Sharon B. Leners, appellant,
Stacy M. Leners, appellee.
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.
Statutes: Appeal and Error. Statutory
interpretation is a question of law, which an appellate court
resolves independently of the trial court.
Divorce: Property Division: Pensions. In
dissolution proceedings, the trial court has broad discretion
in valuing and dividing pension rights between the parties.
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
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.
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.
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.
Neb. 905] Appeal from the District Court for Gage County:
Ricky A. Schreiner, Judge.
B. Katz and Steven J. Riekes, of Marks, Clare & Richards,
L.L.C., for appellant.
M. Zobel, of Anderson, Creager & Wittstruck, PC, L.L.O.,
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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
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.
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.
weeks later, the court conducted a trial. We summarize only
the evidence relevant to the issues on appeal.
Neb. 906] Custody
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
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.
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
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.
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
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) . . ...