Leners v. Leners , 925 N.W.2d 704 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/19/2019 08:05 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
LENERS v. LENERS
Cite as 302 Neb. 904
Sharon B. Leners, appellant, v.
Stacy M. Leners, appellee.
___ N.W.2d ___
Filed April 19, 2019. No. S-18-072.
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 depriv-
ing 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 attor-
ney 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.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
LENERS v. LENERS
Cite as 302 Neb. 904
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Affirmed.
Philip B. Katz and Steven J. Riekes, of Marks, Clare &
Richards, L.L.C., for appellant.
Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C.,
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 mar-
riage 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 equita-
bly 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 com-
plaint 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 1st 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 summa-
rize only the evidence relevant to the issues on appeal.
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LENERS v. LENERS
Cite as 302 Neb. 904
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 testi-
fied in camera, and the court sealed her testimony. We consider
this testimony in our de novo review, but decline to summa-
rize 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 15[-]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 parent-
ing 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 401K account and a pension. She also
has a Nebraska Public Employees Retirement Systems account.
In Sharon’s proposed property division, she included the lat-
ter account and the 401K under her column at a total value of
$38,301.28. Stacy’s proposed property division additionally
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LENERS v. LENERS
Cite as 302 Neb. 904
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 sup-
port 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 prop-
erty division suggested that Sharon receive a divorced spouse
benefit of unknown value and that he would receive his 401K
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 rail-
road through December 1, 2015, assuming that he were now
retired and entitled to payment of benefits. It showed the fol-
lowing monthly railroad benefit amounts:
Tier I railroad retirement benefit component . . .     $956.00
Divisible railroad retirement benefit components
(Tier II, supplemental annuity, dual benefits) . . . $253.50
Total  monthly  railroad  retirement  benefits . . .  $1,209.50
Caution: The Tier I benefit component is not subject
to division, and the Railroad Retirement Board will not
recognize any property division made with respect to it.
The statement contained a section addressing the “Railroad
Retirement Divorced Spouse Benefit Estimate.” That section
provided: “Assuming current entitlement under the Railroad
Retirement Act, the divorced spouse benefit for the spouse
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LENERS v. LENERS
Cite as 302 Neb. 904
of this railroad employee would be an estimated $441.00 per
month, effective May 1, 2037, minus any social security ben-
efits for the same month.”
Attorney Fees
Sharon informed Stacy that she was “not going to deal with
him” and that any communications had to go through their
attorneys. According to Sharon, the parties cannot “get along”
and the police had been called five or six times to “keep the
peace.” Stacy testified that he had incurred significant attorney
fees to obtain parenting time and to obtain access to personal
property. He testified he incurred attorney fees unnecessarily,
and an exhibit showed his fees to be $14,982.50 prior to trial.
Sharon’s attorney fees amounted to $13,867.75.
Decree
The court dissolved the parties’ marriage. It specifically
found Stacy’s testimony to be more credible than the testimony
of Sharon. The court characterized the matter as “extremely
contentious,” explaining:
The parties have involved law enforcement multiple
times, they have each requested temporary relief from the
court including motions for temporary custody, parenting
time, access to the marital home, possession of personal
property, payment of expenses and support issues. They
have each said and done things not becoming including
but not being limited to name calling. The parties have
made it very clear to one another, and to the Court, that
they are not able to get along.
The court awarded the parties shared legal and physical
custody of the children. It adopted the parenting time sched-
ule proposed by Stacy, which awarded Stacy regular parent-
ing time on the same days set forth in the temporary order.
The court ordered each party to be responsible for one-half
of the reasonable and necessary medical expenses of the
child and of any mutually agreed-upon expenses for the
child’s activities.
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LENERS v. LENERS
Cite as 302 Neb. 904
The court awarded Sharon as her sole and separate property
her 401K and pension and her Nebraska Public Employees
Retirement Systems account. It awarded Stacy as his sole and
separate property his Union Pacific Railroad pension and his
401K. The court entered judgment in favor of Sharon in the
amount of $50,019 and ordered that Sharon pay Stacy $9,000
for his attorney fees.
Following the court’s denial of Sharon’s timely motion for
new trial and motion to alter or amend, she brought this timely
appeal. We moved the case to our docket.1
ASSIGNMENTS OF ERROR
Sharon assigns that the court erred in (1) interpreting federal
law regarding retirement benefits that may be available for
equitable distribution, (2) awarding joint custody and equal
parenting time, (3) failing to allocate child expenses, and (4)
awarding attorney fees to Stacy.
STANDARD OF REVIEW
[1] 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 regard-
ing custody, child support, division of property, alimony, and
attorney fees.2
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.3
ANALYSIS
R etirement Benefits
Retirement pensions for railroad employees are governed
by federal law. The Railroad Retirement Act of 19744 provides
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 582 (2018).
3
Gerber v. P & L Finance Co., 301 Neb. 463, 919 N.W.2d 116 (2018).
4
45 U.S.C. § 231 et seq. (2012).
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LENERS v. LENERS
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two tiers of benefits.5 Tier I benefits correspond to those an
employee would receive if covered by the Social Security
Act.6 Tier II benefits are like a private pension, and the ben-
efits are tied to earnings and career service.7 “In the past,
courts were prohibited from awarding one spouse an interest
in benefits to which the other spouse became entitled under
the Railroad Retirement Act.”8 But Congress amended the act,
and the Railroad Retirement Board must “honor a decree of
divorce characterizing tier II benefits as property subject to
distribution.”9 Tier I benefits remain excluded from consider-
ation as divisible marital property.10
[3] In dissolution proceedings, the trial court has broad
discretion in valuing and dividing pension rights between the
parties.11 Here, the court awarded each party his or her own
401K and pension as that party’s sole and separate property.
Sharon argues that the court erred in interpreting federal
law regarding retirement benefits available for equitable dis-
tribution and that the court should have equitably divided
Stacy’s tier II pension benefits. But it appears that the court’s
awarding each party his or her own pension was an effort to
equitably divide the entire marital estate: an effort unaided
by any evidence as to a present dollar value for either pen-
sion. The record does reflect that Sharon’s pension would
amount to approximately $250 per month, while the tier II
component of Stacy’s pension would be $253.50 per month
for “reduced age” or $360 per month for “full age and serv­
ice annuity.” The record does not show whether Sharon’s
5
See Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1
(1979).
6
See id.
7
See id.
8
Shearer v. Shearer, 270 Neb. 178, 181, 700 N.W.2d 580, 584 (2005).
9
Id., citing 45 U.S.C. § 231m(b)(2) (2000), and 20 C.F.R. § 295.1 (2005).
10
See McGraw v. McGraw, 186 W. Va. 113, 411 S.E.2d 256 (1991).
11
Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
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monthly pension amount is “reduced age.” Either way, we
find no abuse of discretion by the court in awarding Stacy
his railroad pension.
Sharon also contends that the court erroneously assumed
she would receive a divorced spouse annuity. In connection
with awarding each party his or her own pension, the court
explained:
In so ordering, the Court notes that as it currently stands,
[Sharon] shall receive a substantial sum from Union
Pacific as a divorced spouse pension. [Stacy’s] pension
(employee annuity) amount shall be his and his alone. To
allow [Sharon] to receive her entire share of the divorced
spouse pension (ranging between $441 and $679), plus
half of his pension ($1209 divided by 2 = $604.50 or
$17[1]9 divided by 2 = $859.50) would result in her pen-
sion payout being nearly 2/3s of the total. Such a result
is inequitable. In reaching this conclusion, the Court has
taken into account that [Sharon] shall receive all of her
$250 monthly pension from [her employer].
We agree with Sharon that there is no guarantee she will
receive “a substantial sum from Union Pacific as a divorced
spouse pension.” To be eligible, a divorced wife must not
be married12 and must not be entitled to Social Security ben-
efits greater than the divorced spouse annuity.13 This error
favored Stacy. But, on the other hand, the court’s calculation
of the divisible portion of Stacy’s pension erroneously favored
Sharon. Because federal law precludes marital division of tier I
benefits, the correct numbers for Stacy’s tier II pension would
have been between $253.50 and $360 instead of $1,209 and
$1,719. Thus, even assuming that Sharon would be entitled to
no divorced spouse annuity, we find no abuse of discretion in
the court’s equitable division of the marital estate.
12
See 45 U.S.C. § 231a(c)(4)(ii).
13
See, 45 U.S.C. § 231a(f)(2); 20 C.F.R. § 226.30(f) (2018).
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LENERS v. LENERS
Cite as 302 Neb. 904
Custody and Parenting Time
The court awarded the parties shared legal and physical cus-
tody and equal parenting time. Sharon argues that the arrange-
ment is not in the younger child’s best interests and that the
court should have awarded her primary custody and parent-
ing time.
[4] Nebraska law explicitly provides that a court shall con-
sider “[t]he desires and wishes of the minor child, if of an age
of comprehension but regardless of chronological age, when
such desires and wishes are based on sound reasoning.”14 We
have held that 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.15 In our de novo review, we have
considered the child’s age, her preference, and her reasoning.
Her testimony concerning her relationship with each parent and
custody preference did not contradict the parties’ testimony
that they each had a good relationship with the child.
[5,6] 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.16 In a marital dissolution action, we conduct such a
review to determine whether the trial judge abused its discre-
tion.17 A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition.18
Here, both parties are fit and proper parents. The court
attempted to fashion a parenting time schedule that would
14
Neb. Rev. Stat. § 43-2923(6)(b) (Reissue 2016).
15
See Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
16
Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).
17
See id.
18
Id.
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accommodate Stacy’s rather unusual work schedule, minimize
the communication and coordination between the parties, and
still serve the child’s best interests. The court observed that
Sharon’s parenting plan—which would allow Stacy parenting
time on four overnights twice a month but would vary on days
of the week and days of the calendar—would require the par-
ties to frequently communicate and cooperate in order to avoid
conflict. The court reasoned:
It is in the best interest of the minor children that they
have a good, strong, positive relationship with each par-
ent. To have the same, it is necessary for each parent to
have significant periods of time with the minor children.
The best way to ensure the fewest exchanges for the
minor child and minimize the contact between the parties
is to set a schedule based on the known factors including
[Stacy’s] work schedule. By doing so, it is established
exactly what the parenting time schedule is and eliminates
the strong possibility of further conflict or disagreement
between the parties.
Although the court referred to “children,” from the context,
it is clear that the court’s decree addressed only the younger
child.
Here, the court decreed “shared” rather than “joint” cus-
tody. But, at least here, that seems to be a matter of semantics.
And we recognize that we have said joint physical custody
must be reserved for those cases where, in the judgment
of the trial court, the parents are of such maturity that the
arrangement will not operate to allow the child to manipu-
late the parents or confuse the child’s sense of direction,
and will provide a stable atmosphere for the child to adjust,
rather than perpetuating turmoil or custodial wars.19 While
generally sensible, this is not a hard-and-fast rule. A statute
specifically provides that a court may order joint custody “if
19
See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
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the court specifically finds, after a hearing in open court, that
joint physical custody or joint legal custody, or both, is in the
best interests of the minor child regardless of any parental
agreement or consent.”20 And we have affirmed a trial court’s
decision not to modify an award of joint legal custody even
though the evidence showed that the parties continued to have
difficulty communicating and cooperating with one another.21
In light of Stacy’s unusual work schedule, the court’s favor-
able contrast of his credibility and reasonableness to Sharon’s,
and the child’s relationship with both parents, we cannot say
that the court’s award of shared custody and parenting time
is untenable.
A llocation of Expenses
Because we are affirming the award of shared custody, we
consider Sharon’s claim that the court erred in failing to allo-
cate expenses. Sharon argues that except for medical expenses
provided in the decree, the court did not require that “all rea-
sonable and necessary expenses of the child, including but not
limited to clothing and extracurricular activities, be equally
divided and not require any mutual agreement.”22
A statute requires a decree to address the parties’ respon-
sibility for certain child expenses. “A decree of dissolution
. . . shall incorporate financial arrangements for each party’s
responsibility for reasonable and necessary medical, dental,
and eye care, medical reimbursements, day care, extracurricu-
lar activity, education, and other extraordinary expenses of the
child and calculation of child support obligations.”23 And Neb.
Ct. R. § 4-212 (rev. 2011) provides that when child support
20
See Neb. Rev. Stat. § 42-364(3)(b) (Cum. Supp. 2018).
21
See State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d
230 (2015).
22
Brief for appellant at 23 (emphasis in original).
23
Neb. Rev. Stat. § 42-364.17 (Reissue 2016).
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is to be calculated using worksheet 3, “all reasonable and
necessary direct expenditures made solely for the [child] such
as clothing and extracurricular activities shall be allocated
between the parents.”
The decree, together with attachments, allocated the neces-
sary expenses. As Sharon observes, the decree ordered the
parties to each be responsible for one-half of the reasonable
and necessary medical expenses. The parenting plan addition-
ally required the parties to each “be responsible for the cloth-
ing, personal property, food and entertainment of the children
during their own parenting time” and to “pay one-half of any
mutually agreed upon expenses for activities of the minor
children so long as the same is clearly stated and agreed to in
writing prior to such expense being incurred.”
Although Sharon’s brief was not entirely clear, she con-
firmed that she was arguing that the district court should not
have made any of the expenses for extracurricular activities
subject to mutual agreement. Or, stated another way, that the
decree should have required one parent to pay one-half of the
child’s expenses for extracurricular activities authorized solely
by the other parent. We do not agree that § 4-212 requires a
trial judge to grant one parent carte blanche to compel the other
parent to pay (either wholly or partially) for every conceivable
extracurricular activity for a child. Certainly, the parties may
agree to divide extracurricular activities in that way.24 But here,
they did not agree.
Section 4-212 contemplates allocation between the parents
of “all reasonable and necessary direct expenditures made
solely for the [child] such as . . . extracurricular activities.”
The record here does not establish that all of the child’s poten-
tial expenses for extracurricular activities met that standard.
And given the acrimonious dispute on virtually every issue
and the court’s assessment of Sharon’s credibility regarding an
24
See Moore v. Moore, ante p. 588, 924 N.W.2d 314 (2019).
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extracurricular activity, the court could reasonably anticipate
that the reasonableness and necessity of such expenses would
be another source of contention—particularly if the court per-
mitted Sharon to unilaterally dictate which activities would be
permitted. Although Sharon filed a motion to alter or amend
the decree, her motion did not specify any particular expenses
to be so allocated. The tenor of the court’s decree shows that it
trusted Stacy, but not Sharon, to be reasonable. If subsequent
events show that Stacy responds unreasonably, the court has
the tools to compel an equitable solution. We conclude that the
court did not abuse its discretion in allocating reasonable and
necessary expenses of the child.
Attorney Fees
Sharon contends that the court abused its discretion by order-
ing her to pay Stacy $9,000 in attorney fees. Stacy requested
such an award, but the decree did not specifically explain why
the court imposed these fees. Nonetheless, from the court’s
specific findings, we discern a legal rationale.
[7] Courts have the inherent power to award attorney fees in
certain unusual circumstances amounting to conduct during the
course of litigation which is vexatious, unfounded, and dila-
tory, such that it amounts to bad faith.25 The decree set forth
specific findings identifying Sharon’s conduct.
The court found that Sharon “doused in diesel fuel” some
of Stacy’s clothing and destroyed Stacy’s grandmother’s dishes
by “intentionally shooting [them] with a gun.” Sharon admitted
that at the beginning of the proceeding, she told Stacy repeat-
edly in text messages that because he was the one who left, he
was going to have to “pay for it.” Clearly, this conduct was,
and was intended to be, vexatious. There was evidence that
Stacy incurred attorney fees attempting to obtain parenting
time and access to personal property and relating to the filing
of tax returns.
25
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
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The court’s decree provided a number of examples why
it found Stacy’s testimony to be more credible, recounting
numerous instances where Sharon’s testimony was unfounded.
According to the decree:
[Sharon’s] testimony regarding the creation of the calen-
dars she purported to have been created simultaneously
with the events proved to be inaccurate in that the cal-
endars were printed in March of 2017 and purported to
reflect events dating back six months prior[, and] was
not credible. [Sharon’s] testimony regarding her lack of
knowledge of the birthdate, approximate age or address
of the gentleman she had been dating for seven months
prior was suspect. [Sharon’s] testimony that [the older
child] lived in the marital home through the date of trial
was admitted to be false on cross examination when she
admitted that [the older child] had not stayed overnight
in the home since May of 2017. [Sharon’s] testimony
that [the older child] has never stayed overnight with
[Stacy] since separation was admitted to be false on
cross-­examination. [Sharon’s] testimony that she did all
of the transporting of [the younger child] during the mar-
riage was also admitted to be false on cross examination
when she admitted that when [Stacy] was not working,
he picked [the child] up from school each day. [Sharon’s]
testimony in her affidavit for temporary custody and her
matching testimony at trial that [Stacy] promised to pay
one-half of the current cheer bill of $260 a month was
also admitted by her on cross examination to be false
when she admitted that [Stacy] told her he could not
afford to pay the increased fee of $260 a month (com-
pared to the $110 a month) for [the cheer bill] and further
she admitted that he had never agreed to pay it.
The record supports Stacy’s testimony that the attorney
fees he incurred were often unnecessary and resulted from
Sharon’s vexatious, unfounded, and dilatory conduct. Having
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reviewed the record along with the parties’ arguments, we can-
not say that the court’s award of attorney fees was an abuse
of discretion.
CONCLUSION
Having reviewed the record de novo, we conclude that the
court did not abuse its discretion in awarding Stacy his railroad
pension, ordering shared custody and parenting time, address-
ing reasonable and necessary child expenses, and awarding
attorney fees. We therefore affirm the decree.
A ffirmed.