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Anderson v. Anderson

Court of Appeals of Nebraska

September 3, 2019

Brandi J. Anderson, appellee and cross-appellant.
v.
Donald J. Anderson, appellant And Cross-Appellee.

         1. Divorce: 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.

         2. 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.

         3. 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.

         4. _: _ . 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 another.

         5. Divorce: Attorney Fees: Appeal and Error. In an action involving a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

         6. 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.

         [27 Neb.App. 548] 7. _: _ . The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case.

         8._:_. As a general rule, all property accumulated and acquired by either party during the marriage is part of the marital estate, unless it falls within an exception to the general rule.

         9._: _ . Exceptions to the rule that all property accumulated and acquired during the marriage is marital property include property accumulated and acquired through gift or inheritance.

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

         11. Divorce: 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.

         12. Divorce: Property Division: Words and Phrases. "Dissipation of marital assets" is defined as one spouse's use of marital property for a selfish purpose unrelated to the marriage at the time when the marriage is undergoing an irretrievable breakdown.

         13. Divorce: Property Division. Marital assets dissipated by a spouse for purposes unrelated to the marriage should be included in the marital estate in dissolution actions.

         14. _:_. Debts, like property, ought to also be considered in dividing marital property upon dissolution.

         15. _: _ . When one party's nonmarital debt is repaid with marital funds, the value of the debt repayments ought to reduce that party's property award upon dissolution.

         16. Child Support: Evidence. Generally, earning capacity should be used to determine a child support obligation only when there is evidence that the parent can realize that capacity through reasonable efforts.

         17. 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.

         18. _: _: _. In addition to the specific criteria listed in Neb. Rev. Stat. § 42-365 (Reissue 2016), in dividing property and considering alimony upon a dissolution of marriage, a court should consider the income and earning capacity of each party and the general equities of the situation.

         [27 Neb.App. 549] 19. 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 reasonableness.

         20. _: _. An appellate court is not inclined to disturb the trial court's award of alimony unless it is patently unfair on the record.

         21. Visitation. The trial court has discretion to set a reasonable parenting time schedule.

         22. _ . A reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent, and the determination of reasonableness is to be made on a case-by-case basis.

         23. _ . Parenting time relates to continuing and fostering the normal parental relationship of the noncustodial parent.

         24. _ . The best interests of the children are the primary and paramount considerations in determining and modifying visitation rights.

         25. Attorney Fees. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

         26. Divorce: Attorney Fees. A uniform course of procedure exists in Nebraska for the award of attorney fees in dissolution cases.

         27. _: _. Attorney fees and costs are often awarded to prevailing parties in dissolution cases as a matter of custom.

         28. _: _. In awarding attorney fees in a dissolution action, a court shall consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

         29. Attorney Fees: Affidavits: Evidence. Where a party seeks to recover attorney fees, the best practice will always be to provide an affidavit or other evidence such as testimony or exhibits. Litigants who do not file such an affidavit or present other evidence risk the loss of attorney fees because of the difficulty of discerning such information from the record alone.

          Appeal from the District Court for Hall County: Mark J. Young, Judge. Affirmed as modified.

          Mark Porto, of Porto Law Office, for appellant.

         [27 Neb.App. 550] Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O.. for appellee.

          Riedmann, Arterburn, and Welch, Judges.

          ...


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