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Leners v. Leners

Supreme Court of Nebraska

April 19, 2019

Sharon B. Leners, appellant,
v.
Stacy M. Leners, appellee.

         1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, 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 custody, child support, division of property, alimony, and attorney fees.

         2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

         3. Divorce: Property Division: Pensions. In dissolution proceedings, the trial court has broad discretion in valuing and dividing pension rights between the parties.

         4. Child Custody. While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration.

         5. 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 with respect to the matters at issue.

         6. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         7. Courts: Attorney Fees. Courts have the inherent power to award attoney fees in certain unusual circumstances amounting to conduct during the course of litigation which is vexatious, unfounded, and dilatory, such that it amounts to bad faith.

          [302 Neb. 905] Appeal from the District Court for Gage County: Ricky A. Schreiner, Judge.

          Philip B. Katz and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., for appellant.

          Megan M. Zobel, of Anderson, Creager & Wittstruck, PC, L.L.O., for appellee.

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

          CASSEL, J.

         INTRODUCTION

         Sharon B. Leners appeals from a decree dissolving her marriage to Stacy M. Leners. Although the district court may have overstated Sharon's entitlement to a divorced spouse annuity in connection with Stacy's railroad pension, it did not abuse its discretion in awarding Stacy his entire pension in equitably dividing the marital estate. Having reviewed the record de novo, we cannot say that the court's determinations regarding custody, parenting time, child expenses, and attorney fees were untenable. We affirm the decree.

         BACKGROUND

         The parties married in 1997. In 2016, Sharon filed a complaint to dissolve the marriage. At that time, the parties had two minor children, one born in 1998 and the other in 2002.

         On July 31, 2017, the court entered a temporary order awarding the parties joint custody of the children. Because Stacy's employment takes him to different locations around the country from the 1 st through the 8th day of the month and then the 16th to the 23d day of each month, the court provided him parenting time every month on the 9th to the 15th day and on the 24th to the last day of the month.

         Three weeks later, the court conducted a trial. We summarize only the evidence relevant to the issues on appeal.

         [302 Neb. 906] Custody

         The custody issue focused on the 15-year-old child, because the other child soon would be turning 19 years old (and did shortly before entry of the decree). The 15-year-old child testified in camera, and the court sealed her testimony. We consider this testimony in our de novo review, but decline to summarize it.

         Both parties described a positive relationship with the child. Stacy requested shared legal and physical custody of the child, but Sharon asked for sole custody. According to Sharon, the temporary custody and parenting time arrangement was not in the child's best interests, because it caused the child to cry and to be irritable and argumentative. Sharon did not believe that joint physical custody would work on a permanent basis. She anticipated having difficulty obtaining the child's compliance and did not "feel [she] should have to force a l5[-]year-old" to comply with the parenting plan. Stacy testified to a willingness to put aside personal differences and work with Sharon even though he had been unable to do so in the past.

         The parties offered different parenting time plans for the court's consideration. Sharon proposed that Stacy have parenting time every other weekend from after school on Friday until 10 a.m. on Sunday and on Thursdays each week from after school until 8 p.m. But Stacy testified that such a plan would leave him little one-on-one time with the child due to the child's activities and Stacy's work schedule. Stacy essentially asked for an extension of the temporary plan.

         Pensions

         Sharon is a registered nurse, and her proposed child support worksheets show her monthly income to be $3, 693. Through her employer, she has a 40IK account and a pension. She also has a Nebraska Public Employees Retirement Systems account. In Sharon's proposed property division, she included the latter account and the 40 IK under her column at a total value of $38, 301.28. Stacy's proposed property division additionally [302 Neb. 907] included Sharon's pension from her employer at a value of $250 per month.

         Stacy has worked for Union Pacific Railroad for nearly 12 years. He is a "system semi driver," and his proposed child support worksheet showed his monthly income to be $5, 208. Stacy did not have a thorough understanding of his railroad pension, but he believed that the tier I component was not divisible, while the tier II component was. According to Stacy, Sharon was eligible to receive a payment from his railroad pension and she would receive some of his pension after they were divorced even without any order from the court. Stacy's proposed property division suggested that Sharon receive a divorced spouse benefit of unknown value and that he would receive his 40 IK valued at $49, 290. Sharon's proposed property division showed that the "Railroad Retirement Board Creditable Compensation" of unknown value should be divided by a qualified domestic relations order.

         The court received a "Statement of Railroad Employee's Actual or Estimated Railroad Retirement Benefits" dated January 19, 2017, which was furnished for use in connection with a divorce. The statement reflected an estimate of Stacy's current monthly benefit based upon employment with the railroad through December 1, 2015, assuming that he were now retired and entitled to payment of benefits. It showed the following monthly railroad benefit amounts:

Tier I railroad retirement benefit component . . . $956.00
Divisible railroad retirement benefit components
(Tier II, supplemental annuity, dual benefits) . . ...

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