Tierney v. Tierney , 309 Neb. 310 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/09/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
TIERNEY v. TIERNEY
Cite as 309 Neb. 310Kathryn Ann Tierney, appellee, v.
Lawrence William Tierney, appellant.
___ N.W.2d ___
Filed May 21, 2021. No. S-20-731.
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. 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.
3. 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.
4. Actions: Appeal and Error. Law of the case is a procedural doctrine
that bars reconsideration of the same or similar issues at successive
stages of the same suit or prosecution. The doctrine reflects the principle
that to promote finality and to protect parties’ settled expectations, an
issue litigated and terminally decided in one stage of a case should not
be later resuscitated at a later stage.
5. Appeal and Error. Under the law‑of‑the‑case doctrine, the holdings
of an appellate court on questions presented to it for review become
the law of the case. Thereafter, unless the facts presented on remand
are shown by the petitioner to be materially and substantially different,
the appellate court’s holdings conclusively settle all matters ruled upon,
either expressly or by necessary implication.
6. Administrative Law: Jurisdiction: Claims. The primary jurisdiction
doctrine applies whenever enforcement of a claim, originally cognizable
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309 Nebraska Reports
TIERNEY v. TIERNEY
Cite as 309 Neb. 310in the courts, requires the resolution of issues that have been placed
within the special competence of an administrative body in accordance
with the purposes of a regulatory scheme.
7. Divorce: Property Division. A district court in a divorce case is autho-
rized to reasonably and equitably divide a marital estate.
8. Trial: Waiver: Appeal and Error. Failure to raise an issue at the trial
court level waives that issue on appeal.
Appeal from the District Court for Custer County: Karin L.
Noakes, Judge. Affirmed.
Marsha E. Fangmeyer for appellant.
John B. McDermott and Mark Porto, of Wolf, McDermott,
Depue, Sabott, Butz & Porto, L.L.C., for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
A decree dissolving the marriage of Kathryn Ann Tierney
and Lawrence William Tierney was entered in October 2017.
That decree also divided the marital property, including certain
tracts of real property. Lawrence appealed. The Nebraska Court
of Appeals modified the district court’s decree in part, award-
ing to Lawrence certain parcels originally awarded to Kathryn,
which Lawrence argued were needed to effectively run his
cattle ranch. 1 In addition, the Court of Appeals awarded the
marital home to Kathryn, despite the home’s location on one of
the tracts of land it had awarded to Lawrence. 2
Kathryn then filed a motion to determine a metes and
bounds description for the marital home. The district court
granted that motion and awarded Kathryn a 5.24‑acre parcel
1
See Tierney v. Tierney, No. A‑18‑338, 2019 WL 2509047 (Neb. App. June
18, 2019) (selected for posting to court website).
2
See id.- 312 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
TIERNEY v. TIERNEY
Cite as 309 Neb. 310created from the original parcels of land. Lawrence appeals.
We affirm.
BACKGOUND
Lawrence and Kathryn were married in June 1980 and had
two children, who have since reached the age of majority. The
parties separated in August 2015, and a decree dissolving their
marriage and dividing their marital property was entered in
October 2017.
Lawrence operated a ranch through Custer County Pasture
Co., Inc., a corporation jointly owned with Kathryn. As rel-
evant to this appeal, the marital estate consisted of mul-
tiple parcels of land, color‑coded in the joint property state-
ment for purposes of identification: the 286.46‑acre red tract,
which included the marital home and several outbuildings; the
159.49‑acre pink tract; the 319.17‑acre green tract; and the
orange tract. The size of the orange tract was disputed, but was
agreed to be between 250 and 303 acres. The parties valued
the marital home, along with 1 acre, at $105,000, but disputed
the value of all remaining tracts. No separate valuation was
done on the various outbuildings.
After a trial, the district court valued the real property at
$1,446 per acre, awarded the pink and red tracts (including
the marital home) to Kathryn, and awarded the green and
orange tracts to Lawrence. The court further ordered Lawrence
to equalize the estate by making an equalization payment of
$95,838 to Kathryn. The total value of the marital estate was
approximately $2.6 million.
Lawrence appealed on several grounds. As relevant here,
he took issue with the awarding of the red and pink tracts
to Kathryn, in particular arguing that “the red tract contains
facilities without which he would be ‘unable to successfully
and economically continue’ his operation.” 3 The Court of
Appeals agreed as to those tracts and modified the decree to
award Kathryn the green tract while awarding Lawrence the
3
Id. at *6.
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TIERNEY v. TIERNEY
Cite as 309 Neb. 310red and pink tracts, noting that the latter “tracts are situated
in the center of the tracts Lawrence uses to feed and pasture
his livestock” and “contain the barn, other outbuildings, and
equipment used in the [cattle] operation.” 4 However, the
Court of Appeals affirmed the award of the marital home
to Kathryn.
Because the marital home was a part of the larger red tract
now awarded to Lawrence, Kathryn motioned for a metes and
bounds description for the home. Kathryn sought a minimum
parcel of 5.24 acres, while Lawrence argued for a 1‑acre tract.
The district court adopted Kathryn’s proposed description
and granted her motion, resulting in a legal description of
the home on a 5.24‑acre parcel. In awarding the 5‑plus‑acre
parcel, the district court noted that it was following land‑use
regulations promulgated by Custer County, which required
that outside of a subdivision, the minimum lot area for any
single‑family dwelling must be at least 5 acres.
Lawrence offered no alternative description as to either a
1‑acre or 5‑acre tract. He argued that the district court had vio-
lated the law‑of‑the‑case doctrine. Lawrence reasoned that at
trial, the parties had listed on the property statement the value
of the home along with 1 acre of land. Because the Court of
Appeals then awarded the house (and by extension, 1 acre) to
Kathryn, the district court’s granting of Kathryn’s motion with
a larger parcel of land was error. Lawrence asked the district
court to award Kathryn the house and just 1 acre, regardless of
whether such a description would violate local zoning restric-
tions regarding minimum lot size.
The district court rejected Lawrence’s suggestion that it
essentially impose its decision on the local zoning authorities,
suggesting that to do so would potentially violate the doc-
trine of separation of powers. The court noted that it would
not “deliberately divide a parcel of property in a manner
contrary to the county zoning regulations.” It further noted
4
Id. at *4.
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TIERNEY v. TIERNEY
Cite as 309 Neb. 310that Kathryn’s proposed survey was “reasonable under the
circumstances,” observing that Kathryn’s proposal was the
“only evidence the Court has available to adequately divide
the property.”
Lawrence now appeals the district court’s granting of
Kathryn’s motion seeking a metes and bounds description.
ASSIGNMENTS OF ERROR
Lawrence assigns, renumbered, that the district court erred
in (1) failing to follow the law‑of‑the‑case doctrine, (2) deter-
mining it had the authority to create a new parcel of land with
a metes and bounds description without any input or decision
from local zoning authorities, (3) awarding Kathryn a 5.24‑acre
tract of land rather than a 1‑acre tract of land to accompany
the marital home, (4) failing to account for the increased value
of the 5.24‑acre tract of land, and (5) overruling Lawrence’s
motion for new trial or to alter or amend the decree.
STANDARD OF REVIEW
[1‑3] 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. 5 This
standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony,
and attorney fees. 6 In a review de novo on the record, an
appellate court is required to make independent factual deter-
minations based upon the record, and the court reaches its own
independent conclusions with respect to the matters at issue. 7 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. 8
5
Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (2020).
6
Id.7
Id.8
Id.- 315 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
TIERNEY v. TIERNEY
Cite as 309 Neb. 310ANALYSIS
In his first assignment of error, Lawrence argues that the
district court violated the law‑of‑the‑case doctrine when it
awarded Kathryn a 5.24‑acre tract of land rather than a 1‑acre
tract of land.
[4,5] Law of the case is a procedural doctrine that bars
reconsideration of the same or similar issues at successive
stages of the same suit or prosecution. 9 The doctrine reflects
the principle that to promote finality and to protect parties’
settled expectations, an issue litigated and terminally decided
in one stage of a case should not be later resuscitated at a later
stage. 10 Under the law‑of‑the‑case doctrine, the holdings of an
appellate court on questions presented to it for review become
the law of the case. 11 Thereafter, unless the facts presented on
remand are shown by the petitioner to be materially and sub-
stantially different, the appellate court’s holdings conclusively
settle all matters ruled upon, either expressly or by neces-
sary implication. 12
Lawrence argues that the Court of Appeals awarded Kathryn
the marital home, and “[a]lthough not specifically addressed,
it is clear that the parties and the trial court referred to, and
valued, the house as being on one acre.” 13 As such, according
to Lawrence:
The law‑of‑the‑case doctrine prohibits Kathryn from relit-
igating the ownership of the outbuildings, including the
garage, shop, shed, bunkhouse, barn and creamery after
this issue has been conclusively decided by the appellate
court. It further prevents her, absent materially and sub-
stantially different facts, from arguing for the first time
9
Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696(2021).
10
Id.11
Id.12
Id.13
Brief for appellant at 14.
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309 Nebraska Reports
TIERNEY v. TIERNEY
Cite as 309 Neb. 310after the mandate, that the house should be awarded on a
5.24 acre tract of land including many outbuildings. 14
On direct appeal from the district court’s decree, the Court
of Appeals considered whether the district court erred in award-
ing the red and pink tracts to Kathryn. The Court of Appeals
agreed with Lawrence that those tracts were necessary to the
running of the cattle ranch and should have been awarded to
him. As such, it modified the decree to award the pink and red
tracts to Lawrence and the green tract to Kathryn.
While the Court of Appeals’ conclusion with respect to the
ownership of the pink, red, and green tracts is properly charac-
terized as the law of the case, such is not so with respect to the
size of the tract accompanying the marital home. Throughout
these proceedings, the parties contemplated that the marital
home would be awarded along with the remainder of the red
tract and not separately from that tract.
The parties did not argue and could not have reasonably
anticipated that the Court of Appeals would award the marital
home separately from the remainder of the red tract. Moreover,
the Court of Appeals’ opinion was silent on the number of acres
that accompanied the home. The number of acres for the tract
of land including the marital home was not litigated and termi-
nally decided by the Court of Appeals, thus the law‑of‑the‑case
doctrine is inapplicable. The district court did not violate that
doctrine when it awarded Kathryn the 5.24 acres she sought
rather than the 1 acre suggested by Lawrence. Lawrence’s first
assignment of error is without merit.
Failure to Work With Zoning Authorities
and Exhaust Administrative Remedies
In his second assignment of error, Lawrence argues that the
district court erred (1) in ordering a metes and bounds descrip-
tion without working with local zoning authorities by virtue
of the doctrine of primary jurisdiction and (2) in not requiring
Kathryn to exhaust her administrative remedies.
14
Id.- 317 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
TIERNEY v. TIERNEY
Cite as 309 Neb. 310[6] The primary jurisdiction doctrine applies whenever
enforcement of a claim, originally cognizable in the courts,
requires the resolution of issues that have been placed within
the special competence of an administrative body in accordance
with the purposes of a regulatory scheme. 15 Lawrence contends
that since the administration of zoning regulations, including
variances, has been placed with county zoning boards, the dis-
trict court lacks jurisdiction here.
The question presented in this case is not whether the mari-
tal home should receive a variance from portions of the Custer
County zoning regulations; indeed, no one in this case has
sought a variance from the relevant zoning regulations. Rather,
the district court was asked to determine an appropriate legal
description for the marital home in the context of the par-
ties’ divorce.
[7] A district court in a divorce case is authorized to reason-
ably and equitably divide a marital estate. 16 On the other hand,
we have found no procedure in law or any other authority
for the proposition that a zoning regulator is vested with the
authority to determine a legal description of property in the
context of a divorce action.
Not only are we not presented with an administrative action
best determined by an administrative body, we note, as argued
by Kathryn on appeal, that seeking a variance from local zon-
ing authorities without a legal description as a starting point
could prove difficult as those regulations suggest that the regu-
lator should know the legal description of the land for which a
variance is sought in advance of granting that variance.
For example, section 501.07 of the Custer County zoning
regulations provides the authority for the minimum lot size, but
notes in subsection 3 that “[a]n exception to the 5 acre mini-
mum requirement may be made in cases involving a pre exist-
ing lot, residential site or farmstead that is smaller than 5 acres,
15
Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007).
16
See Neb. Rev. Stat. § 42‑365 (Reissue 2016).
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TIERNEY v. TIERNEY
Cite as 309 Neb. 310provided all other zoning, health and safety provisions can be
met.” In this case, the zoning regulator’s ability to make deter-
minations regarding “zoning, health and safety provisions”
with­out a legal description could be compromised.
There is no merit to Lawrence’s second assignment of error.
Award of 5.24‑Acre Tract
In his third assignment of error, Lawrence contends that the
district court erred in awarding Kathryn a 5.24‑acre tract of
land. We concluded above that the district court did not violate
the law‑of‑the‑case doctrine and did not err in failing to consult
with the local zoning authorities. We find no other error in the
district court’s legal description.
In the present case, Kathryn filed a motion to seek a metes
and bounds description. Kathryn’s suggested description was
attached to that motion, and she expressly noted that her pro-
posed plat would leave Lawrence with ownership of his corrals
and barn, and that she would provide Lawrence with all neces-
sary easements.
A hearing was held on Kathryn’s motion. It was clear from
the record that the district court would not divide the red tract
in a way that would violate the Custer County zoning regula-
tions, and it was clear at the hearing that the parties were aware
those zoning regulations mandated a minimum of 5 acres for
a residential plot in an agricultural district. The district court
thereafter entered a description in conformity with the one
suggested by Kathryn, specifically noting that “[t]he survey
submitted by [Kathryn] is the only evidence the Court has
available to adequately divide the property.”
Lawrence then filed a generalized motion for a new trial or
to alter or amend the judgment. Again, Lawrence did not argue
that a description different than that suggested by Kathryn and
adopted by the district court would be more appropriate.
On these facts, we find no error in the district court’s order
granting Kathryn’s motion and adopting her suggested legal
description for a 5.24‑acre tract of land. Despite an opportunity
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309 Nebraska Reports
TIERNEY v. TIERNEY
Cite as 309 Neb. 310to do so, Lawrence offered no alternative to Kathryn’s pro-
posed description. There is no merit to Lawrence’s assignment
of error.
Change in Valuation
Finally, Lawrence argues that the district court erred in fail-
ing to account for any change in value as a result of Kathryn’s
award of the house with 5.24 acres rather than the house with
1 acre as valued at trial. Lawrence suggests that Kathryn’s
attorney specifically asked the district court “not to address
the issue of valuation difference” and that “[t]he district court
did not ask Lawrence if he would like the valuation difference
addressed [or] address the valuation difference at all.” 17 We
also reject this assertion.
The record shows that at the hearing on the motion for a
metes and bounds description, the court specifically sought to
confirm that “neither of you are requesting that I adjust any
valuation, which I don’t think I could.” Both counsel then
agreed they were not seeking any adjustment.
[8] Because Lawrence did not seek to have the valuation
adjusted and did not present any evidence on that point at the
trial court level, he has waived any objection he might have
had to the court’s failure to do so. 18 His final assignment of
error is without merit.
CONCLUSION
The decision of the district court is affirmed.
Affirmed.
17
Brief for appellant at 27.
18
See Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020).