Mark A. Onstot, appellant and CROSS-APPELLEE,
MARIA D. OnSTOT. APPELLEE AND CROSS-APPELLANT.
Divorce: Child Custody: Child Support: Property
Division: Alimony: Attorney Fees: Appeal and Error.
In an action for the dissolution of marriage, an appellate
court reviews de novo on the record the trial court's
determinations of custody, child support, property division,
alimony, and attorney fees; these determinations, however,
are initially entrusted to the trial court's discretion
and will normally be affirmed absent an abuse of that
Evidence: Appeal and Error. In a review de
novo on the record, an appellate court reappraises the
evidence as presented by the record and reaches its own
independent conclusions on the matters at issue. When
evidence is in conflict, the 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 another.
Divorce: Mental Health: Appeal and Error. An
appeal involving support for a mentally ill spouse under Neb.
Rev. Stat. § 42-362 (Reissue 2016) is reviewed de novo
on the record and affirmed in the absence of an abuse of
discretion on the part of the trial judge.
Property Division. As a general rule,
property which one party brings into the marriage is excluded
from the marital estate.
Property Division: Proof. The burden of
proof to show that property is a nonmarital asset remains
with the person making the claim.
Affidavits: Records: Appeal and Error. In
order to be considered on appeal, any affidavit used on a
motion before the trial court must have been offered in
evidence in the trial court and made part of the bill of
Records: Appeal and Error. The party
appealing has the responsibility of including within the bill
of exceptions matters from the [298 Neb. 898] record which
the party believes are material to the issues presented for
___. A bill of exceptions is the only vehicle for bringing
evidence before the Nebraska Supreme Court. Evidence which is
not made part of the bill of exceptions may not be
Divorce: Mental Health: Alimony. Neb. Rev.
Stat. § 42-362 (Reissue 2016) empowers the court to
order the payment of such support and maintenance to a
mentally ill spouse as it may deem necessary and proper,
having due regard to the property and income of the parties.
___: ___: ___. Reasonableness is the ultimate criterion to be
applied in testing whether support and maintenance is to be
awarded a mentally ill spouse under Neb. Rev. Stat. §
42-362 (Reissue 2016) and, if so, the amount and duration
Divorce: Alimony: Public Policy:
Legislature. The trial court cannot condition the
termination of spousal support upon cohabitation with another
person, because such matters are public policy issues for the
Legislature, not the courts, to decide.
Divorce: Alimony: Modification of Decree.
Cohabitation, together with a showing that such arrangement
improved a former spouse's overall financial condition,
might warrant a modification of spousal support.
from the District Court for Sarpy County: William B. Zastera,
Judge. Affirmed in part as modified, and in part vacated.
J. Anderson, P.C., L.L.O., for appellant.
L. Binning, of Binning & Plambeck, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Onstot appeals, and Maria D. Onstot cross-appeals, from the
decree of dissolution entered by the district court for Sarpy
County, which dissolved the parties' marriage, divided
their assets and debts, and awarded spousal support for
Maria. For the reasons set forth below, we affirm [298 Neb.
899] the district court's decree in part, as modified
herein, and in part vacate.
and Maria were married in October 1999. Mark filed a
complaint for dissolution of marriage in luly 2013, and the
matter proceeded to a bench trial in March and lune 2016. The
contested issues at trial, as relevant to this appeal, were
(1) the equitable division of the house Mark owned prior to
the marriage and (2) the determination of appropriate spousal
support for Maria under Neb. Rev. Stat. § 42-362
to the marriage, Mark owned a house located on Platte River
Drive in Bellevue, Nebraska. Mark testified that he purchased
the house in 1990 for $58, 800, and he believed that the
mortgage at the time of purchase was $48, 000. He made some
improvements to the house over the following years, including
installing new siding, constructing a new garage, and
installing new windows and new flooring, all of which was
paid for with his own money prior to the marriage. Mark
testified that he believed the house was worth approximately
$100, 000 at the time of the parties' marriage in 1999,
but there was no evidence presented regarding the balance on
the mortgage at that time. There was also no documentation to
confirm Mark's testimony regarding the date of purchase,
the purchase price, the amount mortgaged, or the value of the
house at the time of the parties' marriage. At the time
of trial, the house was appraised at $200, 000 and had a loan
balance of $32, 538.
a bench trial, the district court awarded the house to Mark,
subject to the remaining mortgage balance of approximately
$32, 500, for which Mark was ordered to be solely
responsible. It determined that the property was valued at
$200, 000 and had equity in the amount of $167, 500, which it
[298 Neb. 900] ordered to be divided equally between the
parties. It further ordered Mark to refinance, sell, or
otherwise remove Maria's financial responsibility for the
mortgage, and to pay Maria $83, 746 for her share of the net
equity in the property, within 60 days from the entry of the
Mark filed his complaint for dissolution, Maria filed a
motion for the appointment of a guardian ad litem on the
basis of mental illness, pursuant to § 42-362. In
support of the motion, she submitted an affidavit from her
psychologist, Dr. Glenda L. Cottam, who stated that Maria
exhibited anxiety and mental illness to such a degree that
her ability to think clearly and engage in appropriate
reality testing was compromised and that she would not be
able to act in her own best interests, make appropriate
decisions, or assist her ...