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.
Evidence: Appeal and Error. In a review de
novo on the record, an appellate court is required to make
independent factual determinations based upon the record, and
the court reaches its own independent conclusions with
respect to the matters at issue. When evidence is in
conflict, the appellate court considers and may give weight
to the fact that the trial court heard and observed the
witnesses and accepted one version of the facts rather than
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.
Child Support: Rules of the Supreme Court.
In general, child support payments should be set according to
the Nebraska Child Support Guidelines.
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.
Neb. 495] 6. __: __ . The ultimate test in determining the
appropriateness of the division of property is fairness and
reasonableness as determined by the facts of each case.
Property Division: Proof. The burden of
proof rests with the party claiming that property is
Property Division: Appeal and Error. As a
general principle, the date upon which a marital estate is
valued should be rationally related to the property composing
the marital estate. The date of valuation is reviewed for an
abuse of the trial court's discretion.
Property Division. The marital estate
includes property accumulated and acquired during the
marriage through the joint efforts of the parties.
Property Division: Wages: Equity. To the
extent that employment benefits such as unused sick time,
vacation time, and compensatory time have been earned during
the marriage, they constitute deferred compensation benefits
under Neb. Rev. Stat. § 42-366(8) (Reissue 2016) and are
considered part of the marital estate subject to equitable
Property Division. As a general rule, a
spouse should be awarded one-third to one-half of the marital
estate, the polestar being fairness and reasonableness as
determined by the facts of each case.
Divorce: Property Division: Alimony. In
dividing property and considering alimony upon a dissolution
of marriage, a court should consider 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 supported party to engage in
gainful employment without interfering with the interests of
any minor children in the custody of each party.
Divorce: Property Division. 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 of
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 make it
Alimony: Appeal and Error. In reviewing an
alimony award, an appellate court does not determine whether
it would have awarded the same amount of alimony as did the
trial court, but whether the trial court's award is
untenable such as to deprive a party of a substantial right
or just result. The ultimate criterion is one of
Modification of Decree: Divorce: Child
Custody. If trial evidence establishes a joint
physical custody arrangement, courts will so construe it,
regardless of how prior decrees or court orders have
characterized the arrangement.
Neb. 496] 17. Child Custody: Appeal and
Error. Child custody determinations are matters
initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial
court's determination will normally be affirmed absent an
abuse of discretion.
__. In child custody cases, where the credible evidence is in
conflict on a material issue of fact, 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.
from the District Court for Sarpy County: Stefanie A.
Martinez, Judge. Affirmed in part, affirmed in part as
modified, and in part reversed and remanded with directions.
Christopher Perrone, of Perrone Law, for appellant.
Kathryn D. Putnam, of Astley Putnam, PC, L.L.O., for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Allen Dooling appeals from a decree of dissolution, assigning
errors related to the issues of child support, division of
the marital estate, and alimony. Kristina Michelle Dooling
filed a cross-appeal which concerns the issues of child
support, division of the marital estate, and the award of
joint physical custody. We find error in the court's
child support calculation and its division of certain marital
assets and determine the parties' remaining arguments to
be without merit. Therefore, we affirm in part, affirm in
part as modified, and in part reverse and remand with
and Kristina were married in May 2001 and divorced in January
2018. Three children were born of the marriage. During the
marriage, Shawn was employed as a police officer for the city
of La Vista, Nebraska; Kristina worked part time as a
paraprofessional at a children's school. When the parties
[303 Neb. 497] separated in July 2014, Shawn moved out of the
family residence on South River Rock Drive in Papillion,
Nebraska. The parties maintained a joint checking account and
paid for family expenses from the account. Throughout their
separation, the parties followed a shared parenting time
2015, Kristina filed a complaint for dissolution of marriage
in the district court for Sarpy County which requested
"the temporary and permanent care, physical custody and
control of the minor [children]." Shawn filed an answer
and counterclaim which requested joint legal and physical
custody. Pursuant to temporary orders entered in August 2015,
the parties were awarded joint legal custody and Kristina was
awarded "primary possession" of the children. Shawn
was awarded parenting time every Wednesday and every other
weekend from Friday through Monday. Shawn was ordered to pay
monthly child support in the amount of $1, 412, maintain all
parties on health insurance, pay 72 percent of daycare if
daycare was needed, and make the minimum monthly payment of
$300 on the parties' Visa credit card. Kristina was
awarded exclusive possession of the home and was ordered to
pay the mortgage, taxes, and costs on the home, which totaled
$1, 642 per month. Kristina was ordered to pay the first $480
per year of uninsured health costs for the children. The
court did not award temporary alimony.
family home was sold in May 2016, and the court ordered that
the $20, 857.44 in proceeds be held in trust pending trial.
Trial was held on December 8, 2016, and June 21 and 23, 2017.
The issues tried included custody and parenting time, child
support, alimony, and division of the parties' assets and
debts. The court heard testimony from two La Vista employees,
Kristina, and Shawn.
Evidence of Shawn's Employment Benefits
city clerk of La Vista testified regarding Shawn's
employment contract and benefits. According to this witness,
[303 Neb. 498] upon leaving employment, a city employee who
has attained 10 years of service is paid for unused sick
leave for the amount that exceeds 660 accumulated hours up to
the maximum of 880 hours. The clerk testified that upon
leaving employment, an employee is awarded 100 percent of
compensatory (comp) time. The court also heard from La
Vista's human resources manager, who stated that comp
time is paid out at the end of every fiscal year on September
30, up to a maximum of 75 hours. She also testified that the
city matches the police officers' mandatory 7-percent
contribution to their pensions. Both witnesses testified that
city employees are paid for their unused vacation time upon
leaving employment, up to a maximum of 220 hours.
testified that during the marriage, she worked part time when
school was in session and earned about $10 or $11 an hour. In
August 2015, Kristina obtained her first full-time job where
she earns $13.50 an hour. She worked 40 hours a week with no
401K and no pension. She testified the parties' balance
on their Visa credit card account was $17, 737.82 as of
the parties purchased their house on South River Rock Drive,
they owned a house on South 79th Street in La Vista. Kristina
asked to be compensated for paying $6, 880 to replace the air
conditioner in the South 79th Street house in 2010. She
claimed she paid for the air conditioner using premarital
funds kept in a Canadian bank account. Kristina testified the
account originally held approximately $30, 000 in Canadian
dollars received from a personal injury settlement when she
was 16 years old. She claimed she transferred $8, 000 out of
the Canadian bank account to pay for the air conditioner. She
produced a bank statement from February 2001 showing a
Canadian bank account held by Kristina and her father
contained $29, 580.95 in Canadian dollars and another
statement from 2015 showing these funds had been depleted. On
cross-examination, Kristina admitted that Shawn purchased
[303 Neb. 499] a new air conditioner for the South River Rock
Drive residence after the parties had separated.
acknowledged the parties received a check for $20, 857.44 in
proceeds from the sale of the home on South River Rock Drive.
The parties received an additional check in the amount of $2,
848.93 from escrow for excess real estate taxes, which they
agreed to divide equally. When the home was sold, the parties
originally agreed to pay their marital debt from the sale
proceeds, but Kristina later claimed that she should receive
the majority of the sale proceeds, reasoning she was
responsible for making house payments, cleaning the home,
painting interior walls, and selling the home "without a
realtor." In particular, she noted that to prepare the
house for closing, she spent $810 to mudjack the front porch.
testified that despite the temporary order giving Shawn
parenting time every Wednesday and every other weekend,
Friday through Monday, she allowed Shawn additional parenting
time. At that time, Shawn was working as a detective and as a
sniper on the SWAT team and held irregular hours. From
approximately January to May 2016, Shawn's parenting time
ranged between 5 and 11 overnight visits per month. In lieu
of daycare, Shawn picked up the children and took them to
school and saw them after school almost every day. Kristina
requested the court award joint legal custody and a parenting
plan schedule consistent with the temporary order.
testified that at the time of trial, he had transferred to a
road patrol position and that his hourly wage decreased from
$36.04 to $34.54. He asked that the parenting schedule under
the temporary order be adjusted to fit his new work schedule.
He testified he now works 7 days in a 14-day period,
consisting of workdays on Monday, Tuesday, Friday, Saturday,
and Sunday during 1 week and Wednesday and Thursday the
following week. He asked to be awarded parenting time for the
7 out of 14 days that he is not working.
Neb. 500] Shawn testified that during the marriage, Kristina
did not express a desire to be repaid for premarital money
spent for family purposes. Shawn stated that he knew Kristina
sometimes received money from her father and that he did not
know when or how much money was spent from the Canadian
account. Shawn pointed out that Kristina purchased the air
conditioner for the prior home in 2010. He asked that the
court give him credit for making certain postseparation
payments, including $7, 792 on the Visa credit card and about
$4, 000 to pay off a loan for the new air conditioner in the
most recent home.
exhibit introduced into evidence showed that Shawn received
monthly Veterans Affairs disability payments in the amount of
court issued tentative written findings in August 2017 and
asked Kristina's counsel to prepare a decree in
conformity therewith, after which both parties filed motions
for reconsideration. The court then issued supplemental
findings which modified the previous findings in several
respects. The trial judge retired from the bench shortly
thereafter, and the case was reassigned. Kristina's trial
counsel withdrew, filed an attorney lien, and was replaced
with new counsel.
judge entered a decree of dissolution on January 8, 2018. The
decree incorporated the prior judge's tentative and
supplemental findings and ordered the following:
• The parties were awarded joint legal custody. Kristina
was awarded "primary possession" of the children,
subject to Shawn's parenting time.
• The parenting plan awarded Shawn 6 of every 14 days
and 4 additional weeks of summer parenting time for a total
of 172 days of custody of the children.
• Kristina was not awarded any summer parenting time
other than her regular parenting time.
• Shawn was ordered to maintain health insurance for the
children; the parties were to equally share the costs of the
[303 Neb. 501] children's uninsured health expenses;
Shawn was ordered to maintain Kristina's health insurance
for 6 months.
• Shawn was ordered to pay $882 in monthly child
• Shawn was ordered to pay monthly alimony of $500 for a
period of 60 months.
• The court valued the marital assets as of August 1,
2015. The decree sometimes referred to this date as the date
of separation, even though the parties separated in July
• The court awarded Kristina $7, 690.80 of the house
proceeds "for monies expended to make the house
marketable" and evenly divided the balance of the
• The court equally divided Shawn's retirement,
valued at $108, 468.41, pursuant to a qualified domestic
• The court equally divided Shawn's vacation and
comp time and ordered Shawn to pay Kristina $5, 754.69 within
90 days. The court did not award ...