Connolly, J.
Shelley Jane Brozek and Kirk Steven Brozek separated, and the court later dissolved their marriage of about 20 years. The decree divided the marital estate and ordered Kirk to buy some of Shelley's separate property. Kirk appeals, and Shelley cross-appeals. Kirk argues that the court erred by ordering him to buy Shelley's shares in a closely held farming corporation for an amount higher than the value determined under a stock redemption agreement. He also argues that the court erred in dividing the marital estate, that it should have given him a credit for premarital property he disposed of during the marriage, and that it lacked jurisdiction to award Shelley attorney fees after he filed a notice of appeal. Shelley argues that the court should have awarded her alimony, a cash award for the inadequacy of the marital estate, and attorney fees. We affirm the decree and the order awarding Shelley attorney fees.
Shelley and Kirk married in October 1993. They have two daughters, and Kirk adopted Shelley's son from a prior marriage. The parties separated on December 24, 2011, after more than 18 years together.
A month later, Shelley filed a dissolution complaint. When the court tried the case in April 2014, Shelley was 50 and Kirk was 47 years of age. Only one of their children was still a minor.
Kirk has farmed since he graduated from college in 1986. He farms with his father, brother, and adopted son.
Before Shelley married Kirk, she worked as a grocery clerk and secretary, and she also worked in sales. She did not pursue education beyond high school and testified that her marriage to Kirk did not interrupt her education or career.
Shelley stated she and Kirk were in "total agreement" that she would not work outside the home. She maintained the marital home, brought meals and equipment parts to the field, mowed and sprayed pasture, and helped put up hay on a few small tracts. Kirk's brother, though, testified that Shelley seldom helped with the farming operation and "was mostly in the way."
Kirk's farming is interwoven with two closely held corporations. The first, Brozek & Sons, Inc., is "the operating entity of the farming operation." It owns the land, sells the grain, and pays the Brozeks and others for their services. Its largest asset is about 3,400 acres of land. Kirk and his brother personally rent some of Brozek & Sons' land, but the corporation "also operate[s] some of its own ground."
The other corporation is Brozek Farms, Inc., which is "principally an equipment company." It leases the equipment it owns to Brozek & Sons.
Kirk and Shelley are shareholders of both Brozek & Sons and Brozek Farms. Kirk's parents gifted him shares of Brozek & Sons before and during the marriage. Shelley testified that she received her shares by gift during the marriage. Kirk has 75,541.67 shares, and Shelley has 12,000 shares of Brozek & Sons, comprising stakes of about 21 percent and 3 percent, respectively. Kirk has 437.5 shares, and Shelley has 62.5 shares of Brozek Farms.
Kirk, Shelley, and the other shareholders of Brozek & Sons signed a "Redemption Agreement" in 2003. The agreement states that no sale, assignment, or other disposition of Brozek & Sons shares is valid unless made under the agreement.
At trial, the parties disputed the meaning of two paragraphs of the agreement. The second paragraph provides:
The third paragraph provides: "Sale During Life. A Stockholder desiring, during his lifetime, to sell or otherwise encumber his stock shall make a written offer to sell to [Brozek & Sons] upon the following terms and conditions, and [Brozek & Sons] shall purchase all of such shares of stock. . . ." The original price was $8.50 per share, but Kirk testified that the Brozek & Sons board increased it to $12 in 2013.
Shelley testified that she did not want to remain a shareholder of either Brozek &
In contrast to Brozek & Sons, there is no redemption agreement for Brozek Farms. Kirk testified that he was willing to buy Shelley's Brozek Farms shares at a price determined by the court.
Kirk and Shelley hired experts to appraise their Brozek & Sons and Brozek Farms shares using a net asset approach. Shelley's expert valued a minority share of Brozek & Sons at $50 in August 2011 and August 2012. He valued a minority share of Brozek Farms at $341 in August 2011 and $290 in August 2012. As of December 24, 2011, Kirk's expert valued Shelley's Brozek & Sons shares at about $34 each and her Brozek Farms shares at about $270 each. Shelley's expert reviewed the reports of Kirk's expert and testified that the main differences were the valuation dates and the discounts for lack of control and marketability.
Because Brozek & Sons held the land, Kirk and Shelley did not own any real estate. But they did accumulate significant personal property during the marriage, including several horses. Shelley could not remember how many horses she and Kirk had when they separated, but she thought there might have been six. She did not possess any of the horses at the time of trial because her current residence lacked facilities.
In Kirk's "Statement of Financial Condition" as of December 31, 2011, he said that he had "Horses 7 head" but named only six animals. In a "2011 Depreciation and Amortization Report," Kirk included a "Horse/MH" in addition to the six horses he named in his "Statement of Financial Condition." Kirk had taken depreciation on all of the horses except one.
Kirk valued the horses at $12,600. Shelley suggested that the court include half of the horses' value in the marital estate and award the horses to Kirk.
The parties acquired a horse trailer during their marriage. Shelley possessed the trailer at the time of trial but did not want it because she did not have any horses. Kirk stated that he did not want the trailer.
Shelley and Kirk also bought automobiles during their marriage, including a 2004 Ford pickup truck. Kirk was driving the truck when he and Shelley separated but said that their adult daughter was driving it at the time of trial. Shelley testified that their adult daughter drove, but did not own, the truck, which was "part of the whole package of vehicles that Kirk and I own."
Kirk attempted to identify and trace a significant amount of premarital personal property. For items that he no longer had at his separation from Shelley, Kirk asked for a "credit or set-off" against the marital estate.
Kirk's alleged premarital property included two checking accounts. He used one for household use and the other for farm use. Kirk said that the farm account had about $79,000 when he married Shelley. He added Shelley's name to both accounts after their marriage, and they used the accounts until they separated.
For the premarital machinery that he had sold or traded in, Kirk wanted a credit against the marital estate. He submitted evidence of the purchase price of the machinery, which he said was evidence of its "value" because his equipment held its value as it aged or even appreciated. But he
The premarital machinery that Kirk no longer possessed included two tractors, a disk, a cultivator, a fertilizer spreader, and a drill. Kirk testified that he sold or traded in each of these items at some point but could not remember what consideration he received. He remembered using the trade-in value of a pre-marital shredder and an unspecified amount of "cash boot" to acquire a different shredder in 2011. Asked what the trade-in value for the shredder was, Kirk took "a guess that my memory is $3,500." He said he kept "unique files for each unique item of equipment," but files matching that description are not in the record.
Finally, Kirk wanted a "bushel for bushel set-off," or at least a credit, for the crops he harvested in 1993. He said he farmed a particular number of acres of corn, popcorn, and soybeans in 1993. Using an "average [yield] of the area of the other fields in the area," he estimated how many bushels he harvested, and valued them at $190,000. Kirk used the proceeds of his 1993 harvest to "reinvest[] my cash fund, and inventory of grain to fund the next years crop" and "rolled such investments, year to year, from 1993 through December 24, 2011."
Most of Shelley and Kirk's income came from Kirk's personal farming activities and the salaries he drew from Brozek & Sons and Brozek Farms. According to Kirk's W-2 wage and tax statements, he received combined wages from Brozek & Sons and Brozek Farms of $31,800 in 2008, $33,600 in 2009, and $33,600 in 2010. Brozek & Sons also paid the family's health insurance premiums, telephone bills, Internet bills, and fuel costs. Brozek & Sons also let Kirk and Shelley live rent free in a house owned by the corporation. Kirk said his annual net farm income with straight-line depreciation was about $35,600 in 2008; $124,000 in 2009; and $77,400 in 2010.
After their separation, Kirk continued to farm and Shelley's pursuits varied. She found employment with a large hog producer caring for "reject pigs" that had "something wrong with them." Once the pigs put on weight, Shelley and the producer sold them and split any profits.
Shelley also sold a few steers from her cattle herd. She took about 24 cows and 17 calves with her when she left the marital home in December 2011. Shelley had maintained the herd but could not grow it because of financial constraints. Her hope was to support herself by growing the herd, but she needed more pasture.
Outside of her livestock operation, Shelley has done some "odd jobs" for friends. She thought that the only other jobs available to her in the area were those paying around minimum wage. She estimated that her living expenses were $5,160 per month.
According to her separately filed federal tax returns, Shelley had a total income of about $17,200 in 2012 and $17,600 in 2013. According to Kirk's federal tax return, he lost $13,000 in 2012.
In September 2014, the court entered its operative decree dissolving the parties' marriage. It determined that Kirk and Shelley's Brozek & Sons and Brozek Farms shares were their separate property. But Kirk should nevertheless buy Shelley's shares in both corporations because leaving them in Shelley's hands "would be impractical and lead to an inequitable result."
The court ordered Kirk to pay Shelley $600,000 for her 12,000 shares of Brozek & Sons and $19,718.75 for her 62.5 shares of Brozek Farms. And, on the issue that has largely driven this appeal, it found that the redemption agreement did not apply to Kirk's purchase of the Brozek & Sons shares because the agreement, by its terms, did not apply to transfers between spouses.
The court rejected Kirk's attempts to trace his premarital property. Regarding the checking accounts, it stated that the funds "have been so commingled that it is not practicable to attempt to separate them to any logical end." Similarly, giving Kirk a credit for the value of the premarital machinery that he traded in during the marriage would require speculation. Nor was Kirk entitled to a "grain-for-grain credit" for his 1993 harvest. He only estimated the number of bushels he actually harvested. Plus, the court was not persuaded that "after nearly 20 years of marriage the [market] value of the grain was not completely commingled in the years that farming operations were not as profitable as when they were more so."
The court valued the parties' net marital estate at about $2.5 million, nearly $2.4 million of which it awarded to Kirk. The most substantial items were about $1.2 million of crops held in storage in December 2011 and $485,000 of machinery. The court determined that funds in both the household and farm checking accounts on December 23 and 24, 2011, were marital property. It awarded Kirk the 2004 Ford pickup, the horse trailer, and "7 head of horses valued at $6,300." It awarded Shelley 36 head of cattle valued at about $40,000. To equalize the marital estate, the court ordered Kirk to pay Shelley about $1.1 million.
Shelley argued that she should receive additional compensation because the corporate ownership of farming assets made the marital estate inadequate. The court referred to Shelley's request as one for a "Grace award" under our decision in Grace v. Grace.
The court similarly denied Shelley's request for $3,000 per month of alimony for 10 years. It acknowledged "a great disparity in incomes of the parties." But it concluded that the marriage had not interrupted Shelley's career or educational pursuits and that she would not have to delay any such pursuits to care for the children, the youngest of which was nearly the age of majority. Plus, the court noted that Shelley would receive cash for her shares in the Brozek corporations and a large equalization payment: "This will, as a natural consequence, reduce [Kirk's] earning capacity and likewise increase [Shelley's] earning capacity due to access to over $1,887,984.00 in cash or assets for investment in her cattle herd or otherwise."
The court ordered each party to pay their own attorney fees and costs.
In October 2014, Kirk filed his notice of appeal. About 2 weeks later, Shelley
Kirk filed a notice of appeal from the court's order on Shelley's motion for temporary relief. We sustained his motion to consolidate the two appeals for briefing and disposition.
Kirk assigns, restated, that the court erred by (1) ordering him to buy Shelley's Brozek & Sons shares at a price contrary to the redemption agreement; (2) not valuing Shelley's Brozek & Sons and Brozek Farms shares as of the date of the parties' separation; (3) awarding him the horse trailer, the 2004 Ford pickup, and the horses; (4) not giving him a credit against the marital estate for the value of his premarital checking accounts, machinery, and crops; and (5) awarding Shelley attorney fees after he appealed from the decree.
On cross-appeal, Shelley assigns that the court erred by not awarding her (1) alimony, (2) a Grace award, and (3) attorney fees in the decree.
In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.
The construction of a contract and the meaning of a statute are questions of law which an appellate court reviews de novo.
Kirk argues that the redemption agreement should control the price he pays for Shelley's Brozek & Sons shares. The third paragraph of the agreement provides that shareholders who wish to sell their shares must offer them to the corporation at a price determined under the agreement. At the time of trial, that price was $12 per share. But the court decided that the repurchase provision in the third paragraph did not apply, because a sale between Kirk and Shelley was a transfer to a related stockholder under the second paragraph of the agreement.
Stock transfer restrictions, such as redemption agreements, are generally enforceable under Nebraska law.
When dividing marital property, most courts do not treat a redemption agreement as conclusive evidence of a share's value.
But we need not decide how a redemption agreement would apply in this circumstance if the redemption agreement does not, by its terms, actually apply to the facts of this case. As the court noted, the mandatory redemption provision in the third paragraph of the agreement is preceded by an exception in the second paragraph for transfers between related shareholders: "Anything in this agreement to the contrary notwithstanding, a Stockholder may at any time or from time to time transfer all or any part of his stock to his spouse. . . ." The court reasoned that Kirk and Shelley were still spouses, so it could order Kirk to buy Shelley's shares under the second paragraph notwithstanding the redemption provision in the third paragraph.
The general rules of contract construction apply to restrictive share agreements.
We agree with the trial court that Kirk could buy Shelley's shares notwithstanding the redemption provision in the third paragraph of the agreement. The second paragraph states that shareholders can "transfer" their shares to their spouse "[a]nything in this agreement to the contrary notwithstanding." And a transfer is "[a]ny mode of disposing of or parting with an asset or an interest in an asset, including. . . the payment of money. . . ."
We note that Kirk, Shelley, and the court all agreed that Shelley's Brozek & Sons shares were her separate property.
Kirk argues that the court "misvalued" and "misallocated" a horse trailer, horses, and a 2004 Dodge pickup truck that the parties acquired during the marriage.
In a divorce action, the purpose of a property division is to distribute the marital assets equitably between the parties.
We conclude that the court did not abuse its discretion by distributing the horse trailer, horses, and pickup truck to Kirk. The court had a good reason for not awarding the horse trailer to Shelley: she did not have any horses. Contrary to Kirk's argument, Shelley did not ask the court to award her the horse trailer. She testified that she did not have much use for a horse trailer but that "[i]f the Court feels that I need that trailer, then so be it."
The court did not err by awarding the horses to Kirk, because Shelley lacked the facilities to keep them. Nor did the court abuse its discretion by assigning the horses a value of $6,300. The court evidently accepted Shelley's suggestion to include half of the horses' value—$12,600 according to Kirk—in the marital estate and award the horses to Kirk. Kirk argues that the decree, which included "7 head of horses" in the marital estate, "awards more horses than exist."
Finally, the court did not abuse its discretion by including the 2004 Ford pickup truck in the marital estate and awarding it to Kirk. Kirk does not dispute that he and Shelley bought the truck during the marriage with marital funds. And he testified that he was driving the truck when he and Shelley separated. Even if the parties were allowing their adult daughter to drive the truck at the time of trial, she was not the owner. So this fact did not oblige the court to "neutralize[]" the truck for equitable distribution purposes.
Kirk argues that the court should have used the separation date instead of the trial date to value "the assets."
Generally, the date on which a court values the marital estate should be rationally related to the property composing the marital estate.
Kirk's main complaint is that the court should have used his appraisal of Shelley's corporate shares, which valued them on the date of separation. The court found Shelley's appraisals more persuasive, in part, because they were "reflective of the current market value closest to date of trial." The shares were Shelley's non-marital property, and we are not aware of any authority requiring a court to value nonmarital corporate shares as of the date when the acrimony between two shareholders reached a boiling point. Shelley's expert testified that appraisers generally prefer the most recent information because the value of a corporation's assets can fluctuate. Kirk counters that a "pricespike" occurred between the dates of separation and trial which, in hindsight, proved to be "a short-term artificial run-up in land values."
Kirk argues that the court should have given him a credit against the marital estate for the value of some of his premarital
Generally, all property accumulated and acquired by either spouse during a marriage is part of the marital estate.
After reviewing the record, we conclude that Kirk did not trace the value of the premarital funds in the farm checking account, the crops from his 1993 harvest, or the premarital machinery. He cites an armful of exhibits and concludes that "[t]he evidence is of direct, concrete documents that substantiate the values."
For the farm checking account, Kirk presented evidence of its value before the marriage and its value on the separation date. Between those two points, Shelley became an account holder and Kirk made an unknown number of deposits and withdrawals. Kirk did not present any evidence of the withdrawal amounts during the marriage. Without any evidence of what withdrawals the parties made during the marriage, "the overwhelming likelihood is that tracing of withdrawals is not possible."
Similarly, Kirk did not show what form his 1993 crops had taken by the time he and Shelley separated. He said that he "rolled" the proceeds of his 1993 harvest into the next years' crop, a process which he repeated each year through 2011. The proceeds of the 1993 harvest were therefore
For his premarital machinery, Kirk argues that we should require less specificity because "tracing the value of continuously traded-in equipment would be futile."
The Court of Appeals "view[ed] the cattle herd as in effect a single asset—rather than taking a `cow by cow' approach."
The Court of Appeals decided that the trial court should have given the husband a $60,000 credit against the marital estate for the premarital portion of the herd.
We conclude that Kirk's premarital machinery is distinguishable from the cattle herd in Shafer. A cow-and-calf herd is often a self-sustaining body: it produces calves each year, about half of which are heifers that eventually have calves of their own. The same cannot be said about farm equipment. The coupling of a tractor and grain cart will not produce a lawn-mower next spring.
Ideally, to trace the value of an item of premarital machinery that Kirk traded in during the marriage, we would have evidence of the ratio of marital-to-nonmarital funds he used to acquire the new asset.
To summarize, as the spouse claiming a credit for nonmarital property, Kirk had the burden to show what portion of the parties' machinery was attributable to his premarital assets. Kirk did not meet his
Kirk argues that the court lacked jurisdiction to award Shelley $10,000 of attorney fees after he filed a notice of appeal from the decree. Shelley contends that the court retained jurisdiction to award her attorney fees for her lawyer's anticipated work on appeal.
Generally, a trial court loses jurisdiction once a party appeals.
(Emphasis supplied.) Shelley argues that an award to help pay for her attorney's work on appeal was an "appropriate order[] in aid of the appeal process" under § 42-351(2).
We give statutory language its plain and ordinary meaning.
We conclude that an order helping a party pay for his or her attorney's work on appeal is an "order[] in aid of the appeal process." The court therefore had jurisdiction under § 42-351(2) to award Shelley attorney fees after Kirk appealed from the decree. Nor can we say that the amount of the award was an abuse of discretion. The issues raised by the parties below warranted an assumption that the appellate work would be substantial.
Shelley argues that the court abused its discretion by not awarding her alimony. In considering alimony, a court should weigh four factors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the party seeking support to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.
The statutory criteria for dividing property and awarding alimony overlap, but the two serve different purposes and courts should consider them separately.
Shelley emphasizes that she was married to Kirk for 18 years before they separated and that his income far exceeds hers. She contributed to the marriage by raising the children and doing the "things that a typical Nebraska farm wife does on a day to day basis."
We conclude that the court did not abuse its discretion by declining to award Shelley alimony. The length of the marriage and disparity of incomes favors an award. But the marriage did not interrupt Shelley's career or education, and she will not have any childcare duties to hamper her career or educational pursuits after the marriage. At the time of trial, she planned to support herself by growing her cattle herd. The main obstacle to increasing her stock was Shelley's lack of capital, so the court was justified in considering the substantial amount of money that she will receive from Kirk's purchase of her corporate shares and the payment to equalize the division of the marital estate. Shelley notes that the division of the marital estate and the award of alimony are separate inquiries under § 42-365. But that does not mean that a party's resources are irrelevant to her need for alimony. In weighing a request for alimony, the court may take into account all of the property owned by the parties when entering the decree, whether accumulated by their joint efforts or acquired by inheritance.
Shelley argues that the court should have given her additional compensation for the inadequacy of the marital estate. She emphasizes that Kirk received a small salary relative to Brozek & Sons' revenue and that the marital estate would have been larger if Kirk had received a higher salary. Kirk contends that Shelley is not entitled to additional compensation because she "departs this marriage with substantial assets."
As noted, property received by gift or inheritance is usually not part of the marital estate. But in Van Newkirk v. Van Newkirk,
Here, the court found that the Van Newkirk exception did not apply because Shelley "failed to introduce evidence of the value of her contribution toward the improvements or operation of [Brozek & Sons]." Plus, the court said that the decree adequately compensated Shelley for her efforts during the marriage.
On appeal, Shelley does not challenge the court's refusal to apply the Van Newkirk exception. Instead, she argues that under Grace v. Grace, the court should have given her a cash award for the inadequacy of the marital estate.
We concluded that the Van Newkirk exception did not apply because the wife had not cared for or contributed to the improvement of the corporation. But we said that Van Newkirk was not "an ironclad, rigid rule for all circumstances."
We have since referred to the award in Grace as "compensation for the inadequacy of the marital estate."
We conclude that the court did not abuse its discretion by refusing Shelley's request for a Grace award. The parties' net marital estate is about $2.5 million. Shelley might wish that the marital estate were larger, but it is not inadequate. Because Kirk personally farmed some land in addition to his work for Brozek & Sons, he and Shelley acquired substantial assets, such as machinery and crops in storage. If Kirk's efforts during the marriage enhanced the value of Brozek & Sons and Brozek Farms, the increased value was reflected in the price that Kirk paid for Shelley's shares in both corporations.
Shelley argues that the court should have awarded her about $200,000 for the attorney fees she incurred in prosecuting the divorce. A uniform course of
After reviewing the relevant factors, we conclude that the court did not abuse its discretion by declining to award Shelley attorney fees in the decree. We note that Shelley stated the sums of attorney fees she had incurred from various law firms, but she did not submit an affidavit or other evidence that showed the work performed by her lawyers. An affidavit is not a prerequisite to an attorney fee award, but it is the best practice.
We conclude that the corporate buy-sell agreement in this case does not, by its terms, apply to transfers between spouses. Because the court ordered one spouse to buy the other spouse's shares, it was not bound by the value determined under the agreement. As to the remaining issues raised by Kirk, we do not believe that the court's division of the marital estate or its refusal to award Kirk a credit for the value of long-gone premarital property was an abuse of discretion. And the court had statutory jurisdiction to award Shelley attorney fees for the prospective appellate work of her lawyer after Kirk appealed from the decree. Nor do we find any merit to the errors that Shelley assigns in her cross-appeal. We therefore affirm.
AFFIRMED.
Wright and McCormack, JJ., not participating.
