Kelly v. Kelly ( 2020 )


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    Nebraska Court of Appeals Advance Sheets
    29 Nebraska Appellate Reports
    KELLY v. KELLY
    Cite as 
    29 Neb. App. 198
    Kirsten W. Kelly, appellee, v.
    Gary B. Kelly, appellant.
    ___ N.W.2d ___
    Filed November 24, 2020.   No. A-20-084.
    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. 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.
    3. Visitation. Placing in a psychologist the authority to effectively deter-
    mine visitation, and to control the extent and time of such visitation,
    is not the intent of the law and is an unlawful delegation of the trial
    court’s duty.
    4. Child Custody: Visitation: Stipulations. It is the responsibility of the
    trial court to determine questions related to custody and parenting time
    according to the best interests of the minor children. This is an indepen-
    dent responsibility and cannot be controlled by the agreement or stipula-
    tion of the parties themselves or by third parties.
    5. Visitation: Appeal and Error. Parenting time determinations are mat-
    ters initially entrusted to the discretion of the trial court, and although
    reviewed de novo on the record, the trial court’s determination will nor-
    mally be affirmed absent an abuse of discretion.
    6. Evidence: Appeal and Error. When evidence is in conflict, an appel-
    late court considers, and may give weight to, the fact that the trial judge
    heard and observed the witnesses and accepted one version of the facts
    rather than another.
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    KELLY v. KELLY
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    7. Child Support: Rules of the Supreme Court. The Nebraska Child
    Support Guidelines recognize other incidents of support that are wholly
    or partly outside of the monthly installment, including the expenses
    specified in 
    Neb. Rev. Stat. § 42-364.17
     (Reissue 2016).
    8. Statutes: Legislature: Intent. Components of a series or collection of
    statutes pertaining to a certain subject matter are in pari materia and
    should be conjunctively considered and construed to determine the
    intent of the Legislature, so that different provisions are consistent, har-
    monious, and sensible.
    9. Child Support: Taxation: Presumptions. In general, the custodial par-
    ent is presumptively entitled to the federal tax exemption for a depen-
    dent child.
    10. Child Support: Taxation: Waiver. A court may exercise its equitable
    powers and order the custodial parent to execute a waiver of his or her
    right to claim the tax exemption for a dependent child if the situation of
    the parties so requires.
    11. Divorce: Property Division: Alimony. In dividing property and consid-
    ering 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, a court should consider the income and earning
    capacity of each party and the general equities of the situation.
    12. Alimony: Appeal and Error. In reviewing an alimony award, an appel-
    late 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.
    13. Alimony. Alimony is not a tool to equalize the parties’ income, but a
    disparity of income or potential income might partially justify an ali-
    mony award.
    14. Divorce: Attorney Fees. 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.
    Appeal from the District Court for Saunders County:
    Christina M. Marroquin, Judge. Affirmed in part as modi-
    fied, and in part vacated.
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    Nebraska Court of Appeals Advance Sheets
    29 Nebraska Appellate Reports
    KELLY v. KELLY
    Cite as 
    29 Neb. App. 198
    Mark A. Steele, of Steele Law Office, for appellant.
    John H. Sohl for appellee.
    Moore, Bishop, and Welch, Judges.
    Bishop, Judge.
    I. INTRODUCTION
    Gary B. Kelly appeals from the decree entered by the
    Saunders County District Court dissolving his marriage to
    Kirsten W. Kelly, awarding legal and physical custody of the
    parties’ three children to Kirsten, and ordering Gary to pay
    child support and alimony. Gary challenges decisions made
    related to the parenting plan, private school tuition, extracur-
    ricular and other expenses, tax exemptions, equalization of the
    marital estate, alimony, and attorney fees. We affirm in part as
    modified, and in part vacate.
    II. BACKGROUND
    Gary and Kirsten married in September 2007, and three
    children were born during the marriage: the first in 2008, the
    second in 2009, and the third in 2010. Kirsten separated from
    Gary in November 2018 and moved with the minor children
    out of the marital home. Kirsten then sought and obtained a
    protection order against Gary based on allegations of domes-
    tic abuse by Gary against her and the children for which he
    received a criminal citation and was sentenced to probation.
    Kirsten filed for divorce shortly after the separation in
    November 2018. On January 14, 2019, the district court granted
    Kirsten’s motion for temporary legal and physical custody. The
    court restricted Gary from contacting the children until the
    children met with a mental health professional and that pro-
    fessional gave a report and recommendation to the court. The
    temporary order required Gary to pay $2,109 per month in
    child support. The temporary order also required Gary to pay
    $3,606 per month in spousal support, to be reduced to $1,708
    per month beginning in February. Gary was also responsible
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    for two-thirds of daycare and health care expenses incurred
    for the children. The court entered a second temporary order
    on February 5 concerning Gary and Kirsten’s agreement to the
    sale of the marital residence. On September 30, the court modi-
    fied the first temporary order to allow Gary to have supervised
    therapeutic sessions with the oldest child.
    Trial took place on October 24 and 25, 2019. In the analy-
    sis section below, we will discuss the trial evidence relevant
    to the errors assigned. A decree dissolving the marriage was
    entered by the district court on November 12. Pursuant to the
    decree and an order nunc pro tunc entered shortly thereafter
    on November 18, and another nunc pro tunc order entered on
    February 3, 2020, the district court awarded Kirsten legal and
    physical custody of the minor children, noting “there [was]
    credible evidence that [Gary] has perpetuated child abuse and
    domestic intimate partner abuse.” The court concluded that
    Kirsten should have sole legal and physical custody, which was
    “in the best interest of the minor children.”
    The decree established certain provisions in the parenting
    plan for Gary, which consists of the following four phases:
    PHASE 1 - THERAPUTIC VISITS: [Gary] shall have
    family therapy with the minor children twice a month
    (every-other-week). The therapeutic session shall be con-
    ducted by a licensed mental health practitioner designated
    as the therapist for the child. Family therapy sessions shall
    commence immediately between [the oldest child] and
    [Gary]. Family therapy sessions between [Gary] and the
    other two minor children shall commence upon the rec-
    ommendation of the minor children’s therapist. [Kirsten]
    shall sign all necessary releases to ensure that [Gary] can
    communicate with the children’s therapist(s).
    PHASE 2 - SUPERVISED VISITS: At the recom-
    mendation of each child’s treating therapist, visita-
    tion shall move to supervised visits. These shall occur
    every Wednesday evening from 3:30 (after school) until
    7:00 p.m. and every-other Saturday from 1:00 p.m. until
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    5:00 p.m. Visits shall be supervised by [one of Gary’s
    adult children from a prior marriage], or another third
    party as agreed upon by the parties, or a professional
    agency at the expense of [Gary]. [Gary] shall not con-
    sume alcohol immediately prior to or during the visita-
    tion. [Gary] shall not physically discipline the minor
    children. Provided there are no safety concerns, visitation
    shall move to Phase 3 after six months.
    PHASE 3 - UNSUPERVISED VISITS: At the rec-
    ommendation of each child’s treating therapist, visita-
    tion shall move to unsupervised visits. These shall occur
    every Wednesday evening from 3:30 (after school) until
    7:00 p.m. and every-other Saturday from 1:00 p.m. until
    5:00 p.m. [Gary] shall not consume alcohol immediately
    prior to or during the visitation. [Gary] shall not physi-
    cally discipline the minor children. Provided there are
    no safety concerns, visitation shall move to Phase 4 after
    six months.
    PHASE 4 - ONGOING PARENTING PLAN: At the
    recommendation of each child’s treating therapist, visita-
    tion shall occur as follows:
    [Gary] shall a [sic] have parenting time every
    Wednesday evening from 3:30 p.m. until 7:30 p.m. [Gary]
    shall have every other weekend from Friday at 3:30 p.m.
    until Sunday at 5:00 p.m.
    Phase 4 of the parenting plan also included a holiday parenting
    time schedule.
    Relevant to this appeal, the decree also required Gary to
    pay $1,980 per month in child support for three children.
    The district court divided expenses such that Gary would be
    responsible for 70 percent of childcare and extracurricular
    expenses incurred on behalf of the children and 50 percent of
    the cost of tuition for the children to continue attending pri-
    vate school. Gary was also ordered to pay other miscellaneous
    expenses related to the children. The decree gave Kirsten the
    sole right to claim the children for state and federal income
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    tax purposes. As part of the division of marital property, the
    court ordered Gary to pay Kirsten an equalization payment
    of $15,841. The decree additionally required Gary to pay
    Kirsten $500 per month in alimony for 5 years and awarded
    Kirsten $8,000 in attorney fees.
    Following the entry of the decree, Gary filed a motion for
    new trial and/or reconsideration. The district court denied his
    motion on January 9, 2020. Gary then timely filed this appeal.
    III. ASSIGNMENTS OF ERROR
    Gary claims the district court erred by (1) formulating an
    unreasonably restrictive phased parenting plan, (2) requiring
    Gary to pay 50 percent of private school tuition for the chil-
    dren, (3) requiring Gary to pay 70 percent of the costs for
    the children’s extracurricular activities, (4) allocating solely
    to Kirsten the right to claim the children for state and federal
    income tax purposes, (5) ordering Gary to pay Kirsten a prop-
    erty equalization payment of $15,841, (6) ordering Gary to pay
    Kirsten alimony of $500 per month for 5 years, and (7) ordering
    Gary to pay Kirsten $8,000 for attorney fees.
    IV. STANDARD OF REVIEW
    [1,2] 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. Doerr
    v. Doerr, 
    306 Neb. 350
    , 
    945 N.W.2d 137
     (2020). This standard
    of review applies to the trial court’s determinations regarding
    custody, child support, division of property, alimony, and attor-
    ney fees. 
    Id.
     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. 
    Id.
    V. ANALYSIS
    1. Parenting Plan
    The district court ordered the implementation of the phased
    parenting plan described above. Based on the evidence
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    KELLY v. KELLY
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    presented at trial, the district court found the phased parent-
    ing plan to be in the best interests of the minor children. In its
    decree, the court stated that it found “by a preponderance of
    evidence that there is credible evidence that [Gary] perpetuated
    child abuse and domestic intimate partner abuse” and “limita-
    tion on parenting time between [Gary] and the minor children
    must be implemented to provide for their safety and well-
    being.” Notably, 
    Neb. Rev. Stat. § 43-2932
    (1) (Reissue 2016)
    provides that when there is evidence of child abuse or domestic
    intimate partner abuse, limitations on parenting time may be
    imposed that are “reasonably calculated to protect the child
    or child’s parent from harm.” There is considerable evidence
    in the record related to the inappropriate, harmful behaviors in
    which Gary engaged with either the children and/or Kirsten. It
    is unnecessary to detail those instances here given the limited
    nature of Gary’s assigned error.
    Gary does not argue that the phased approach to parent-
    ing time is by itself problematic. Rather, he contends that the
    “phases required the approval and recommendation for each
    phase by the children’s therapist and last for a period of six
    months between phases” and that this “restrictive parenting
    time . . . was arbitrary and unsupported by the evidence, and
    unjustifiably interferes with his parenting relationship with the
    minor children.” Brief for appellant at 13. He asserts that he
    has “taken the necessary steps to modify his behaviors and
    testified to his ability to interact successfully with the minor
    children.” Id. at 15. He further contends that “the duration of
    any phases should not be for definitive times; but instead moni-
    tored and moved forward under direct therapist supervision and
    recommendations.” Id.
    We understand Gary’s arguments as challenging the specific
    6-month duration of the parenting phases and not allowing for
    greater flexibility; he suggests a faster progression through
    each phase should be permitted if recommended by the thera-
    pist, based upon the parenting plan being “closely monitored
    and supervised for cooperation and progress.” Id. We do not
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    read the parenting plan to be quite as restrictive as Gary sug-
    gests, at least as to Phase 2 through Phase 4.
    [3,4] We begin our analysis with the understanding that
    while it is not an abuse of discretion for a trial court to order
    counseling, “placing in a psychologist the authority to effec-
    tively determine visitation, and to control the extent and time
    of such visitation, is not the intent of the law and is an unlaw-
    ful delegation of the trial court’s duty.” Deacon v. Deacon, 
    207 Neb. 193
    , 200, 
    297 N.W.2d 757
    , 762 (1980), disapproved on
    other grounds, Gibilisco v. Gibilisco, 
    263 Neb. 27
    , 
    637 N.W.2d 898
     (2002). It is the responsibility of the trial court to deter-
    mine questions related to custody and parenting time accord-
    ing to the best interests of the minor children. See 
    id.
     This is
    an independent responsibility and cannot be controlled by the
    agreement or stipulation of the parties themselves or by third
    parties. 
    Id.
    Therefore, in this case, it was necessary for the district court
    to provide a specified duration of time for each parenting phase
    rather than leaving the transition from phase to phase solely
    at the discretion of a therapist. Such a delegation of author-
    ity from the district court to each child’s therapist would have
    constituted error whether reviewed for plain error or an abuse
    of discretion. See, Hajenga v. Hajenga, 
    257 Neb. 841
    , 
    601 N.W.2d 528
     (1999) (order that father’s parenting time would
    be increased at discretion of family therapist was wrongful
    abdication of trial court’s duty and constituted plain error;
    plain error affects substantial right and is of such nature that
    to leave it uncorrected would cause miscarriage of justice or
    result in damage to integrity, reputation, and fairness of judi-
    cial process); Deacon v. Deacon, 
    supra
     (not abuse of discretion
    to order counseling, but portion of order effectively placing
    authority in psychologist to determine visitation and control
    extent and time of such visitation was unlawful delegation of
    trial court’s duty). But see In re Guardianship of K.R., 
    26 Neb. App. 713
    , 
    923 N.W.2d 435
     (2018) (trial court did not improp-
    erly delegate decisions regarding visitation, family therapy,
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    and guardianship to child’s therapist where trial court expressly
    reserved authority to make those decisions if and when child’s
    therapist stated child was ready for such steps).
    Accordingly, as for Phase 2 through Phase 4, the district
    court did not abuse its discretion in ordering fixed durations
    before parenting time had to transition to the next phase, in
    the absence of safety concerns. It was necessary for the court
    to impose limits on each phase so that the transitions were not
    left completely at the discretion of a therapist. Further, as to
    Gary’s argument about flexibility to allow for faster progres-
    sion through each phase if recommended by the therapist,
    we read the parenting plan to provide that flexibility. Gary’s
    supervised parenting time could transition to unsupervised
    parenting time at the recommendation of each child’s therapist,
    which could occur before 6 months on such a recommenda-
    tion. But unless there were safety concerns, the supervised
    parenting time had to transition to unsupervised parenting
    time after 6 months. The same applies to the transition from
    unsupervised parenting time to the ongoing parenting plan.
    Implicit in the plan is that if a child’s therapist determined that
    safety concerns still existed at the 6-month mark for the next
    transition, the therapist could elect to not recommend moving
    to the next parenting phase, and if Gary disagreed with that
    decision, the matter would have to return to the district court
    for a determination as to whether an extension of time was
    warranted under the parenting phase at issue. Therefore, Phase
    2 through Phase 4 provided flexibility for faster progression
    upon the recommendation of each child’s therapist, but also
    limited each phase to 6 months, barring safety concerns, so
    that the court, not the therapist, was determining the maximum
    duration of those phases.
    However, while not specifically assigned as error by Gary,
    we do find plain error regarding the lack of a specified dura-
    tion for therapeutic visits in Phase 1, as well as the lack of
    a specified time for when Gary would commence family
    therapy sessions with the two younger children. Unlike the
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    other phases, the court delegated to each child’s therapist the
    discretion to determine when Gary could move from thera-
    peutic visits in Phase 1 to supervised visits in Phase 2. And
    as to the two younger children, the family therapy sessions
    were to commence “upon the recommendation of the minor
    children’s therapist.” As discussed above, this constitutes an
    improper delegation of authority from the district court to each
    child’s therapist. See Hajenga v. Hajenga, 
    supra
     (order that
    father’s parenting time would be increased at discretion of
    family therapist was wrongful abdication of trial court’s duty
    and constituted plain error). To eliminate this improper delega-
    tion of authority to each child’s therapist, and considering the
    district court’s determination that 6-month blocks were appro-
    priate for the other transition phases, we modify the parenting
    plan to provide that transition to “Phase 2 - SUPERVISED
    VISITS” shall take place after 6 months of the therapeutic vis-
    its described in Phase 1, provided there are no safety concerns.
    Further, to the extent family therapy has not commenced with
    the two younger children, that should commence immediately,
    unless there are safety concerns. If safety concerns exist, given
    the amount of time that has already lapsed during the pendency
    of this appeal, the matter will need to be scheduled before the
    district court for further consideration of when such family
    therapy shall commence for the two younger children.
    [5,6] With regard to the district court’s determination of
    6-month transitional phases rather than phases of shorter dura-
    tion, we cannot say the court abused its discretion, particu-
    larly since the parenting plan did provide the flexibility for
    faster progression than 6 months if recommended by a child’s
    therapist. Parenting time determinations are matters initially
    entrusted to the discretion of the trial court, and although
    reviewed de novo on the record, the trial court’s determina-
    tion will normally be affirmed absent an abuse of discretion.
    Bornhorst v. Bornhorst, 
    28 Neb. App. 182
    , 
    941 N.W.2d 769
    (2020). When evidence is in conflict, an appellate court consid-
    ers, and may give weight to, the fact that the trial judge heard
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    and observed the witnesses and accepted one version of the
    facts rather than another. Donald v. Donald, 
    296 Neb. 123
    , 
    892 N.W.2d 100
     (2017).
    Gary’s arguments focus largely on efforts he has been mak-
    ing to be a better parent. And while such efforts are to be
    commended, the district court also had to consider what was
    in the best interests of the children. It is evident that the court
    put in place a transitional schedule that will give the children
    sufficient time and space to heal from the past traumatic expe-
    riences caused by Gary’s abusive behaviors toward the children
    and Kirsten. As just one example of the need for caution in
    moving forward with parenting time, there was evidence that
    as a result of Gary’s interactions with one child, the child went
    to Kirsten crying and told her “he can’t take it anymore, he just
    wants to kill himself.” Given the nature of the evidence under-
    lying the district court’s findings related to child abuse and
    domestic intimate partner abuse, we cannot say a graduated
    parenting time schedule like the one before us, as modified,
    was an abuse of discretion.
    2. Expenses in Addition to
    Monthly Child Support
    In calculating its order for child support ($1,980 per month)
    by using a basic net income and support calculation, work-
    sheet 1, the district court determined Gary’s gross monthly
    income to be $12,048.25 and Kirsten’s gross monthly income
    to be $5,000. See Neb. Ct. R. ch. 4, art. 2, worksheet 1 (rev.
    2016). Gary claims the district court abused its discretion in
    ordering Gary to be responsible for 50 percent of the cost of
    private school tuition for the minor children in addition to the
    order to pay $1,980 per month in child support. Gary also con-
    tends the district court abused its discretion in ordering him to
    be responsible for 70 percent of all extracurricular expenses
    incurred on behalf of the minor children upon which the par-
    ties mutually agree in advance. Gary also takes issue with the
    court’s order requiring the parties to equally share “the cost of
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    school lunches (purchased from the school), required school
    supplies, haircuts, and items of clothing the parties expect the
    children to wear at both residences, i.e., winter coats, hats, mit-
    tens, winter boots, backpacks, and tennis shoes.”
    (a) Applicable Law
    Prior to the existence of the Nebraska Child Support
    Guidelines, Nebraska statutory law addressed various expenses
    to be considered in support orders: “A support order, decree,
    or judgment may include the providing of necessary shelter,
    food, clothing, care, medical support as defined in section
    43-412, medical attention, expenses of confinement, education
    expenses, funeral expenses, and any other expenses the court
    may deem reasonable and necessary.” See 
    Neb. Rev. Stat. § 42-369
    (3) (Cum. Supp. 2018).
    In 1984, Congress required the states to develop guidelines
    for child support awards; noncompliance would result in the
    loss of federal funds for various programs. See Schmitt v.
    Schmitt, 
    239 Neb. 632
    , 
    477 N.W.2d 563
     (1991). Nebraska com-
    plied in 1985 with the passage of 1985 Neb. Laws, L.B. 7, § 18,
    2d Spec. Sess. See 
    Neb. Rev. Stat. § 42-364.16
     (Reissue 2016)
    (requires Nebraska Supreme Court to create guidelines that
    serve as rebuttable presumption in setting child support obliga-
    tions). See, also, Schmitt v. Schmitt, 
    supra.
     The Nebraska Child
    Support Guidelines subsequently became operative October 1,
    1987. See Schmitt v. Schmitt, 
    supra.
    [7] Then, in 2008, the Legislature passed 2008 Neb. Laws,
    L.B. 1014, § 33, codified at 
    Neb. Rev. Stat. § 42-364.17
    (Reissue 2016), which specifically sets forth certain categories
    of expenses that could be considered in determining parents’
    financial responsibilities related to their children; it provides
    as follows:
    A decree of dissolution, legal separation, or order
    establishing paternity shall incorporate financial arrange-
    ments for each party’s responsibility for reasonable
    and necessary medical, dental, and eye care, medical
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    reimbursements, day care, extracurricular activity, educa-
    tion, and other extraordinary expenses of the child and
    calculation of child support obligations.
    The Nebraska Supreme Court has clarified that § 42-364.17
    provides categories of expenses incurred by a child which can
    be ordered by a trial court in addition to the monthly child sup-
    port calculation determined under the guidelines. “The com-
    mon meaning of ‘support’ clearly includes all of the incidents
    of a child’s needs.” Caniglia v. Caniglia, 
    285 Neb. 930
    , 934,
    
    830 N.W.2d 207
    , 211 (2013). One incident of support is
    the regular monthly payment established under the Nebraska
    Child Support Guidelines. See Caniglia v. Caniglia, 
    supra.
    “But the guidelines recognize other incidents of ‘support’
    that are wholly or partly outside of the monthly installment.”
    Caniglia v. Caniglia, 
    285 Neb. at 934
    , 830 N.W.2d at 211.
    “The expenses stated in § 42-364.17—including, among others,
    extracurricular, education, and other extraordinary expenses—
    merely represent other incidents of ‘support’ to be addressed in
    a dissolution decree.” Caniglia v. Caniglia, 
    285 Neb. at 934
    ,
    830 N.W.2d at 211. Thus, a district court has the authority to
    order the categories of expenses specified in § 42-364.17 in
    addition to the monthly child support obligation calculated
    under the guidelines.
    Notably, as applicable here, § 42-364.17 refers specifi-
    cally to extracurricular, education, and other “extraordinary”
    expenses that may be considered in addition to the monthly
    child support obligation, while § 42-369(3) refers more gen-
    erally to “necessary shelter, food, clothing, care,” and educa-
    tion expenses, and “any other expenses the court may deem
    reasonable and necessary.” Under § 42-364.17, any expense
    beyond “reasonable and necessary medical, dental, and eye
    care, medical reimbursements, day care, extracurricular activ-
    ity, [and] education” would have to qualify as “extraordinary.”
    Whereas, under § 42-369(3), expenses may include neces-
    sary food, clothing, and care, as well as any other expenses
    deemed “reasonable and necessary” by the court. The older
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    statute certainly contemplates a very broad range of expenses
    associated with caring for a child, while the newer statute has
    narrowed the types of expenses that may coincide with a calcu-
    lation of child support obligations.
    [8] To reconcile the two statutes, we note that child support
    statutes should be read in conjunction with the Nebraska Child
    Support Guidelines. See Hoover v. Hoover, 
    2 Neb. App. 239
    ,
    
    508 N.W.2d 316
     (1993). Also, components of a series or col-
    lection of statutes pertaining to a certain subject matter are in
    pari materia and should be conjunctively considered and con-
    strued to determine the intent of the Legislature, so that differ-
    ent provisions are consistent, harmonious, and sensible. Tyler
    F. v. Sara P., 
    306 Neb. 397
    , 
    945 N.W.2d 502
     (2020). Because
    the broader, more general terms contained in § 42-369(3)
    preceded the adoption of the guidelines and the passage of
    § 42-364.17, we construe the guidelines and § 42-364.17 to
    control what categories of expenses can be ordered in addition
    to the monthly child support obligation determined under the
    guidelines. Since there were no mandatory child support guide-
    lines in existence until the passage of the guidelines in 1987,
    the broader language of § 42-369(3) essentially provided for
    types of expenses that could be considered when determining
    support for children, including basic necessities such as shelter,
    food, and clothing. However, the adoption of the guidelines
    necessarily incorporated basic necessities such as shelter, food,
    and clothing, and the passage of § 42-364.17 further delineated
    specific expenses that could be ordered in addition to those
    basic necessities now incorporated into the guidelines. To con-
    strue § 42-369(3) to require a parent to pay for basic necessi-
    ties such as shelter, food, and clothing in addition to a monthly
    child support obligation which has been calculated using the
    basic net income and support calculation, worksheet 1, would
    make inexplicable what the monthly child support was other-
    wise intended to cover in terms of a child’s needs.
    However, an order requiring a parent to contribute to a
    child’s clothing expenses, or other reasonable and necessary
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    direct expenditures, may be appropriate in joint physical cus-
    tody situations. In those cases, the determination of each par-
    ent’s monthly child support obligation is significantly lower
    when using the joint physical custody child support calcula-
    tion, worksheet 3, due to the more equal sharing of parenting
    time between the parents. See Neb. Ct. R. ch. 4, art. 2, work-
    sheet 3 (rev. 2007). Neb. Ct. R. § 4-212 (rev. 2011), related
    to joint physical custody, provides in relevant part: “If child
    support is determined under this paragraph, all reasonable and
    necessary direct expenditures made solely for the child(ren)
    such as clothing and extracurricular activities shall be allocated
    between the parents, but shall not exceed the proportion of
    the obligor’s parental contributions . . . .” Therefore, in addi-
    tion to the monthly child support obligation calculated for
    joint physical custody, a trial court may apportion between the
    parents a child’s clothing and other reasonable and necessary
    direct expenditures.
    With these legal principles in mind, we now consider the
    expenses Gary was ordered to pay in addition to his monthly
    child support obligation which was calculated using the basic
    net income and support calculation, worksheet 1, rather than
    the joint physical custody child support calculation, work-
    sheet 3.
    (b) Private School Tuition
    During the course of the marriage, Gary and Kirsten enrolled
    the children in a private school. Kirsten testified that she had
    continued the children’s enrollment in the same private school
    after the parties separated and during the dissolution proceed-
    ings. Gary testified that he objected to having the children
    attend private school, but had allowed the children’s attendance
    during the marriage.
    Gary suggests the district court had the discretionary
    authority to provide a support order to include educational
    expenses pursuant to § 42-369(3); however, he claims this
    constitutes a deviation from the Nebraska Child Support
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    Guidelines. In response, Kirsten also directs us to § 42-364.17.
    Gary claims that because Kirsten “unilaterally [chose] to con-
    tinue to enroll the minor children in a private school” and
    “offered [no evidence] regarding the minor children[’s] need
    for such an education, or that it had any beneficial [e]ffect or
    consequences,” then the cost of the children’s tuition should
    be Kirsten’s responsibility alone. Brief for appellant at 18. He
    therefore contends that making him responsible for 50 percent
    of the cost of private school tuition for the children was an
    abuse of discretion.
    Education is one of the expenses specifically referenced in
    § 42-364.17, and it therefore represents a type of support the
    district court may award in addition to the monthly child sup-
    port obligation. See Caniglia v. Caniglia, 
    285 Neb. 930
    , 
    830 N.W.2d 207
     (2013). Private school education has been recog-
    nized as an expense that may be allocated separately from a
    monthly child support award. See Becher v. Becher, 
    299 Neb. 206
    , 
    908 N.W.2d 12
     (2018) (affirming district court’s order
    directing father to pay school tuition for children’s private
    school education).
    In light of the evidence that the children have attended the
    same private school throughout the marriage and the dissolu-
    tion process, we cannot say the district court abused its discre-
    tion in ordering Gary to be responsible for 50 percent of the
    children’s private school tuition costs. Although Gary is pay-
    ing $1,980 per month in child support and $500 per month in
    alimony ($2,480 per month total support), his gross monthly
    income of $12,048.25 is still much greater than Kirsten’s gross
    monthly income of $5,000. Even after adjusting for Gary’s
    outgoing support obligations and Kirsten’s incoming support
    amounts, Gary can afford to contribute equally with Kirsten to
    maintain their children in the education environments which
    were established during the marriage. Maintaining stability
    and continuity in the children’s educational routine is cer-
    tainly in their best interests. See State on behalf of Kaaden S.
    v. Jeffery T., 
    303 Neb. 933
    , 
    932 N.W.2d 692
     (2019) (relevant
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    considerations of child’s best interests include stability in
    child’s routine).
    (c) Extracurricular Expenses
    We likewise cannot say that the district court abused its
    discretion by making Gary responsible for 70 percent of the
    extracurricular expenses incurred on behalf of the children
    that the parties mutually agree upon in advance. As noted pre-
    viously, extracurricular expenses are specifically referenced
    in § 42-364.17; this is another type of support that may be
    awarded in addition to the monthly payment established by
    the child support guidelines. See Caniglia v. Caniglia, 
    supra.
    Notably, the district court requires the sharing of only those
    extracurricular expenses that the parties have agreed to in
    advance, although the court also noted that consent should not
    be unreasonably withheld. This provision appears to encour-
    age both parents to participate in making decisions about such
    activities for their children. Further, with the contributions of
    both parents to the costs associated with such activities, they
    will likely be more mutually supportive of their children’s
    involvement in those activities. We cannot say that the district
    court abused its discretion in its allocation of these expenses
    between the parties in this manner.
    (d) Other Miscellaneous Expenses
    With respect to the part of the order requiring Gary to be
    responsible for half of “the cost of school lunches (purchased
    from the school), required school supplies, haircuts, and items
    of clothing the parties expect the children to wear at both
    residences, i.e., winter coats, hats, mittens, winter boots, back-
    packs, and tennis shoes,” we find the district court abused
    its discretion.
    As discussed above, § 42-364.17 sets forth those expenses
    which a parent may be ordered to pay in addition to his or
    her monthly child support obligation. These include “reason-
    able and necessary medical, dental, and eye care, medical
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    reimbursements, day care, extracurricular activity, education,
    and other extraordinary expenses of the child.” While it is con-
    ceivable that school lunches and school supplies might qualify
    as an “education” expense, we conclude that such a broad read-
    ing is not warranted in the present matter. With a child support
    award of $1,980 per month, these items can be adequately cov-
    ered and seem better characterized as basic necessities covered
    by the monthly child support obligation.
    As for the order’s remaining items, haircuts and clothing,
    the only category under which they could possibly qualify
    under § 42-364.17 would be “extraordinary expenses.” We
    conclude that such expenses fall within the basic necessities
    intended to be covered by a monthly child support obligation
    calculated using the basic net income and support calcula-
    tion, worksheet 1, and do not rise to the level of “extraordi-
    nary expenses.”
    The district court abused its discretion in ordering Gary to
    pay for these expenses, and we therefore vacate this portion of
    the decree.
    3. Tax Dependency Exemptions
    Gary claims on appeal that the district court abused its dis-
    cretion in awarding Kirsten the sole right to claim the children
    for state and federal income tax purposes.
    For purposes of the district court’s child support calcula-
    tion, Gary’s gross income was calculated to be $12,048.25 per
    month and Kirsten’s was calculated to be $5,000 per month.
    The district court ordered Gary to pay additional expenses
    described previously in addition to the monthly child support
    sum of $1,980.
    Gary asserts that because he “is paying [his] proportion-
    ate share of direct living expenses for the care of the minor
    children through his child support obligation[,] [h]e should
    receive some benefit for this obligation in the form of a tax
    exemption.” Brief for appellant at 20-21. He further claims his
    marginal tax rate would be “detrimentally unfair to [Kirsten’s]
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    marginal tax rate, claiming the tax dependency credits for all
    three minor children.” Id. at 21.
    [9,10] A tax dependency exemption is an economic ben-
    efit nearly identical to an award of child support or alimony.
    Anderson v. Anderson, 
    290 Neb. 530
    , 
    861 N.W.2d 113
     (2015).
    In general, the custodial parent is presumptively entitled to the
    federal tax exemption for a dependent child. 
    Id.
     But a court
    may exercise its equitable powers and order the custodial par-
    ent to execute a waiver of his or her right to claim the tax
    exemption for a dependent child if the situation of the parties
    so requires. 
    Id.
    Although Gary claims that the district courts “have routinely
    equally divided the tax dependency exemptions between the
    parents,” brief for appellant at 21, we note that a departure
    from this routine does not necessarily equate to an abuse of
    discretion. The considerations of the district court included the
    totality of the facts and circumstances of the parties and were
    not constrained to comparisons of income and allocation of
    expenses. We cannot say the district court abused its discretion
    in granting Kirsten the sole right to claim the minor children
    for state and federal income tax purposes.
    4. Equalization Payment
    Gary does not disagree with “the identification of marital
    assets and liabilities, nor the valuations determined by the [dis-
    trict court].” Brief for appellant at 22. However, he contends
    the district court abused its discretion in determining he owed
    Kirsten a payment of $15,841 to equalize the marital estate. He
    asserts the property division was not supported by the evidence
    related to the sale of the marital residence, as the division of
    the marital residence and all liens and encumbrances against it
    had been divided prior to trial and were erroneously factored
    into the district court’s calculations. We agree that the evidence
    supports Gary’s argument.
    While the dissolution action was pending, Kirsten motioned
    the district court to order the sale of the marital residence.
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    The district court granted this order. The closing on the sale
    occurred on May 2, 2019; trial took place in October. At the
    time of closing, Gary’s support obligations under the January
    14 temporary order were in arrears; he owed $5,066.14 in
    child support and $9,819.09 in spousal support (total owed
    of $14,885.23).
    According to the closing statement for the marital home
    received into evidence, the sale price was $196,500. The clos-
    ing statement reflects that the mortgage and home equity line
    of credit encumbering the marital residence, as well as all
    other fees associated with the closing, were deducted from the
    sale proceeds. Also, as part of the closing costs, the combined
    amount of Gary’s outstanding support obligations ($14,885.23)
    was deducted for distribution to Kirsten. The remaining net
    proceeds of the sale amounted to $14,954.71 and were placed
    into escrow. We note that the net sale proceeds would have
    totaled $29,839.94 but for the payment made to pay off Gary’s
    outstanding support obligations. Ordinarily, such net proceeds
    would have been split in half, resulting in the receipt by each
    party of $14,919.97. However, instead of receiving his share of
    the net profit, Gary’s share was applied to his outstanding sup-
    port obligations of $14,885.23. Gary contends that the remain-
    ing balance of $14,954.71 constituted Kirsten’s one-half share
    and that this amount was distributed to Kirsten. The record is
    unclear as to whether the $14,954.71 was still held in escrow
    at the time of trial or whether those funds had actually been
    distributed to Kirsten as Gary indicates.
    The district court’s calculation error appears to stem from
    Kirsten’s assets and liabilities spreadsheet, offered and received
    as exhibit 11. The district court adopted the values, the divi-
    sion, and the equalization amount of $15,841 as set forth on
    that exhibit. However, exhibit 11 reflects both parties receiving
    $22,791.59 in equity from the home, which is not supported
    by the closing statement. Further, exhibit 11 credits Kirsten’s
    equity in the home with the amounts owed by Gary in child
    and spousal support described previously. However, as Gary
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    points out, the real estate closing document shows that these
    outstanding obligations were deducted from his share of the
    house sale proceeds at the time of closing. Kirsten’s only
    response to Gary’s argument is that she divided the house pro-
    ceeds equally on her spreadsheet and deducted the delinquent
    support “by showing it as a negative figure” to make sure she
    would not be paying for half of Gary’s outstanding support
    obligations. Brief for appellee at 16. She does not explain why
    giving her the delinquent support credits on her spreadsheet
    was appropriate given Gary’s share of the net proceeds from
    the house sale had already satisfied those delinquencies. Nor
    does she otherwise challenge Gary’s explanation regarding the
    application of his share of the home equity to those outstanding
    support obligations.
    After considering the evidence in the record, we agree with
    Gary that the remaining net proceeds of $14,954.71 from
    the sale which were placed into escrow represented Kirsten’s
    share of the equity in the marital home and that the amount of
    $14,885.23 paid to Kirsten in satisfaction of his support obliga-
    tions represented Gary’s share of the equity. These combined
    amounts represent the remaining equity in the home following
    the deduction of all related liens, costs, and fees from the sale
    price of the marital home as evidenced by the closing state-
    ment. Gary, instead of receiving his share of the net proceeds,
    had his share paid to Kirsten to satisfy his delinquent sup-
    port obligations. The amounts of Gary’s satisfied obligations
    should not have been included on the assets and liabilities
    spreadsheet, and the equalization calculation should be modi-
    fied accordingly.
    Before setting forth our modified calculation of the marital
    estate, we note that our modification assumes the net pro-
    ceeds of $14,954.71 from the sale of the marital home were
    distributed entirely to Kirsten. As noted previously, the record
    is unclear whether those funds were distributed to Kirsten or
    whether they are still in escrow. If the latter, those funds should
    be released entirely to Kirsten.
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    Using the asset and liability values set forth on exhibit 11, as
    now modified to reflect each party’s share of the net proceeds
    from the sale of the home, we have calculated the property
    equalization as follows:
    Kirsten            Gary
    Net house sale proceeds            $14,954.71         $14,885.23
    (Gary’s share used to
    pay outstanding support)
    Other assets                       $   475.78         $40,304.75
    Total assets                       $15,430.49         $55,189.98
    Liabilities                       [$13,202.01]       [$36,234.19]
    Net marital estate                 $ 2,228.48         $18,955.79
    Equalization due to Kirsten        $ 8,364.00        [$ 8,364.00]
    Equalized marital estate           $10,592.48         $10,591.79
    Accordingly, we modify the district court’s decree to reflect
    that Gary’s property equalization judgment owed to Kirsten is
    $8,364 rather than $15,841.
    5. Alimony
    Gary argues on appeal that the district court abused its dis-
    cretion in ordering him to pay $500 per month in alimony to
    Kirsten for 5 years.
    As described previously, the district court, in calculating
    child support, determined Gary’s monthly gross income at the
    time of trial to be $12,048.25 and Kirsten’s monthly gross
    income to be $5,000. For the majority of the 12-year marriage
    until July 2016, Kirsten was employed. In July 2016, Kirsten
    and Gary agreed that Kirsten should quit her job to stay home
    with the minor children, forgoing her then-current yearly sal-
    ary of $89,000. Thereafter, she was not employed again until
    March 2019.
    Kirsten’s expenses at the time of trial were approximately
    $4,543 per month; such expenses included $950 for rent,
    $1,084 for groceries, $300 for her car payment, $239 for vehi-
    cle gas, $200 for utilities, $945 for daycare for the children,
    and various other expenses including cell phone payments,
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    internet, renter’s and vehicle insurance, and clothing and enter-
    tainment expenses for the children.
    Gary neither testified as to nor provided a list of his monthly
    expenses. As described previously, he is obligated to pay
    $1,980 in child support to Kirsten as well as certain other
    expenses. He is also required to maintain health insurance
    through his employer for the benefit of the children, and his
    weekly payroll deduction for that insurance is $42.
    The district court acknowledged the 12-year duration of the
    parties’ marriage and the parties’ three minor children. The
    court also identified Kirsten’s decreased income compared to
    her previous employment, noting that “she is not in the same
    advanced position she was when her employment ended” and
    that “it will take her several years to obtain the same respective
    position.” Drawing on these facts, the court ordered Gary to
    pay $500 per month in alimony to Kirsten for 5 years.
    [11-13] In dividing property and considering alimony upon
    a dissolution of marriage, a court should consider four fac-
    tors: (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. Wiedel v. Wiedel, 
    300 Neb. 13
    , 
    911 N.W.2d 582
     (2018). In addition, a court should
    consider the income and earning capacity of each party and
    the general equities of the situation. 
    Id.
     In reviewing an ali-
    mony 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.
    
    Id.
     Alimony is not a tool to equalize the parties’ income, but
    a disparity of income or potential income might partially jus-
    tify an alimony award. Anderson v. Anderson, 
    290 Neb. 530
    ,
    
    861 N.W.2d 113
     (2015).
    Gary argues that the evidence cannot justify an award of
    alimony to Kirsten, as “she has funds to pay for her[] and the
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    minor children[’s] . . . normal maintenance and expenses.”
    Brief for appellant at 26. He further asserts that an award for
    alimony is not warranted because “[n]o circumstances dictate
    that [Kirsten] economically suffered during the marriage” and
    Kirsten “was not left without assets or significant earning
    capacity.” Id. at 27. Gary also points out that his own income
    is “directly reduce[d]” to the extent that factoring in Kirsten’s
    income and the other amounts Gary is required to pay to her,
    “the net difference in the available earnings [is] not substan-
    tially different.” Id. at 27.
    In addition to a significant disparity between each party’s
    employment income, Kirsten’s present income amounts to only
    approximately two-thirds of her previous income before she
    ended her employment in July 2016 to take care of the chil-
    dren, and it will take a number of years for Kirsten’s level of
    income to reach that same level again. While she builds up her
    income toward its previous level, she will also be primarily
    responsible for raising three children.
    In light of the record before us regarding the parties’ indi-
    vidual circumstances, we cannot say the district court abused
    its discretion in ordering Gary to pay $500 per month in ali-
    mony to Kirsten for a period of 5 years.
    6. Attorney Fees
    Gary claims the district court abused its discretion in order-
    ing him to pay $8,000 in attorney fees to Kirsten.
    According to an affidavit for attorney fees received into
    evidence, Kirsten’s attorney charged her at a rate of $300 per
    hour. Prior to the conclusion of trial, the affidavit indicates
    that Kirsten had incurred $16,849.09 in attorney fees and
    expenses. This amount did not take into consideration the fees
    associated with the trial. Kirsten requested that the district
    court order Gary to pay for a portion, if not all, of her attor-
    ney fees.
    [14] It has been held that in awarding attorney fees in a dis-
    solution action, a court shall consider the nature of the case,
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    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. Garza v. Garza, 
    288 Neb. 213
    ,
    
    846 N.W.2d 626
     (2014). Additionally, in dissolution cases,
    as a matter of custom, attorney fees and costs are awarded to
    prevailing parties. Moore v. Moore, 
    302 Neb. 588
    , 
    924 N.W.2d 314
     (2019). 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. See Dooling
    v. Dooling, 
    303 Neb. 494
    , 
    930 N.W.2d 481
     (2019).
    The district court ordered Gary to pay $8,000 toward
    Kirsten’s attorney fees “[d]ue to the discrepancy in income
    between the parties . . . .” In light of the record before us with
    respect to the parties’ circumstances as previously described,
    we cannot say the district court abused its discretion by order-
    ing Gary to pay attorney fees to Kirsten.
    VI. CONCLUSION
    The district court’s decree is modified to reflect the changes
    to the parenting plan and the property equalization judgment
    as discussed above. The portion of the decree ordering Gary to
    pay certain expenses, as discussed above, is vacated. All other
    aspects of the decree are affirmed. Therefore, we affirm in part
    as modified, and in part vacate.
    Affirmed in part as modified,
    and in part vacated.