Bailey v. Bailey ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
BAILEY V. BAILEY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
AMBER J. BAILEY, APPELLEE,
V.
MICHAEL J. BAILEY, APPELLANT.
Filed November 30, 2021. No. A-21-105.
Appeal from the District Court for Sarpy County: MICHAEL A. SMITH, Judge. Affirmed in
part, affirmed in part as modified, and in part vacated and remanded with directions.
David Pontier, of Koenig | Dunne, P.C., L.L.O., for appellant.
Donald A. Roberts and Justin A. Roberts, of Roberts Law, L.L.C., for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Michael J. Bailey appeals the order of the district court for Sarpy County that dissolved his
marriage to Amber J. Bailey, awarded custody of their minor children, and divided the marital
estate. As we explain below, we affirm in part, affirm in part as modified, and in part vacate and
remand with directions.
BACKGROUND
Michael and Amber were married in 2003; their older son was born in 2007 and their
younger son in 2010. Amber filed a complaint for dissolution of the marriage in October 2019.
The district court entered a temporary order in December awarding the parties temporary joint
legal and physical custody of the children on a week on, week off parenting time schedule. In the
temporary order, the court noted that Amber had raised concerns about Michael’s alcohol
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consumption, and although at that time the evidence did not show an adverse impact on the
children sufficient to limit or supervise his parenting time, the court prohibited Michael from
consuming alcohol shortly before or during his parenting time.
Trial was held in October 2020. Amber was working as a registered respiratory therapist,
and her schedule at that time required her to work 3 days per week from 6:30 a.m. until 7 p.m.
Before entry of the temporary order, she worked every third weekend, but since that time, she has
been working every other weekend. So the weeks that the children were with her, she worked 3
weekdays and had weekends off, and the weeks that the children were with Michael, she worked
1 weekday and Saturday and Sunday. She testified that her work schedule will remain the same,
in that she will continue to work every other weekend rather than every third weekend.
Amber purchased a home in LaVista, Nebraska, in 2002, prior to her marriage to Michael.
The purchase price was $106,000, and the beginning balance of the mortgage was $100,700. After
the parties were married, Michael moved into the home, and he and Amber continued to live there
until they sold the home in 2009. The sale resulted in proceeds of $17,684.56, which the parties
put toward the purchase of the marital home in Bellevue, Nebraska. The closing documents from
the purchase of the marital home depict a balance due from Michael and Amber of $4,212.91.
Amber testified that she and Michael paid that balance due out of the proceeds of the sale of the
LaVista home and used the remainder of the proceeds to finish the basement of the marital home.
The parties agreed that the marital home should be sold and the proceeds distributed between them.
Amber requested a credit for her premarital funds contributed to the purchase of the marital home
in the amount of $10,697.
The parties disagreed on a custody arrangement for their children. Michael requested that
they continue with a joint legal and physical custody arrangement utilizing the week on, week off
schedule they had followed under the temporary order. He believed that such an arrangement was
best because it minimized the number of transitions for the children, and it was easier for them to
be in the same place for a week at a time and then switch for the following week.
At the time of trial Michael was working full time as a heavy equipment operator. In the
evenings after work, he frequently did concrete jobs on the side, spent time with his friends, played
golf, or did other social activities. When the children are with Michael, his mother helps transport
them to and from school and watches them in the summer while Michael is working. Michael
acknowledged that the children have told him that sometimes they get bored with his mother.
Amber requested sole legal and physical custody of the children. She believed having the
children live primarily with her would be in their best interests because of her work schedule.
Under the weekly schedule they followed during the pendency of the proceedings, she was home
4 out of the 5 weekdays the children were with Michael, but Michael’s mother was caring for them
because Michael was working. Amber also preferred that the children spend more time with her
because she did not think that Michael was the best influence on them due to his drinking,
inappropriate language he frequently uses, and sexist and racist comments he makes.
Amber testified that although she and Michael both worked during the marriage, she was
responsible for taking care of most of the children’s needs including communicating with their
teachers, helping with homework, doing laundry and cleaning, shopping, making doctor’s
appointments, packing school lunches, setting up playdates, and staying home with them when
they were sick. Amber claimed that during the marriage, she was the parent who made most of the
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major decisions regarding the children and then told Michael about it after the fact, to which he
generally responded, “Okay.”
Both children testified in camera, answering questions posed by the judge. At that time,
the parties’ older son was almost 13 years old, and in 7th grade. He was earning almost all As in
school, was on the robotics team, participated in cross-country, and took trumpet lessons. He was
asked how the week on, week off schedule was going, and he said it was “okay.” He did not like
that Michael was living in a small apartment where he and his younger brother have to share a
room. He also expressed frustration at the times during Michael’s weeks that Michael would be
working so Michael’s mother would be watching him instead of allowing him to spend that time
with Amber. He explained,
So in the summer we just spend all day with [his grandmother], and it kind of annoyed me
a bit ’cause my mom was off work the entire time while I was at my dad’s house. And my
dad was working. So I was like, why can’t I just go spend time with my mom? Like, I like
my grandma, but, I mean, she’s not my mom. So I kind of like to spend time with my mom.
The older son testified that he likes “almost everything” about Amber’s house, including
the bigger house where they have a trampoline; his pets, which he cannot have at Michael’s
apartment; and his friends who live close by. When asked whether he would like to keep following
the same weekly schedule, he responded that he would like a little less time with Michael and
specified that he did not want to live with Michael half of the time. He explained that he did not
like living in an apartment and that he misses his pets and friends when he is at Michael’s. He was
asked whether his opinion would change if Michael lived in a house instead of an apartment where
he had his own room and could have a pet, and he replied, “Maybe a little,” but stated that he has
always been closer to Amber.
The parties’ younger son was 10 years old and in 4th grade at the time of trial. He earns all
As in school, plays basketball, takes piano lessons, and likes to read. He, too, was asked about the
week on, week off schedule, and he replied, “It’s definitely not the best.” He testified that it is too
much time away from Amber, her house, and their pets; that he misses Amber when he is at
Michael’s; and that a week is too long to be away from her. He was asked if he misses Michael
when he is with Amber, and he answered, “Yeah, a little bit.” When asked if there was anything
he would change about the current parenting time schedule, he stated that he would prefer less
time with Michael and more time with Amber and explained that he just misses Amber and his
pets when he is with Michael.
After the conclusion of trial, the district court entered a written decree dissolving the
parties’ marriage. The court found that during the marriage, Amber undertook the greater share of
the more mundane, routine parenting tasks and that Michael worked regular hours but had frequent
side jobs, golf leagues, and socializing that occupied his off-work time. The court observed that
the children are generally doing well, that they value their time with Michael, but that they miss
Amber during their time with Michael. The district court determined that Amber had well-founded
concerns regarding Michael’s alcohol consumption and the language he uses around the children,
especially without her presence or influence and concluded that although some of that behavior
had declined since the parties’ separation, it was likely that that behavior would continue once
litigation had concluded.
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Ultimately, the court found that both parties were fit and proper to have custody of the
children but that it was in the children’s best interests that Amber have sole physical custody. The
decree included conflicting findings regarding legal custody of the children, which we address
below. Michael was awarded parenting time every other weekend from Friday at 5 p.m. until
Sunday at 6 p.m. and one evening every week from 5 p.m. until 9 p.m. Michael’s weekend
parenting time was to coincide with the weekends that Amber was working. The parenting plan
also divided holidays between the parties.
In the decree, the district court observed that the parties agreed that the marital home should
be sold and the proceeds distributed between them. It concluded that Amber had made a
contribution to the purchase of the marital home of $10,697 out of the proceeds from the sale of
the LaVista home, and it therefore awarded her a credit in that amount for her contribution of
premarital property. Overall, after valuing and dividing the marital estate, Amber was ordered to
make an equalization payment to Michael of $3,312.13.
Michael was ordered to pay child support of $575 per month. The decree provides that each
party shall pay 50 percent of all daycare expenses incurred on behalf of the children in order for
Amber to maintain gainful employment or obtain education to enhance her earning capacity. The
district court also required that Michael maintain a life insurance policy currently in place on his
life and name the minor children as irrevocable beneficiaries until he no longer has a child support
obligation. Michael was also ordered to pay attorney fees for Amber of $5,000. Michael appeals.
ASSIGNMENTS OF ERROR
Michael assigns that the district court erred in (1) its award of legal custody, (2) awarding
sole physical custody to Amber and reducing his parenting time to two overnights every other
weekend, (3) ordering his parenting time to be conditioned upon Amber’s work schedule, (4)
awarding routine and holiday parenting time without specifying days of the week, dates, and times,
(5) ordering him to secure his child support obligation with his life insurance policy, (6) ordering
only Amber’s employment and education-related childcare costs to be divided between the parties,
(7) awarding Amber a $10,697 premarital credit for a portion of the equity in the marital residence,
and (8) awarding Amber $5,000 in attorney fees.
STANDARD OF REVIEW
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. Burgardt v. Burgardt,
304 Neb. 356, 934 N.W.2d 488 (2019). This standard of review applies to the trial court’s
determinations regarding custody, child support, division of property, alimony, and attorney fees.
Id. 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. Id. 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. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposition. Id.-4-
ANALYSIS
Custody.
Michael raises two issues with regard to custody, one relating to legal custody and one
relating to physical custody. He first argues that the district court erred in awarding Amber sole
legal custody or joint legal custody with final decisionmaking authority. Because the decree is
unclear on its award of legal custody, we remand that issue for clarification.
The decree refers to legal custody several times. At one point, after making certain factual
findings, it states, “The [c]ourt finds that [Amber] shall be awarded sole legal and physical
custody.” Later, the decree provides that “it is in the children’s best interests that the parties have
joint legal custody.” Finally, the decree states that “the parties are awarded joint legal custody of
the minor children . . . but if there is a disagreement between the parties on a major issue, [Amber]
shall have the final decision making power.” Given the conflict in the foregoing language, we
conclude that the decree is unclear as to its award of legal custody. We therefore vacate any
provisions relating to legal custody and remand the cause to the district court for clarification as
to what form of legal custody it intended to award.
With respect to physical custody, Michael asserts that the district court erred in awarding
sole physical custody to Amber, arguing that instead, it should have continued the joint physical
custody arrangement contained in the temporary order. We find no abuse of discretion in the
court’s decision as to physical custody.
When custody of minor children is an issue in a proceeding to dissolve the marriage of the
children’s parents, custody is determined by parental fitness and the children’s best interests.
Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016); Neb. Rev. Stat. § 42-364(2)
(Cum. Supp. 2020). When both parents are found to be fit, the inquiry for the court is the best
interests of the children. Burcham v. Burcham, supra. Because the district court found that Michael
and Amber were both fit parents, a finding that Michael does not challenge, we consider the
children’s best interests.
The best interests of a child require a parenting arrangement “for a child’s safety, emotional
growth, health, stability, and physical care and regular and continuous school attendance and
progress.” Neb. Rev. Stat. § 43-2923(1) (Reissue 2016). The best interests of a child also require
that
the child’s families and those serving in parenting roles remain appropriately active and
involved in parenting with safe, appropriate, continuing quality contact between children
and their families when they have shown the ability to act in the best interests of the child
and have shared in the responsibilities of raising the child.
§ 43-2923(3). Section 43-2923(6) further provides:
In determining custody and parenting arrangements, the court shall consider the best
interests of the minor child, which shall include, but not be limited to, consideration of the
foregoing factors and:
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
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(b) The desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member[;] and
(e) Credible evidence of child abuse or neglect or domestic partner abuse.
Here, Michael points out that when determining whether custody of a minor child should
be modified, the evidence of the custodial parent’s behavior during the year or so before the
hearing on the complaint to modify is considered most significant. See, e.g., Jones v. Jones, 305
Neb. 615, 941 N.W.2d 501 (2020). He requests that we extend this standard, which he refers to as
the “one-year rule,” to original dissolution of marriage actions, such that it encompasses all
custody decisions. While we agree that parents’ behavior in the year leading up to trial is highly
relevant to a determination of an appropriate physical custody arrangement, we decline to adopt
such a specific rule when assessing the best interests of the child for purposes of an original custody
determination.
In the present case, the evidence does not lead us to conclude that the district court’s
decision was an abuse of discretion. We agree that the evidence shows that Michael abstained from
consuming alcohol during his parenting time as required under the temporary order. We also
recognize, however, that Amber claimed that during the pendency of the temporary order, Michael
had been “playing the parenting part quite well” but that she did not think he could continue and
was concerned that he would go back to what he was doing before. She claimed that he drank
alcohol every day during the marriage and when he would drink he would “get loud” and yell or
curse at her and the children. Her concerns extended beyond drinking to include the way Michael
talked around the children, in particular the way he talked about and to women, and she expressed
concerns about inappropriate language he would frequently use and sexist and racist comments he
would make.
The district court found Amber’s testimony in this regard to be credible when it determined
that she raised well-founded concerns regarding Michael’s alcohol consumption and the language
he uses around the children, especially without Amber’s presence or influence, and when it
concluded that although some of that behavior had declined since the parties separated, it was
likely that it would continue once litigation had concluded. As to these factual findings, we
consider and give weight to the fact that the district court heard and observed the witnesses and
accepted one version of the facts rather than another. See Burgardt v. Burgardt, 304 Neb. 356, 934
N.W.2d 488 (2019).
Moreover, the court based its physical custody decision on factors beyond Michael’s
behavior. It found that although the parties shared parenting duties during the marriage, Amber
had undertaken the greater share of mundane, routine parenting tasks throughout the children’s
lives. And although both parties worked full-time, Amber’s schedule left her greater availability
to care for the children, not only due to her work schedule but because Michael filled his off-work
time with other activities.
The district court observed that the children are doing well and value their time with
Michael, but that they both miss Amber during the times they are with Michael. Both Amber and
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the parties’ older son expressed a desire for the children to be with Amber, rather than their paternal
grandmother, when Michael was working and Amber was not. In general, both children wanted to
spend more time with Amber and less time with Michael. Both children were of sufficient age and
maturity for their preferences to be considered alongside other factors. See, § 43-2923(6)(b);
Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020); Donscheski v. Donscheski, 17 Neb. App.
807, 771 N.W.2d 213 (2009). Keeping in mind that a judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposition, we cannot find that the district
court’s decision to award sole physical custody to Amber was an abuse of discretion.
We note that to support his arguments on this issue, Michael also directs our attention to
Schieffer v. Schieffer, No. A-18-1090, 2020 WL 2845774 (Neb. App. June 2, 2020) (selected for
posting to court website). Michael’s citation to Schieffer violates Neb. Ct. R. App. P. § 2-102(E)(4)
(rev. 2021), which currently states that opinions not designated for permanent publication “may
be cited only when such case is related, by identity between the parties or the causes of action, to
the case then before the court.” Schieffer and the present case are not related by identity between
the parties or the causes of action. Therefore, we have addressed his arguments without reference
to Schieffer v. Schieffer, supra.
Parenting Time.
Michael assigns two errors related to parenting time. He first argues that the district court
erred in ordering that his parenting time be conditioned upon Amber’s work schedule, which he
claims is an improper delegation of judicial authority. He also claims that the court erred in failing
to specify days, dates, and times for routine and holiday parenting time as required under the
Nebraska Parenting Act.
We disagree with Michael’s assertion that the district court improperly delegated its
judicial authority when it conditioned his parenting time upon Amber’s work schedule. Under
Nebraska law, the court is responsible for developing and approving a parenting plan. VanSkiver
v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019). A trial court has a nondelegable duty to
determine questions of custody and parenting time of minor children according to their best
interests. Id. The authority to determine custody and visitation cannot be delegated to a third party,
because it is a judicial function. Id.In VanSkiver v. VanSkiver, supra, the Nebraska Supreme Court found no improper
delegation of judicial authority in a parenting plan that awarded parenting time to the father on two
evenings per week but allowed the children to decline to go on those visits if their father acted in
a threatening manner. In reaching its decision, the Supreme Court acknowledged that the parenting
plan provided that the children could decide if they wanted to see their father and could decline to
go on the weekly visits, but the Supreme Court did not construe this language to be delegating to
the children the judicial duty of establishing the parenting schedule when the children were not
given discretion to set the parenting time schedule, nor were they given authority to determine
whether or when their father could exercise parenting time.
Similarly here, Amber was not given the discretion to set Michael’s parenting time. The
district court’s order sets forth the days and times that the children are to spend with each parent.
And it awarded Michael parenting time every other weekend, specifying that his weekend time
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coincide with the weekend that Amber works. Amber was not delegated the authority to alter
Michael’s parenting time, nor is there any indication in the parenting plan that she could
unilaterally change his parenting time in the event her work schedule changes. We therefore find
that the language of the parenting plan does not improperly delegate the court’s authority to
establish a parenting schedule.
We next consider whether the court’s failure to specify dates and times for routine and
holiday parenting time was an abuse of discretion. Under the Nebraska Parenting Act, Neb. Rev.
Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp. 2020), a parenting plan shall include:
Apportionment of parenting time, visitation, or other access for each child, including, but
not limited to, specified religious and secular holidays, birthdays, Mother’s Day, Father’s
Day, school and family vacations, and other special occasions, specifying dates and times
for the same, or a formula or method for determining such a schedule in sufficient detail
that, if necessary, the schedule can be enforced in subsequent proceedings by the court . . . .
§ 43-2929(1)(b)(ii). This statute does not require that dates and times for all parenting time be
specified; rather, it is permissible that the schedule be sufficiently detailed such that it can be
enforced in a later proceeding.
In this case, with respect to routine parenting time, the court awarded Michael, in addition
to his alternating weekend time, one evening every week from 5 p.m. to 9 p.m. It did not specify
a particular day of the week. We do not find this lack of detail to be an abuse of discretion. The
children were 10 and 12 years old at the time of trial and already involved in school and
extra-curricular activities. The flexibility built in to the parenting plan will allow the parties to
identify an evening where both children will be available in order to spend time with Michael; yet
this provision is sufficiently detailed such that it could be enforced in the future, if necessary.
We reach a different conclusion as to the holiday parenting time. Although the district court
divided holidays between the parties, it did not specify exact dates and times or an alternative
method for determining such a schedule. Rather, it merely identified the holidays, such as
“Christmas,” without further detailing whether that included Christmas Eve or encompassed the
school holiday break. We therefore remand the cause to the district court for further specification
of dates and times for the holiday parenting time allotted in the parenting plan.
Child Support.
Michael raises two issues related to the district court’s child support calculation. He first
asserts that the district court erred in requiring him to secure his child support obligation with his
life insurance policy. We agree.
A court has discretion to require reasonable security for an obligor’s current or delinquent
support obligations when compelling circumstances require it. Davis v. Davis, 275 Neb. 944, 750
N.W.2d 696 (2008). See Neb. Rev. Stat. § 42-371(7) (Reissue 2016) (“[t]he court may in any case,
upon application or its own motion, after notice and hearing, order a person required to make
payments to post sufficient security, bond, or other guarantee with the clerk to insure payment of
both current and any delinquent amounts”). However, an order requiring security to be given is a
somewhat extraordinary and drastic remedy, and such order should only be invoked when
compelling circumstances require it. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172-8-
(1997), overruled on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782
N.W.2d 848 (2010). See also Lacey v. Lacey, 215 Neb. 162, 337 N.W.2d 740 (1983). An appellate
court reviews an order regarding security for a support obligation de novo on the record for an
abuse of discretion. Davis v. Davis, supra.In the present case, our de novo review of the record does not reveal compelling
circumstances that would require security for Michael’s child support obligation. Under the
temporary order, Amber was ordered to pay child support to Michael, so there is no evidence of
failure to pay or an arrearage on Michael’s part. Michael is gainfully employed both full time as a
heavy equipment operator and doing concrete work on the side. According to the district court’s
child support calculations, Michael’s gross monthly income is $4,729, just slightly less than
Amber’s monthly income. The record does not indicate that Michael is heavily in debt or spends
money lavishly. Accordingly, we conclude that because the record does not evince any compelling
circumstances that would require security for Michael’s child support obligation, the district court
abused its discretion in ordering Michael to maintain his life insurance policy and name the minor
children as beneficiaries. We therefore modify the decree to strike that requirement.
Michael additionally claims that the court erred in ordering only Amber’s employment and
education-related childcare costs be divided between the parties. Under the Nebraska Child
Support Guidelines:
Care expenses for the child for whom the support is being set, which are due to employment
of either parent or to allow the parent to obtain training or education necessary to obtain a
job or enhance earning potential, shall be allocated to the obligor parent as determined by
the court, but shall not exceed the proportion of the obligor’s parental contribution
(worksheet 1, line 6) and shall be added to the basic support obligation computed under
these guidelines.
Neb. Ct. R. § 4-214 (rev. 2016).
The Supreme Court has recognized that this rule provides for allocation of childcare
expenses “due to either parent’s employment or education.” Anderson v. Anderson, 290 Neb. 530,
540, 861 N.W.2d 113, 122 (2015). Here, the district court ordered that each party pay 50 percent
“of all daycare and preschool expenses incurred on behalf of [the] minor children in order for
[Amber] to maintain gainful employment or obtain education to enhance her earning capacity.”
The failure to also divide expenses related to Michael’s employment or education was contrary to
§ 4-214, and thus, it was an abuse of discretion. Accordingly, we modify the decree to allocate to
each party 50 percent of all childcare expenses due to the employment or education of either Amber
or Michael.
Credit for Premarital Property.
Michael assigns that the district court erred in awarding Amber a credit of $10,697 for
premarital funds related to the home she purchased prior to the marriage. We find no error in the
decision to award Amber a credit for premarital property; however, we find that the amount the
district court awarded is erroneous and modify it as detailed below.
Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of property is a
three-step process. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019). The first step is to
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classify the parties’ property as marital or nonmarital, setting aside the nonmarital property to the
party who brought that property to the marriage. The second step is to value the marital assets and
marital liabilities of the parties. The third step is to calculate and divide the net marital estate
between the parties in accordance with the principles contained in § 42-365. Dooling v. Dooling,
supra. The ultimate test in determining the appropriateness of the division of property is fairness
and reasonableness as determined by the facts of each case. Id.Generally, all property accumulated and acquired by either spouse during a marriage is part
of the marital estate. Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). Exceptions include
property that a spouse acquired before the marriage, or by gift or inheritance. Id. Setting aside
nonmarital property is simple if the spouse possesses the original asset, but can be problematic if
the original asset no longer exists. Id. Separate property becomes marital property by commingling
if it is inextricably mixed with marital property or with the separate property of the other spouse.
Id. If the separate property remains segregated or is traceable into its product, commingling does
not occur. Id. The burden of proof rests with the party claiming that property is nonmarital. Id.In the present case, the district court awarded Amber a credit of $10,697 related to the
LaVista home she purchased prior to the marriage. This figure appears to be based on the fax cover
sheet for the closing documents from the title company at the time Amber purchased the LaVista
home. The cover sheet indicates that Amber had already obtained a cashier’s check for $9,000 and
that the title company would have a check for her at the time of closing in the amount of $1,697.92.
We understand that Amber arrived at a credit amount of $10,697 by adding the figures from the
cover sheet together. Rather than adding these figures together to equal the total down payment
Amber made toward the purchase of the LaVista home, however, the closing documents indicate
that the total amount due from Amber was $7,302.08, and therefore, because she had already
obtained a cashier’s check for $9,000, the title company was to reimburse her the difference of
$1,697.92. Thus, Amber was not entitled to a credit for nonmarital property of $10,697.
Nevertheless, it is undisputed that Amber purchased the LaVista home prior to her marriage
to Michael; thus, the down payment she made at the time of purchase was made using nonmarital
funds. She also made the mortgage payments for just over a year using her nonmarital funds. The
record does not specify the balance of the mortgage at the time of the parties’ marriage. It does,
however, establish that the LaVista home was sold in 2009 resulting in proceeds of $17,684.56,
which were put into the marital residence, partially as a down payment and partially to finish the
basement. The question is how much of the proceeds from the sale of the LaVista home were
nonmarital. Without any evidence as to the balance of the mortgage at the time of the marriage,
we are unable to discern the total amount of premarital equity Amber had in the home. Despite
this, the evidence does establish that the purchase price of the LaVista home was $106,000 and
that the balance of the mortgage at that time was $100,700. Thus, the total equity that Amber had
in the LaVista home at the time of purchase equals the difference of those figures, or $5,300.
Amber conceded at trial that that was the total equity in the home at the time of purchase. We
therefore conclude that Amber established that she had at least $5,300 in equity in the LaVista
home at the time of the marriage.
Both parties agreed that the down payment for the marital home was paid out of the
proceeds from the sale of the LaVista home. And Amber testified that she and Michael used the
rest of the sale proceeds to finish the basement of the marital home. A spouse’s own testimony can
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establish a tracing link, i.e., tracking an asset to a nonmarital source. Burgardt v. Burgardt, 304
Neb. 356, 934 N.W.2d 488 (2019). As a result, we find that Amber met her burden of proving that
she had nonmarital assets of $5,300 that can be traced from the purchase of the LaVista home to
the marital home. Accordingly, we modify the credit awarded to Amber in the decree to reflect her
premarital interest of $5,300.We must also therefore increase the equalization payment that is due
from Amber to Michael from $3,312.13 to $8,709.13.
Attorney Fees.
Finally, Michael assigns that the district court erred in awarding Amber $5,000 in attorney
fees. We find no abuse of discretion in this decision.
Attorney fees and expenses may be recovered only where provided for by statute or when
a recognized and accepted uniform course of procedure has been to allow recovery of attorney
fees. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019). Attorney fees shall be awarded
against a party who alleged a claim or defense that the court determined was frivolous, interposed
any part of the action solely for delay or harassment, or unnecessarily expanded the proceeding by
other improper conduct. Id. Additionally, in dissolution cases, as a matter of custom, attorney fees
and costs are awarded to prevailing parties. Id. Finally, a uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases. Id.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. Id. 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. Id.Here, Amber presented an affidavit by her attorney detailing attorney fees and costs related
to this dissolution matter totaling $16,324.32. The parties generally agreed on the division of the
marital estate; so the disputed issues at trial focused on custody of the children, child support, and
whether and to what extent Amber was entitled to a premarital credit related to the LaVista home.
On these issues, Amber was generally the prevailing party, having been awarded sole physical
custody, child support, and a credit for her premarital funds. On these facts, we find no abuse of
discretion in the award of $5,000 in attorney fees.
CONCLUSION
We affirm in part, affirm in part as modified, and in part vacate and remand the cause with
directions. Specifically and in the order we addressed the issues above, we vacate any language
related to legal custody and remand to the district court for clarification; affirm the award of sole
physical custody to Amber; affirm the language of the parenting plan specifying that Michael’s
weekend time coincide with Amber’s work schedule and awarding Michael one evening every
week without further detail; remand for further specification of holiday parenting time; modify the
decree to strike the requirement that Michael maintain life insurance to secure his child support
obligation; modify the decree to allocate childcare expenses as to both parties; affirm the award of
a credit to Amber for her premarital property but modify the amount to $5,300 and modify the
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amount of the equalization payment from Amber to Michael to $8,709.13; and affirm the award
of attorney fees to Amber.
AFFIRMED IN PART, AFFIRMED IN PART
AS MODIFIED, AND IN PART VACATED
AND REMANDED WITH DIRECTIONS.
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