Nelson v. Richardson-Nelson ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/13/2021 08:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15Darryl Nelson, appellant, v. Elizabeth
Richardson-Nelson, appellee.
___ N.W.2d ___
Filed June 29, 2021. No. A-20-716.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Appeal and Error. In a review de novo on the record, an appellate
court reappraises the evidence as presented by the record and reaches
its own independent conclusions with respect to the matters at issue.
When evidence is in conflict, the appellate court considers and may give
weight to the fact that the trial judge heard and observed the witnesses
and accepted one version of the facts rather than another.
4. Marriage: Proof. In Nebraska, a couple cannot create a common-law
marriage by agreement or cohabitation and reputation.
5. 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.
6. Divorce: Property Division. In addition to the specific criteria listed
in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15income and earning capacity of each party and the general equities of
the situation.
7. Alimony. The purpose of alimony is to provide for the continued main-
tenance or support of one party by the other when the relative economic
circumstances make it appropriate.
8. 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.
9. ____: ____. An appellate court is not inclined to disturb the trial court’s
award of alimony unless it is patently unfair on the record.
10. Alimony. Alimony is not a tool to equalize the parties’ income, but a
disparity of income or potential income might partially justify an ali-
mony award.
11. ____. Above all else, the duration of an alimony award must be
reasonable.
Appeal from the District Court for Dawson County: James
E. Doyle IV, Judge. Affirmed.
Brian W. Copley, of Heldt, McKeone & Copley, for appellant.
Mark R. McKeone, P.C., L.L.O., for appellee.
Pirtle, Chief Judge, and Moore and Bishop, Judges.
Moore, Judge.
INTRODUCTION
Darryl Nelson (Darryl) appeals from the order of the district
court for Dawson County dissolving his marriage to Elizabeth
Richardson-Nelson (Elizabeth). The court found that the par-
ties established a common-law marriage in Colorado in 1997
and awarded alimony to Elizabeth. Darryl contends that the
parties were not married until 2011 in Nebraska. He also chal-
lenges the amount and duration of the court’s alimony award.
For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
On June 6, 2019, Darryl filed a complaint in the district
court, seeking dissolution of his marriage to Elizabeth. He
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15alleged that the parties were married in Nebraska in “July,
2013 [sic].” In her answer and “Counter Complaint,” Elizabeth
denied this allegation and alleged that the parties were married
in Colorado in July 1997. Both parties sought dissolution of
the marriage and an equitable division of the marital estate.
Additionally, Elizabeth sought awards of temporary and per-
manent alimony.
On April 8, 2020, the district court entered an order concern-
ing temporary spousal support. The court awarded Elizabeth
sole and exclusive possession of the marital residence for the
duration of the pendency of the case and, as part of the award
of temporary spousal support, ordered Darryl to pay the mort-
gage, tax, and insurance payments on the marital residence; to
pay the insurance premiums for Elizabeth’s automobile; and
to maintain in full force and effect and pay the premiums for
any health or life insurance which insured the health or life of
Elizabeth as of June 6, 2019. Additionally, the court ordered
Darryl to pay temporary spousal support in the amount of $300
per month commencing January 1, 2020, until further order of
the court.
Trial was held before the district court on July 1, 2020. In
addition to receiving various documentary exhibits, the court
heard testimony from Darryl, Elizabeth, and Darryl’s uncle.
The parties presented conflicting evidence regarding whether
they established a common-law marriage in Colorado or were
not married until after they moved to Nebraska. They were liv-
ing in Colorado when they began dating in 1996, and at some
point later that year, Darryl moved in with Elizabeth. The
parties lived together without interruption until they separated
in February 2019. On June 17, 1997, the parties obtained a
marriage license in Colorado. They did not have a marriage
ceremony at that time, and the license was never filed with
a county clerk’s office in Colorado (nor does a copy appear
in the record on appeal). The parties moved to Nebraska in
September 1998. They obtained a marriage license and had
a wedding ceremony in Nebraska in 2011. Their Nebraska
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15license and certificate of marriage was admitted into evidence;
reflects a marriage date of July 17, 2011; and was filed with
the county clerk’s office in Dawson County on July 18. At the
time of trial, Darryl, age 42, resided in Kearney, Nebraska, and
Elizabeth, age 48, resided in Lexington, Nebraska.
Darryl was asked about why the parties did not have a
“follow-up ceremony” after obtaining the marriage license
in Colorado. Darryl responded, “I just . . . drug my feet, I
guess.” When asked if it was his intention at that time to
“officially” marry Elizabeth, he stated, “Intention, yes, but just
never finished it.” Darryl testified further, “There was never a
real push for us to have a full-blown marriage — wedding.”
When questioned further about what kept him from filing the
marriage license while the parties were in Colorado, Darryl
testified that this was due to “[m]aybe cold feet a little bit . . .
because [he] was so young” (19 years old). He also testified
that there “wasn’t a big pressure to do it because [Elizaeth and
he] were already together like that. It already felt like that was
the case.” Darryl admitted that he began calling Elizabeth his
wife and that he held her out as his wife to other people after
they obtained the Colorado marriage license. Darryl testified
that he purchased Elizabeth a “promise ring” in 1997 before
the parties moved to Nebraska, indicating that he bought “the
actual first wedding ring” after the move to Nebraska although
he did not recall in what year it was purchased. Darryl testi-
fied that the parties were “officially married” at the time of
the 2011 ceremony in Nebraska. When asked why he decided
to “go through with a formal marriage” at that point, Darryl
responded that the parties had been “going through some prob-
lems,” that Elizabeth “had always wanted a ceremony,” and
that he thought the ceremony would help to “make the relation-
ship stronger.”
The parties did not jointly own any property and had
no joint accounts while they lived in Colorado. According
to Elizabeth, Darryl did not have any bank accounts at the
time and her account was only maintained for purposes of
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Cite as 30 Neb. App. 15receiving her daughter’s disability payments. She testified that
the parties paid their bills in Colorado using cash. Darryl testi-
fied that the parties did not have a specific agreement about
how bills would be paid or expenses divided, indicating that
Elizabeth usually paid the rent while he “helped out with”
other bills. Darryl testified that he did not carry Elizabeth on
his medical insurance while they lived in Colorado. According
to Elizabeth, Darryl did not have medical insurance during
that period; Elizabeth was on Medicaid, which also covered
her children; and Darryl’s daughter was covered through her
mother’s insurance. Darryl did not recall filing a joint tax
return with Elizabeth prior to moving to Nebraska, but he testi-
fied that they “[p]ossibly” did so in 1998 and that “it was for
sure” for the tax years 1999 and 2000. Elizabeth estimated that
the parties first filed a joint tax return in 2000 for the 1999 tax
year. Transcripts from the Internal Revenue Service of Darryl’s
income taxes from 2008 through 2018 were received into
evidence, and all show a “Married Filing Joint” filing status.
Elizabeth did not have any older income tax documents and
was able to obtain only the 10 years of transcripts that were
received into evidence.
Elizabeth testified that she believed the parties were married
after they obtained the license in Colorado. She acknowledged
there was no wedding ceremony in 1997, but she believed the
marriage license itself created the marriage. She described the
ring Darryl gave her in 1997 as an “engagement ring,” testify-
ing, “That’s when he asked me to marry him.” Elizabeth con-
firmed Darryl’s testimony that in Colorado, Darryl introduced
her as his “wife” on several occasions after the commence-
ment of their cohabitation. Elizabeth did not adopt Darryl’s
surname while the parties lived in Colorado; she did not
legally change her surname to Richardson-Nelson until after
2011, when her driver’s license expired. Elizabeth offered in
evidence a cross-stitch wall plaque made by Darryl’s grand-
mother and given to the parties. The wall plaque depicts a
man and woman, bears the names “Elizabeth” and “Darryl,”
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15and includes the words “United in Love” and “July 17, 1997.”
The woman depicted is wearing a wedding gown and veil and
is holding a bouquet of flowers. The man depicted is formally
dressed. The record does not indicate exactly when this gift
was given to the parties. Elizabeth testified that “[Darryl’s]
mom and grandmother [were] upset because they felt like
[Darryl and Elizabeth] robbed them of them being there for
[the] wedding” and that the grandmother “made the plaque
with the date that [Darryl and Elizabeth] got married.” Darryl
testified that the plaque had been displayed in their residence
at some point but “ha[d]n’t been around for a long time.”
Elizabeth characterized the July 2011 wedding ceremony as “a
renewal of the vows for the family to come and [her] to wear
a wedding dress.”
Darryl’s uncle testified that he met Elizabeth in 1998 when
the parties visited prior to moving to Nebraska. According to
the uncle, they acted like a married couple and Darryl intro-
duced Elizabeth as his wife at that time.
The parties did not have any children together; however, as
noted above, Darryl had a daughter from a prior relationship,
and Elizabeth had five children from a prior relationship. The
children lived with the parties during their Colorado cohabita-
tion and after they moved to Nebraska. Darryl testified that
he raised Elizabeth’s children as his own and that Elizabeth
treated his daughter as her own. The parties’ children from
prior relationships were no longer minors at the time these
divorce proceedings were initiated.
There was evidence about the parties’ work history and
living expenses. Darryl has a high school education and had
started taking postsecondary education classes within the year
preceding trial. While living in Colorado, Darryl “did a lot
of odd jobs” and worked “mainly” for his grandfather. Once
the parties moved to Nebraska, Darryl did “odd jobs” and
“handyman, small construction” jobs until 2009, when the
parties moved to Lexington and he obtained employment at a
discount store. Darryl could not remember exactly how much
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15he earned while working at the store, estimating “[m]aybe 12
tops.” In 2011, while still employed at the store, Darryl started
working at Baldwin Filter, Inc. (now known as Parker) in a
“temp” position earning $10 an hour. Darryl was still employed
at Parker at the time of trial as an assistant supervisor in
the distribution center. Darryl testified that he changed jobs
within the company in May 2019 and that in 2019, he earned
approximately $86,000, which included overtime pay. Darryl
testified that he would earn substantially less in 2020 than in
2019, partly due to the COVID-19 pandemic. He testified that
Parker planned to reevaluate allowing overtime at the end of
July 2020, but that “there is no guarantee that [Parker] would
even go back to the rate that [its employees] were getting
before.” Darryl’s W-2 forms for 2017 and 2018 were received
into evidence and show “[w]ages, tips, other compensation” of
$59,821.79 and $77,200.95, respectively. Darryl testified gen-
erally as to his living expenses but did not provide a specific
description of his financial condition. Although a “Statement of
Monthly Expenses” for Darryl is listed in the index to the bill
of exceptions before us, this exhibit was not made a part of the
record on appeal.
Elizabeth has a diploma through the GED program, and
at the time of trial, she had both a cosmetology license and
a lapsed certified nursing assistant (CNA) license. When the
parties moved to Nebraska, Elizabeth obtained work cleaning
a recreation center; she also worked at retail stores. Darryl
estimated that the parties’ combined annual income at the
time of the move to Nebraska was “[p]robably, high 20s.”
At some point after the parties moved to Nebraska, Elizabeth
received training and worked as a CNA, earning more than
Darryl. The parties agree that Elizabeth’s earnings were their
primary income for a number of years from some point after
their move to Nebraska until Darryl began receiving promo-
tions at Parker. While working as a CNA, Elizabeth obtained
a cosmetology degree. She then worked as a hairdresser in a
beauty salon during the latter parts of the parties’ marriage,
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15but, due to the COVID-19 pandemic, had stopped that work.
Just a few weeks prior to trial, she had started working 10
hours per week at a gas station convenience store, earning
$9.50 per hour. She indicated that she had been talking to
the owner about “trying to pick up hours” at a different store
location. She also testified that beauty salons had just recently
reopened after closing due to the pandemic. She had been
talking to the owner of the salon where she worked prior to
the pandemic and indicated that the owner wanted Elizabeth
to pay “back-rent” for the months during which the salon
had been closed, but that Elizabeth did not have this money
available. According to Elizabeth, she had been making about
$400 per month net pay prior to the pandemic. In his testi-
mony, Darryl estimated that Elizabeth had earned “probably
­mid-20s, annually,” while working as a hairdresser. According
to Elizabeth, she was looking for better-paying employment in
Lexington. She testified that her CNA license had lapsed and
that she would have to become recertified, but that she would
not mind returning to that work because she “miss[ed] it.”
She also expressed that she still had her cosmetology license
and “love[d] doing hair,” but that “right now, it’s not a good
market for it because of the COVID.” During her testimony,
Elizabeth described her living expenses, and she submitted
a written statement of her financial condition, showing total
monthly expenses of $2,478.
On September 3, 2020, the district court entered a decree,
dissolving the parties’ marriage. The court determined that
the parties established a common-law marriage in Colorado in
1997. The court divided the marital estate and ordered Darryl
to pay Elizabeth a judgment of $5,500 in four equal annual
payments of $1,375. We note that in the property division,
Darryl was awarded the only retirement asset of the parties,
Elizabeth was awarded the marital residence and ordered to
pay the mortgage on it, and Darryl was ordered to pay marital
debts other than the mortgage. The court ordered Darryl to
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15pay alimony of $1,050 per month, commencing October 1,
2020, and continuing through October 1, 2030. It also entered
a judgment of $2,725.51 against Darryl for unpaid temporary
alimony and interest which had accrued as of September 1,
2020. Finally, the court entered a judgment against Darryl in
favor of Elizabeth for attorney fees in the amount of $750. We
have set forth details of the court’s discussion of the common-
law marriage and alimony issues in our analysis below.
Darryl subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Darryl asserts that the district court abused its discretion in
(1) finding that the parties established a common-law marriage
in Colorado in 1997 and (2) calculating the amount and dura-
tion of the alimony award to Elizabeth.
STANDARD OF REVIEW
[1] In a marital dissolution action, an appellate court reviews
the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. Dycus v.
Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020). This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees. Id.[2] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. Id.[3] In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches
its own independent conclusions with respect to the matters
at issue. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619(2021). However, when evidence is in conflict, the appellate
court considers and may give weight to the fact that the trial
judge heard and observed the witnesses and accepted one ver-
sion of the facts rather than another. Id.- 24 -
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15ANALYSIS
Common-Law Marriage.
Darryl asserts that the district court abused its discretion in
finding that the parties established a common-law marriage in
Colorado in 1997. He argues that the evidence was insufficient
to establish the existence of a common-law marriage between
the parties prior to when they moved to Nebraska.
[4] In Nebraska, a couple cannot create a common-law mar-
riage by agreement or cohabitation and reputation. Spitz v. T.O.
Haas Tire Co., 283 Neb. 811, 815 N.W.2d 524 (2012) (discuss-
ing requirements for establishing common-law marriage in
Colorado and upholding trial court’s ruling finding evidence
did not establish common-law marriage). However, Neb. Rev.
Stat. § 42-117 (Reissue 2016) provides that “[a]ll marriages
contracted without this state, which would be valid by the laws
of the country in which the same were contracted, shall be
valid in all courts and places in this state.” See, also, Bogardi
v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996) (general
rule is that validity of marriage is determined by law of place
where it was contracted; if valid there, it will be held valid
everywhere, and conversely, if invalid by lex loci contractus,
it will be invalid wherever question may arise). Accordingly,
for Elizabeth’s asserted marriage date to be correct, she had to
show that she and Darryl had a valid common-law marriage
under Colorado law before September 1998, when they moved
to Nebraska.
In finding the evidence showed that the parties estab-
lished a common-law marriage in Colorado prior to moving
to Nebraska, the district court relied on People v. Lucero, 747
P.2d 660 (Colo. 1987). Since entry of the decree in this case,
the prevailing test for establishing a common-law marriage in
Colorado set forth in Lucero has been refined by the Colorado
Supreme Court in Hogsett v. Neale, 478 P.3d 713 (Colo. 2021).
Although the Hogsett opinion was not available to the district
court at the time of the decree in this case, for the sake of
completeness, we discuss both cases before proceeding to the
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NELSON v. RICHARDSON-NELSON
Cite as 30 Neb. App. 15district court’s analysis of whether a common-law marriage
was established in this case.
People v. Lucero, supra, was a criminal case in which the
defendant objected to testimony from his alleged common-
law wife on the grounds that it violated Colorado’s marital
testimonial privilege. The defendant made an offer of proof
during which the putative wife testified that she considered
herself married to the defendant, testified that they held them-
selves out to friends as being married, and affirmed that the
defendant agreed they were married. She also repeated earlier
testimony about the length of their marriage (5 years) and that
they had one child together. The trial court found the prof-
fered testimony insufficient to prove the common-law marriage
and overruled the defendant’s objection. The Colorado Court
of Appeals reversed, finding the existence of a common-law
marriage as a matter of law. On review, the Colorado Supreme
Court reversed that conclusion and remanded the matter for
reconsideration by the trial court under the standards set forth
in its opinion.
In Lucero, the Colorado Supreme Court held that a common-­
law marriage is established by “the mutual consent or agree-
ment of the parties to be husband and wife, followed by a
mutual and open assumption of a marital relationship.” 747
P.2d at 663. The court acknowledged that in many cases,
because of the nature of common-law marriage, express agree-
ments will not exist, and it held that “if the agreement is denied
or cannot be shown, its existence may be inferred from evi-
dence of cohabitation and general repute.” Id. at 664. The court
emphasized that “determination of whether a common-law
marriage exists turns on issues of fact and credibility, which
are properly within the trial court’s discretion.” Id. at 665. The
court went on to provide the following examples of evidence
that could establish a mutual understanding of the parties that
they had a marital relationship:
The two factors that most clearly show an intention to
be married are cohabitation and a general understanding
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Cite as 30 Neb. App. 15or reputation among persons in the community in which
the couple lives that the parties hold themselves out as
husband and wife. Specific behavior that may be con-
sidered includes maintenance of joint banking and credit
accounts; purchase and joint ownership of property; the
use of the man’s surname by the woman; the use of
the man’s surname by children born to the parties; and the
filing of joint tax returns. . . . However, there is no single
form that any such evidence must take. Rather, any form
of evidence that openly manifests the intention of the par-
ties that their relationship is that of husband and wife will
provide the requisite proof from which the existence of
their mutual understanding can be inferred.
Id. Since it was not clear by what criteria the trial court in
Lucero evaluated the existence of a common-law marriage, the
Colorado Supreme Court remanded the matter for reconsidera-
tion under the clarified standard set forth in its opinion.
The decree in the present case was entered on September 3,
2020. In an opinion released on January 11, 2021, the Colorado
Supreme Court further refined the test from Lucero in its opin-
ion in Hogsett v. Neale, 478 P.3d 713 (Colo. 2021). Hogsett
was a case involving a disputed common-law marriage in a
dissolution of marriage case filed by one partner in a same-
sex relationship. In Hogsett, the court discussed the legal and
social developments with respect to marriage in the years since
its decision in People v. Lucero, 747 P.2d 660 (Colo. 1987).
The Colorado Supreme Court then refined the Lucero test
as follows:
Given these significant social and legal developments
since our decision in Lucero, the test and its factors
require refinement. We therefore hold that a common law
marriage may be established by the mutual consent or
agreement of the couple to enter the legal and social insti-
tution of marriage, followed by conduct manifesting that
mutual agreement. The key question is whether the parties
mutually intended to enter a marital relationship—that
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intimate relationship of mutual support and mutual obli-
gation. In assessing whether a common law marriage has
been established, courts should give weight to evidence
reflecting a couple’s express agreement to marry. In the
absence of such evidence, the parties’ agreement to enter
a marital relationship may be inferred from their conduct.
When examining the parties’ conduct, the factors identi-
fied in Lucero can still be relevant to the inquiry, but they
must be assessed in context; the inferences to be drawn
from the parties’ conduct may vary depending on the
circumstances. Finally, the manifestation of the parties’
agreement to marry need not take a particular form.
Hogsett, 478 P.3d at 723-24.
In the present case, the district court noted the parties’
respective testimonies about the history of their relationship,
their intent with respect to and understanding of the effect of
the Colorado marriage license they obtained but did not file
in July 1997, the rings purchased by Darryl for Elizabeth at
various points, how the parties handled their mutual finances,
how they represented themselves to family and friends, and the
parties’ testimony about the purpose and effect of the wedding
ceremony in Nebraska in 2011. The court then observed that
pursuant to the standard set forth in Lucero, the determination
of whether there is a common-law marriage turns on issues
of fact and credibility, the evidence must manifest the parties’
intent to have a marital relationship, the relationship does not
have to be of any certain duration, and it does not require any
specific words or acts to manifest the parties’ mutual consent
or agreement to be married. The court then stated:
After consideration of the evidence described above
and particularly the credibility of the parties, the court
finds the parties established, in Colorado, a common-law
marriage in July 1997 during their cohabitation. While
in the state of cohabitation in Colorado, Darryl referred
to Elizabeth as his wife to Elizabeth and to others. They
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Cite as 30 Neb. App. 15shared the household duties commonly required of a hus-
band and a wife, and, the status as of 1997, of husband
and wife was recognized as such by Darryl’s uncle and
grandmother. The conflicts in the evidence over the effect
of the Colorado marriage license and the purpose of the
2011 wedding ceremony are resolved in Elizabeth’s favor.
In making this determination the demeanor evidence was
significant and weighed heavily in Elizabeth’s favor.
The court concluded that the parties’ Colorado common-law
marriage commenced in late July 1997 and resolved other
issues in the case based on such finding.
Our review supports the district court’s conclusion. The
parties began cohabitating in Colorado in 1996 and obtained
a marriage license in Colorado in July 1997, although they
never filed it and did not hold a wedding ceremony at that
time. The evidence shows that Darryl referred to Elizabeth as
his wife and that they held themselves out to friends and fam-
ily as being married at that time. There was evidence that both
Darryl’s uncle and his grandmother believed the parties were
married in Colorado in 1997. The parties continued to live
together and maintain a common household until their separa-
tion in February 2019 after moving to Nebraska in September
1998. Although they did not have joint bank accounts or
jointly own any property while living in Colorado, the evi-
dence shows that they rented their residence, that Darryl did
not have a bank account, that Elizabeth maintained a bank
account only for purposes of receiving her daughter’s disabil-
ity payments, and that the parties mainly conducted their busi-
ness by cash while living in Colorado. Elizabeth did not use
any portion of Darryl’s surname as her own until at some point
after the parties’ Nebraska wedding ceremony in 2011, but as
pointed out by the Colorado Supreme Court in its recent deci-
sion, “there may be any number of reasons, including cultural
ones, that spouses and children do not take one partner’s name
at marriage,” and this does not appear to be a factor weighed
heavily by the district court in the present case. Hogsett v.
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Cite as 30 Neb. App. 15Neale, 478 P.3d 713, 723 (Colo. 2021). The parties did not
have any children but raised one another’s children from pre-
vious relationships as their own. The record is unclear as to
whether the parties filed any income tax returns while living in
Colorado, but testimony from both Darryl and Elizabeth estab-
lishes that they began filing joint tax returns soon after moving
to Nebraska. The documentary evidence shows that they filed
joint tax returns at least as early as 2008, which is 3 years prior
to the Nebraska wedding ceremony. Finally, the evidence as to
the parties’ understanding and intent with respect to the 1997
Colorado marriage license, the 2011 Nebraska wedding cere­
mony, and the rings purchased by Darryl for Elizabeth at vari-
ous points was conflicting. The district court clearly resolved
that conflict in Elizabeth’s favor.
The district court did not err in determining that the evidence
showed the parties established a common-law marriage in
Colorado in 1997 before moving to Nebraska in 1998. As noted
above, this determination turns on issues of fact and credibil-
ity, which are within the trial court’s discretion. See People v.
Lucero, 747 P.2d 660 (Colo. 1987), abrogated, Hogsett, supra.
The court did not abuse its discretion in finding a common-law
marriage established in 1997. This assignment of error fails.
Alimony.
Darryl asserts that the district court abused its discretion
in calculating the amount and duration of the alimony award
to Elizabeth. In the decree, the court ordered Darryl to pay
alimony of $1,050 per month beginning October 1, 2020, and
continuing through October 1, 2030. Darryl argues that the
award was patently unfair; in doing so, he relies on his asser-
tion that the court erred in determining the length of the par-
ties’ marriage. He also argues that the court failed to consider
Elizabeth’s contributions to the marriage, especially during
the period when she earned more than Darryl; her potential
to renew her CNA license and earn more than she was earn-
ing at the time of trial; the reduction in Darryl’s income at the
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the home.
[5,6] In dividing property and considering alimony upon
a dissolution of marriage, a court should consider four fac-
tors: (1) the circumstances of the parties, (2) the duration of
the marriage, (3) the history of contributions to the marriage,
and (4) the ability of the supported party to engage in gainful
employment without interfering with the interests of any minor
children in the custody of each party. Dooling v. Dooling, 303
Neb. 494, 930 N.W.2d 481 (2019). In addition to the specific
criteria listed in Neb. Rev. Stat. § 42-365 (Reissue 2016),
a court should consider the income and earning capacity of
each party and the general equities of the situation. Dooling v.
Dooling, supra.[7-11] The purpose of alimony is to provide for the contin-
ued maintenance or support of one party by the other when the
relative economic circumstances make it appropriate. Id. In
reviewing an alimony award, an appellate court does not deter-
mine whether it would have awarded the same amount of ali-
mony as did the trial court, but whether the trial court’s award
is untenable such as to deprive a party of a substantial right or
just result. Id. The ultimate criterion is one of reasonableness.
Id. An appellate court is not inclined to disturb the trial court’s
award of alimony unless it is patently unfair on the record. Id.Alimony is not a tool to equalize the parties’ income, but a dis-
parity of income or potential income might partially justify an
alimony award. Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d
650 (2020). Above all else, the duration of an alimony award
must be reasonable. Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d
582 (2018).
In awarding alimony, the district court found that the par-
ties had been married for 21 years 10 months as of the date
of their separation and 23 years as of the date of trial and that
the length of the marriage supported an award of alimony.
It noted the parties’ ages and observed that they were both
in good health. The court noted the parties’ current financial
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demic on their respective employments. The court found that
Elizabeth had an earning capacity of at least $1,560 per month.
It also noted evidence relating to the parties’ living expenses
and the equal division of the marital estate. The court con-
cluded that the evidence relating to the parties’ financial
circumstances weighed in favor of alimony. Next, the court
observed that the parties made equal contributions to the mar-
riage in terms of the care they provided their children from
other relationships and the operation of the household. The
court also noted that Elizabeth contributed more to the parties’
financial well-being early in the marriage, while in the last few
years, Darryl began earning substantially more than Elizabeth.
The court concluded that an analysis of the parties’ contribu-
tions to the marriage weighed in favor of an award of alimony.
In sum, the court concluded that consideration of the evidence
with respect to the factors relevant to an award of alimony all
supported an award of alimony to Elizabeth.
Our de novo review of the record supports the district
court’s award of alimony. As determined above, this was a
lengthy marriage. Both parties made contributions to the mar-
riage in helping raise the parties’ children from other relation-
ships. Elizabeth’s financial contributions were greater at the
beginning of the marriage; Darryl’s were greater at the end
of the marriage. The economic circumstances of both parties
suffered in the months preceding trial due to the COVID-19
pandemic, but there was still a considerable disparity in their
relative economic circumstances at the time of trial. Elizabeth
testified that she was unable to pay the “back-rent” required
to resume work as a hairdresser and that returning to work
as a CNA will require her to renew her license. Darryl’s tes-
timony reflects the possibility of overtime work’s becoming
available again through his employment. While the alimony is
not a tool to equalize the parties’ income, under the circum-
stances presented here, we cannot say that the court’s award
of alimony was unreasonable or patently unfair. See, Grothen
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Cite as 30 Neb. App. 15v. Grothen, supra; Dooling v. Dooling, 303 Neb. 494, 930
N.W.2d 481 (2019). The court considered the appropriate fac-
tors, and we find no abuse of discretion either in the amount or
in the duration of the alimony award.
CONCLUSION
The district court did not abuse its discretion in finding that
the parties established a common-law marriage in Colorado in
1997 or in calculating the amount and duration of the alimony
awarded to Elizabeth.
Affirmed.