Sandra Kay Delano v. Albert John Delano.

Pursuant to this court's authority under Neb. Ct. R. of Prac. 11B(1) (rev. 2000), this case was ordered submitted without oral argument. Albert John Delano appeals from a decree of dissolution entered by the district court for Lancaster County, which decree dissolved his marriage to Sandra Kay Delano and divided the marital estate. For the reasons that follow, we affirm.

BACKGROUND

Sandra and Albert were married on June 14, 1975. Two children were born during the marriage, but they are no longer minors and are not affected by this proceeding. On July 23, 2002, Sandra filed a petition for dissolution of marriage. On August 8, Albert filed an answer denying that the marriage of the parties was irretrievably broken and denying that all reasonable attempts at reconciliation had failed. On June 11, 2003, a hearing was held on Sandra's petition. Albert was incarcerated at the time of the hearing, but was represented by counsel at the hearing. Sandra was the only witness to testify. Sandra offered an exhibit setting forth a proposed division of the parties' marital property and debt, which exhibit was received into evidence without objection and was supplemented by her testimony.

Sandra testified that when she and Albert separated, she put all of the personal property items Albert had requested in a storage unit for him, and that she has been paying the fees for the storage unit. Sandra testified that she did not believe there was any dispute between the parties as to the division of personal property. Sandra also testified that she was not requesting any alimony from Albert and that she was requesting that she not be ordered to pay alimony to Albert.

On cross-examination, Albert's counsel asked Sandra if, after the hearing, she would be willing to look at a list prepared by Albert of personal property items he wanted upon his release from prison, in order to compare that list with the items Sandra had put in storage. Sandra testified that she would do that. In addition, Albert's counsel asked Sandra about a 1983 popup camper that was not included on her proposed division of property and debt. Sandra testified that Albert could have the camper, but that she would like to use it during the time he is incarcerated.

Albert did not present any evidence, and he did not argue that Sandra's proposal was unfair or unreasonable. On June 13, 2003, the trial court entered a decree of dissolution. The trial court found that Sandra's proposed division of property and debt was fair and reasonable and should be approved. The trial court further found that neither party should pay alimony to the other and that Albert should reimburse Sandra for any fees she incurred for the storage of property awarded to Albert. Albert appeals.

ASSIGNMENTS OF ERROR

Albert assigns that the trial court erred in (1) approving Sandra's proposed division of property and debt, (2) allowing Sandra to have control over his personal property, and (3) failing to award him alimony. Albert also assigns that he was denied due process of law.

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. This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees. Longo v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003); Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002).

ANALYSIS
Division of Marital Estate.

Albert first assigns that the trial court erred in approving Sandra's proposed division of property and debt, because the proposed division was not fair and reasonable. Specifically, Albert argues that the court erred in awarding Sandra the family home, contending that it should have been sold and the net proceeds split equally, and in awarding Sandra a 1998 Ford Mustang.

The division of property is entrusted to the discretion of the trial judge. Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993); Policky v. Policky, 239 Neb. 1032, 479 N.W.2d 795 (1992). Under Neb. Rev. Stat. § 42-365 (Reissue 1998), the purpose of a property division is to distribute the marital assets equitably between the parties. Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002); Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000).

The decree awarded Sandra the family home, a checking account in her name, a life insurance policy, her retirement account, a 2000 Dodge Intrepid as well as a 1998 Ford Mustang, and miscellaneous personal property in her possession. Based on the values set forth in Sandra's proposal, which the court adopted, the value of the assets awarded to Sandra is $201,545.52. The decree also made Sandra responsible for all of the parties' debts that occurred during the course of the marriage, which debts amounted to $87,851.20. The net value of the property awarded to Sandra was $113,694.32, or approximately 54 percent of the marital estate. Albert was awarded a checking account in his name, a life insurance policy, his retirement account, a 1984 Mercury automobile, the personal property in his possession, and the personal property that Sandra had put in storage for him. In addition, the decree awarded Albert the 1983 popup camper, but permitted Sandra to use the camper while Albert is incarcerated. Based on the values in Sandra's proposal, the total value of the property awarded to Albert, excluding the value of the camper, was $95,961.14, or approximately 46 percent of the marital estate.

Although the court relied exclusively on the evidence presented by Sandra, the record shows that Albert did not present a deposition or affidavit or present any evidence to contest the marital assets and liabilities presented by Sandra. Based on the record, Sandra was awarded 54 percent of the marital estate and Albert was awarded 46 percent. In addition, Sandra was made responsible for all of the parties' debts that occurred during the course of the marriage. We cannot say the trial court abused its discretion in finding that Sandra's proposed division of property and debt was fair and reasonable and in adopting the proposed division in its decree of dissolution.

Albert also contends that not all of the assets and liabilities of the parties were included in the proposed division of property and debt adopted by the trial court. With the exception of the popup camper, Albert did not question Sandra regarding other assets and liabilities that were not included in her proposed division of property and debt, nor did he present evidence to contest Sandra's proposed division. Thus, Albert did not raise before the trial court the issue of the existence of additional assets and liabilities, and he cannot now raise the issue for the first time to this court. In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as a trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d 578 (2003).

In addition, Albert argues under his first assignment of error that the trial court erred in allowing Sandra to use the camper while he is incarcerated, because the court did not also make Sandra responsible for any damage done to the camper during the time she is using it. Although the decree is silent regarding damage done to the camper while Sandra is using it, if the camper is turned over to Albert in a damaged or destroyed state, there would be legal remedies available to Albert, which remedies we need not discuss here.

Sandra's Control Over Albert's Personal Property.

Albert next assigns that the trial court erred in allowing Sandra to have control over his personal property. Albert argues that the trial court should have ordered Sandra to produce a list of Albert's personal property that she had placed in storage. He argues that by the court's failing to so order, Sandra is not accountable for the items in storage and can control what property Albert will receive upon his release from prison.

When cross-examining Sandra, Albert's counsel asked Sandra if, following the hearing, she would look at a list of personal property items that Albert wanted upon his release from prison, in order to compare that list with the items Sandra had put in storage. Sandra testified that she would do that. We determine that based on this exchange between Albert's counsel and Sandra, it was not necessary that the trial court order Sandra to produce a list of the items in storage. Thus, we find no merit to Albert's assignment that the trial court erred in allowing Sandra to have control over his personal property.

Alimony.

Albert also assigns that the trial court erred in failing to award him alimony. Section 42-365 provides:

When dissolution of marriage is decreed, the court may order payment of such alimony by one party to the other . . . as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers and educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party.

The awarding of alimony is a matter entrusted to the discretion of the trial judge and, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of discretion. Ainslie v. Ainslie, 249 Neb. 656, 545 N.W.2d 90 (1996); Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995). Albert made no request for alimony in his pleadings or at the hearing before the trial court, nor did he present any evidence regarding the criteria set forth in § 42-365 to support an award of alimony in his favor. Thus, we conclude that the trial court's failure to award Albert alimony was not an abuse of discretion.

Denial of Due Process.

Finally, Albert assigns that he was denied due process of law in that he was not given the opportunity to appear and participate at the dissolution hearing. The U.S. and Nebraska Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amends. V and XIV; Neb. Const. art. I, § 3. We first note that there is no indication in the record that Albert made any request or motion to physically attend the hearing. In addition, a prison inmate has no absolute constitutional right to be released from prison so that the prisoner can be present at a hearing in a civil action. In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992); Board of Regents v. Thompson, 6 Neb. App. 734, 577 N.W.2d 749 (1998). Due process does require that the prisoner receive meaningful access to the courts to defend suits brought against him or her. Board of Regents v. Thompson, supra. See, also, Wilson v. Wilson, 238 Neb. 219, 469 N.W.2d 750 (1991) (prison inmate must be given meaningful opportunity to be heard in responding to marriage dissolution action). In the instant case, Albert was not present at the dissolution hearing, but he was represented by counsel at the hearing, and the record does not contain any request by Albert to be present. Without such a request, there could be no denial of due process, given that his counsel was present. Thus, Albert was afforded procedural due process which provided him with "meaningful access to the courts" and the opportunity to present evidence to support his position regarding the division of property and debt as well as an award of alimony. Albert's final assignment of error is without merit.

CONCLUSION

We find no abuse of discretion in the trial court's decree of dissolution, and thus, we affirm the decree in its entirety. We further conclude that Albert's absence from the dissolution hearing did not deny him due process of law.

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Affirmed in favor of Defendent.

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Reported by L. Hargraves