CONNOLLY, J.
The court dissolved the marriage of nonagenarians Laura L. Binder and Glenn W. Binder and ordered Glenn to pay alimony. On appeal, Glenn argues that the amount of alimony is a presumptive abuse of discretion because it drives his net income below the poverty line in the Nebraska Child Support Guidelines.
We conclude that the guidelines do not apply because Laura and Glenn have no minor children. So, the amount of alimony is not a presumptive abuse of discretion because it pushes Glenn's net income under the poverty threshold in the guidelines. Nor can we say that the award is an abuse of discretion under the circumstances. We therefore affirm.
Laura and Glenn married in 1982. Neither was the other's first spouse, and their marriage did not produce any children. At the time of trial, Laura was 95 and Glenn was 94.
Regarding her contributions to the marriage, Laura testified that she took messages to Glenn, retrieved parts, prepared lunches, and helped move livestock. She testified that she answered the telephone for Glenn's fertilizer business, and even put a line in the bathroom so that she could take calls while dressing. Glenn denied that Laura installed a telephone for this purpose. Laura admitted that she did not help as much after Glenn's daughter and son-in-law, Karin and Bruce Droge, took over the farming operation.
Laura and Glenn initially lived in a brick farmhouse. In 1985, the Droges moved into the farmhouse and Laura and Glenn moved into a mobile home. Laura stated that she paid $25,000 for the mobile home. Both Laura and Glenn estimated that the mobile home was now worth $15,000.
In 1986, Glenn and the Droges executed a farm lease whereby Glenn rented all the farmland he owned to the Droges. The lease states that it will be effective for 10 years, but Bruce testified that he and Glenn "continued it on a verbal basis" after 1996. Bruce testified that he currently pays an annual rent of about $100 per acre.
Laura and Glenn maintained separate checking accounts during their marriage, and each paid half of the couple's expenses. Over the years, Laura made numerous loans to Glenn. Glenn testified that he did not owe Laura any money at the time of trial, but Laura thought that he owed more than $25,000.
Glenn stated that Laura moved into a nursing home in December 2012. Glenn said that before Laura moved, she was "incapacitated" and confined to a wheelchair for 2 years and he cared for her during this period. Glenn continued to live in the mobile home after Laura left.
Laura initially used her savings to pay for her nursing home care. After 10 months, she exhausted her savings and Glenn began paying $3,200 per month. Glenn testified that he has paid about $30,000 to the nursing home and that he had to borrow money from the Droges to do so.
Laura has a monthly income of $2,927.40, which consists of her Social Security benefit, a long-term care insurance benefit, and a small pension from her prior husband. Laura has monthly expenses of $6,230, of which $5,369 is for the nursing home. So, she testified that she ran a monthly deficit of $3,302.60. Laura has no assets beyond a checking account worth about $5,000.
According to Glenn, his monthly income is $2,890.73, about $1,700 of which is rental income. The remainder is his Social Security benefit.
Glenn owns several farms and part of a residential lot. He stated that he is the sole trustee of a trust that "holds" the four parcels of real estate for him. Glenn said that he "can cancel [the trust] at any time, basically." Statements from the Pawnee County assessor for tax year 2013 show that Glenn, as the trustee of an unnamed trust, was assessed taxes on four pieces of real estate totaling about 222 acres. The combined taxable value was nearly $560,000. Laura and Glenn agreed that the real estate is Glenn's premarital property.
Glenn assigns that the court erred by ordering him to pay an amount of alimony that drives his net monthly income below the poverty threshold in the Nebraska Child Support Guidelines.
Domestic matters such as alimony are entrusted to the discretion of trial courts.
Glenn argues that the amount of alimony is "presumptively an abuse of discretion" because it drives his net income below the poverty threshold in the Nebraska Child Support Guidelines.
In a case involving minor children, we held that the amount of alimony must not force the obligor's net income below the poverty line unless the court specifically finds that such an award is warranted. In Gress v. Gress,
Patrick argued that the amount of alimony was a presumptive abuse of discretion because it left him below the poverty line in the child support guidelines. At the time, paragraph R of the guidelines stated that a parent's support obligation could not reduce his or her monthly net income below the poverty line, which was $851 for one person. Paragraph R is now § 4-218, which provides:
The guidelines—then in paragraph M and now in Neb. Ct. R. § 4-213—also instruct courts to determine alimony from the income left after the court establishes child support.
But we conclude that § 4-218 does not apply because Laura and Glenn do not have any minor children. Our holding in Gress was "buttressed by the structure" of the child support guidelines.
Furthermore, we are wary of grafting the guidelines' method of calculating net income onto cases that involve only alimony. Before awarding child support, the guidelines require courts to make a detailed calculation of the parties' income and expenses.
So, the amount of alimony is not a presumptive abuse of discretion even though it appears to drive Glenn's net income below the subsistence limitation in the child support guidelines. But that does not end our inquiry. We must still determine whether the amount of alimony is unreasonable under the circumstances of this case.
Under Neb.Rev.Stat. § 42-365 (Reissue 2008), courts should consider four factors relative to alimony: (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 supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.
In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of
Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32-year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn's premarital property. A court may consider all of the property owned by the parties—marital and separate—in decreeing alimony.
As to disputes over matters such as Laura's contributions to the marriage, we note that the district court was in the best position to judge the witness' credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another.
The Nebraska Child Support Guidelines do not apply because the parties have no minor children. Thus, the fact that the amount of alimony apparently exceeds the poverty line in the guidelines does not make the award a presumptive abuse of discretion. Applying the factors for reviewing alimony awards, we conclude that the court did not abuse its discretion.
AFFIRMED.