                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         SMITH V. SMITH


  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).


                                  SHANE A. SMITH, APPELLANT,
                                                V.

                                   DEBRA K. SMITH, APPELLEE.


                           Filed November 29, 2016.     No. A-15-1234.


       Appeal from the District Court for Red Willow County: JAMES E. DOYLE IV, Judge.
Affirmed and remanded with directions.
       Patrick M. Heng, of Waite, McWha & Heng, for appellant.
       Kevin D. Urbom, of Urbom Law Offices, P.C., for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       BISHOP, Judge.
                                       I. INTRODUCTION
        Shane A. Smith and Debra K. Smith were married in August 1994, and almost 21 years
later the district court for Red Willow County entered a decree dissolving that marriage. Shane
appeals the district court’s determinations related to certain child support worksheet deductions,
alimony, his firefighter’s retirement plan, a marital equalization judgment, and the court’s failure
to make an adjustment to the marital estate due to Debra’s unilateral decision to claim both their
children on her 2014 tax return. We affirm, but remand with directions to determine alternatives
related to the marital equalization judgment.
                                       II. BACKGROUND
       During their marriage, Shane and Debra had two children, Christopher and Caitlyn. At the
time of trial in March 2015, Christopher was 16 and Caitlyn was 14; both testified, in addition to



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other witnesses. A decree dissolving the marriage was entered on July 2, 2015. Legal and physical
custody of the parties’ children was awarded to Debra and a parenting plan was provided setting
forth details for regular and holiday parenting time, among other parenting matters. Shane was
ordered to pay child support of $1,133 per month for two children, and the court concluded the
evidence did not support an alimony award. The parties’ marital assets and debts were divided,
and this left Shane owing Debra a marital equalization judgment of $50,902.40. Shane was
awarded the right to claim one child as a dependency exemption and for tax credit purposes
commencing with his 2015 tax return.
        Both parties filed a motion for new trial on July 8, 2015. On November 30, the district
court entered an order denying Shane’s motion (related to the treatment of his firefighter’s pension
as a marital asset), but granted Debra’s motion (related to child support and alimony). The
subsequent order amended the decree by (1) making adjustments to Shane’s retirement deductions
which resulted in Shane’s child support obligation increasing from $1,133 to $1,204 per month
and (2) striking the previous award of no alimony and replacing it with an alimony judgment of
$800 per month for 84 months in favor of Debra and against Shane. Shane appeals.
                                III. ASSIGNMENTS OF ERROR
        Restated, Shane assigns that the district court erred by: (1) sustaining Debra’s motion for
new trial; (2) (a) determining Shane’s firefighter’s retirement account was a marital asset and (b)
entering a lump sum judgment against Shane instead of entering a qualified domestic relations
order; and (3) failing to take into account, for purposes of the equitable distribution of property,
Debra’s unilateral decision to claim both children as deductions on her 2014 tax return.
                                 IV. STANDARD OF REVIEW
        In actions for dissolution of marriage, 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. Coufal v.
Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015). This standard of review applies to the trial court’s
determinations regarding custody, child support, the division of property, alimony, and attorney
fees. Id.
        An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
                                          V. ANALYSIS
                              1. DEBRA’S MOTION FOR NEW TRIAL
       A motion for new trial is addressed to the discretion of the trial court, whose decision will
be upheld in the absence of an abuse of discretion. Woodhouse Ford v. Laflan, 268 Neb. 722, 687
N.W.2d 672 (2004).
       The July 2, 2015, decree ordered Shane to pay child support of $1,133 per month for two
children. The child support worksheet attached to the decree reflected various deductions from
Shane’s income, including “FICA - Social Security” for $333.75 and “Retirement” for $215.32.




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The decree also stated, “The court considered the factors pertinent to an award of alimony and
finds the evidence does not support an award of alimony and none is ordered.”
         Debra’s motion for new trial does not set forth any specific statutory authority to support
her request for a new trial. Rather, the motion simply asserts, with regard to child support, that the
court had deducted $333.75 for Social Security from Shane’s income when calculating child
support when Shane did not pay into Social Security, and the court deducted $215.32 for retirement
when the evidence showed that Shane made elective deferrals of $4,185 to a 401K plan voluntarily,
and that these deferrals were not mandatory. With regard to the alimony issue, the motion mentions
the district court’s decision to award no alimony when this was a 21-year marriage and that there
was a “substantial disparity in the earning capacity of the parties.”
         The district court sustained Debra’s request for relief on both matters and amended the
decree with regard to child support and alimony; Shane has assigned error as to both amendments.
His argument regarding both amendments is the same; he claims the district court failed to identify
any ground within Neb. Rev. Stat. § 25-1142 (Reissue 2008) upon which a new trial could be
granted. In relevant part, § 25-1142 states, “A new trial is a reexamination in the same court of an
issue of fact after a verdict by a jury, report of a referee, or a trial and decision by the court.” The
statute goes on to state that the verdict, report, or decision shall be vacated and a new trial granted
“for any of the following causes affecting materially the substantial rights of such party[.]” Eight
“causes” are then set forth and include, in relevant part: (1) irregularity in the proceedings; (2) jury
or prevailing party misconduct; (3) accident or surprise; (4) excessive damages; (5) error in
assessment of recovery amount if action is upon a contract or for the injury or detention of
property; (6) the verdict, report, or decision is not sustained by sufficient evidence or is contrary
to law; (7) newly discovered evidence; and (8) error of law occurring at trial and excepted to by
the party requesting a new trial. See § 25-1142(1)-(8).
         As to the alimony matter, Shane states, “In reaching its decision to reverse itself, the trial
court gives no indication of its reason for reversal other than it reexamined the evidence and made
its findings in Exhibit ‘E’ to its Order.” Brief for appellant at 12. Shane adds that Exhibit E is an
analysis of factors pertinent to alimony, and “[t]his is precisely what the trial court’s order in its
original Decree indicated it had already done.” Id. at 13. Shane argues that the court’s order “is
silent as to the statutory authority it is relied [sic] upon to grant a Motion for New Trial on the
issue of alimony[,]” and that [t]he language of the statute is very clear that not only does the trial
court do a reexamination of the issues of fact, but that a decision shall only be vacated for one of
the causes set forth within the statute.” Id. Shane says the court failed to point to any criteria in
§ 25-1142 which would allow “going from a no alimony award to an alimony award.” Id. at 15.
As to child support, Shane argues again that the district court “failed to set forth which of the
criteria within § 25-1142 that it was relying upon in entering its Order” granting the motion for
new trial. Id. at 16.
         As to the amendments made to alimony and child support, Shane seems to be suggesting
that the district court could not change its mind upon reexamination of the facts and consideration
of applicable legal principles without specifically setting forth which of the specific “causes” set
forth in § 25-1142 the court relied upon to change its decision. Debra counters that her motion was
filed within 10 days of the entry of the decree, and the trial court “could consider the motion as a



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motion to alter or amend,” which would allow the district court the opportunity to “correct mistakes
in the original decree.” Brief for appellee at 13.
         We agree with Debra that the motion and the district court’s action align more closely with
a reconsideration of the evidence and an alteration or amendment to the original decree. See Allied
Mutual v. City of Lincoln, 269 Neb. 631, 694 N.W.2d 832 (2005) (motion for new trial similar to
motion for reconsideration is treated as motion to alter or amend judgment pursuant to Neb. Rev.
Stat. § 25-1329).
         The Nebraska Supreme Court has held that “a postjudgment motion must be reviewed
based on the relief sought by the motion, not based upon the title of the motion.” Allied Mutual v.
City of Lincoln, 269 Neb. at 638, 694 N.W.2d at 838. Further, we may treat a motion for new trial
as a motion to alter or amend the judgment “[w]hen the statutory basis for a motion challenging a
judgment on the merits is unclear.” Id. As noted above, no statutory authority was set forth in
Debra’s motion for new trial, nor Shane’s, for that matter. Our Supreme Court has also stated that
“to qualify for treatment as a motion to alter or amend the judgment, the motion must be filed no
later than 10 days after entry of judgment, as required under § 25-1329, and must seek substantive
alteration of the judgment.” Weeder v. Central Comm. College, 269 Neb. 114, 119, 691 N.W.2d
508, 513 (2005). When considering a motion for new trial in Weeder, our Supreme Court observed
that the motion in that case contained the language “‘reexamine its decision to dismiss . . . and
reinstate the action as previously filed,’” and concluded that the “language seeks substantive
alteration of the judgment,” and “qualifies as one to alter or amend the judgment under § 25-329[.]”
Weeder, 269 Neb. at 120, 691 N.W.2d at 513.
        The district court had the authority to reconsider its July 2, 2015, decree, since substantive
alteration of the judgment was sought by Debra and a motion requesting such alteration had been
timely filed. Shane’s argument on appeal as set forth in his brief, and confirmed at oral argument,
is limited to challenging the district court’s authority to amend the decree under § 25-1142; he did
not assign as error that the court abused its discretion by awarding $800 per month in alimony, nor
did he assign as error that the court abused its discretion by eliminating the challenged deductions
when calculating child support. We have therefore limited our review to the errors assigned and
argued and find no abuse of discretion by the district court in exercising its authority to amend the
decree.
                              2. FIREFIGHTER RETIREMENT ACCOUNT
         Shane assigns as error that “his retirement account/defined contribution plan is a substitute
for Social Security and that at least a majority portion of Shane’s retirement account should not be
included in the marital estate.” Brief for appellant at 17. Shane complains that the “trial court took
the entire $137,000.00 retirement fund, plugging it into the marital estate and making a division
of the marital assets including the exact valuation of Shane’s retirement account.” Id. at 19. Shane
also asserts that in the event the retirement account must be included in the marital estate, then the
district court abused its discretion by entering an equalization judgment of $50,902.40 when “[i]t
is clear from the record that the only asset available to Shane to satisfy the property equalization
payment is his retirement account[.]” Id. at 23. Shane requests that we remand this issue to the
district court “with instructions to the trial court to order Shane to pay his obligation through a



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[qualified domestic relations order.]” Id. We consider first the characterization of Shane’s
retirement account as a marital asset, followed by Shane’s request for an equalization of the marital
estate through a qualified domestic relations order (QDRO).
                                          (a) Marital asset
        After the parties had filed their appellate briefs with this court, our Supreme Court released
an opinion specifically addressing the characterization of a firefighter’s retirement pension. In
Lorenzen v. Lorenzen, 294 Neb. 204, 883 N.W.2d 292 (2016), a firefighter employed by the city
of Lincoln, Nebraska, similarly did not pay Social Security taxes, and like Shane, contributed
instead to a retirement pension system administered by the city. The firefighter argued that because
his wife would be eligible for Social Security benefits and he would not, the portion of the pension
plan attributable to contributions he had made in lieu of Social Security should not be considered
in the division of marital property. The firefighter claimed that “the only portion of the pension
plan that should be divided between the parties was the portion attributable to the optional
contributions he had made in excess of the Social Security rate during the marriage.” Id. at
206-07, 883 N.W.2d at 294. The Supreme Court affirmed the district court’s treatment of the entire
marital portion of the pension as an asset of the marital estate.
        In reaching its decision in Lorenzen, our Supreme Court discussed the general standards
relevant to property division, including the three-step process involving: (1) classifying the
property as marital or nonmarital; (2) valuing the marital assets and marital liabilities; and (3)
calculating and dividing the net marital estate between the parties. See id. The court iterated that
as a general rule, all property accumulated and acquired by either spouse during a marriage is part
of the marital estate, and as applied to pensions, only the portion of a pension earned during a
marriage is part of the marital estate. Id. Although there are exceptions, generally, amounts added
to and interest accrued on such pensions or retirement accounts which have been earned during the
marriage are part of the marital estate. Id. Contributions to pensions before marriage or after
dissolution are not assets of the marital estate. Id.
        The court also referred to Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006), where
it specifically noted that federal law preempts state law with regard to the distribution of Social
Security benefits, and that such benefits are not subject to direct division in a dissolution
proceeding. Lorenzen, supra. And even without these federal law prohibitions, “Social Security
benefits likely would not be considered marital property under Nebraska law, because their receipt
and value are purely speculative . . . participants in the Social Security program have only an
expectancy of benefits and not an accrued property right.” Lorenzen v. Lorenzen, 294 Neb. at
213-14, 883 N.W.2d at 298. The court contrasted this with a participant’s legal rights to benefits
in a pension plan. “Because of these differences between Social Security benefits and pension
plans, it is not appropriate to equate a portion of a pension plan as being the equivalent of Social
Security benefits and to therefore exclude it from the marital estate.” Id. at 214, 883 N.W.2d at
299. The court affirmed the district court’s treatment of the marital portion of the firefighter’s
pension plan as marital property.
        Lorenzen, supra, controls here. Shane’s firefighter retirement plan is a marital asset. The
evidence in this case established that Shane began working as a firefighter after his marriage to



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Debra. It was not an abuse of discretion for the district court to include its entire value in the marital
estate.
                                       (b) Lump Sum Judgment
         Since the district court properly included Shane’s retirement account in the marital estate,
we now address Shane’s assigned error regarding the court’s award of an equalization judgment
of $50,902.40 against Shane and in favor of Debra. Shane does not dispute the equalization
amount. Rather, he argues that “[i]t is clear from the record that the only asset available to Shane
to satisfy the property equalization payment is his retirement account[.]” Brief for appellant at 23.
         Appendix D to the decree sets forth the district court’s determination of marital assets and
liabilities. The primary marital asset awarded to Shane was his retirement account valued at
$137,000. There were two primary marital assets awarded to Debra: the marital residence valued
at $92,000 (encumbered by a mortgage for $66,884) and her retirement account valued at
$7,246.96. Shane was ordered to take responsibility for $4,524.47 of the marital debt; Debra was
only obligated for $536.34 of the marital debt. There is nothing reflected in the parties’ marital
assets to suggest Shane would have the means to pay a $50,902.40 judgment other than by taking
out a loan. He had only $500 in his checking and savings accounts, and his vehicle is secured by
a loan almost equal to its value. Further, this court’s review of exhibit 4 reveals no separate
premarital property or inheritances other than some miscellaneous personal property valued at
$150. Therefore, while the equalization judgment is supported by the record, we conclude the
district court abused its discretion by making the entire judgment due, presumably by its silence
otherwise, upon entry of the decree. Given Shane’s lack of assets and limited monthly resources
in light of his child support and alimony obligations, some consideration must be given to a
payment schedule or perhaps an alternative means of equalizing the marital estate by apportioning
some of Shane’s retirement account over to Debra through a QDRO as suggested by Shane on
appeal.
         We recognize, however, that neither at trial nor at the hearing on both parties’ motions for
new trial, did Shane ask the district court to consider using a QDRO to apportion Shane’s
retirement plan. Rather, at the hearing on his motion for new trial, Shane continued to argue the
retirement plan was not marital, and further, if he was ordered to cash-out $50,000 from his
retirement funds, there would be a 10-percent penalty plus income taxes assessed. The court stated,
“How he pays for that is up to him. I don’t require him to cash-out his retirement.” Shane’s
response was that this would be the only way he could pay the judgment because he had no assets
from which he could borrow money.
         Debra acknowledges that a QDRO would “minimize tax consequences to Shane,” brief for
appellee at 16, but that Shane failed to address whether he could borrow against the retirement
account, and further, the use of a QDRO was never raised either at trial or on the motion for new
trial, and therefore the district court never had the opportunity to address it. However, because we
have concluded it was an abuse of discretion to enter a judgment against Shane for $50,902.40
without consideration of how he would pay such a large sum immediately, it would be appropriate
for the district court to consider the use of a QDRO to equalize the marital estate in addition to any
other alternatives for accomplishing the equalization, so long as consideration is given to Shane’s



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limited assets, his net income after meeting his child support and alimony obligations, and his own
basic subsistence needs.
        We see that Neb. Rev. Stat. § 16-1038(1) (Supp. 2015) does allow benefits under the
“Firefighters Retirement System Fund” to be assigned so long as such assignment complies “with
the directions set forth in a qualified domestic relations order meeting the requirements of section
414(p) of the Internal Revenue Code.” However, there is no evidence in the record regarding
whether or not the retirement system fund would permit a specific dollar amount to be allocated
to a divorced spouse--in this case, $50,902.40--or whether such an assignment must be made
through a percentage allocation only. We leave these matters for consideration by the district court
and the parties on remand.
                                   3. DEBRA’S 2014 TAX RETURN
        Shane argues that Debra unilaterally, without notice to Shane, claimed both children as
deductions on her 2014 tax return and received a $7,744 refund, and that “the trial court erred in
not making an adjustment to the marital estate for Debra’s utilization of the 2014 tax refund as her
personal mortgage payment.” Brief for appellant at 25. Debra acknowledged claiming both
children on her 2014 tax return and receiving a $7,700 refund from her federal return and $758
from her state return. She testified that all $7,700 of the federal refund went towards the parties’
house mortgage held by USDA.
        The property statement received as exhibit 4 was signed by both parties in November 2014.
At that time, Shane represented that the USDA house mortgage balance was $70,493; Debra
represented it was $79,929. Exhibit 9 is a statement from “USDA Rural Development Centralized
Servicing Center” dated March 25, 2015; it shows a mortgage balance of $66,884.92. Both parties
acknowledged that some payments had not been made in 2014, and Shane acknowledged that the
monies “captured by the federal government” from Debra’s tax refund also benefitted Shane
insofar as it got the “mortgage paid up[.]” Further, Shane indicated that if they had filed their taxes
together, “whatever refund we got would do the same thing[,]” which, Shane said, is what they did
with their 2013 tax refund of $3,500.
        Shane does not dispute that the refund was applied to the house mortgage, but appears to
be arguing that only Debra personally benefitted from the reduction in the principal on the house
as a result. While it is true Debra was awarded the house, and there was a reduction to the house
mortgage balance between November 2014 and March 2015 likely attributable, in significant part,
to Debra’s 2014 federal tax refund being applied to the loan, we do not see how this failed to
benefit Shane as well. The district court’s table of marital assets and liabilities shows the reduced
mortgage balance of $66,884, not the higher balances represented by both parties in their
November 2014 property statement. This lower mortgage balance resulted in Debra’s total marital
debts being less, which resulted in her net marital estate being higher. The higher Debra’s net
marital estate, the less equalization owed by Shane to Debra. The application of the tax refund to
the house mortgage appropriately benefited both parties, not just Debra.
        Further, as previously indicated, when the parties jointly filed a tax return for 2013, their
refund was only $3,500. By Debra claiming the children and filing separately in 2014, the parties
benefited by her refund of $7,700 being applied to their house mortgage. This was more than



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double the refund from the prior tax year. The district court elected to take no action regarding
Debra’s decision to claim both children as deductions on her 2014 tax return other than to reflect
the reduced mortgage balance when calculating the values included in the marital estate. The
district court did not abuse its discretion in choosing to deal with Debra’s 2014 tax filing in this
manner.
                                       VI. CONCLUSION
        We affirm the district court’s determination of the marital equalization amount, but remand
for further consideration of alternative means to effectuate such equalization as discussed herein.
We otherwise affirm the district court’s amended decree.
                                                      AFFIRMED AND REMANDED WITH DIRECTIONS.




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