SONIA BECHER, APPELLEE AND CROSS-APPELLANT.
MARK A. BECHER, APPELLANT AND CROSS-APPELLEE.
Appeal and Error: Waiver. Whether a party waived his or her
right to appellate review is a question of law.
Statutes: Appeal and Error. To the extent an appeal calls for
statutory interpretation or presents questions of law, an
appellate court must reach an independent conclusion
irrespective of the determination made by the court below.
Judgments: Proof: Waiver: Affidavits: Appeal and Error. In
order to establish whether a party has so dealt with a
judgment or other order appealed from as to have waived any
right to review, it is permissible to present affidavits
foreign to the record thereto.
Judgments: Appeal and Error. An appellant may not voluntarily
accept the benefits of part of a judgment in the
appellant's favor and afterward prosecute an appeal or
error proceeding from the part that is against the appellant.
Divorce: Judgments: Appeal and Error. A spouse who accepts
the benefits of a divorce judgment does not waive the right
to appellate review under circumstances where the
spouse's right to the benefits accepted is conceded by
the other spouse, the spouse was entitled as a matter of
right to the benefits accepted such that the outcome of the
appeal could have no effect on the right to those benefits,
or the benefits accepted are pursuant to a severable award
which will not be subject to appellate review.
Verdicts: Evidence: Appeal and Error. Recommended factual
findings of a special master have the effect of a special
verdict, and the report upon questions of fact, like the
verdict of a jury, will not be set aside unless clearly
against the weight of the evidence.
Neb.App. 727] 7. Judgments: Appeal and Error. Where parties
consent that the report of a referee containing the evidence
taken by said referee, and his findings of fact and
conclusions of law, shall be submitted to the court, together
with the objections and exceptions thereto, for determination
on the merits by the court, they are precluded by such
submission from assigning error by the court in setting aside
the report and findings of the referee, and substituting
therefor the findings of the court.
Where parties consent that the report of a referee containing
the evidence taken by said referee, and his findings of fact
and conclusions of law, shall be submitted to the court,
together with the objections and exceptions thereto, for
determination on the merits by the court, an appellate court
will only consider the correctness of the findings and
judgment of the district court.
Trial: Witnesses: Testimony. Witness credibility and the
weight to be given a witness' testimony are questions for
the trier of fact.
Judgments. A trial court may only set aside or modify the
report of a referee issued pursuant to Neb. Rev. Stat. §
25-1129 et seq. (Reissue 2016) upon a determination that the
referee's findings were clearly against the weight of the
Divorce: Property Division. Under Neb. Rev. Stat. §
42-365 (Reissue 2016), the equitable division of property is
a three-step process. The first step is to classify the
parties' property as marital or nonmarital, setting aside
the nonmarital property to the party who brought that
property to the marriage. 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.
__ . 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.
Divorce: Courts: Property Division. The manner in which
property is titled or transferred by the parties during the
marriage does not restrict the trial court's ability to
determine how the property should be divided in an action for
dissolution of marriage.
Divorce: Property Division. In an action for dissolution of
marriage, a court may divide property between the parties in
accordance with the equities of the situation, irrespective
of how legal title is held.
Property Division: Proof. The burden of proof rests with the
party claiming that property is nonmarital.
Neb.App. 728] 16. Modification of Decree: Child Support. The
paramount concern in child support cases, whether in the
original proceeding or subsequent modification, remains the
best interests of the child.
Rules of the Supreme Court: Child Support. In general, child
support payments should be set according to the Nebraska
Child Support Guidelines.
Child Support. Use of earning capacity to calculate child
support is useful when it appears that the parent is capable
of earning more income than is presently being earned.
Child Support: Evidence. Generally, earning capacity should
be used to determine a child support obligation only when
there is evidence that the parent can realize that capacity
through reasonable efforts.
Child Support. In calculating child support, the court must
consider the total monthly income, defined as income of both
parties derived from all sources.
Divorce: Alimony. In considering alimony, a court should
weigh four factors: (1) the circumstances of the parties, (2)
the duration of the marriage, (3) the history of
contributions to the marriage, and (4) the ability of the
party seeking support to engage in gainful employment without
interfering with the interests of any minor children in the
custody of each party.
__:__. In addition to the specific criteria listed in Neb.
Rev. Stat. § 42-365 (Reissue 2016), a court should
consider the income and earning capacity of each party and
the general equities before deciding whether to award
Divorce: Property Division: Alimony. The statutory criteria
for dividing property and awarding alimony overlap, but the
two serve different purposes and courts should consider them
Property Division. The purpose of a property division is to
distribute the marital assets equitably between the parties.
Alimony. The purpose of alimony is to provide for the
continued maintenance or support of one party by the other
when the relative economic circumstances and the other
criteria enumerated in Neb. Rev. Stat. § 42-365 (Reissue
2016) make it appropriate.
Divorce: Alimony. In weighing a request for alimony, the
court may take into account all of the property owned by the
parties when entering the decree, whether accumulated by
their joint efforts or acquired by inheritance.
Divorce: Attorney Fees. In a marital dissolution action, an
award of attorney fees depends on a variety of factors,
including the amount of property and alimony awarded, the
earning capacity of the parties, and the general equities of
Neb.App. 729] 28. __:__.A dissolution court deciding whether
to award attorney fees should 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.
from the District Court for Lancaster County: Steven D.
Burns, Judge. Affirmed as modified.
P. Kyker and Brad Sipp for appellant.
A. Rasmussen, of Mattson Ricketts Law Firm, for appellee.
Chief Judge, and Riedmann and Bishop, Judges.
dissolution of marriage action, the parties agreed to trial
before a referee. The referee's report was filed with the
district court for Lancaster County, and the parties filed
exceptions to the report. The court subsequently entered a
decree of dissolution from which the parties have appealed.
Mark A. Becher assigns error to the manner in which the
district court reviewed and modified the referee's
report. Mark challenges certain findings of the court
regarding the classification, valuation, and division of the
parties' assets and debts; custody and parenting time;
child support; alimony; and attorney fees. In her
cross-appeal, Sonia Becher assigns error to the court's
allocation of Christmas holiday parenting time and the
court's failure to classify certain property as
nonmarital. Sonia also seeks summary dismissal of Mark's
appeal based upon Mark's acceptance of the benefits of
the decree. For the reasons that follow, we affirm as
modified, vacating and setting aside certain findings of the
Neb.App. 730] II. BACKGROUND
parties were married in December 1991. They have three
children: Daniel Becher, born in 2000; Cristina Becher, born
in 2002; and Susana Becher, born in 2008.
February 1, 2013, Sonia filed a complaint for dissolution of
marriage in the district court, and Mark thereafter filed an
answer. Both parties sought custody of the children, child
support, alimony, attorney fees, and an equitable division of
the parties' property.
parties entered into a stipulation with respect to temporary
matters. On April 19, 2013, the district court approved the
stipulation and awarded the parties temporary joint legal
custody of the children. Temporary physical custody of the
children was awarded to Sonia, subject to Mark's rights
of parenting time as set forth in the attached parenting
plan. The court ordered Mark to pay temporary child support
of $4, 000 per month beginning May 1 and spousal support of
$6, 000 per month. The court also ordered Mark to pay the
"school tuition and matriculation fees" for the
minor children to attend a particular elementary school and
temporary attorney fees on behalf of Sonia of $2, 000.
thereafter, Mark filed a motion to modify both temporary
custody and support. In his motion, Mark alleged that
Daniel's primary physical custody had been maintained
with Mark since May 2013. Mark alleged that the temporary
child support award should be adjusted to reflect this split
custody arrangement. Mark also alleged that the children were
attending a different school than that contemplated in the
April 2013 temporary order, at a significantly higher cost,
and that "[s]upport should be adjusted to reflect the
increased education expense."
November 25, 2013, the district court entered another
temporary order. The court awarded Mark temporary custody of
Daniel and awarded Sonia parenting time with Daniel. The
court denied Mark's motion for a reduction in his child
support obligation and reserved that issue for trial. The
court [24 Neb.App. 731] also ordered the parties to complete
a custody evaluation by a psychologist, with each party
paying one-half of any necessary expenses.
December 10, 2014, the parties filed a stipulation agreeing
to a trial before a referee due to the complex financial and
business valuation issues involved in their divorce as well
as the issues of parenting time, child support, and alimony.
The district court approved the stipulation and appointed a
was held before the referee on multiple dates from December
11, 2014, to July 23, 2015. The voluminous trial record
contains more than 2, 300 pages of testimony and nearly 200
exhibits. We have set forth the evidence relevant to the
parties' assignments of error in the corresponding
October 20, 2015, the referee's report and the
parties' exceptions thereto were filed with the district
court. The referee's detailed and thorough report is 34
pages, excluding the attached parenting plan, child support
worksheets, and spreadsheet of the property valuation and
division. We have discussed specific findings of fact,
analyses, and recommendations made by the referee as
necessary in the analysis section below.
November 4, 2015, the district court received into evidence
the transcribed trial testimony and exhibits from the trial
before the referee for purposes of reviewing the record. The
court heard Soma's arguments in support of her exceptions
to the referee's report. Mark withdrew his exceptions to
the referee's report, but he asked the court to modify
the payment schedule for the equalization payment to Sonia.
Mark's counsel informed the court that Mark was "am
[en] able to having joint custody of his children" but
asked the court to change his support obligation accordingly
if joint custody was awarded. Finally, he asked the court
"to adopt the report with the exception that [he]
believe[d] that the court may fashion a different parenting
plan or one that the court believes is more in the best
interest of these children."
Neb.App. 732] On December 21, 2015, the district court
entered a detailed 25-page decree. We have discussed specific
findings in the decree in the analysis section below.
filed a motion to determine supersedeas bond. On January 26,
2016, the district court entered an order finding that during
the pendency of any appeal by either party, each party shall
manage, operate, and control the real estate awarded to that
party pursuant to the decree and be entitled to collect and
receive all rents due and payable with regard to the real
estate awarded. The court also found that during the pendency
of any appeal, Sonia shall be entitled to collect and receive
all rents due and payable with regard to the three commercial
properties awarded to her and each party shall service the
debt obligation on the real estate allocated in the decree.
Finally, the court found that upon Mark's posting a
supersedeas bond of $600, 000 to be approved by the court,
Mark shall not be required during the pendency of any such
appeal to transfer to Sonia any ownership interest he might
have in the real estate awarded to Sonia. The record does not
show that Mark ever filed a supersedeas bond.
1, 2016, after Mark had perfected his appeal, Sonia filed a
motion for summary dismissal of Mark's appeal with this
court. She asserted that Mark had accepted the benefits of
the decree and had forfeited his right to appeal all issues
except those pertaining to the children. We overruled
Sonia's motion without prejudice, and we have addressed
the issue of acceptance of the benefits in this opinion. On
December 14, just prior to oral argument in this case, Sonia
filed a renewed motion to dismiss, and we address Sonia's
renewed motion as well in the analysis section below.
ASSIGNMENTS OF ERROR
asserts, restated, that the district court erred in (1)
modifying the referee's report without determining
whether the referee's findings were clearly against the
weight of the evidence; (2) setting aside certain property to
Sonia as [24 Neb.App. 733] nonmarital; (3) awarding Sonia
three commercial properties; (4) valuing Sark Tile, Inc.,
Lamp & Lighting of Lincoln, Inc. (Lamp & Lighting),
and Grab It Hardware; (5) dividing the parties' personal
property; (6) treating Sark Tile's shipping containers as
personal property; (7) determining marital debt; (8) setting
forth conflicting custodial arrangements for Susana; (9)
determining the parties' incomes for purposes of child
support; (10) failing to prepare a "worksheet 3" in
calculating child support; (11) improperly crediting Mark for
overpayment of temporary child support; (12) requiring Mark
to pay private school tuition; (13) awarding alimony; and
(14) awarding attorney fees.
cross-appeal, Sonia asserts that the district court erred in
(1) allocating parenting time over the Christmas holiday; (2)
failing to characterize a life insurance policy purchased by
Sonia's father as nonmarital; and (3) failing to award
her nonmarital equity in Capitol Park, LLC, Lamp &
Lighting, and certain residential rental property.
Sonia's Motions to Dismiss
addressing the merits of Mark's assigned errors on
appeal, we first address whether he waived his right to
appeal from the decree by accepting the benefits of the
judgment. Whether a party waived his or her right to
appellate review is a question of law. Edwards v.
Edwards, 16 Neb.App. 297, 744 N.W.2d 243 (2008). To the
extent an appeal calls for statutory interpretation or
presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. Devney v. Devney. 295 Neb. 15,
886 N.W.2d 61 (2016).
Mark has not argued that Sonia has waived her right to
cross-appeal, for the sake of completeness, we have also
addressed the effect of Sonia's acceptance of certain
benefits on her right to cross-appeal. In addressing the
issue of acceptance of benefits by the parties, we have
reviewed [24 Neb.App. 734] both of Sonia's motions to
dismiss and her supporting affidavits. The Nebraska Supreme
Court has held that in order to establish whether a party has
so dealt with a judgment or other order appealed from as to
have waived any right to review, it is permissible to present
affidavits foreign to the record thereto. See Phelps v.
Blome, 150 Neb. 547, 35 N.W.2d 93 (1948).
Sonia's First Motion to Dismiss
affidavit in support of her first motion to dismiss, Sonia
stated that following entry of the decree and Mark's
failure to post a supersedeas bond, she and Mark both took
full ownership and control over the residential and
commercial properties awarded to them by the district court.
She stated that during the appeal, the parties have executed
and recorded quitclaim deeds transferring their ownership
interests in each other's properties. Sonia also stated
that Mark has created a new corporation, John Gait
Development, LLC, which now holds title to the properties
awarded to him. Sonia attached copies of the quitclaim deeds
executed and recorded by the parties and certified copies of
the certificate of organization and proof of publication for
John Gait Development filed by Mark with the Nebraska
Secretary of State. Sonia also stated that Mark had
refinanced the loans associated with his properties,
releasing her as guarantor and her properties as collateral
for those notes. She attached copies of recorded deeds of
reconveyance releasing her properties as collateral.
affidavit, Sonia stated that during the appeal, Mark has
utilized rents and receipts from Sark Tile, one of the
businesses awarded to him, to pay personal expenses. She
attached documentation showing that checks from Sark Tile had
been used to pay postdecree judgments to the district court
for garage door openers and for the children's health
Sonia attached additional documents and outlined steps she
had taken with respect to the commercial and residential
property awarded to her; detailed her attempts to refinance
[24 Neb.App. 735] a loan associated with a building housing a
Dollar General store; and stated that, like Mark, she had
utilized rents and receipts from the properties awarded to
her to pay both business and personal expenses.
affidavit attached to her renewed motion to dismiss, Sonia
stated that since submission of her first affidavit, both
parties had independently obtained refinancing for those
commercial properties awarded to each of them, that a former
"blanket loan" which was cross-collateralized by
both parties' properties had been satisfied, and that she
had renegotiated the terms and conditions for a loan on her
commercial properties only and was making the loan payments
pursuant to those terms and conditions. Finally, Sonia stated
that she had sold Mini Storage, one of the commercial
properties awarded to her, in an arm's-length sale to a
third party. Sonia stated that she no longer owns any part of
Mini Storage and has "no say" in how that business
Relevant Case Law
the general acceptance of benefits rule, an appellant may not
voluntarily accept the benefits of part of a judgment in the
appellant's favor and afterward prosecute an appeal or
error proceeding from the part that is against the appellant.
Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89
(2006). There are, however, exceptions to this general rule.
exception to the acceptance of benefits rule exists where the
outcome of the appeal could have no effect on the
appellant's right to the benefit accepted. See
Kassebaum v. Kassebaum, 178 Neb. 812, 135 N.W.2d 704
(1965) (appellant who withdrew $200 from former jointly held
account assigned by divorce decree to him not estopped from
appealing from decree on ground that property division
awarded him was insufficient).
Neb.App. 736] In Liming v. Liming, supra, the
Nebraska Supreme Court held that in a dissolution action, a
spouse who accepts the benefits of a divorce judgment does
not waive the right to appellate review under circumstances
where the spouse's right to the benefits accepted is
conceded by the other spouse, the spouse was entitled as a
matter of right to the benefits accepted such that the
outcome of the appeal could have no effect on the right to
those benefits, or ...