Becher v. Becher , 299 Neb. 206 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/26/2018 09:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
BECHER v. BECHER
Cite as 299 Neb. 206
Sonia Becher, appellee and cross-appellant,
v. M ark A. Becher, appellant
and cross-appellee.
___ N.W.2d ___
Filed March 9, 2018. Nos. S-16-054, S-16-793.
1. Statutes: Appeal and Error. Statutory language is to be  given its
plain and ordinary meaning, and an appellate court will not resort to
interpretation to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.
2. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
3. Appeal and Error. Generally, a party cannot complain of error which
the party has invited the court to commit.
4. Verdicts: Evidence: Appeal and Error. The recommended factual
findings of a special master have the effect of a special verdict, and the
report upon questions of fact, like the verdict of a jury, will not be set
aside unless clearly against the weight of the evidence.
5. Trial: Judgments. Neb. Rev. Stat. § 25-1131 (Reissue 2016) does not
require a district court reviewing a referee’s decision to make spe-
cific findings.
6. Statutes. To the extent there is a conflict between two statutes on the
same subject, the specific statute controls over the general.
7. Child Custody: Visitation: Courts. A trial court has an independent
responsibility to determine questions of custody and visitation of minor
children according to their best interests, which responsibility cannot be
controlled by an agreement or stipulation of the parties.
8. 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
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regarding custody, child support, division of property, alimony, and
attorney fees.
9. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determina-
tions 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 another.
10. Property Division. With some exceptions, the marital estate does
not include property acquired by one of the parties through gift or
inheritance.
11. 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.
12. Waiver: Appeal and Error. Whether a party waived his or her right to
appellate review is a question of law.
13. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusions.
14. Estoppel. The doctrine of equitable estoppel is applied to transactions
in which it is found that it would be unconscionable to permit a person
to maintain a position inconsistent with one in which he or she has
acquiesced or of which he or she has accepted any benefit.
15. Divorce: Judgments: Waiver: Appeal and Error. A spouse who
accepts the benefits of a divorce judgment does not waive the right to
appellate review under circumstances where the spouse’s right to the
benefits accepted is conceded by the other spouse, the spouse was enti-
tled as a matter of right to the benefits accepted such that the outcome
of the appeal could have no effect on the right to those benefits, or the
benefits accepted are pursuant to a severable award which will not be
subject to appellate review.
16. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed is reviewed for abuse of discretion.
17. Courts: Restitution: Contempt. Through its inherent powers of con-
tempt, a court may order restitution for damages incurred as a result of
failure to comply with a past order.
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BECHER v. BECHER
Cite as 299 Neb. 206
18. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and R iedmann and Bishop, Judges, on
appeal thereto from the District Court for Lancaster County,
Steven D. Burns, Judge. Judgment of Court of Appeals in No.
S-16-054 affirmed in part, and in part reversed and remanded
with directions.
Appeal from the District Court for Lancaster County:
Steven D. Burns, Judge, and K aren Flowers, Judge, Retired.
Judgment in No. S-16-793 affirmed.
David P. Kyker for appellant in Nos. S-16-054 and S-16-793.
Brad Sipp for appellant in No. S-16-054.
Sally A. Rasmussen, of Mattson Ricketts Law Firm, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, K elch, and
Funke, JJ.
Cassel, J.
I. INTRODUCTION
These two appeals, which have been consolidated in this
court, stem from marital dissolution proceedings. One chal-
lenged the district court’s decree, and is before us on further
review of a Nebraska Court of Appeals’ decision.1 Primarily,
we disagree with the Court of Appeals’ determination that a
district court must state specific findings in order to set aside
or modify a referee’s report authorized by chapter 25 of the
Nebraska Revised Statutes (Chapter 25)2 as clearly against
the weight of the evidence. In this appeal, we affirm in part,
1
Becher v. Becher, 24 Neb. Ct. App. 726, 897 N.W.2d 866 (2017).
2
See Neb. Rev. Stat. §§ 25-1129 to 25-1137 (Reissue 2016) (authorizing
trial by referee).
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and in part reverse and remand with directions. The assigned
errors in the second appeal, flowing from contempt proceed-
ings, lack merit. In that appeal, we affirm.
II. BACKGROUND
1. A ppeal No. S-16-054
Mark A. Becher and Sonia Becher were married for 21
years before Sonia filed a complaint for dissolution of mar-
riage in 2013. Because they could not agree to the valuation
and division of their vast marital estate or to the award of child
custody, child support, alimony, and attorney fees and costs,
they agreed to have these issues tried before a court-appointed
referee. The consent cited § 25-1129 et seq.
(a) District Court Proceedings
After a 14-day trial, the referee submitted a report describ-
ing its findings of fact on uncontested issues and its “analy-
sis and recommendations” which are set forth in more detail
below. Both parties initially filed exceptions to the report, but
Mark later withdrew his. Therefore, only Sonia’s exceptions
and the voluminous record produced at trial were submitted to
the district court on review of the referee’s report.
The district court entered a final decree in December 2015
in which it adopted some of the referee’s factual findings and
recommendations and set forth its own findings and conclu-
sions on other issues. Specific findings and conclusions are
discussed in our analysis.
(b) Appeal to Court of Appeals
Mark timely appealed and challenged the district court’s
review and consideration of the referee’s report. He assigned
error to certain findings of the court regarding the classifica-
tion, valuation, and division of the parties’ assets and debts;
custody and parenting time; child support; alimony; and attor-
ney fees. Sonia cross-appealed and assigned error to the court’s
allocation of holiday parenting time and its failure to classify
certain property as nonmarital.
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BECHER v. BECHER
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The Court of Appeals found several of Mark’s assigned
errors had been waived pursuant to the acceptance of benefits
doctrine and for failure to take exception to the referee’s report.
After concluding that the majority of the issues were preserved
for appeal, it addressed the remaining assigned errors concern-
ing the district court’s revisions of the referee’s report.
The Court of Appeals reviewed Nebraska precedents which
generally provided that a referee’s findings are treated like a spe-
cial verdict and can be set aside only where it is “‘clearly against
the weight of the evidence.’”3 However, the court also relied on
a case from the District Court of Appeal of Florida4 to find that a
trial court must explicitly determine that a referee’s findings are
clearly against the weight of the evidence before setting aside or
modifying a referee’s report. With this new standard, the Court
of Appeals concluded that the district court failed to apply the
correct standard of review. The Court of Appeals then vacated
those portions of the decree where the district court made find-
ings and conclusions that were inconsistent with the referee’s
report and modified it to incorporate the findings and conclu-
sions of the referee.5
We granted Mark’s and Sonia’s petitions for further review
to address the correct standard of review owed to the findings
and recommendations of court-appointed referees.
2. A ppeal No. S-16-793
While the first appeal was pending before the Court of
Appeals, Mark and Sonia each filed cross-motions for orders
3
Brown v. O’Brien, 4 Neb. 195, 198 (1876). See, also, Mid America Agri
Products v. Rowlands, 286 Neb. 305, 835 N.W.2d 720 (2013) (reviewing
recommended findings of special master appointed by Nebraska Supreme
Court); Larkin v. Ethicon, Inc., 251 Neb. 169, 556 N.W.2d 44 (1996)
(reviewing recommended findings of special master appointed by Nebraska
Supreme Court); Hodges v. Graham, 71 Neb. 125, 98 N.W. 418 (1904);
Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450 (1888).
4
Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. App. 1974).
5
Becher v. Becher, supra note 1.
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to show cause, alleging numerous violations of the district
court’s decree. Because the parties contest only a few of the
findings of contempt, only those allegations and findings rel-
evant to this appeal are set forth.
Sonia alleged that Mark entered her residence uninvited,
caused damage to the residence, and removed personal prop-
erty that was not awarded to him under the decree. She fur-
ther alleged that he repeatedly entered one of her commercial
buildings without authorization, caused damage to the prop-
erty, and removed property from the building that was not
awarded to him under the decree.
Mark alleged that Sonia failed to deliver certain personal
property awarded to him under the decree. At the hearing,
Sonia admitted to having sold certain items awarded to Mark,
but maintained that several of the listed items were actually
awarded to her. She alleged that she did not have any of the
other items of property.
The district court entered orders of contempt against both
Mark and Sonia. The court did not make any findings as to
whether Mark entered Sonia’s home or commercial building
unauthorized, caused damage to the properties, or otherwise
removed property from those locations. Rather, it disposed
of these allegations with a blanket denial of all other relief
requested. In its order of contempt against Sonia, the court
found that she willfully and contumaciously failed to com-
ply with the decree requiring she turn over all the property
listed. Instead of ordering that she turn over the property, the
court entered a judgment against Sonia and required that she
pay $2,500 as “compensation for the property she did not
turn over.”
Mark timely appealed, and Sonia cross-appealed. We
moved the appeal to our docket6 and consolidated the appeal
with the appeal in case No. S-16-054 for oral argument and
disposition.
6
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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BECHER v. BECHER
Cite as 299 Neb. 206
III. ASSIGNMENTS OF ERROR
In appeal No. S-16-054, the dissolution proceeding, Mark
assigns that the Court of Appeals erred in (1) finding that he
waived his right to appeal the award of three commercial prop-
erties to Sonia, because he quitclaimed the deeds to Sonia in
compliance with the district court’s decree; (2) adopting the
referee’s determination of custody and parenting time instead
of remanding the issues to consider new developments in the
18 months the appeal has been pending; and (3) not remanding
for further hearing to conduct a complete accounting.
Sonia assigns that the Court of Appeals erred in (1) applying
its standard of review and (2) concluding that the acceptance of
benefits doctrine did not bar Mark’s appeal as it relates to the
division of property.
In appeal No. S-16-793, the civil contempt proceeding,
Mark assigns that the district court (1) erred in modifying its
decree of dissolution while the appeal of the decree was pend-
ing, (2) abused its discretion in ordering Sonia to pay restitu-
tion for selling or retaining personal property awarded to Mark
in an amount less than the value of the property, and (3) abused
its discretion and violated Mark’s right to due process in refus-
ing to permit Mark to offer evidence or otherwise rebut Sonia’s
evidence in support of her motion for contempt.
Sonia cross-appeals and assigns that the district court erred
in failing to find Mark in contempt for (1) his unauthorized
entry into Sonia’s home and the damage he caused while at the
home and (2) his unauthorized entry into Sonia’s commercial
building and the removal of property not awarded to him in
the decree.
IV. ANALYSIS
1. Standard of R eview of Chapter 25
R eferee’s R eport
Sonia argues that the Court of Appeals incorrectly applied
its standard of review, because it “took issue with the fact that
the trial judge had not specifically stated the referee’s report
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BECHER v. BECHER
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(in certain, limited respects) was ‘against the weight of the
evidence.’”7 We agree. In addressing this assignment of error,
it is first necessary to clarify the standard of review owed to
a court-appointed referee’s findings. Because the referee in
this case additionally made findings and recommendations as
to child custody, child support, and alimony, it is also neces-
sary to discuss the effect of the child support referee statutes8
and the Parenting Act.9 This requires statutory interpretation.
Therefore, we begin by recalling basic guiding principles of
statutory interpretation.
[1,2] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.10 It is not within the province of the
courts to read a meaning into a statute that is not there or to
read anything direct and plain out of a statute.11
(a) District Court’s Standard of Review
(i) Chapter 25 Referee Statutes
[3] Our civil procedure statutes have provided for trial by
referee since Nebraska became a state.12 But we have been
unable to find a reported decision where this procedure has
been used in a divorce case since 1888.13 Prior to the adoption
of Nebraska’s no-fault divorce statute in 1972,14 our divorce
statute stated that suits for divorce “shall be conducted in
the same manner as other suits in courts of equity.”15 But our
7
Brief for appellee in support of petition for further review at 3.
8
Neb. Rev. Stat. §§ 43-1608 to 43-1613 (Reissue 2016 & Supp. 2017).
9
Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Supp. 2017).
10
Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
11
In re Guardianship of Kaiser, 295 Neb. 532, 891 N.W.2d 84 (2017).
12
See Rev. Stat. §§ 299 to 306 (1867).
13
See Gibson v. Gibson, supra note 3.
14
See 1972 Neb. Laws, L.B. 820.
15
Neb. Rev. Stat. § 42-307 (Reissue 1968).
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current divorce statutes contain no such language. It is an
open question whether the Legislature intended the Chapter 25
referee provisions to apply to a dissolution action. But even if
doing so was error, it was one invited by the parties. Generally,
a party cannot complain of error which the party has invited
the court to commit.16 Thus, we assume that a Chapter 25 ref-
eree may be appointed in a dissolution action, and turn to the
specific issue presented here.
Section 25-1131 provides the relevant standard of review for
a general court-appointed referee’s findings:
The trial before referees is conducted in the same
manner as a trial by the court. . . . They must state the
facts found and the conclusions of law, separately, and
their decision must be given, and may be excepted to
and reviewed in like manner. . . . When the reference
is to report the facts, the report has the effect of a spe-
cial verdict.
(Emphasis supplied.) By its plain language, a Chapter 25 ref-
eree’s factual findings are entitled to some deference. This is
in line with our historical standard of review for the recom-
mended findings of special masters appointed by this court
pursuant to § 25-1129.17 But without similar language limiting
the district court’s review of a referee’s conclusions or recom-
mendations, we decline to read such language into the statute.
Therefore, we conclude that the district court owed no defer-
ence to the referee’s conclusions or recommendations.
[4] Our case law establishes that the recommended factual
findings of a special master have the effect of a special verdict,
and the report upon questions of fact, like the verdict of a jury,
will not be set aside unless clearly against the weight of the
evidence.18 The recommended factual findings of the referee
were entitled to the same treatment.
16
Burcham v. Burcham, 24 Neb. Ct. App. 323, 886 N.W.2d 536 (2016).
17
See cases cited supra note 3 and accompanying text.
18
See, e.g., Mid America Agri Products v. Rowlands, supra note 3.
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[5] But the Court of Appeals went further. It reasoned that
because the district court did not make an explicit determi-
nation on the record that the findings were against the clear
weight of the evidence, it did not give deference to rec-
ommended factual findings.19 However, § 25-1131 does not
require a district court reviewing a referee’s decision to make
specific findings. Our divorce statutes do not require specific
findings in the division of property,20 except a finding whether
a property settlement agreement is or is not unconscionable.21
That is not to say that specific findings are not helpful. In
some instances, we have stated that they would have been.22
But even where our civil procedure code mandates specific
findings, it does so only upon a party’s request.23 Our case
law teaches that unless a statute requires specific findings or
we mandated them as a matter of case law, explicit findings
are not required.24 Because nothing in the plain language of
§ 25-1131 requires such explicit findings, a district court may
implicitly find that a referee’s findings are against the clear
weight of the evidence.
(ii) Child Support Referee Statutes
Having determined the correct standard of review for a
referee’s factual findings, we must now harmonize the appar-
ently conflicting standard espoused in the child support ref-
eree statutes.
19
Becher v. Becher, supra note 1.
20
See Neb. Rev. Stat. §§ 42-365 and 42-366 (Reissue 2016).
21
See § 42-366(2) to (4).
22
See, e.g., Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006).
23
See Neb. Rev. Stat. § 25-1127 (Reissue 2016).
24
See, e.g., State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017) (specific
factual findings not required to justify sentence even where factors are
enumerated by statute); State ex rel. Amanda M. v. Justin T., 279 Neb. 273,
777 N.W.2d 565 (2010) (specific finding not required in creating parenting
plan under Parenting Act); Jacox v. Pegler, 266 Neb. 410, 665 N.W.2d 607
(2003) (encouraging but not requiring specific findings on record at each
step of Batson challenge).
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[6] The child support referee statutes allow a trial court
to refer a case involving the establishment, modification,
enforcement, and collection of child, spousal, or medical sup-
port and protection orders to a court-appointed child support
referee.25 Like Chapter 25 referees, child support referees
must submit a written report containing findings of fact and
recommendations to the trial court, which may be excepted
to by the parties.26 But, the trial court owes no deference to
these findings and recommendations and “may accept or reject
all or any part of the report and enter judgment based on the
court’s own determination.”27 This necessarily conflicts with
the Chapter 25 referee statutes. To the extent there is a con-
flict between two statutes on the same subject, the specific
statute controls over the general.28 Accordingly, the standard
of review for the findings and recommendations of child sup-
port referees directs the district court’s review of findings and
recommendations on the issues of child support, including
payment of reasonable education expenses,29 and spousal sup-
port or alimony.
(iii) Parenting Act
[7] The referee’s report also included recommended find-
ings of fact related to child custody and a proposed parenting
plan. These recommended findings are subject to the standard
of review in § 25-1131, but the proposed parenting plan is
subject to the Parenting Act. The Parenting Act provides that a
court rule may provide for the parenting plan to be developed
by the parties or their counsel, a court conciliation program,
an approved mediation center, or a private mediator.30 Though
25
See § 43-1609(1).
26
§ 43-1612(3).
27
§ 43-1613 (emphasis supplied).
28
SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
29
Neb. Rev. Stat. § 42-369(3) (Reissue 2016).
30
§ 43-2929(1).
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it does not specifically provide that a court-appointed referee
may propose a parenting plan, no one has challenged the ref-
eree’s authority to propose a parenting plan. But, regardless of
the referee’s authority, a trial court has an independent respon-
sibility to determine questions of custody and visitation of
minor children according to their best interests, which respon-
sibility cannot be controlled by an agreement or stipulation of
the parties.31
A court is required to review a parenting plan and determine
if it meets the requirements of the Parenting Act and if is in the
best interests of the minor child or children. If the parenting
plan lacks any of the elements required by the act or is not in
the child’s best interests, the court shall modify and approve
the parenting plan as modified, reject the parenting plan and
order the parties to develop a new parenting plan, or reject
the parenting plan and create a parenting plan that meets all
the required elements and is in the best interests of the child.32
However, if the court rejects a parenting plan, it must provide
written findings as to why the parenting plan is not in the best
interests of the child.33
This multiplicity of review standards counsels against using
Chapter 25 referees routinely in dissolution actions. And it may
explain why 130 years have passed since the last reported deci-
sion documenting its use.
(b) Appellate Court
Standard of Review
[8] Although the district court’s review of the referee’s
report was necessarily complicated by the effect of these differ-
ent statutes, the standard of review on appeal remains the same.
In a marital dissolution action, an appellate court reviews the
case de novo on the record to determine whether there has
31
See Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
32
§ 43-2935(1).
33
See § 43-2923(4).
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been an abuse of discretion by the trial judge.34 This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees.35
[9] 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.36 However,
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.37 In this case, the appellate court would
give weight to the fact that the court-appointed referee heard
and observed the witnesses and accepted one version of the
facts rather than another.
(c) Application of Standard of Review
Because the Court of Appeals did not correctly apply its
standard of review, we must review the district court’s decree
for an abuse of discretion, keeping in mind the multifaceted
standard of review that the district court was to apply to the
referee’s report.
The Court of Appeals correctly concluded that Mark waived
any challenge where the district court came to the same con-
clusion as a referee, because he withdrew his exceptions to
the referee’s report. Therefore, we limit our review to those
instances where the Court of Appeals modified the district
court’s decree to incorporate the referee’s findings and recom-
mendations. Though Mark filed a motion to strike the argument
in Sonia’s supplemental brief related to this assignment of
error, we overrule the motion.
34
Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
35
Id.
36
Id.
37
Id.
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(i) Division of Marital Estate
a. Classification of Nonmarital Property
During the parties’ marriage, Sonia’s father gave her mon-
etary gifts totaling over $1.7 million. Both the referee and
the district court determined that the monetary gifts were not
traceable to identifiable assets with two exceptions—the gift
used to purchase the West O Development/Dollar General
building and the gift used to pay off the mortgage on the mari-
tal home.
i. West O Development/
Dollar General Building
The West O Development/Dollar General building was pur-
chased by Sonia and her sister using an $825,000 gift from
their father. Later, Sonia purchased her sister’s interest in the
building with a $500,000 loan on the building and $25,000
from a savings account. Additional money was put into the
property for repairs and improvements. The referee determined
the $825,000 gift did not retain its status as a gift, because the
equity in the building was encumbered by loans in order to pay
the sister back and money generated during the marriage was
invested into the building for repairs.
The district court disagreed with the referee’s determina-
tion and found that “[t]here is no evidence of any marital
funds being used for the purchase or continued operation
of [the property].” Because the rents and gifts from Sonia’s
father exceeded the costs associated with the property, the
court concluded that Mark had no claim to it. The court also
noted an additional monetary gift from Sonia’s father for
repairs to the building which was not discussed by the ref-
eree. Therefore, the court implicitly determined that the ref-
eree’s finding as to the gift status of the property was against
the clear weight of the evidence and set aside the property to
Sonia as nonmarital property.
The district court reviewed the evidence and concluded
that no evidence supported a finding that the monetary gifts
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represented by the West O Development/Dollar General
building lost their gift status. Accordingly, it did not abuse
its discretion when it substituted its own findings for that of
the referee.
ii. Mortgage Payoff
Sonia’s father made another gift to Sonia in the amount of
$432,948. Of this amount, $220,300 was used to pay off the
mortgage on the marital home. The remainder was placed in a
certificate of deposit held in Mark’s name only. Mark spent the
entirety of the certificate of deposit during a period of separa-
tion, and Sonia has not challenged this expenditure.
The referee determined that the monetary gift was a gift to
the marriage, or at least that it lost its status as a gift when it
was applied to the marital debt. Nonetheless, it concluded that
Sonia was entitled to some credit in equity and reduced the fair
market value of the marital home awarded to Sonia by one-
half of the payoff value ($110,150). The district court noted
the same evidence, but determined that Sonia was entitled to a
credit for the entire mortgage payoff ($220,300) in recognition
of the gift.
[10] With some exceptions, the marital estate does not
include property acquired by one of the parties through gift
or inheritance.38 And, there is no exception where an other-
wise nonmarital monetary gift is spent on a family expense.39
Therefore, the referee’s finding that the portion of the gift
spent on the mortgage payoff lost its gift status because it
was applied to a marital expense was contrary to the law
and against the weight of the evidence. The district court did
not err in its determination that the mortgage payoff money
retained its status as a gift. Even assuming that it did lose its
status, it was within the district court’s power in equity to give
38
Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).
39
See, e.g., Mathew v. Palmer, 8 Neb. Ct. App. 128, 589 N.W.2d 343 (1999).
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credit to Sonia for one-half of the gift where Mark dissipated
the other half.40
b. Valuation of Business Entities
The district court awarded two businesses to Mark at dif-
ferent values than those recognized by the court-appointed
referee. The valuation of a business is a question of fact. As
a result, the findings of the referee on the issue had the effect
of a special verdict.
i. Sark Tile, Inc.
The referee awarded Sark Tile, Inc., to Mark at a value of
$491,353 after altering the formula used in one of the expert
valuations. The district court also awarded the business to
Mark, but at a value of $570,000. It is apparent from the record
that the district court reweighed the testimony and the evidence
and used a different formula than that used by the referee. This
was an abuse of discretion.
The district court effectively retried the issue, taking on
the role of the fact finder, and did not engage in any analysis
of whether the value accepted by the referee was against the
clear weight of the evidence. Because we find, in our de novo
review, that it was not against the clear weight of the evidence,
Sark Tile should have been awarded at the value assigned by
the referee.
ii. Lamp & Lighting of Lincoln, Inc.
The referee awarded Lamp & Lighting of Lincoln, Inc., to
Mark at a value of $107,000 after altering the formula used
in one of the expert valuations similar to that used in Sark
Tile. The district court also awarded the business to Mark
40
See Neb. Rev. Stat. § 42-365 (Reissue 2016). See, also, Parde v. Parde,
258 Neb. 101, 108, 602 N.W.2d 657, 662 (1999) (“[i]n determining
what assets constitute the marital estate and how the property should be
divided, . . . Nebraska, by statute, is an equitable property distribution
jurisdiction”).
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at a net value of $107,000 after applying a $150,000 debt to
the business. However, the referee appears to have set the
$150,000 debt over to Mark separate from the business valued
at $107,000. After a careful review of the record, it is plain that
this was done in error.
The expert valuation relied upon by the referee included the
$150,000 debt in its calculation. Therefore, the referee gave
credit to Mark for the $150,000 debt twice—once in arriving
at the net value using the expert’s formula and once in setting
the $150,000 debt over to Mark in its division of the marital
estate. Because the district court arrived at the same net value
for Lamp & Lighting of Lincoln as the referee and did not
carry over the double credit for the debt, there was no error in
the district court’s valuation of the business.
c. Valuation of Personal Property
The district court adopted the referee’s allocation of per-
sonal property, but valued the property awarded to Sonia at
$27,365 and the property award to Mark at $23,870. The
referee had awarded the property to Sonia at $13,340 and the
property to Mark at $21,495. It appears that the court awarded
the personal property within the marital home to Sonia at the
value assigned by an appraiser, reduced by the appraised val-
ues of the individual items awarded to Mark. However, the
court awarded these items to Mark at the higher value Mark
proposed and not the appraised value. This was an abuse
of discretion.
The valuation of personal property is a question of fact,
and the referee’s valuations had the effect of a special verdict.
The district court does not appear to have found either the
appraised values or Mark’s values for the personal property to
be against the clear weight of the evidence, because it accepted
the values assigned by both for different items of property.
Because the referee’s findings cannot be set aside unless they
are against the clear weight of the evidence, the district court
abused its discretion in assigning different values to the per-
sonal property awarded.
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d. Separate Valuation of
Shipping Containers
The district court separately valued the shipping containers
used by Sark Tile and awarded them to Mark as personal prop-
erty. However, the shipping containers were already accounted
for in the referee’s valuation of Sark Tile. Because the ref-
eree’s valuation of Sark Tile was not against the clear weight
of the evidence, the district court erred in separately valuing
the shipping containers.
e. Summary
We reverse the Court of Appeals’ decision to the extent
that it is inconsistent with this opinion. Specifically, we find
that the district court did not err in its award of the West O
Development/Dollar General building to Sonia as nonmari-
tal property, in its determination that Sonia was entitled to
a credit of $220,300 against the value of the marital home
in recognition of the monetary gift from her father, or in its
valuation of Lamp & Lighting of Lincoln. We agree with
the Court of Appeals that the district court abused its discre-
tion by substituting its valuations of Sark Tile and the per-
sonal property awarded for those of the referee and in sepa-
rately valuing the shipping containers as personal property.
Accordingly, we modify the district court’s marital property
distribution and decrease Sonia’s share of the marital estate
by $14,025 (the difference between the court’s value for
the personal property awarded and the referee’s value) and
decrease Mark’s share by $142,174 (the difference between
the court’s values for Sark Tile, the shipping containers, and
the personal property awarded and the referee’s values for
the same).
(ii) Child Custody
The referee found that joint legal custody of all three of
the parties’ minor children was in their best interests. It rec-
ommended a split physical custody arrangement, with Mark
having primary physical custody of the parties’ son and Sonia
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having primary physical custody of the parties’ two daughters.
Based upon the recommendations of a counselor, the proposed
parenting plan did not provide a parenting schedule for the
two oldest children. Parenting time with Mark for the youngest
child was scheduled on alternating weekends, with one over-
night on the alternating weeks.
The district court found that a split and joint custody
arrangement with modifications to the proposed parenting plan
designed to reduce potential conflicts was in the best interests
of the children. In its decree, the court ordered that Sonia have
permanent legal and physical care, custody, and control of the
parties’ two daughters, while Mark have permanent legal and
physical care, custody, and control of the parties’ son with
each “subject to the rights of parenting time for the noncus-
todial parent as set forth in the parenting plan.” However, the
court-ordered parenting plan provided that the parties would
share joint legal custody of all three children, with Mark hav-
ing primary physical custody of the parties’ son, Sonia having
primary physical custody of the parties’ oldest daughter, and
shared joint physical custody of the parties’ youngest daughter.
Like the proposed parenting plan, the court-ordered parenting
plan did not provide a parenting schedule for the two oldest
children. It did provide a joint physical custody arrangement
for the youngest child with Mark and Sonia having equal par-
enting time on alternating weeks.
The district court did not abuse its discretion in modifying
the proposed parenting plan, because it had an independent
responsibility to determine custody and parenting time accord-
ing to the children’s best interests.41 And, it provided written
findings of why the modifications to reduce potential con-
flicts were in the children’s best interests. Therefore, only two
issues remain.
[11] First, the parties agreed on appeal that the decree’s lan-
guage concerning physical custody of the youngest child was
41
See supra note 31 and accompanying text.
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inconsistent with that in the parenting plan. In our review, we
find that at times, the court characterizes the custody arrange-
ment as “split and joint” and at other times, it uses language
consistent with sole custody arrangements. 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.42
Our statutes define joint physical custody as “mutual author-
ity and responsibility of the parents regarding the child’s place
of residence and the exertion of continuous blocks of parenting
time by both parents over the child for significant periods of
time.”43 Here, the parents’ custody was awarded subject to the
parenting time in the parenting plan. That plan provided that
the youngest child will have “parenting time with her Father
and Mother on alternating weeks, commencing on Friday after
school until the following Friday after school.” Summer par-
enting time is equally divided, with each parent having parent-
ing time for exactly one half of the summer break. This meets
the statutory definition of joint physical custody.
Second, Sonia alleged that the district court erred in allo-
cating parenting time over the Christmas holiday. The court
ordered “[e]very year the parent who does not have parenting
time on Christmas Day as a result of the weekly rotation . . .
shall have parenting time beginning on December 24 at noon
until December 24 at 11:30 p.m.” In light of the specific find-
ings of the animosity between the parents and the difficulties
of past parenting time exchanges, we do not find that the dis-
trict court abused its discretion in ordering a default holiday
schedule that minimizes communication between the parties
and preserves the child’s typical schedule.
Ultimately, the labels make little difference. The provi-
sions of the decree adequately set forth each party’s rights
and responsibilities.
42
Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).
43
See § 43-2922(12).
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(iii) Child Support, Private School
Tuition, and Alimony
The district court made findings and conclusions concerning
child support, payment of the children’s private school tuition,
and alimony which differed from those in the referee’s report.
However, because the referee’s findings and recommendations
on these issues are governed by the child support referee stat-
utes, the district court was free to accept or reject any or all
of the referee’s findings and recommendations.44 Our review
is limited to whether the district court abused its discretion in
the child support, private school tuition, and alimony ordered.
Finding none, we affirm the district court’s decree as it relates
to these issues.
2. Acceptance of Benefits
Marks assigns that the Court of Appeals erred in applying
the acceptance of the benefits doctrine to find that he waived
his right to appeal the award of three commercial properties
to Sonia.
(a) Additional Facts
Sonia was awarded three commercial properties in the
district court’s decree that the referee had recommended be
awarded to Mark: “Mini Storage,” the West O Development/
Dollar General building, and 901 Sun Valley. Before filing an
appeal, Mark moved to determine a supersedeas bond. The
district court entered an order setting the supersedeas bond at
$600,000 and providing that Mark would not be required to
transfer any ownership interest he may have in the real estate
awarded to Sonia during the pendency of any appeal if he filed
the bond. However, there is nothing in the record before us or
in the court’s trial docket entry that shows Mark ever filed a
supersedeas bond.
After filing his appeal, Mark executed quitclaim deeds con-
veying his interest in three commercial properties to Sonia,
44
See § 43-1613.
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refinanced loans, utilized the proceeds of rent and receipts
from businesses awarded to him, and created a new corpora-
tion to hold title to properties awarded to him under the decree.
Sonia then sold one of the commercial properties awarded to
her in an arm’s-length sale to a third party.
The Court of Appeals found that Mark had waived his
right to appeal the award of the three commercial prop-
erties to Sonia, because his voluntary conveyance of the
properties evidenced an intent to be bound by the decree. It
applied the exception to the doctrine outlined in Kassebaum v.
Kassebaum45 to find that Mark had not waived his right with
regard to the other issues on appeal.
(b) Standard of Review
[12,13] Whether a party waived his or her right to appellate
review is a question of law.46 When reviewing questions of
law, an appellate court resolves the questions independently of
the lower court’s conclusions.47
(c) Analysis
Mark argues that executing the quitclaim deeds was not an
acceptance of a benefit, but, rather, was an “involuntary accept­
ance of a detriment.”48 We agree and conclude that the accept­
ance of the benefits doctrine did not apply in this instance,
because Sonia—not Mark—accepted the benefits in that trans-
action. However, we find that Mark is nonetheless equitably
estopped from challenging the award of Mini Storage.
45
Kassebaum v. Kassebaum, 178 Neb. 812, 815, 135 N.W.2d 704, 706
(1965) (“‘[i]f the outcome of the appeal could have no effect on the
appellant’s right to the benefit accepted, its acceptance does not preclude
the appeal’”) (quoting 4 Am. Jur. 2d Appeal and Error § 253 (1962)).
Accord Liming v. Liming, supra note 22.
46
Liming v. Liming, supra note 22.
47
Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356, 900 N.W.2d
32 (2017).
48
Supplemental brief for appellant on petition for further review at 13.
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(i) Mini Storage
[14] The doctrine of equitable estoppel is applied to trans-
actions in which it is found that it would be unconscionable
to permit a person to maintain a position inconsistent with
one in which he or she has acquiesced or of which he or
she has accepted any benefit.49 Mark had the opportunity to
supersede the divorce decree and elected not to file a super-
sedeas bond. He refinanced loans such that the three commer-
cial properties were unencumbered by his debt and executed
quitclaim deeds on the properties in favor of Sonia. And, at
least with regard to Mini Storage, Sonia relied on Mark’s
actions and exercised her ownership right to sell the property
to a third party. That property cannot now be recovered on
appeal. Therefore, Mark waived his right to challenge Sonia’s
ownership of Mini Storage.
(ii) West O Development/
Dollar General Building
and 901 Sun Valley
Equitable estoppel does not apply to Mark’s assignment of
error concerning West O Development/Dollar General build-
ing and 901 Sun Valley, because Sonia did not detrimentally
rely on Mark’s actions. But, Mark does not identify how the
award of those properties to Sonia constituted an abuse of
discretion—his argument is limited to the court’s “failing to
review the Referee’s Report.”50 As explained above, the dis-
trict court owed deference only to the referee’s factual find-
ings and could reach its own determinations on what to order
in its decree.
Because we find no abuse of discretion in the court’s award
of the two commercial properties to Sonia, we affirm that part
of the district court’s decree.
49
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
50
Brief for appellant at 30.
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(iii) Other Assignments
of Error on Appeal
In applying the exception to the acceptance of the ben-
efits doctrine to Mark’s other assignments of error, the Court
of Appeals reviewed each assignment to determine whether
the outcome of the appeal could affect his acceptance of the
related benefits. Without concluding whether this was the
correct analysis, we find that another exception to the doc-
trine applied.
[15] A spouse who accepts the benefits of a divorce judg-
ment does not waive the right to appellate review under cir-
cumstances where the spouse’s right to the benefits accepted
is conceded by the other spouse, the spouse was entitled as
a matter of right to the benefits accepted such that the out-
come of the appeal could have no effect on the right to those
benefits, or the benefits accepted are pursuant to a severable
award which will not be subject to appellate review.51 Sonia
did not challenge Mark’s right to the benefits he accepted
either at trial or on appeal. Because Mark accepted only those
benefits which Sonia conceded his right to, Mark did not
waive his right to appellate review of his assignments of error
discussed above.
3. Contempt Orders
(a) Standard of Review
[16] In a civil contempt proceeding where a party seeks
remedial relief for an alleged violation of a court order, an
appellate court employs a three-part standard of review in
which (1) the trial court’s resolution of issues of law is
reviewed de novo, (2) the trial court’s factual findings are
reviewed for clear error, and (3) the trial court’s determinations
of whether a party is in contempt and of the sanction to be
imposed is reviewed for abuse of discretion.52
51
Liming v. Liming, supra note 22.
52
Mart. v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).
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(b) Analysis
(i) Mark’s Appeal
Mark argues that (1) the district court inappropriately modi-
fied its decree of dissolution while the appeal of the decree was
pending when it ordered Sonia to pay restitution for her viola-
tion of the decree, (2) the restitution was insufficient, and (3)
the court abused its discretion when it refused to permit him
to offer evidence or rebut Sonia’s evidence in her motion for
contempt. However, Mark did not appeal from the order find-
ing him in contempt and did not make an offer of proof for the
two rebuttal witnesses he was not allowed to call. Therefore,
we find that Mark failed to preserve his third argument for
appeal and we address only his first two.
[17] Through its inherent powers of contempt, a court may
order restitution for damages incurred as a result of failure to
comply with a past order.53 In ordering Sonia to compensate
Mark for the personal property she did not turn over to him, the
district court did not modify the district court decree. Instead,
it ordered restitution for the loss of the personal property to
which Mark was entitled. This was an appropriate remedy for
a finding of contempt.
Mark further maintains that restitution was inadequate to
compensate him for his loss and requests that the issue be
remanded for a recalculation of the items Sonia did not turn
over. Though the district court did not itemize its accounting,
it is apparent that it ordered restitution in the amount that the
missing personal property was initially valued when set over
to Mark in the decree. The valuation was not challenged then
and it cannot be challenged now on appeal. Accordingly, we
find no merit to Mark’s arguments on appeal.
(ii) Sonia’s Cross-Appeal
Sonia cross-appealed from the order finding Mark in con-
tempt and argues that the district court abused its discretion
53
Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).
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when it failed to find Mark in contempt for his unauthorized
entry into her residence and commercial building and the
removal and destruction of property on the premises.
[18] Civil contempt proceedings are instituted to preserve
and enforce the rights of private parties to a suit when a party
fails to comply with a court order made for the benefit of the
opposing party.54 They are not instituted to provide relief for
other wrongdoings by a private party where other relief is
available by statute. The district court’s jurisdiction over the
decree did not preclude Sonia from seeking separate relief in
tort for trespass and conversion. Therefore, it did not err in
denying the same relief under the guise of a contempt order.
V. CONCLUSION
For the reasons stated above, we affirm in part, and in part
reverse and remand case No. S-16-054 with directions that the
district court is to divide the marital estate in accordance with
this opinion. We affirm the orders of contempt in case No.
S-16-793 in all respects.
Judgment in No. S-16-054 affirmed
in part, and in part reversed and
remanded with directions.
Judgment in No. S-16-793 affirmed.
K elch, J., not participating in the decision.
Wright and Stacy, JJ., not participating.
54
Id.