Anderson v. Anderson , 27 Neb. Ct. App. 547 ( 2019 )

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ANDERSON v. ANDERSON
Cite as 27 Neb. App. 547Brandi J. A nderson, appellee and cross-appellant,
v. Donald J. A nderson, appellant
and cross-appellee.
___ N.W.2d ___
Filed September 3, 2019. No. A-18-754.
1. Divorce: Appeal and Error. In a marital dissolution action, an appellate
court reviews the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue.
4. ____: ____. When evidence is in conflict, the appellate court con-
siders and may give weight to the fact that the trial court heard and
observed the witnesses and accepted one version of the facts rather than
another.
5. Divorce: Attorney Fees: Appeal and Error. In an action involving
a marital dissolution decree, the award of attorney fees is discretion-
ary with the trial court, is reviewed de novo on the record, and will be
affirmed in the absence of an abuse of discretion.
6. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), the equitable division of property is a three-step process. The
first step is to classify the parties’ property as marital or nonmarital, set-
ting aside the nonmarital property to the party who brought that property
to the marriage. The second step is to value the marital assets and mari-
tal liabilities of the parties. The third step is to calculate and divide the
net marital estate between the parties in accordance with the principles
contained in § 42-365.
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Cite as 27 Neb. App. 5477. ____: ____. The ultimate test in determining the appropriateness of the
division of property is fairness and reasonableness as determined by the
facts of each case.
8. ____: ____. As a general rule, all property accumulated and acquired
by either party during the marriage is part of the marital estate, unless it
falls within an exception to the general rule.
9. ____: ____. Exceptions to the rule that all property accumulated and
acquired during the marriage is marital property include property accu-
mulated and acquired through gift or inheritance.
10. Divorce: Property Division: Proof. The burden of proof to show that
property is nonmarital remains with the person making the claim.
11. Divorce: Property Division. As a general rule, a spouse should be
awarded one-third to one-half of the marital estate, the polestar being
fairness and reasonableness as determined by the facts of each case.
12. Divorce: Property Division: Words and Phrases. “Dissipation of
marital assets” is defined as one spouse’s use of marital property for a
selfish purpose unrelated to the marriage at the time when the marriage
is undergoing an irretrievable breakdown.
13. Divorce: Property Division. Marital assets dissipated by a spouse for
purposes unrelated to the marriage should be included in the marital
estate in dissolution actions.
14. ____: ____. Debts, like property, ought to also be considered in dividing
marital property upon dissolution.
15. ____: ____. When one party’s nonmarital debt is repaid with marital
funds, the value of the debt repayments ought to reduce that party’s
property award upon dissolution.
16. Child Support: Evidence. Generally, earning capacity should be used
to determine a child support obligation only when there is evidence that
the parent can realize that capacity through reasonable efforts.
17. Divorce: Property Division: Alimony. In dividing property and 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.
18. ____: ____: ____. In addition to the specific criteria listed in Neb. Rev.
Stat. § 42-365 (Reissue 2016), in dividing property and considering
alimony upon a dissolution of marriage, a court should consider the
income and earning capacity of each party and the general equities of
the situation.
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Cite as 27 Neb. App. 54719. 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. The ultimate criterion is one of reasonableness.
20. ____: ____. An appellate court is not inclined to disturb the trial court’s
award of alimony unless it is patently unfair on the record.
21. Visitation. The trial court has discretion to set a reasonable parenting
time schedule.
22. ____. A reasonable visitation schedule is one that provides a satisfactory
basis for preserving and fostering a child’s relationship with the noncus-
todial parent, and the determination of reasonableness is to be made on
a case-by-case basis.
23. ____. Parenting time relates to continuing and fostering the normal
parental relationship of the noncustodial parent.
24. ____. The best interests of the children are the primary and paramount
considerations in determining and modifying visitation rights.
25. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
26. Divorce: Attorney Fees. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
27. ____: ____. Attorney fees and costs are often awarded to prevailing par-
ties in dissolution cases as a matter of custom.
28. ____: ____. In awarding attorney fees in a dissolution action, a court
shall consider the nature of the case, the amount involved in the contro-
versy, the services actually performed, the results obtained, the length of
time required for preparation and presentation of the case, the novelty
and difficulty of the questions raised, and the customary charges of the
bar for similar services.
29. Attorney Fees: Affidavits: Evidence. Where a party seeks to recover
attorney fees, the best practice will always be to provide an affidavit
or other evidence such as testimony or exhibits. Litigants who do not
file such an affidavit or present other evidence risk the loss of attorney
fees because of the difficulty of discerning such information from the
record alone.
Appeal from the District Court for Hall County: M ark J.
Young, Judge. Affirmed as modified.
Mark Porto, of Porto Law Office, for appellant.
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ANDERSON v. ANDERSON
Cite as 27 Neb. App. 547Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O.,
for appellee.
R iedmann, A rterburn, and Welch, Judges.
A rterburn, Judge.
I. INTRODUCTION
Donald J. Anderson appeals from the decree of dissolution
entered in the district court for Hall County, which dissolved
his marriage to Brandi J. Anderson. On appeal, Donald chal-
lenges the court’s property distribution and the calculations of
his child support and alimony obligations. On cross-appeal,
Brandi challenges the court’s visitation schedule, alimony
award, and attorney fees determination. For the reasons that
follow, we affirm the decision of the district court as to child
support, alimony, the visitation schedule, and attorney fees.
We modify in part the district court’s decision as to prop-
erty division.
II. BACKGROUND
Donald and Brandi were married on September 25, 1999,
and had three children together: a son, S.A., born in 2006; a
daughter born in 2008; and a son born in 2015. After nearly
17 years of marriage, the parties separated in July 2016, and
Brandi filed an amended complaint for dissolution of marriage
on August 15.
After a hearing on October 14, 2016, the court entered tem-
porary orders that found the children’s need for a “significant
amount of stability in their lives” made it inappropriate for
the court to order joint custody with weekly transitions. Thus,
the court gave Brandi temporary legal and physical custody of
the children and allowed Donald to have parenting time every
other weekend from Friday at 5 p.m. until Sunday at 7 p.m.
During the weeks when Donald did not have weekend parent-
ing time, he had 2 hours of parenting time with S.A. and his
sister, individually, on one weeknight each. The parties subse-
quently agreed that Donald’s weekend parenting time would
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Cite as 27 Neb. App. 547begin on Thursdays instead of Fridays. They also agreed that
Donald would have parenting time with all the children on
Thursday evenings during weeks when he did not have week-
end parenting time. The court also ordered Donald to pay
temporary child support of $1,251 per month and temporary
spousal support of $1,100 per month.
Trial was held on February 1 and 13, 2018. At trial, Brandi
testified that she had obtained a student loan prior to the mar-
riage, a portion of which was repaid during the marriage. In
November 2017, the principal balance was $21,785, while
interest payments totaled over $31,897 during the loan’s life-
time, which began in 1990. The loan financed Brandi’s educa-
tion, which enabled her to become a licensed teacher. Brandi
worked as a schoolteacher from the time the parties married in
1999 until 2006, when S.A. was born. When S.A. was born,
Brandi quit teaching and began caring for him full time. She
testified that no daycare would accept him, because he rarely
slept as an infant and cried, screamed, and needed to be rocked
nearly constantly for several years. S.A. was later diagnosed
with Asperger’s syndrome (Asperger’s).
S.A. developed violent tendencies and was prone to out-
bursts if unexpected or unplanned events occurred. Brandi tes-
tified that inconsistency in rules and consequences oftentimes
led to S.A.’s bad behavior. Jealousy and seeing his siblings
receive attention also led to S.A.’s outbursts. S.A. experienced
suicidal thoughts, and in April 2017, he began talking about
suicide in more detail and began acting out a plan to commit
suicide. Brandi admitted S.A. to a hospital at that time.
Brandi offered testimony from a licensed independent men-
tal health practitioner, Joan Schwan, who counseled S.A.
from October 2016 through January 2018. Schwan also met
the other children briefly. Schwan testified that because S.A.
has Asperger’s, he needs a calm, structured living environ-
ment. She worked with him to process his feelings and
handle anger. Schwan said that S.A. needs consistency across
both parents’ homes and that it was detrimental for him to
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Cite as 27 Neb. App. 547view visitations with Donald as more fun because it was just
the two of them. After a 5-day visit with Donald, S.A. told
Schwan that he had not taken his medications and showered
only once during that time. She knew that S.A. had “blow-
ups” and “meltdowns” during which he would scream, kick,
and hit others, particularly after spending one-on-one visita-
tions with Donald.
Schwan opined that one-on-one visitations were not appro-
priate for S.A., because he viewed the individual attention as
indicating that he was more special than his siblings. Schwan
described that S.A. demands increasing amounts of his parents’
attention, especially once they respond by giving him attention.
Schwan said that because of that attention-seeking cycle, one-
on-one visitations may be appropriate for other children but
were not appropriate for S.A., because “he plays it” and sees
the additional attention as indicating that he is special, which
leads to him demanding more time. She testified that it was
important for S.A. to see Donald giving time to S.A.’s siblings
and to “actually witness that [his sister] is just as important as
he is.” She testified that her understanding was that S.A. would
return from one-on-one visitations with Donald and brag and
bully his sister about it. Schwan said that S.A.’s attitude simi-
larly affects his schoolwork and recalled an instance of S.A.’s
calling a classmate “a jerk because he wasn’t getting his way
immediately.” Brandi also testified that S.A. returned from
visitations with Donald and taunted his siblings but that S.A.’s
behavior was much better when he returns from visitations that
all the children attend.
Brandi described S.A.’s need for consistent routines and
said that he “holds it all together during the school day” but
can become volatile for a few hours after school until he gets
into a routine again. However, she testified that S.A. does
very well in school and had not had any disciplinary problems
in school for the past 2 years. Her opposition to individual
parenting time with Donald was based on her concern for
the number of transfers and disruptions to their routine that
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Cite as 27 Neb. App. 547it caused. Brandi testified that she did not want to keep the
children from Donald. Donald similarly testified that S.A. does
“great in school” and had no more behavioral problems than
any other student. Donald said that individual parenting time
with S.A. was important to him in order to enjoy quality time
together and described that the youngest child requires most of
his attention when all the children are together.
Beginning in 2006, when S.A. was born, Donald was the
family’s sole income earner. Donald worked as a business
development manager at a construction company from some-
time before the parties were married through 2003. He then
worked briefly as a personal banker before beginning to work
at Credit Management Services, Inc. (Credit Management), in
2005. Donald left Credit Management in 2013 after having
difficulties with his boss and because he was traveling for 7
to 10 nights each month. When he left Credit Management
in 2013, he was making an estimated $112,000 per year.
From October 2013 through June 2014, Donald worked for
an insurance company, earning commission only. He testified
that the job required extensive travel and staying in hotels a
minimum of three nights per week. Donald began working for
Axis Capital, Inc., in 2014, earning a base salary of $45,000
plus commission. When he was promoted in 2015, his base
salary was raised to $70,000 plus commission. Tax documents
show that the couple earned $132,200 in wages during 2015,
the vast majority of which came from Donald’s work at Axis
Capital. In 2016, after disclosing an affair with a colleague,
Donald was demoted and his pay was reduced by $2,000
per month. Donald then left his job with Axis Capital at the
end of July, having earned $98,000 from January through
July 2016.
Donald then worked for another construction company for
2 months, where his annualized salary was approximately
$81,000 before commission. In October 2016, he began working
for Providence Capital, which paid him approximately $6,000
per month plus commission during a 120-day probationary
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Cite as 27 Neb. App. 547period. He resigned from Providence Capital in February 2017
and returned to Credit Management from March through May
2017. At that time, Credit Management paid Donald an annual
salary of $50,000 plus commission, which he said “wasn’t
significant.” His territory included western Nebraska and east-
ern Kansas, which he said was not conducive to visitations
with his children, because the divorce proceedings had begun
by that time. When he left Credit Management in May 2017,
he started his own firm, while also “actively seeking” other
employment. He testified that he made approximately $4,400
through that venture.
In September 2017, Donald began working for Hamilton
Telecommunications and remained employed there at the time
of trial. Hamilton Telecommunications paid Donald an initial
base salary of $55,000 per year plus commission. His base sal-
ary would decrease by $5,000 per year as commissions built
up, eventually bottoming out at a $35,000 minimum. His salary
was projected to grow significantly year to year if he met his
sales goals.
In 2007, Donald and Brandi purchased a home together in
Grand Island, Nebraska, for $145,000. They added a bedroom
and remodeled the master bathroom. Brandi testified that at
the time of trial, the home’s roof was in “horrible shape” and
needed repairs because the area around the chimney leaked
when it rained. She said that roof repairs were estimated to
cost $12,500. Brandi also testified that the windows were cav-
ing in, needed to be propped up, and let cold air blow inside.
Brandi offered testimony from a real estate appraiser, who
valued the home at $150,000. He testified that his appraisal
accounted for the renovations and additions to the home. He
also testified that, traditionally, a county assessor’s appraisal is
supposed to be within 3 to 5 percent of a home’s full value and
that county assessors do not individually appraise homes and
do not make physical inspections of every home.
When the parties refinanced their home mortgage in
2012, an appraisal was required, which valued the home at
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Cite as 27 Neb. App. 547$160,000. In 2017, the Hall County assessor valued the home
for tax purposes at $171,449. At trial, Donald testified that he
believed an accurate valuation of their home was $185,000,
which he calculated by assuming that the tax-assessed value
was 92 percent of the home’s actual value. Donald took issue
with the valuation offered by Brandi’s expert, because he
believed that the expert’s appraisal did not accurately reflect
the home’s square footage, number of rooms, or age and that
the homes used for comparison’s sake were substantially dif-
ferent. The appraiser, when asked about his report’s inaccura-
cies, said that the errors did not affect his valuation, because
his ultimate opinion was based on his physical inspection of
the property.
Donald testified that he and Brandi withdrew $20,000
from his Credit Management retirement account in 2008 or
2009 and used some of the funds to repay their home loan.
They repaid the withdrawal before Donald’s employment
with Credit Management ended. He said that the funds were
used for home renovations and household items, while also
acknowledging that some of the withdrawn funds were used to
pay down gambling debts he incurred, but he did not estimate
the amount.
In 2014, the parties withdrew approximately $60,000 from
retirement accounts to offset decreased income, and Donald
acknowledged that “a few thousand dollars” went toward gam-
bling debt. Brandi stated that $2,000 of a $12,000 withdrawal
in 2014 was never accounted for and that she assumed it was
for gambling, because “[t]hat’s his pattern.” Donald acknowl-
edged that he spent $570 on gambling in February 2017 and
$1,762 on gambling in April 2017 after the parties’ separa-
tion. Brandi testified that Donald’s gambling was an issue
throughout their marriage, because they had lost “thousands.”
She acknowledged that Donald sought help for gambling and
secured a church friend to act as his “accountability partner,”
who met with Donald and went with him “to [his] bookie to
cut ties” with him.
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Cite as 27 Neb. App. 547Donald also described withdrawing $12,000 from retirement
accounts during the summer of 2017 pursuant to an agreement
with Brandi. He used the money to catch up on child support,
spousal support, and health care payments.
During the marriage, Brandi’s grandmother made a number
of gifts by checks that were made out to both Donald and her
and some made to her alone. Brandi calculated the total of the
checks made out to Donald and her jointly as $3,750, while
the checks to her alone totaled $20,900. Brandi also acknowl-
edged that Donald’s parents gave them approximately $5,000
when they bought their first home.
Brandi testified that her grandmother died “about a week
after [Donald] moved out of the house” and that she inher-
ited $7,000 from her grandmother. Shortly thereafter, Brandi’s
father, who was the personal representative of her grand-
mother’s estate, made gifts to a number of the heirs, including
Brandi. Brandi said that the total amount she received was
“[r]oughly lower 30’s, 30 some thousand.”
On July 6, 2018, the court entered a decree dissolving the
marriage between Donald and Brandi. The court awarded legal
and physical custody of the children to Brandi based on “the
difficulties the parties have in communicating and the need
for stability of the children (particularly [S.A.]).” The court
awarded Donald parenting time every other weekend from
5:30 p.m. on Thursdays until 7 p.m. on Sundays. Additionally,
on the weeks when Donald did not have weekend parenting
time, the court awarded him parenting time with the younger
son for 11⁄2 hours on Mondays, with S.A. for 11⁄2 hours on
Tuesdays, and with the daughter for 11⁄2 hours on Wednesdays.
In awarding Donald one-on-one visitations with each of the
children, the court cited the “lack of any evidence from the
schools that the visitations were causing [S.A.] increased
behavioral problems or any evidence concerning behavioral
problems from a party other than [Brandi].” The court found
that Schwan’s testimony was “unpersuasive” when she opined
that one-on-one visitation was not best for S.A.
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Cite as 27 Neb. App. 547The court found that the circumstances required using
Donald’s earning capacity, not actual income, in computing his
child support obligation. The court noted that while Donald’s
changes to lower earning occupations may have been made in
good faith, he nonetheless could earn more than he currently
was. Additionally, the court held that the children would be
seriously impaired as a result of Donald’s voluntarily dimin-
ished earnings. The court ordered Donald to pay support of
$1,503 for three children, $1,302 for two children, and $883
for one child. The court also ordered Donald to pay spousal
support of $500 per month for 24 months.
In dividing the parties’ property, the court first found that
Brandi’s expert offered “the most accurate valuation” of the
marital home and, thus, valued it at $150,000. The court fur-
ther found that a $20,000 loan from Donald’s IRA account
was used to pay gambling debts and, as a matter of equity,
“ultimately deprived the marital estate of $20,000 (by virtue
of having to be repaid from the marital estate).” Therefore, the
court considered that as a $20,000 asset belonging to Donald.
Despite a difference of approximately $27,000 in the parties’
resulting property division, the court held that no equaliza-
tion payment from Brandi to Donald was required, because
Donald’s financial circumstances had resulted in a lower ali-
mony award.
Donald now appeals from the district court’s order, and
Brandi cross-appeals.
III. ASSIGNMENTS OF ERROR
Donald alleges that the court erred with respect to its prop-
erty division in undervaluing the marital home, awarding a
$20,000 retirement withdrawal to him as an asset, not account-
ing for Brandi’s student loan payments, and not ordering
Brandi to make a property equalization payment. Donald also
alleges that the court erred in calculating his child support obli-
gation based on imputed income, not his actual income, and in
ordering him to pay spousal support to Brandi.
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Cite as 27 Neb. App. 547Brandi alleges on cross-appeal that the court erred in allow-
ing Donald to have one-on-one parenting time with the chil-
dren, not extending spousal support for longer than 24 months,
and not awarding her 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.
Westwood v. Darnell, 299 Neb. 612, 909 N.W.2d 645 (2018).
This standard of review applies to the trial court’s determina-
tions regarding both division of property and alimony. See id.A judicial abuse of discretion exists if the reasons or rulings
of a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition. Brozek v. Brozek, 292 Neb. 681, 874
N.W.2d 17 (2016).
[3,4] 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. Osantowski v.
Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017). 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. Id.[5] In an action involving a marital dissolution decree, the
award of attorney fees is discretionary with the trial court, is
reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Moore v. Moore, 302 Neb.
588, 924 N.W.2d 314 (2019).
V. ANALYSIS
1. Property Division
[6,7] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the
equitable division of property is a three-step process. The
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Cite as 27 Neb. App. 547first step is to classify the parties’ property as marital or non-
marital, setting aside the nonmarital property to the party who
brought that property to the marriage. Despain v. Despain,
290 Neb. 32, 858 N.W.2d 566 (2015). The second step is to
value the marital assets and marital liabilities of the parties.
Id. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles
contained in § 42-365. Despain v. Despain, supra. The ulti-
mate test in determining the appropriateness of the division of
property is fairness and reasonableness as determined by the
facts of each case. Lorenzen v. Lorenzen, 294 Neb. 204, 883
N.W.2d 292 (2016).
[8-11] As a general rule, all property accumulated and
acquired by either party during the marriage is part of the
marital estate, unless it falls within an exception to the general
rule. Westwood v. Darnell, supra. Such exceptions include
property accumulated and acquired through gift or inheritance.
Id. The burden of proof to show that property is nonmarital
remains with the person making the claim. Id. As a general
rule, a spouse should be awarded one-third to one-half of
the marital estate, the polestar being fairness and reasonable-
ness as determined by the facts of each case. Osantowski v.
Osantowski, supra.(a) Home Valuation
With respect to the parties’ property division, Donald
first argues that the district court erred in accepting Brandi’s
$150,000 valuation of the marital home over his proposed
$185,000 valuation. Brandi argues that the district court did not
err in accepting her certified appraiser’s valuation of the home
after observing his testimony. We find no abuse of discretion
by the district court and, thus, affirm its valuation of the par-
ties’ marital home.
The appraiser testified that the parties’ home was worth
$150,000 based on his physical inspection. He acknowl-
edged that his valuation was lower than the county assessor’s
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physical inspections of individual homes. The appraiser also
testified that the assessor’s valuations are usually not 100 per-
cent of a home’s value but are within 3 to 5 percent of the full
value. Brandi testified that the home’s roof was in “horrible
shape” and described issues with the windows and chimney
as well, all of which were also observed by her appraiser.
Meanwhile, Donald based his opinion on the county assessor’s
valuation of the home at $171,449, coupled with his belief that
the assessor’s valuation was only 92 percent of the home’s
actual value. Based on that assumption, Donald valued the
home at $185,000. Donald also noted that the home had been
appraised at $160,000 in 2012.
While we recognize that the district court accepted the
home’s lowest valuation, we cannot find that its decision was
an abuse of discretion. The district court benefited from observ-
ing testimony from Donald, Brandi, and Brandi’s appraiser
and then determined that the valuation offered by Brandi’s
appraiser was the most accurate, particularly given the testi-
mony regarding the home’s condition. We give weight to the
district court’s observations and acceptance of the $150,000
valuation and, thus, affirm the property division with respect
to the valuation of the marital home.
(b) IRA Depletion
In dividing the parties’ property, the district court allocated
an “IRA Loan” valued at $20,000 to Donald, finding that the
loan had been used to pay Donald’s gambling debts and that
its repayment ultimately deprived the marital estate of that
value. Donald’s arguments on appeal are twofold. First, he
argues his gambling expenses were not incurred when the
end of the marriage was inevitable and, thus, did not consti-
tute dissipation of marital assets. Second, he argues that the
evidence does not show that his gambling losses amounted
to $20,000. Brandi argues in reply that Donald’s gambling
expenses were not incurred for the benefit of the marriage and
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Cite as 27 Neb. App. 547that they totaled at least $20,000. We conclude that the dis-
trict court erred in its property division regarding retirement
withdrawals.
[12,13] We begin by reiterating the general rules that all
property accumulated and acquired by either party during the
marriage is part of the marital estate, unless it falls within an
exception to the general rule, and that the burden of proof
to show that property is nonmarital remains with the per-
son making the claim. Westwood v. Darnell, 299 Neb. 612,
909 N.W.2d 645 (2018). “Dissipation of marital assets” is
defined as one spouse’s use of marital property for a selfish
purpose unrelated to the marriage at the time when the mar-
riage is undergoing an irretrievable breakdown. Reed v. Reed,
277 Neb. 391, 763 N.W.2d 686 (2009). As a remedy, marital
assets dissipated by a spouse for purposes unrelated to the
marriage should be included in the marital estate in dissolu-
tion actions. Id. The court held in Reed v. Reed that disputed
bank transfers took place when the marriage was undergo-
ing an irretrievable breakdown, because the transfers were
made “specifically because [the husband] intended to file
for divorce.” 277 Neb. at 402, 763 N.W.2d at 695 (emphasis
in original).
However, in the present case, there was little evidence that
Donald’s gambling occurred while the marriage was undergo-
ing an irretrievable breakdown. Although Donald’s gambling
may have been an issue throughout the marriage, the parties
did not separate until 2016, following Donald’s affair. Donald
testified that a $20,000 loan from his IRA account occurred in
2008 or 2009, 7 or 8 years before the marriage’s breakdown.
While Donald acknowledged that some of the loan may have
been used to pay gambling losses, the evidence indicates that
the majority of the proceeds were used for other legitimate
purposes. The district court assumed that the $20,000 loan
was used to pay Donald’s gambling debts and thus assigned
it as an asset belonging to him. However, there is little spe-
cific evidence that establishes Donald’s total gambling debts
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Cite as 27 Neb. App. 547during the entirety of the marriage to be $20,000. Even if we
were to accept the district court’s finding as correct, there is
no evidence that the loan or its repayment occurred during a
time period in which the marriage was undergoing an irre-
trievable breakdown.
During questioning from the court, Donald acknowledged
that he spent $570 on gambling in February 2017 and $1,762
in April 2017. He also acknowledged that he spent “a few
thousand dollars” on gambling in 2014. Similarly, Brandi testi-
fied that $2,000 from a withdrawal in 2014 was unaccounted
for, which she believed indicated Donald spent the sum on
gambling. Therefore, taken together, the record reflects that
Donald may have expended approximately $4,300 on gam-
bling. While it may be true that Donald gambled throughout
the parties’ marriage, leading, in part, to its eventual demise,
our record does not reflect that Donald dissipated $20,000 of
marital property when the marriage was undergoing an irre-
trievable breakdown. As such, we find that the district court
erred in classifying the $20,000 IRA loan as an asset belonging
to Donald.
(c) Student Loan Payments
In dividing the marital estate, the district court held that
Brandi’s inheritance and the use of marital funds to repay
Brandi’s student loan debt “cancel each other” and therefore
did not include either in the property division. Donald argues
on appeal that the district court erred in not accounting for
Brandi’s premarital student loan debt that was repaid, in part,
with marital funds during the marriage. Brandi argues that the
marriage benefited from the debt incurred, because the debt
enabled her to obtain a teaching license and employment as
a teacher from 1999 through 2006. She also argues that the
amount of loan repayments was not sufficiently proved and
that the gifts and inheritance that she received during the mar-
riage offset the debt repayments, as the district court found.
Although our reasoning varies from that of the district court,
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Cite as 27 Neb. App. 547we find no abuse of discretion in its ultimate conclusion and,
thus, affirm.
[14,15] In dividing marital property, the first step is to clas-
sify the parties’ property as marital or nonmarital, setting aside
the nonmarital property to the party who brought that property
to the marriage. Despain v. Despain, 290 Neb. 32, 858 N.W.2d
566 (2015). Debts, like property, ought to also be considered
in dividing marital property upon dissolution. See Black v.
Black, 221 Neb. 533, 378 N.W.2d 849 (1985). When one
party’s nonmarital debt is repaid with marital funds, the value
of the debt repayments ought to reduce that party’s property
award upon dissolution. See Gangwish v. Gangwish, 267 Neb.
901, 678 N.W.2d 503 (2004).
In Wiech v. Wiech, 23 Neb. App. 370, 871 N.W.2d 570(2015), the trial court’s property division upon dissolution
did not account for either spouse’s premarital debts that were
reduced during the course of the marriage using the par-
ties’ wages. The wife had a premarital bankruptcy debt that
totaled $56,400, while the husband had an unspecified debt of
$3,549.95, which he brought to the marriage. On appeal, the
wife contended that she paid her debt using only her wages
and that the debt was therefore paid without marital funds. We
reiterated the general principle that any income accumulated
during a marriage is a marital asset. See Harris v. Harris, 261
Neb. 75, 621 N.W.2d 491 (2001). Because the trial court did
not account for the parties’ premarital debts that were paid
with marital funds, we remanded the matter with instructions
to offset the wife’s portion of the marital estate by $56,400
and to offset the husband’s portion of the marital estate by
$3,549.95. Wiech v. Wiech, supra.
Brandi acknowledges that she brought student loan debt to
the marriage. This student loan debt enabled Brandi to work
as a schoolteacher, both from 1999 to 2006 at the beginning
of the parties’ marriage and again upon the parties’ separation.
Any repayments made after the parties’ marriage and prior to
separation were made with marital funds. The value of those
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Cite as 27 Neb. App. 547repayments should therefore reduce Brandi’s share of the
property division. See Gangwish v. Gangwish, supra. We note,
however, that the value of Brandi’s premarital debt that was
repaid using marital funds was not established during trial.
The burden of proving the amount of the reduction of Brandi’s
nonmarital debt during the marriage was on Donald.
Donald opined that $33,000 of Brandi’s premarital debt
was repaid during the marriage, based on multiplying what
he believed the monthly payment to be, $294, by 120 months,
notwithstanding the fact that the parties’ marriage lasted for
longer than 120 months. In her brief on appeal, Brandi accu-
rately points out there was no evidence that the monthly
payment was consistent throughout the loan’s life, that pay-
ments were made every month, or that the loan was never in
deferment. A monthly student loan statement dated October
30, 2017, reveals that a total of $35,643 had been paid in
interest and $9,494 had been paid toward the principal of the
consolidated loan since its inception in 1990. As of October
30, the remaining balance on the loan was $24,105. However,
the evidence at trial did not show what portion had been paid
during the course of the marriage. Donald did not introduce
any documentation that demonstrated what payments were
made during the 9 years the loan existed prior to the marriage
or what payments were made during the marriage. We find
the evidence adduced by Donald to be insufficient to prove
his claim.
The facts of this case are analogous to cases in which a
party has attempted to claim a nonmarital asset, but could not
do so since they were unable to definitively establish the value
of that asset. In Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d
17 (2016), the trial court found that crops in storage and the
balance of the husband’s bank accounts that held the proceeds
of past crop sales as of the date of marriage should not be
awarded to him as nonmarital property. The Nebraska Supreme
Court affirmed the trial court judgment, finding that the hus-
band had not definitively identified the values of his premarital
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Cite as 27 Neb. App. 547assets. As a result, since one cannot trace an unknown value
of assets, the court found it to be unreasonable to set off a
value of assets that is not proved. See, also, Osantowski v.
Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
In Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018),
the husband testified that he purchased the family home 9
years prior to the marriage. He testified to the purchase price
and what he believed to be the amount of the original mort-
gage. He then testified to what he believed to be the value of
the home on the date of marriage but provided no evidence
regarding the balance of the mortgage at that time. No docu-
mentation was provided to confirm his testimony regarding
the date of purchase, the purchase price, the amount of the
mortgage, or the value of the house at the time of the marriage.
The Supreme Court found that the equity in the residence at
the time of the parties’ marriage would be a nonmarital asset,
which, if established, should be set aside to the husband.
However, given the lack of documentation that any equity
existed at the time of the parties’ marriage, the Supreme Court
found that the husband failed to meet his burden of proving
that the property was a nonmarital asset.
Most recently, in Burgardt v. Burgardt, 27 Neb. App. 57,
926 N.W.2d 452 (2019), the evidence demonstrated that the
husband possessed a 401K at the time the parties were mar-
ried. While the husband testified that the 401K was worth
$130,000 at the time the parties were married, he provided no
documentation to support his claim. The testimonial evidence
raised further questions as to the accuracy of the husband’s
valuation. Since an initial value could not be determined, it
was impossible to determine what, if any, of the 401K was
traceable to the time of the divorce. We concluded that since
the husband had not proved the initial value of his claimed
asset, he had failed to meet his burden of proving that a non-
marital asset still existed.
Here, while we can ascertain that Brandi’s student loan
is nonmarital, the record before us provides us no way of
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Cite as 27 Neb. App. 547knowing how much of the principal and interest paid on the
loan was paid during the marriage. Therefore, it is impossible
to set off any specific value to Brandi based on marital funds
that were used to pay off her student loan debt. We note that
Donald’s testimony does not match the length of the marriage
or the amount of the payment noted on the October 30, 2017,
statement. Since we have no evidence which discloses the
amount of money paid on the student loan during the mar-
riage, we must find that Donald has failed to meet his burden
of proof. As such, though for a different reason than stated by
the district court, we find that no amount of payments made
on the student loan can be attributed to Brandi as a mari-
tal asset.
(d) Equalization Payment
Donald assigns that the district court erred in not ordering
Brandi to make an equalization payment based on his con-
tentions addressed above and on the disparate shares of the
marital estate that were awarded. We, like Donald, acknowl-
edge that the district court’s division of the marital estate does
narrowly fall within the general rule that a spouse be awarded
one-third to one-half of the parties’ assets, because the court
awarded approximately 361⁄2 percent of the marital estate to
Donald. Our finding above that the district court should not
have attributed the $20,000 loan from Donald’s retirement
account as an asset to Donald requires us to first recalculate
the value of the marital estate and then determine what, if any,
equalization payment is required to be paid by Brandi.
In the decree, Brandi was awarded net assets of $64,936.67.
Donald was awarded net assets of $37,402.57, which, due to
our finding above, is reduced to $17,402.57 if no equalization
payment is made. Without equalization, Donald’s portion of
the net marital estate would only constitute approximately 21
percent of the total. We find that amount to be untenable and
in need of adjustment. However, we also find that the district
court’s decision to award Brandi the majority of the marital
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Cite as 27 Neb. App. 547estate is supported by the evidence. The major portion of the
marital estate granted to Brandi is the marital home, a find-
ing not contested by Donald. Brandi has few liquid assets
from which she can pay an equalization payment, particularly
given Donald’s history of being in arrears on his payment of
alimony, child support, and other expenses for the children he
was obligated to pay under the temporary order. Brandi will
continue to need the marital home for the children’s benefit.
Thus, we modify the district court’s order and direct Brandi
to make an equalization payment in the amount of $10,000 in
order to bring Donald’s share of the marital estate back up to
an approximately 33-percent share, thus conforming with the
general rule that a spouse should be awarded one-third to one-
half of the marital estate.
2. Child Support Obligation
Donald argues on appeal that the district court erred in
calculating his child support obligation based on his earn-
ing capacity instead of his actual income at the time of trial.
Brandi argues in reply that imputing a higher income to
Donald was appropriate because he voluntarily left more lucra-
tive employment, during which his average annual salary over
the past 5 years exceeded $100,000. We agree with the district
court and find that imputing a higher income to Donald based
on his earning capacity was not an abuse of discretion and,
thus, affirm.
[16] The Nebraska Child Support Guidelines state that
“[i]f applicable, earning capacity may be considered in lieu
of a parent’s actual, present income and may include factors
such as work history, education, occupational skills, and job
opportunities.” Neb. Ct. R. § 4-204 (rev. 2016). Use of earning
capacity to calculate child support is useful “‘“when it appears
that the parent is capable of earning more income than is pres-
ently being earned.”’” Johnson v. Johnson, 290 Neb. 838,
848, 862 N.W.2d 740, 749 (2015). Generally, earning capacity
should be used to determine a child support obligation only
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Cite as 27 Neb. App. 547when there is evidence that the parent can realize that capacity
through reasonable efforts. Id.In the present case, Donald’s work history shows that he
worked a number of jobs in which he earned more than $100,000
per year. In 2013, when Donald left Credit Management, he
was earning $112,000 per year. Donald earned a base salary
of $70,000 plus commission in 2015 when he worked for Axis
Capital, and records showed the couple’s income from wages
was $132,200 that year, the vast majority of which came from
Donald. When he disclosed an affair with a colleague in 2016,
his salary was reduced by $2,000 per month. Nevertheless,
when Donald voluntarily left Axis Capital, he had earned
$98,000 from January through July 2016. Thereafter, Donald
worked for a construction company, which paid a base salary
of $81,000 per year plus commission, and then he worked for
Providence Capital, which paid a base salary of $6,000 per
month plus commission. At the time of trial, however, Donald
was employed by Hamilton Telecommunications, which paid a
base salary of $55,000 per year plus commission. He obtained
that job after a brief return to Credit Management, which paid
him $50,000 per year plus commission, and a brief stint of
self-employment, during which he earned $4,400.
Donald indicated that he left more lucrative employment
because he tired of traveling and being away from his children.
The evidence does not show the extent of Donald’s efforts to
obtain more lucrative employment. However, the evidence
shows that when Donald maintains a job for more than a year,
his income increases substantially by virtue of increased com-
missions. Much like his past work, Donald’s employment with
Hamilton Telecommunications at the time of trial was pro-
jected to become significantly more lucrative during each sub-
sequent year of employment if he met his sales goals. Based
on the historical data contained in the offer letter, Donald has
the potential to again have an income exceeding $100,000
per year by his fourth year of employment if he performs
according to expectations. We agree with the district court
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Cite as 27 Neb. App. 547that Donald’s financial position diminished due to his own
conduct and decisions to leave more lucrative employment.
Given Donald’s track record in past sales positions, the self-
inflicted nature of his losses of income, and his demonstrated
potential to increase his income in his current position, we
find no reason to believe that Donald’s earning capacity has
diminished. We further find that reducing child support would
seriously impair the needs of his three children. Accordingly,
we find that the district court did not abuse its discretion in
relying on Donald’s earning capacity in calculating his child
support obligation.
3. Spousal Support Obligation
Donald argues on appeal that the district court erred in order-
ing him to pay alimony to Brandi, because they earned similar
salaries at the time of trial, he had paid temporary spousal sup-
port while the dissolution was pending, and his child support
obligation was based on a greater-than-realized income. Brandi
argued in reply that alimony was warranted because she had
lost out on annual salary increases for the 10 years between
S.A.’s birth and their separation that the parties had agreed
she would not teach. On cross-appeal, Brandi assigns that the
court erred in not ordering Donald to pay her alimony for more
than 24 months. We find that the district court did not abuse its
discretion in ordering Donald to pay Brandi alimony of $500
for 24 months.
[17,18] “The purpose of alimony is to provide for the con-
tinued maintenance or support of one party by the other when
the relative economic circumstances and the other criteria
enumerated in this section make it appropriate.” § 42-365. In
dividing property and considering alimony upon a dissolution
of marriage, a court should consider four factors: (1) the cir-
cumstances 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 with-
out interfering with the interests of any minor children in the
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Cite as 27 Neb. App. 547custody of each party. Anderson v. Anderson, 290 Neb. 530,
861 N.W.2d 113 (2015). In addition to the specific criteria
listed in § 42-365, in dividing property and considering ali-
mony upon a dissolution of marriage, a court should consider
the income and earning capacity of each party and the general
equities of the situation. Anderson v. Anderson, supra.
[19,20] In reviewing an alimony award, an appellate court
does not determine whether it would have awarded the same
amount of alimony as did the trial court, but whether the
trial court’s award is untenable such as to deprive a party of
a substantial right or just result. The ultimate criterion is one
of reasonableness. Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d
582 (2018). An appellate court is not inclined to disturb the
trial court’s award of alimony unless it is patently unfair on the
record. Id.Here, the district court awarded Brandi alimony of $500 per
month for 24 months, effective August 1, 2018, after entry of
the decree of dissolution. We do not find the amount awarded
to be excessive, as assigned by Donald, nor do we find it to be
insufficient, as assigned by Brandi. At the time of trial, Brandi
had secured employment as a teacher earning $56,474.50 per
year. We recognize that through the parties’ joint decision to
have Brandi care for the children full time after they were
born, she did lose the benefit of annual step salary increases
that she would have received had she remained employed as a
teacher. However, we also note that by the time the decree was
entered, Brandi had already been awarded alimony at the rate
of $1,100 per month for 22 months. Based on the duration of
the marriage, Brandi’s employment, and other economic con-
siderations, we find no abuse of discretion by the district court.
The award of $500 per month for an additional 24 months
properly balances the countervailing interests of the parties.
4. Parenting Time
On cross-appeal, Brandi assigns that the district court erred
in finding that it was in the children’s best interests to have
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Cite as 27 Neb. App. 547individual visitations with Donald. She specifically argues
that one-on-one visitations with Donald were inappropriate for
S.A. because of his Asperger’s. We find that the district court
did not abuse its discretion in allowing Donald to have indi-
vidual parenting time with each of the children.
[21-24] The trial court has discretion to set a reasonable
parenting time schedule. Schmeidler v. Schmeidler, 25 Neb.
App. 802, 912 N.W.2d 278 (2018). A reasonable visitation
schedule is one that provides a satisfactory basis for preserv-
ing and fostering a child’s relationship with the noncustodial
parent, and the determination of reasonableness is to be
made on a case-by-case basis. State ex rel. Pathammavong
v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004).
Parenting time relates to continuing and fostering the normal
parental relationship of the noncustodial parent. Thompson
v. Thompson, 24 Neb. App. 349, 887 N.W.2d 52 (2016).
The best interests of the children are the primary and para-
mount considerations in determining and modifying visitation
rights. Id.In the present case, Brandi argues that Donald’s individual
parenting time with S.A. is detrimental because it exacerbates
symptoms of S.A.’s Asperger’s. During trial, Brandi presented
evidence that one-on-one visitations with Donald oftentimes
preceded S.A.’s outbursts. She also offered testimony from a
counselor, who treated S.A. and opined that individual visi-
tations were not in S.A.’s best interests. Donald argued that
individual parenting time was important because S.A. required
more attention than the other children, thus shortchanging the
other children of his attention during visitations with all the
children. We note that Brandi did not contend that individual
visitations for the two younger children with Donald had been
or would be detrimental to the children, nor was there any evi-
dence to support such a contention.
Under our standard of review, we do not supplant the trial
court’s determinations with our own. We are mindful that the
district court had the benefit of observing the counselor testify
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Cite as 27 Neb. App. 547in the present case before determining that her testimony was
“unpersuasive.” The decree, which allows Donald to have
individual parenting time with each child, is reasonable and
preserves the children’s relationships with Donald. We further
note that there was no evidence presented that S.A.’s one-on-
one visits with Donald resulted in misbehavior or diminished
performance at school. Much of the counselor’s information
regarding repercussions of the visits at home appears to be
based on the report of Brandi. Therefore, we must give defer-
ence to the finding of the district court which gave little weight
to the counselor’s testimony. We find no abuse of discretion by
the district court in ordering Donald to have individual parent-
ing time with each child and, thus, affirm the court’s determi-
nations regarding parenting time.
5. Attorney Fees
On cross-appeal, Brandi assigns that the district court erred
in denying her request for an award of attorney fees but goes
on to argue that the court erred only if the division of the mari-
tal estate is modified pursuant to Donald’s appeal.
[25-28] Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recov-
ery of attorney fees. Moore v. Moore, 302 Neb. 588, 924
N.W.2d 314 (2019). A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
Id. Additionally, attorney fees and costs are often awarded to
prevailing parties in dissolution cases as a matter of custom.
See id. See, e.g., Garza v. Garza, 288 Neb. 213, 846 N.W.2d
626 (2014). 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 pre-
sentation of the case, the novelty and difficulty of the ques-
tions raised, and the customary charges of the bar for similar
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Cite as 27 Neb. App. 547[29] Where a party seeks to recover attorney fees, the best
practice will always be to provide an affidavit or other evi-
dence such as testimony or exhibits. Id. The filing of an affi-
davit is not absolutely required, however. Id. Litigants who do
not file such an affidavit or present other evidence risk the loss
of attorney fees because of the difficulty of discerning such
information from the record alone. Id.The district court declined to award attorney fees to either
party in the present case, noting that an award in favor of
Brandi would be inappropriate “given the current relative
financial situation of the parties.” We conclude that the district
court did not err in not awarding attorney fees. Accordingly,
we affirm the denial of an award of attorney fees to Brandi.
VI. CONCLUSION
Based on the foregoing, we affirm the district court’s prop-
erty division with respect to its valuation of the marital home.
We further find that Donald failed to prove the amount of
money paid from marital funds on Brandi’s premarital student
loan so as to attribute the amount of any payments made to
Brandi as a marital asset. We also affirm the decree with respect
to its calculation of Donald’s child support and spousal support
obligations, parenting time, and attorney fees. However, we
find the district court erred in its property division with respect
to attributing the 2008 loan taken against Donald’s retirement
account as an asset to Donald and therefore order Brandi to
pay $10,000 to Donald in order to bring the division of the
marital estate to a two-thirds to one-third split.
A ffirmed as modified.