Smith v. Smith
A-15-1234
| Neb. Ct. App. | Nov 29, 2016Background
- Shane and Debra Smith divorced after ~21 years; decree (July 2, 2015) awarded Debra custody, ordered Shane to pay child support ($1,133/mo initially), denied alimony, divided marital assets leaving Shane owing Debra $50,902.40 as an equalization payment.
- Child support worksheet in the original decree included deductions for Social Security and retirement that Debra later challenged as improper because Shane did not pay Social Security and his retirement contributions were elective 401(k) deferrals.
- Debra filed a timely motion (styled as a motion for new trial) seeking recalculation of child support and alimony; the court treated it as a motion to alter/amend and amended the decree to increase child support to $1,204/mo and award Debra $800/mo alimony for 84 months.
- Shane’s firefighter retirement account (valued at $137,000) was included in the marital estate; Shane argued much of it should be excluded as a substitute for Social Security and that the court should have used a QDRO rather than a lump-sum equalization judgment.
- The court reflected application of Debra’s 2014 tax refund (she claimed both children) to the mortgage; Shane argued the court should have adjusted the marital estate for her unilateral tax filing, but the court found the mortgage reduction benefited both parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly entertained Debra’s motion for new trial / amended the decree | Shane: court lacked statutory ground under §25-1142 to grant new trial and could not reverse from no alimony to alimony without citing a §25-1142 cause | Debra: motion was timely and effectively sought alteration; court could treat it as a motion to alter/amend under §25-1329 | Court: treated motion as a timely motion to alter/amend; no abuse of discretion in reconsidering and amending decree |
| Characterization of firefighter retirement plan as marital property | Shane: retirement is a substitute for Social Security and majority should be excluded from marital estate | Debra: retirement (or marital portion) is divisible marital property | Court: followed Lorenzen — marital portion of pension/retirement is marital property; inclusion was proper |
| Form of equalization payment (lump sum vs. QDRO/allocation) | Shane: equalization judgment forces payment from retirement; court should have authorized QDRO or other schedule to avoid tax/penalty burden | Debra: QDRO was not raised below; court not required to order QDRO | Court: equalization amount affirmed but remanded to consider alternatives (payment schedule, QDRO, percentage vs. dollar allocation) because making full judgment immediately due was an abuse of discretion given Shane’s limited assets |
| Effect of Debra claiming both children on 2014 tax return | Shane: Debra’s unilateral claim produced refund used to pay mortgage and should have adjusted marital estate in his favor | Debra: refund applied to mortgage which benefited both; court reflected reduced mortgage balance in asset table | Court: no abuse of discretion — reduced mortgage shown in marital assets and benefited both parties, so no separate adjustment required |
Key Cases Cited
- Lorenzen v. Lorenzen, 294 Neb. 204, 883 N.W.2d 292 (2016) (entire marital portion of firefighter pension/retirement may be treated as marital property)
- Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006) (federal law preempts state division of Social Security benefits; Social Security is not marital property)
- Allied Mutual v. City of Lincoln, 269 Neb. 631, 694 N.W.2d 832 (2005) (postjudgment motion should be evaluated by substance; motions for new trial can be treated as motions to alter or amend)
- Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005) (requirements for treating a motion as one to alter or amend under §25-1329)