                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        GAGNE V. GAGNE


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


               PAULA D. GAGNE, NOW KNOWN AS PAULA D. MUYSKENS, APPELLEE,
                                                V.

                               ROBERT J. GAGNE, JR., APPELLANT.


                           Filed December 26, 2017.      No. A-16-907.


       Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge. Affirmed.
       Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
       Philip B. Katz, of Marks, Clare & Richards, L.L.C., for appellee.


       PIRTLE, RIEDMANN, and ARTERBURN, Judges.
       PIRTLE, Judge.
                                        INTRODUCTION
        Robert J. Gagne, Jr., appeals from an order of the district court for Douglas County denying
his request to modify the parties’ dissolution decree, specifically the alimony awarded to Paula D.
Gagne. Based on the reasons that follow, we affirm.
                                        BACKGROUND
       On September 2, 2014, following a settlement of all issues by the parties, the trial court
entered a decree dissolving the parties’ marriage. Robert was awarded the parties’ residence in
Nebraska subject to the mortgage thereon, and Paula was awarded the parties’ second home in
Texas subject to the mortgage thereon. As to the overall division of property, the parties divided
the marital estate nearly equally with each party receiving a net marital estate of approximately
$375,000. Pursuant to the decree, Robert agreed to pay Paula alimony for 9 years. Specifically, the




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decree directed Robert to pay $3,250 per month in alimony for 36 months; $2,500 per month for
24 months; and $1,750 for 48 months.
         On October 20, 2014, Paula paid off the entire mortgage on the Texas residence, which at
the time was approximately $127,000. To pay off the mortgage, Paula used approximately $81,000
in assets awarded to her under the decree, $15,000 given to her by her mother in June 2014, and
approximately $36,000 given to her from her significant other, Albert Dew.
         On July 14, 2015, Robert filed a complaint to modify decree seeking a reduction or
elimination of the alimony he agreed to pay in the decree. Robert’s request for modification was
based on the fact that Paula had paid off the mortgage on the Texas home, which allegedly reduced
her monthly expenses by $800. Robert alleged that Paula had failed to disclose funds from her
mother and Dew when the divorce was pending, which she then used to pay off the mortgage on
her home shortly after the divorce.
         Trial on the matter was held in July 2016. The evidence showed that approximately 3
months after Paula filed for divorce, her mother gave her $15,000 to help with the expenses of the
ongoing divorce. She used all of this gift from her mother towards attorney fees incurred during
the divorce. Paula’s mother gave her a second check in June 2014 for $15,000. Paula used this
money towards paying off her mortgage. She did not disclose these two gifts from her mother
when the divorce was pending. Paula testified that she did not supplement her discovery responses
after receiving these funds from her mother because she did not know that it was necessary to do
so.
         The parties had lived separately for about 6 years before Paula filed for divorce. Paula
primarily lived in the parties’ Texas home, and Robert primarily resided in the Nebraska home. In
2012, Paula developed a friendship with Dew, and after the divorce, their friendship developed
into a closer relationship. In 2015, Dew bought the house next door to Paula’s house. Dew was 70
years old at the time of the modification trial and is a disabled veteran. He testified that he had
some memory loss, had fallen a couple of times, and had no one to handle his financial affairs in
the event he became sick or incompetent. Therefore, in May 2014, 2 months before the divorce
trial date, Dew added Paula’s name to a checking account and a savings account of his to enable
her to pay his bills and handle his affairs should something happen to him. Later, in February 2015,
Dew appointed Paula as his medical power of attorney, as well as his durable financial power of
attorney.
         Although Paula’s name was added to Dew’s accounts in May 2014, Paula did not disclose
the accounts to Robert during the pending divorce. She testified that it never occurred to her that
she needed to disclose Dew’s accounts that included her name because she did not consider the
money in the accounts to be hers. She testified that all the money in the accounts belonged to Dew.
Paula did not access or use any of the money in Dew’s accounts. Paula testified that she could
write checks on the accounts, but only for Dew’s needs, not for herself. Dew testified that all of
the money in the accounts at issue was his.
         Paula was 65 years old at the time of the modification trial. She does not work and
continues to suffer from the same medical conditions that prevented her from working at the time
of the parties’ divorce. After the decree was entered in September 2014, Paula decided that it would
be in her best interests to pay off the $127,000 mortgage on the Texas home and she began to make
plans to do so. Dew was concerned that Paula was going to take too much money out of her Roth


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IRA to pay off her mortgage, so he offered to let her use approximately $36,000 from one of his
accounts at issue. Dew considered the $36,000 he gave to Paula as a loan or gift, in that it was
something that Paula might pay back in the future if she was able to. Paula testified that when Dew
gave her the money he told her to pay him back when she could, but she did not believe he would
ever demand payment back.
        Robert testified that he did not know at the time of the divorce that Paula had access to
$36,323 in Dew’s accounts, nor did he know that Paula’s mother had given her money. He testified
that he believed that the money in Dew’s accounts at issue was actually Paula’s money that she
had given Dew to deposit in his account. In contrast, Dew testified that Paula had never given him
any money to deposit into his accounts. Paula also testified that she never deposited any of her
own money into Dew’s accounts.
        In 2015, the first full year after the divorce, Paula’s gross income was $39,000, which was
entirely from alimony payments. Robert’s gross income increased from $165,257 in 2014 to
$177,085 in 2015. Paula’s estimated living expenses during the divorce were $4,114 per month.
Her estimated living expenses at the time of the modification trial were $4,323, which included
$700 for estimated taxes on her $3,250 monthly alimony payment, and $265 for the cost of
Medicare.
        Following trial, the court entered an order denying Robert’s request to modify alimony and
awarded Paula $5,000 in attorney fees.
                                   ASSIGNMENTS OF ERROR
       Robert assigns that the trial court erred in (1) failing to find that a material change in
circumstances existed to warrant a modification of alimony, and (2) awarding Paula $5,000 in
attorney fees.
                                     STANDARD OF REVIEW
        Modification of a dissolution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of
discretion by the trial court. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
        In an action for modification of a marital dissolution decree, the award of attorney fees is
discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Garza v. Garza, supra.
                                             ANALYSIS
Modification of Alimony.
       Robert assigns that the trial court erred in failing to find that a material change in
circumstances existed to warrant a modification in alimony. He contends that a material change in
circumstances existed because Paula failed to disclose money she had received from her mother
and Dew prior to entry of the decree, which enabled her to pay off the mortgage on her Texas
residence shortly after the divorce. He suggests that paying off the mortgage significantly
improved Paula’s financial circumstances in that it decreased her monthly expenses by $800.
Robert contends that his alimony payments should be reduced by an equitable amount to reflect
Paula’s improved financial circumstances.


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        Pursuant to Neb. Rev. Stat. § 42-365 (Reissue 2016), alimony orders may be modified or
revoked for good cause shown. Good cause means a material and substantial change in
circumstances and depends upon the circumstances of each case. Metcalf v. Metcalf, 278 Neb. 258,
769 N.W.2d 386 (2009). To determine whether there has been a material and substantial change
in circumstances warranting modification of a divorce decree, a trial court should compare the
financial circumstances of the parties at the time of the divorce decree with their circumstances at
the time the modification at issue was sought. See id. The moving party has the burden of
demonstrating a material and substantial change in circumstances which would justify the
modification of an alimony award. Id.
        The evidence established that Paula did not disclose the money she received from her
mother or that she became a joint owner of Dew’s checking and savings accounts. The trial court
noted, and we agree, that Paula should have supplemented her answers to interrogatories to
disclose the gifts from her mother and the co-ownership of Dew’s accounts. However, in regard to
the two $15,000 checks Paula received from her mother, those were nonmarital property and would
not have been considered in dividing up the marital estate. The first check was given to her a few
months after Paula filed for divorce and she testified that she used the entire amount to pay attorney
fees prior to the time of trial. Paula received the second check from her mother a couple weeks
before the divorce trial date. She testified that she did not disclose these two gifts from her mother
because she did not know that it was necessary to do so.
        As to Dew’s accounts that included Paula’s name, she and Dew both testified that Paula’s
name was added for Dew’s convenience. He wanted Paula to have the ability to manage his
financial affairs if he became incapacitated. He subsequently made her his medical power of
attorney and durable financial power of attorney. Dew and Paula both testified that all the money
in the account at issue belonged to Dew. Paula did not access or use any of the money in Dew’s
account. Paula testified that it never occurred to her that she needed to disclose Dew’s accounts
with her name on it because she did not consider the money in the account to be hers.
        As the trial court found, the evidence established that the funds in Dew’s accounts at issue
“remained at all times the funds and property of Albert Dew.” It was not until after the divorce
that Dew gave Paula $36,323.65 out of one of the accounts at issue to use towards paying off her
mortgage.
        Based on the evidence before us, Paula did not purposefully or materially misrepresent her
finances to Robert during the negotiation of the settlement terms as Robert contends. The failure
to disclose the co-ownership of Dew’s accounts and the gifts from her mother do not amount to a
material and substantial change in circumstances to warrant a modification of alimony.
        Further, the evidence does not support a finding that Paula’s financial condition greatly
improved when she paid off her mortgage, as Robert contends. Even though Paula eliminated an
$800 monthly obligation when she paid off her mortgage, her monthly expenses remained nearly
the same. Her financial affidavit from the parties’ divorce in 2014 shows she had estimated living
expenses of $4,114 per month which included her mortgage payment. Paula’s estimated living
expenses at the time of the modification trial were $4,323, which included two new expenses since
the divorce - $700 for estimated taxes on her monthly alimony payment, and $265 for Medicare.
These two expenses more than offset the elimination of her mortgage payment. Therefore, Paula’s
financial condition has changed very little since the decree was entered.


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        Upon our de novo review of the record, we cannot say that the district court abused its
discretion in finding that Robert failed to prove good cause existed to warrant modifying the
alimony award. Robert’s first assignment of error is without merit.
Attorney Fees.
        Robert next assigns that the trial court erred in awarding Paula $5,000 in attorney fees. In
an action for modification of a marital dissolution decree, the award of attorney fees is
discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Garza v. Garza, supra. It has been held that in awarding attorney
fees in a dissolution action, a court shall consider the nature of the case, the amount involved in
the controversy, the services actually performed, the results obtained, the length of time required
for preparation and presentation of the case, the novelty and difficulty of the questions raised, and
the customary charges of the bar for similar services. Id.
        In this case, Paula presented an affidavit from her attorney with an attachment documenting
the attorney fees she incurred as a result of Robert’s modification action. The fees totaled over
$16,000. The trial court awarded her $5,000. The fees were incurred over the course of a year
between the time the complaint to modify was filed and the 2-day modification trial was held.
        Additionally, the disparity between the parties’ respective income levels justified the
court’s award of fees to Paula. Paula’s gross income in 2015 was $39,000, compared to Robert’s
which was $177,085. We cannot conclude that the $5,000 fee was unreasonable. Robert’s second
assignment of error is without merit.
                                          CONCLUSION
        For the reasons discussed above, we conclude that there has not been a material change of
circumstances warranting modification of the alimony awarded to Paula in the September 2014
decree. We also conclude that the trial court did not err in awarding Paula $5,000 in attorney fees.
Accordingly, we affirm the order of the district court denying Russell’s request for modification
of the alimony award and awarding Paula $5,000 in attorney fees.
                                                                                         AFFIRMED.




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