Divorce: Child Custody. When custody of minor children is an
issue in a proceeding to dissolve the marriage of the
children's parents, custody is determined by parental
fitness and the children's best interests.
Child Custody. When both parents are found to be fit, the
inquiry for the court on the issue of custody is the best
interests of the children.
Parent and Child. The best interests of a child require a
parenting arrangement for a child's safety, emotional
growth, health, stability, and physical care and regular and
continuous school attendance and progress.
The best interests of a child also require that the
child's families and those serving in parenting roles
remain appropriately active and involved in parenting with
safe, appropriate, continuing quality contact between
children and their families when they have shown the ability
to act in the best interests of the child and have shared in
the responsibilities of raising the child.
Divorce: Child Custody: Public Policy. It is sound public
policy to keep children together when possible, but
considerations of public policy do not, in all cases, prevent
the splitting of the custody of the children when a marriage
is dissolved; rather, the ultimate standard is the best
interests of the children.
Child Support. The paramount concern and question in
determining child support is the best interests of the child.
Rules of the Supreme Court: Child Support: Presumptions. In
general, child support payments should be set according to
the Nebraska Child Support Guidelines, adopted by the
Nebraska Supreme Court, which are presumed to be in the best
interests of the child.
Child Support. In calculating child support, the court must
consider the total monthly income, defined as income of both
parties derived from all sources.
Neb.App. 324] 9. Child Support: Presumptions. All income from
employment must be included in the initial child support
calculation, which then becomes a rebuttable presumption of
Child Support. Copies of at least 2 years' tax returns,
financial statements, and current wage stubs should be
furnished to the court for purposes of determining the
parents' income in order to calculate child support.
___. Income derived from farming is subject to fluctuations.
The use of income averaging when dealing with farm income has
been approved for purposes of calculating child support.
Divorce: Appeal and Error. In a de novo review of a judgment
in marriage dissolution proceedings, when the evidence is in
conflict, an appellate court considers, and may give weight
to, the fact that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than
Records: Appeal and Error. It is incumbent upon the appellant
to present a record supporting the errors assigned; absent
such a record, an appellate court will affirm the lower
court's decision regarding those errors.
Appeal and Error. Generally, a party cannot complain of error
which the party has invited the court to commit.
Divorce: Minors: Stipulations. Parties in a proceeding to
dissolve a marriage cannot control the disposition of matters
pertaining to minor children by agreement.
Parent and Child: Social Security. Social Security benefits
paid to children as a result of their parents' employment
are not a mere gratuity from the federal government but have
been earned through the parent's payment of Social
Parent and Child: Child Support: Social Security. A request
to apply Social Security benefits received as a result of a
parent's employment to the parent's child support
obligation is merely a request to identify the source of
payment, and a Social Security benefit can serve as a
substitute source of income.
___: ___: ___. Social Security benefits received on behalf of
a parent's employment may be used to offset a portion of
child support costs, but it is not appropriate to offset
child support costs where the Social Security benefits are
received due to the disability of the child and therefore
intended to mitigate the additional costs accompanying
___: ___: ___. Social Security disability benefits paid on
behalf of a parent's disability can be considered income
to the parent for child support purposes, because the
benefits are received in lieu of the parent's income.
Neb.App. 325] 20. Appeal and Error. An alleged error must be
both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
Divorce: Property Division. Under Neb. Rev. Stat. §
42-365 (Reissue 2008), the equitable division of property is
a three-step process. The first step is to classify the
parties' property as marital or nonmarital. The second
step is to value the marital assets and marital liabilities
of the parties. The third step is to calculate and divide the
net marital estate between the parties in accordance with the
principles contained in § 42-365.
___: ___. Property which one party brings into the marriage
is generally excluded from the marital estate.
Divorce: Property Division: Proof. The burden of proof to
show that property is nonmarital remains with the person
making the claim in a dissolution proceeding.
Divorce: Property Division. An exception to the general rule
that property owned prior to the marriage is excluded from
the marital estate exists where both of the spouses have
contributed to the improvement or operation of the nonmarital
property or where the spouse not owning the nonmarital
property has significantly cared for the property during the
___: ___. When applying the exception to the general rule
regarding premarital property, evidence of the value of the
contributions and evidence that the contributions were
significant are generally required.
___: ___. Generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital
estate. Exceptions include property that a spouse acquired
before the marriage, or by gift or inheritance.
___: ___. Setting aside nonmarital property is simple if the
spouse possesses the original asset, but can be problematic
if the original asset no longer exists.
___: ___. Separate property becomes marital property by
commingling if it is inextricably mixed with marital property
or with the separate property of the other spouse.
___: ___. If the separate property remains segregated or is
traceable into its product, commingling does not occur.
Property Division: Proof. The burden of proof rests with the
party claiming that property is nonmarital.
Property Division. Marital debt is defined as a debt incurred
during the marriage and before the date of separation, by
either spouse or both spouses, for the joint benefit of the
Divorce: Attorney Fees: Appeal and Error. In a dissolution of
marriage case, an award of attorney fees is discretionary, is
reviewed de [24 Neb.App. 326] novo on the record, and will be
affirmed in the absence of an abuse of discretion. 33.
Attorney Fees. The award of attorney fees depends on multiple
factors that include the nature of the case, the services
performed and results obtained, the earning capacity of the
parties, the length of time required for preparation and
presentation of the case, customary charges of the bar, and
general equities of the case.
Divorce: Attorney Fees. Attorney fees incurred by the parties
during the pendency of dissolution proceedings do not
constitute marital debt.
from the District Court for Dixon County: Paul J. Vaughan,
Judge. Affirmed in part, and in part reversed and remanded
S. Horneber, of Horneber Law Firm, P.C., for appellant.
R. Shannon, of Cordell Law, ...