Brandi J. Anderson, appellee and cross-appellant.
Donald J. Anderson, appellant And Cross-Appellee.
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.
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.
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.
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.
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.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.
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
. Exceptions to the rule that all property accumulated and
acquired during the marriage is marital property include
property accumulated and acquired through gift or
Divorce: Property Division: Proof. The
burden of proof to show that property is nonmarital remains
with the person making the claim.
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.
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.
Divorce: Property Division. Marital assets
dissipated by a spouse for purposes unrelated to the marriage
should be included in the marital estate in dissolution
_:_. Debts, like property, ought to also be considered in
dividing marital property upon dissolution.
_ . 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.
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.
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.
_: _. 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.
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.
_. An appellate court is not inclined to disturb the trial
court's award of alimony unless it is patently unfair on
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
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
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.
Divorce: Attorney Fees. A uniform course of
procedure exists in Nebraska for the award of attorney fees
in dissolution cases.
_. Attorney fees and costs are often awarded to prevailing
parties in dissolution cases as a matter of custom.
_. 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
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.
from the District Court for Hall County: Mark J. Young,
Judge. Affirmed as modified.
Porto, of Porto Law Office, for appellant.
Neb.App. 550] Nicholas D. Valle, of Langvardt, Valle &
James, P.C., L.L.O.. for appellee.
Riedmann, Arterburn, and Welch, Judges.