Date: 04-12-2022

Case Style:

Mark A. Brisso v. Tracy A. Brisso

Case Number: A-21-234

Judge: Lori A. Maret

Court: District Court, Lancaster County, Nebraska

Plaintiff's Attorney: Bradley E. Marsicek

Defendant's Attorney: James Langan Mach and Alex M. Lierz

Description:
Lincoln, Nebraska family law lawyers represented the parties in a dissolution case in which defendant sought support alimony.

Mark and Tracy were married in June 1995. They had one child who is now an adult. When the parties married, Mark was in his second year of medical school and worked part-time as a pharmacist. Although Tracy was employed full-time as a nurse when the parties married, about 1 year later, she was assaulted at work sustaining nerve and tissue damage to her arm. After the assault, Tracy initially stayed at home to heal from her injuries and care for the parties' minor child
who was born in 1997. She returned to work on a part-time basis performing light duty work until she was laid off sometime in 1998. Due to her workplace injury, Tracy was compensated for her lost wages and future medical expenses in the amount of $198, 000.

When Mark completed medical school in 2003, the parties relocated to Illinois for Mark's fellowship program. Tracy obtained part-time employment as a nurse at a jail. The parties resided together for about a year until 2004 when Tracy and the parties' child moved to Council Bluffs, Iowa, due to marital discord. Tracy transferred her employment to work part-time as a nurse in Douglas and Pottawattamie counties. After Mark completed his fellowship in 2006, he obtained a position in Lincoln, Nebraska. Although he stayed with Tracy for three weeks in Council Bluffs, he subsequently purchased a home in Lincoln as his job required him to reside within a certain proximity to the hospital. Despite maintaining separate households, Mark and Tracy remained married, took vacations as a family and as a couple, spent holidays together, and maintained a joint bank account. Additionally, Mark testified that he continued to pay Tracy's monthly expenses of approximately $5, 500 in addition to paying for their child's expenses.

From 2006 until 2010, Tracy was the director of nursing with a company responsible for providing nursing care at the Douglas County Correctional Facilities. During this time, Tracy worked between 30 to 40 hours per week and earned $41, 685 in 2006; $50, 414 in 2007; $65, 621 in 2008; $67, 373 in 2009; and $49, 225 in 2010. She testified that she left that position in 2010 when the company was purchased. She returned to part-time work as a nurse with the Pottawattamie County Jail system from 2010 to 2018.

In September 2018, Mark filed a complaint for dissolution and, in response, Tracy filed an answer and counterclaim for dissolution. In May 2019, Tracy filed a motion for temporary alimony alleging that she was disabled and needed support during the pending litigation. Thereafter, Mark discontinued his monthly payments to cover Tracy's expenses. Following a hearing on Tracy's motion, the court ordered Mark to pay $10, 000 temporary alimony per month retroactive to May 2019, subtracting obligations paid on Tracy's behalf by Mark.

Because the parties disagreed about Tracy's disability status and her earning capacity, during discovery, Tracy filed a motion for temporary expert and attorney fees relating to that issue. In January 2020, the court ordered Mark to pay $2, 500 for Tracy's disability assessment and $7, 500 toward Tracy's legal fees. Mark paid the fees as ordered.

The trial was held over 4 days in June and August 2020. Mark testified on his own behalf and also called as witnesses Bruce Wilkie, an appraiser, and Jack Greene, a vocational expert. Tracy testified on her own behalf and called additional witnesses including Dr. Kelly Pierce, a friend and expert witness; Jane Yaffe-Rowell, a vocational expert; Judy Wilson, an appraiser; and Larry Morris, Tracy's father. The court received numerous exhibits including discovery requests and responses, evidence of payments, joint tax returns, paystubs and earning histories, monthly expenses, evidence of debts, valuation reports, bank account summaries, insurance and retirement accounts, credit reports, tax debt summaries, student loan documents, business information, credit card spending habits and payments, medical reports, invoices, and pictures and documents relating to Tracy's recreational activities and trips.

During trial, Tracy urged that she needed alimony to cover her monthly expenses as she was unable to be employed due to her medical conditions. Tracy's physician and acknowledged friend, Dr. Pierce, testified that, in 2019, he completed an application for Social Security (SSA) disability at Tracy's request. In connection with that application, Dr. Pierce indicated that Tracy had left arm neuropathy relating to a traumatic injury occurring in 1996 and had chronic laryngeal spasms. In a separate report, Dr. Pierce indicated that Tracy was unable to sit for more than 20 minutes, stand for more than 15 minutes, or lift more than 20 pounds. Although Dr. Pierce acknowledged that, prior to October 16, 2019, he had not placed any work restrictions on Tracy, he testified that Tracy was unable to work in a competitive work environment. Dr. Pierce said that Tracy's recreational activities did not change his opinion about her ability to work because "[i]t's my opinion, in conjunction with the patient, to decide what you can and can't do at that point in time" and that "I always [err] on the side of caution and tell my patients . . . if I think they have a medical problem where they can get hurt, I advise them to be careful and tailor their activities to what they know they can and can't do."

Tracy also called Yaffe-Rowell, a vocational expert, to testify regarding Tracy's employability. Yaffe-Rowell opined that Tracy would likely not be able to return to work as a general duty nurse, but that she would be able to perform more sedentary jobs after taking steps to reinstate her nursing license or she could take another suitable job unrelated to nursing. However, Yaffe-Rowell acknowledged that Tracy's laryngeal spasms and mental health would cause her to miss more than 4 days of work per month. Yaffe-Rowell concluded that, if Tracy could manage her breathing episodes, she might be more employable. On cross-examination, Yaffe-Rowell admitted that she did not complete a functional capacity evaluation of Tracy and relied mostly on Dr. Pierce's medical report in rendering her opinion. In response to a question about the connection between alcohol use and Tracy's breathing-related episodes, Yaffe-Rowell further acknowledged that if Tracy experienced breathing issues only in connection with alcohol use, this information could be relevant to Yaffe-Rowell's assessment as to whether the respiratory condition affected Tracy's employability. Although Yaffe-Rowell testified that she was aware of some of Tracy's active lifestyle, she acknowledged she was not aware that Tracy completed multiple kayaking challenges or the full extent of the physicality of the challenges which sometimes lasted between 10 and 12 hours. Further, Yaffe-Rowell acknowledged that she was unaware that 3 weeks prior to Dr. Pierce writing his report, upon which she relied in forming her opinion, Tracy had completed a 72-mile kayaking challenge in 12 hours. Yaffe-Rowell indicated that Tracy could perform lower intensity nursing jobs that did not involve heavy lifting or require the application of fine motor skills with her dominant hand. Further, regarding Tracy's inability to work, Yaffe-Rowell indicated that Tracy could only work if her breathing issues were controlled.

In response, Mark called Greene, a vocational expert, to testify regarding Tracy's employability and earning capacity. Greene testified that many of the medical concerns reported by Tracy and documented by Dr. Pierce were inconsistent with Tracy's demonstrated active lifestyle. Greene testified that, in an interview, Tracy self-reported that she had specific physical limitations such as breathing issues and the inability to reach forward with her upper extremities, to participate in prolonged activities, or to lift items unless they were light such as a dinner plate. However, Greene noted that Tracy's self-reporting was inconsistent with Tracy's demonstrated active lifestyle which included running half marathons, being an avid cyclist participating in a 3-day 100-mile bike ride, and participating in multiple kayak challenges ranging from 50 to 72 miles lasting for extended periods of time. Greene further noted that Tracy's treating physicians had not previously reported Tracy's inability to perform work activities prior to 2019 and opined that Dr. Pierce failed to provide medical evidence of disability. He further testified that Tracy's disability claim was discredited by the SSA's denial of her 2019 application for disability benefits.

Greene ultimately opined that, having reviewed and considered Tracy's medical records, her SSA rejection letter, her history of recreational activities, his interview with Tracy, and his research into the steps Tracy would need to pursue to regain her nursing license, that Tracy had the capacity to return to work as a registered nurse for an estimated median annual wage of $63, 810. He also opined that Tracy could obtain employment as a cardiac monitor technician or phlebotomist at a starting salary ranging between $26, 000 to $36, 000 per year and median wages of $34, 910 to $46, 210.

In February 2021, the court entered an order dissolving the parties' marriage. The court awarded both parties the property in their possession except that Mark was awarded the four-wheeler trailer stored at Tracy's home and Tracy was awarded possession of certain antiques, a margarita machine, liquor shelf, clock, any plant stands, and their son's baby book. Additionally, property located in a storage shed was divided equally with each party to take turns selecting items with witnesses present. Mark was awarded all interest and debts in his business known as M&R Properties and Tracy was awarded the Council Bluffs residence valued at $359, 600. The Lincoln home had been sold and proceeds in the amount of $202, 147.84 were placed in escrow. Of that amount, $192, 147.48 remained in escrow at the time of the trial due to a $10, 000 authorized withdrawal by Mark to cover his temporary alimony obligation. The court awarded Mark $91, 033.92 of the proceeds from the Lincoln home taking into consideration the $10, 000 authorized withdrawal and awarded Tracy $101, 033.92.

The court awarded each party the bank accounts held in their respective names. Further, the court determined that Mark's student loans were premarital property because Mark had not established what portion of his student loans were incurred during the marriage or were attributable to family expenses. The court found that the parties' 2018 and 2019 tax debt was nonmarital debt which it ordered Mark to pay. The court also accepted the parties' stipulation to a 25 percent reduction in the retirement accounts since the accounts were nonqualified tax-deferred accounts. The court awarded Mark the Fidelity 457(b) retirement account and Bryan Health 401(k) plan and awarded Tracy the IPERS retirement plan. In its order, the court stated:

The Court finds that the proposed division is slightly in [Tracy's] favor and, given the Court's authority to award each party 1/3 to 2/3 of the total marital estate, declines to order equalization.

The Division of Assets and Debts contained in attached exhibit "A" is fair and reasonable, is not unconscionable, and should be, and hereby is, approved by this Court.

The court next determined the award of alimony considering the parties' circumstances, duration of the marriage, each party's history of contributions to the marriage, Tracy's need for job training, Tracy's contributions to her spouse's education, the income and earning capacity of each party, potential future inheritance to the payor/payee spouse, pensions, income earned during the marriage and how it was spent, the effect of the marriage on the ability of recipient to secure future employment, the physical and mental stability of the recipient spouse, interruptions of personal careers or educational opportunities, and the general equities of the situation.

At the time of the dissolution, the court noted that the parties were 50 years old, that they had been married for 25 years but had maintained separate households since 2004, that there was a significant amount of spending during the marriage and separation, and that Mark had been the primary source of income supporting Tracy and the parties' minor child until 2018 when Mark began a new relationship. The court determined that although the parties maintained separate households, they still acted as a married couple until 2018.

The court found that Tracy was the primary caretaker of the parties' son and, after Tracy moved to Iowa in 2004, she became the child's sole caregiver. The court found that Tracy contributed to Mark's education noting that, when the parties were first married, Tracy worked and supported Mark while he attended medical school and his fellowship, while Mark worked part time as a pharmacist. Additionally, the court found that Tracy's career opportunities were interrupted due to her relocating with Mark while he was pursuing his medical education and because, a year into the parties' marriage, Tracy sustained a workplace injury which permanently damaged her left arm. The court noted that, although Tracy received a $198, 000 settlement for lost wages and future medical expenses, the parties had no specific recollection as to how the settlement was spent other than to pay the parties' expenses and debts, but that the parties agreed that the settlement was not set aside to pay for Tracy's future medical expenses. Tracy later returned to work full time from 2005-2010 and part-time from 2010-2018, but allowed her nursing license to lapse in 2019 stating that she forgot to renew it. As a result, the court indicated that Tracy had almost no earnings for the past 5 years and was in the process of reapplying for disability benefits due to her prior injury and additional medical conditions that arose in 2017.

The court found that Mark earned $750, 000 the previous year and that his lowest earnings in the last 5 years amounted to $479, 000 in 2018, which the court used in setting the temporary alimony award. The court also considered the parties' retirement accounts for expected future income but determined that the value of those accounts was relatively minimal and that there were no significant assets from which Tracy could expect to receive interest in the future.

At the time of trial and in her request for temporary alimony, Tracy indicated that she was unable to work due to her workplace injury and additional medical conditions which arose in 2017. Tracy stated that she took multiple medications and suffered from anxiety and depression. As a result of these claims, the court heard expert witness testimony to determine Tracy's earning capacity. The court found that the reports and testimony from the vocational experts provided that since Tracy had not worked since January 2018, Tracy would need additional job training or certifications to reenter the workforce. Although Tracy's vocational expert and physician both testified that Tracy was unemployable for medical reasons, the court acknowledged that Tracy's recreational activities and active lifestyle, which included high intensity fitness training, biking, and competitive kayak races lasting 12 hours, "bring[s] that opinion into question." The court stated that even though Tracy had some medical issues which limited her ability to work in her original capacity as a nurse, there were other opportunities for her to pursue and Tracy had some ability to be employed even if she needed some accommodations.


The court further considered the parties' expenses in comparison to their total income. Mark provided the court with an expense worksheet detailing his proposed expenses which he argued approximated $14, 000 per month not including his monthly $10, 000 temporary alimony obligation to Tracy. Tracy submitted evidence of her proposed expenses which she argued approximated $10, 000 per month with an estimated budget of $14, 000 in anticipation of having to pay the costs of items currently paid by Mark such as health insurance, allotments to pay for home repairs, and funds to replace her 11-year-old vehicle.

After considering the relevant factors, the court ultimately determined that the equities weighed in favor of an award of alimony and granted Tracy $14, 000 per month for 72 months. Further, the court ordered that Mark maintain a $1, 008, 000 life insurance policy naming Tracy as the beneficiary. Additionally, based upon the court's finding that Mark's attempt to force a dissolution of marriage into an adjudication of Tracy's disability had increased the amount of attorney fees and expert witness fees, the court ordered Mark to reimburse Tracy for $8, 763.76 in expert fees and pay $60, 000 towards Tracy's attorney fees related to that issue to be paid within 30 days of the court's order.

Following the entry of the dissolution decree, Mark timely filed a motion to reopen and enlarge the record, reconsider, and alter or amend the judgment asserting that the court's finding was verbatim to Tracy's proposed decree which contained multiple inaccurate findings that were contrary to evidence and testimony and resulted in a gross inequity in favor of Tracy. Mark requested that the court reopen and enlarge the record for further evidence regarding income so it could properly be considered; to alter or amend the judgment due to the inaccuracies in the findings; to reconsider the alimony award as it was unjust, unfair and grossly inequitable; to reconsider the determinations as to Mark's student loans and the life insurance policy ordered by the court; and to alter and amend the decree related to the personal property division. Finally, Mark objected to the court's award of attorney and expert fees. The court overruled Mark's motion. Mark has timely appealed to this court.


Mark assigns as error, renumbered and restated, that the district court abused its discretion in (1) awarding Tracy alimony amounting to nearly 70 percent of Mark's monthly income; (2) ordering Mark to pay $60, 000 in attorney fees and $8, 763.76 in expert fees to Tracy; (3) permitting the expert testimony of Dr. Pierce when he was an undisclosed expert and failed to perform sufficient examination or testing to provide an opinion as to Tracy's ability to work; (4) finding that Mark's student loan debt was nonmarital property; and (5) its division of the parties' marital estate including awarding Mark all of the retirement accounts, allocating most of the debt to him, and awarding Tracy nearly all of the cash assets.

Brisso v. Brisso (Neb. App. 2022)

Brisso v. Brisso (Neb. App. 2022)

Outcome:
Mark assigns as error, renumbered and restated, that the district court abused its discretion in (1) awarding Tracy alimony amounting to nearly 70 percent of Mark's monthly income; (2) ordering Mark to pay $60, 000 in attorney fees and $8, 763.76 in expert fees to Tracy; (3) permitting the expert testimony of Dr. Pierce when he was an undisclosed expert and failed to perform sufficient examination or testing to provide an opinion as to Tracy's ability to work; (4) finding that Mark's student loan debt was nonmarital property; and (5) its division of the parties' marital estate including awarding Mark all of the retirement accounts, allocating most of the debt to him, and awarding Tracy nearly all of the cash assets.
Brisso v. Brisso (Neb. App. 2022)

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