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Onstot v. Onstot

Supreme Court of Nebraska

February 9, 2018

Mark A. Onstot, appellant and CROSS-APPELLEE,

         1. 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 discretion.

         2. 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.

         3. 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.

         4. Property Division. As a general rule, property which one party brings into the marriage is excluded from the marital estate.

         5. Property Division: Proof. The burden of proof to show that property is a nonmarital asset remains with the person making the claim.

         6. 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 exceptions.

         7. 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 review.

         8. ___: ___. 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 considered.

         9. 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.

         10. ___: ___: ___. 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 thereof.

         11. 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.

         12. 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.

         Appeal from the District Court for Sarpy County: William B. Zastera, Judge. Affirmed in part as modified, and in part vacated.

          Thomas J. Anderson, P.C., L.L.O., for appellant.

          Robin L. Binning, of Binning & Plambeck, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Kelch, J.


         Mark A. 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.


         Mark 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 (Reissue 2016).

         1. Mark's House

         Prior 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.

         Following 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 decree.

         2. Spousal Support

         After 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 ...

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