay of statutes and spousal support modification)
- Peterson v. George, 168 Neb. 571 (Neb. 1959) (affidavits must be made part of bill of exceptions to be considered on appeal)