Dooling v. Dooling

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/19/2019 08:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
DOOLING v. DOOLING
Cite as 303 Neb. 494
K ristina Michelle Dooling, appellee and
cross-appellant, v. Shawn A llen Dooling,
appellant and cross-appellee.
___ N.W.2d ___
Filed July 5, 2019. No. S-18-191.
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 determina-
tions based upon the record, and the court 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 court heard and observed the witnesses and accepted one
version of the facts rather than another.
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. Child Support: Rules of the Supreme Court. In general, child sup-
port payments should be set according to the Nebraska Child Support
Guidelines.
5. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), the equitable division of property is a three-step process. The
first step is to classify the parties’ property as marital or nonmarital, set-
ting aside the nonmarital property to the party who brought that property
to the marriage. The second step is to value the marital assets and mari-
tal liabilities of the parties. The third step is to calculate and divide the
net marital estate between the parties in accordance with the principles
contained in § 42-365.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
DOOLING v. DOOLING
Cite as 303 Neb. 494
6. ____: ____. The ultimate test in determining the appropriateness of the
division of property is fairness and reasonableness as determined by the
facts of each case.
7. Property Division: Proof. The burden of proof rests with the party
claiming that property is nonmarital.
8. Property Division: Appeal and Error. As a general principle, the date
upon which a marital estate is valued should be rationally related to the
property composing the marital estate. The date of valuation is reviewed
for an abuse of the trial court’s discretion.
9. Property Division. The marital estate includes property accumulated
and acquired during the marriage through the joint efforts of the parties.
10. Property Division: Wages: Equity. To the extent that employment
benefits such as unused sick time, vacation time, and compensatory
time have been earned during the marriage, they constitute deferred
compensation benefits under Neb. Rev. Stat. § 42-366(8) (Reissue
2016) and are considered part of the marital estate subject to equi-
table division.
11. Property Division. As a general rule, a spouse should be awarded one-
third to one-half of the marital estate, the polestar being fairness and
reasonableness as determined by the facts of each case.
12. Divorce: Property Division: 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.
13. Divorce: Property Division. 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.
14. 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.
15. 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.
16. Modification of Decree: Divorce: Child Custody. If trial evidence
establishes a joint physical custody arrangement, courts will so construe
it, regardless of how prior decrees or court orders have characterized
the arrangement.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
DOOLING v. DOOLING
Cite as 303 Neb. 494
17. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
18. ____: ____. In child custody cases, where the credible evidence is in
conflict on a material issue of fact, 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.
Appeal from the District Court for Sarpy County: Stefanie
A. M artinez, Judge. Affirmed in part, affirmed in part as
modified, and in part reversed and remanded with directions.
Christopher Perrone, of Perrone Law, for appellant.
Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Shawn Allen Dooling appeals from a decree of dissolution,
assigning errors related to the issues of child support, division
of the marital estate, and alimony. Kristina Michelle Dooling
filed a cross-appeal which concerns the issues of child support,
division of the marital estate, and the award of joint physical
custody. We find error in the court’s child support calculation
and its division of certain marital assets and determine the par-
ties’ remaining arguments to be without merit. Therefore, we
affirm in part, affirm in part as modified, and in part reverse
and remand with directions.
I. BACKGROUND
Shawn and Kristina were married in May 2001 and divorced
in January 2018. Three children were born of the marriage.
During the marriage, Shawn was employed as a police officer
for the city of La Vista, Nebraska; Kristina worked part time
as a paraprofessional at a children’s school. When the parties
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separated in July 2014, Shawn moved out of the family resi-
dence on South River Rock Drive in Papillion, Nebraska. The
parties maintained a joint checking account and paid for family
expenses from the account. Throughout their separation, the
parties followed a shared parenting time schedule.
In July 2015, Kristina filed a complaint for dissolution of
marriage in the district court for Sarpy County which requested
“the temporary and permanent care, physical custody and
control of the minor [children].” Shawn filed an answer and
counterclaim which requested joint legal and physical custody.
Pursuant to temporary orders entered in August 2015, the par-
ties were awarded joint legal custody and Kristina was awarded
“primary possession” of the children. Shawn was awarded par-
enting time every Wednesday and every other weekend from
Friday through Monday. Shawn was ordered to pay monthly
child support in the amount of $1,412, maintain all parties on
health insurance, pay 72 percent of daycare if daycare was
needed, and make the minimum monthly payment of $300 on
the parties’ Visa credit card. Kristina was awarded exclusive
possession of the home and was ordered to pay the mortgage,
taxes, and costs on the home, which totaled $1,642 per month.
Kristina was ordered to pay the first $480 per year of uninsured
health costs for the children. The court did not award tempo-
rary alimony.
The family home was sold in May 2016, and the court
ordered that the $20,857.44 in proceeds be held in trust pend-
ing trial. Trial was held on December 8, 2016, and June 21 and
23, 2017. The issues tried included custody and parenting time,
child support, alimony, and division of the parties’ assets and
debts. The court heard testimony from two La Vista employees,
Kristina, and Shawn.
1. Trial
(a) Evidence of Shawn’s
Employment Benefits
The city clerk of La Vista testified regarding Shawn’s
employment contract and benefits. According to this witness,
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upon leaving employment, a city employee who has attained
10 years of service is paid for unused sick leave for the amount
that exceeds 660 accumulated hours up to the maximum of
880 hours. The clerk testified that upon leaving employment,
an employee is awarded 100 percent of compensatory (comp)
time. The court also heard from La Vista’s human resources
manager, who stated that comp time is paid out at the end of
every fiscal year on September 30, up to a maximum of 75
hours. She also testified that the city matches the police offi-
cers’ mandatory 7-percent contribution to their pensions. Both
witnesses testified that city employees are paid for their unused
vacation time upon leaving employment, up to a maximum of
220 hours.
(b) Kristina’s Testimony
Kristina testified that during the marriage, she worked part
time when school was in session and earned about $10 or $11
an hour. In August 2015, Kristina obtained her first full-time
job where she earns $13.50 an hour. She worked 40 hours a
week with no 401K and no pension. She testified the parties’
balance on their Visa credit card account was $17,737.82 as of
October 2015.
Before the parties purchased their house on South River
Rock Drive, they owned a house on South 79th Street in
La Vista. Kristina asked to be compensated for paying $6,880
to replace the air conditioner in the South 79th Street house
in 2010. She claimed she paid for the air conditioner using
premarital funds kept in a Canadian bank account. Kristina
testified the account originally held approximately $30,000 in
Canadian dollars received from a personal injury settlement
when she was 16 years old. She claimed she transferred $8,000
out of the Canadian bank account to pay for the air condi-
tioner. She produced a bank statement from February 2001
showing a Canadian bank account held by Kristina and her
father contained $29,580.95 in Canadian dollars and another
statement from 2015 showing these funds had been depleted.
On cross-examination, Kristina admitted that Shawn purchased
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DOOLING v. DOOLING
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a new air conditioner for the South River Rock Drive residence
after the parties had separated.
Kristina acknowledged the parties received a check for
$20,857.44 in proceeds from the sale of the home on South
River Rock Drive. The parties received an additional check
in the amount of $2,848.93 from escrow for excess real estate
taxes, which they agreed to divide equally. When the home
was sold, the parties originally agreed to pay their marital
debt from the sale proceeds, but Kristina later claimed that
she should receive the majority of the sale proceeds, reasoning
she was responsible for making house payments, cleaning the
home, painting interior walls, and selling the home “without a
realtor.” In particular, she noted that to prepare the house for
closing, she spent $810 to mudjack the front porch.
Kristina testified that despite the temporary order giv-
ing Shawn parenting time every Wednesday and every other
weekend, Friday through Monday, she allowed Shawn addi-
tional parenting time. At that time, Shawn was working as a
detective and as a sniper on the SWAT team and held irregu-
lar hours. From approximately January to May 2016, Shawn’s
parenting time ranged between 5 and 11 overnight visits per
month. In lieu of daycare, Shawn picked up the children and
took them to school and saw them after school almost every
day. Kristina requested the court award joint legal custody
and a parenting plan schedule consistent with the tempo-
rary order.
(c) Shawn’s Testimony
Shawn testified that at the time of trial, he had transferred
to a road patrol position and that his hourly wage decreased
from $36.04 to $34.54. He asked that the parenting schedule
under the temporary order be adjusted to fit his new work
schedule. He testified he now works 7 days in a 14-day period,
consisting of workdays on Monday, Tuesday, Friday, Saturday,
and Sunday during 1 week and Wednesday and Thursday the
following week. He asked to be awarded parenting time for
the 7 out of 14 days that he is not working.
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DOOLING v. DOOLING
Cite as 303 Neb. 494
Shawn testified that during the marriage, Kristina did not
express a desire to be repaid for premarital money spent for
family purposes. Shawn stated that he knew Kristina some-
times received money from her father and that he did not
know when or how much money was spent from the Canadian
account. Shawn pointed out that Kristina purchased the air
conditioner for the prior home in 2010. He asked that the
court give him credit for making certain postseparation pay-
ments, including $7,792 on the Visa credit card and about
$4,000 to pay off a loan for the new air conditioner in the most
recent home.
An exhibit introduced into evidence showed that Shawn
received monthly Veterans Affairs disability payments in the
amount of $763.36.
2. Decree
The court issued tentative written findings in August 2017
and asked Kristina’s counsel to prepare a decree in conformity
therewith, after which both parties filed motions for reconsid-
eration. The court then issued supplemental findings which
modified the previous findings in several respects. The trial
judge retired from the bench shortly thereafter, and the case
was reassigned. Kristina’s trial counsel withdrew, filed an
attorney lien, and was replaced with new counsel.
The new judge entered a decree of dissolution on January 8,
2018. The decree incorporated the prior judge’s tentative and
supplemental findings and ordered the following:
• The parties were awarded joint legal custody. Kristina was
awarded “primary possession” of the children, subject to
Shawn’s parenting time.
• The parenting plan awarded Shawn 6 of every 14 days and 4
additional weeks of summer parenting time for a total of 172
days of custody of the children.
• Kristina was not awarded any summer parenting time other
than her regular parenting time.
• Shawn was ordered to maintain health insurance for the
children; the parties were to equally share the costs of the
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DOOLING v. DOOLING
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children’s uninsured health expenses; Shawn was ordered to
maintain Kristina’s health insurance for 6 months.
• Shawn was ordered to pay $882 in monthly child support.
• Shawn was ordered to pay monthly alimony of $500 for a
period of 60 months.
• The court valued the marital assets as of August 1, 2015. The
decree sometimes referred to this date as the date of separa-
tion, even though the parties separated in July 2014.
• The court awarded Kristina $7,690.80 of the house proceeds
“for monies expended to make the house marketable” and
evenly divided the balance of the proceeds.
• The court equally divided Shawn’s retirement, valued at
$108,468.41, pursuant to a qualified domestic relations order.
• The court equally divided Shawn’s vacation and comp time
and ordered Shawn to pay Kristina $5,754.69 within 90 days.
The court did not award Kristina any of Shawn’s sick time.
• The court ordered Shawn to pay the balance on the parties’
Visa credit card and ordered Kristina to pay a $637.73 medi-
cal debt.
• Shawn received a tax exemption for two minor children;
Kristina received a tax exemption for one minor child.
On January 17, 2018, Kristina filed a motion to alter or
amend the decree in several respects. The court overruled the
motion on January 30. Shawn timely appealed, and Kristina
cross-appealed. We moved the appeal to our docket pursuant to
our statutory authority to regulate the caseloads of the appellate
courts of this State.
II. ASSIGNMENTS OF ERROR
Shawn assigns, summarized and restated, that the court erred
in (1) calculating Shawn’s child support obligation by (a) mis-
calculating Shawn’s income, (b) failing to include insurance
premium costs, (c) not awarding Shawn credit for retirement
contributions, and (d) not crediting Shawn for the correct
number of days he was awarded visitation with the children;
(2) awarding Kristina a larger share of the house proceeds and
using the house proceeds to pay for the lien filed by Kristina’s
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attorney; (3) calculating and splitting Shawn’s vacation time
and comp time and giving Shawn only 90 days to pay Kristina
her share of these assets; (4) calculating and dividing the par-
ties’ debts; and (5) awarding alimony.
On cross-appeal, Kristina assigns, restated, that the court
erred in (1) ordering joint physical custody, (2) failing to award
Kristina summer parenting time, (3) failing to include Shawn’s
disability benefits in the child support calculation, (4) failing to
allocate the children’s direct expenses and childcare costs, and
(5) excluding Shawn’s sick time from the marital estate.
III. 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. This
standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony,
and attorney fees.1 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.2
However, when evidence is in conflict, the appellate court con-
siders and may give weight to the fact that the trial court heard
and observed the witnesses and accepted one version of the
facts rather than another.3 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.4
IV. ANALYSIS
In this matter, we discuss the issues of child support, divi-
sion of the marital estate, alimony, and joint physical custody,
1
Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
2
Id.
3
Id.
4
Id.
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as well as a number of related concerns raised by the parties.
For purposes of efficiency, we will address assignments of error
raised in Shawn’s appeal and Kristina’s cross-appeal together
where their arguments pertain to the same predominant issue.
In consideration of both the appeal and cross-appeal, we find it
appropriate to modify the court’s child support calculation and
the division of certain marital assets and debts, and we deter-
mine the remaining arguments to be without merit.
1. Child Support
Shawn argues that the court abused its discretion in its
determination of child support. Shawn asserts that the court did
not accurately determine his gross taxable income, the health
insurance premium he pays for the children and himself, and
his retirement contributions, and did not accurately state the
number of days that the court awarded him custody of the chil-
dren. We find no merit to Shawn’s claim regarding his gross
taxable income, but determine his other arguments regarding
child support do have merit. We also find merit to Kristina’s
objections to the court’s findings regarding Shawn’s nontaxable
income and its allocation of tax dependency exemptions and
childcare expenses.
(a) Gross Taxable Income
[4] In general, child support payments should be set accord-
ing to the Nebraska Child Support Guidelines.5 In the child
support worksheets adopted by the court, Shawn’s gross
monthly taxable income was set at $6,637. Shawn argues this
figure is not correct, because it reflects his wages at $36.04 per
hour and he testified that in his new position, he makes $34.54
per hour. As a result, Shawn argues that his monthly income
should have been set at $5,987, which he calculated by mul-
tiplying $34.54 per hour by 40 hours per week for 52 weeks
per year. Kristina argues that by annualizing Shawn’s income
based on evidence in the record of a 5-month sample of his
5
Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
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paychecks in 2017, Shawn’s monthly income should have been
set at $6,643.33.
Under the child support guidelines, all income should be
annualized and divided by 12.6 Kristina’s figure differs from
the amount set by the court by less than 1 percent, which
was calculated based on evidence in the record consisting of
a 9-month sample of Shawn’s paychecks in 2016. We find no
abuse of discretion by the district court in utilizing this evi-
dence to calculate Shawn’s gross taxable income.
(b) Tax-Exempt Income
We agree with the parties that the $763.36 that Shawn
receives in disability benefits each month should have been
included as nontaxable income for purposes of the child sup-
port calculation. Under § 4-204, total monthly income for
purposes of child support is income of both parties derived
from all sources. Income for the purpose of child support is not
necessarily synonymous with taxable income.7
(c) Health Insurance Premium
Shawn also argues that the court did not use the correct
amounts for the health insurance premium that he pays for
himself and the children. The child support guidelines provide
that the increased cost to the parent for health insurance for
the children shall be prorated between the parents. The parent
paying the premium receives a credit against his or her share
of the monthly support, provided that the parent requesting
the credit submits proof of the cost of health insurance cover-
age for the children.8 If not otherwise specified in the support
order, “health insurance” includes coverage for medical, dental,
orthodontic, optometric, substance abuse, and mental health
treatment.9 The court set the health insurance premium Shawn
6
Neb. Ct. R. § 4-204 (rev. 2016).
7
Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
8
See Neb. Ct. R. § 4-215(A) (rev. 2011).
9
Id.
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pays for himself at $0 and the amount he pays for the children
at $63.80. Shawn submitted evidence that his monthly pre-
mium for his own medical insurance is $63.80 and that he pays
an additional $8.98 for his dental and vision insurance. Thus,
the court erred in setting Shawn’s health insurance costs for
himself at $0 rather than at the figure supported by the record
of $72.78. We also agree with Shawn that the court erred by
failing to set the amount that he pays for the children’s health
insurance coverage at $177.80.
(d) Retirement
Next, Shawn contends that the court erred by incorrectly
determining his monthly retirement contribution. The court set
Shawn’s retirement contribution at $265.48. The undisputed
evidence shows that Shawn pays 7 percent in mandatory retire-
ment contributions each month. Having found that the court
correctly set Shawn’s gross taxable income at $6,637, based
on wages he earns working as a police officer, we find that the
court erred by failing to set Shawn’s monthly retirement con-
tribution at $464.59.
(e) Days of Child Custody
Shawn’s final argument on the issue of child support is that
the court erred in setting the number of his annual days as a
custodial parent at 151. The parenting plan incorporated into the
decree awarded Shawn six overnight visits for every 14 days
and 4 weeks of summer parenting time. As a result, Shawn has
28 days of child custody when he is utilizing summer parenting
time and 144 days during the other 48 weeks of the year, not
counting holidays, which are evenly divided. Therefore, as the
parties agree, the court should have set Shawn’s annual days as
a custodial parent at 172 and Kristina’s at 193.
(f) Tax Exemptions
The decree awarded Shawn tax dependency exemptions for
two of the children and Kristina a tax dependency exemption
for one child. However, the child support calculation worksheet
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awards each party equal dependency exemptions. We agree
with the parties that the child support calculation worksheets
should be modified to conform to the decree.
(g) Allocation of Expenses
In her cross-appeal, Kristina argues that because the court
calculated child support using worksheet 3, the court erred in
failing to account for the children’s direct expenses. Neb. Ct.
R. § 4-212 (rev. 2011) provides that when child support is to
be calculated using worksheet 3, “all reasonable and neces-
sary direct expenditures made solely for the child(ren) such
as clothing and extracurricular activities shall be allocated
between the parents.” We note that Neb. Rev. Stat. § 42-364.17
(Reissue 2016) also requires that a decree of dissolution “shall
incorporate financial arrangements for each party’s responsibil-
ity for reasonable and necessary medical, dental, and eye care,
medical reimbursements, day care, extracurricular activity, edu-
cation, and other extraordinary expenses of the child.”
We recently held that it is sufficient if the decree and attach-
ments made the necessary allocations on each of the required
items.10 Here, however, the record does not show that the court
allocated the parties’ responsibilities with respect to all of these
expenses. We therefore remand the cause to the district court
with directions to specifically address each party’s responsibil-
ity for each of these statutorily required obligations based on
the record.
To summarize our conclusions regarding child support, we
find the district court erred in setting the amount of Shawn’s
nontaxable income, health insurance costs for himself and
the children, retirement contributions, and days as a custodial
parent, and in its allocation of tax dependency exemptions.
We further find the court erred in not addressing each party’s
responsibility for the reasonable and necessary expenses of
the children based on the record and the expenses set forth in
10
Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
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§ 42-364.17. We reverse the award of child support and remand
the cause to the district court for a proper calculation of child
support, utilizing $763.36 for Shawn’s nontaxable income,
$72.78 for Shawn’s health insurance, $177.80 for Shawn’s pay-
ment of the children’s health insurance, $464.59 for Shawn’s
retirement contribution, 172 for Shawn’s days as a custodial
parent and 193 days for Kristina, and two dependency exemp-
tions for Shawn and one for Kristina. We also direct the court
to address the parties’ responsibility for the expenses listed in
§ 42-364.17 and rule § 4-212.
2. Division of M arital
Assets and Debts
(a) House Sale Proceeds
Shawn asserts that the court erred in its division of the
proceeds from the parties’ sale of their home. The evidence
showed that in May 2016, the parties sold their home on South
River Rock Drive and obtained net proceeds in the amount of
$20,857.44. Kristina claimed at trial that she should receive the
greater share of the proceeds and provided documents showing
that she paid $810 to mudjack the front porch in preparation
for closing and $6,880 to replace the air conditioner in the
parties’ previous house on South 79th Street. In its decree, the
court awarded Kristina $7,690.80 from the $20,857.44 “for
monies expended to make the house marketable” and evenly
divided the balance. Based on the record, the court’s award of
$7,690.80 represents compensation for $810 spent on mudjack-
ing, $6,880 spent on an air conditioner, and an additional 80
cents. Shawn does not object to reimbursing Kristina for the
mudjacking costs, but objects to the remaining $6,880.80 of
the $7,690.80.
[5-7] In a dissolution of marriage proceeding, “[i]f the par-
ties fail to agree upon a property settlement . . . the court shall
order an equitable division of the marital estate.”11 Under Neb.
11
Neb. Rev. Stat. § 42-366(8) (Reissue 2016).
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Rev. Stat. § 42-365 (Reissue 2016), the equitable division of
property is a three-step process.12 The first step is to 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 cal-
culate and divide the net marital estate between the parties in
accordance with the principles contained in § 42-365.13 The
ultimate test in determining the appropriateness of the division
of property is fairness and reasonableness as determined by
the facts of each case.14 Generally, all property accumulated
and acquired by either spouse during a marriage is part of
the marital estate.15 Exceptions include property that a spouse
acquired before the marriage, or by gift or inheritance.16 The
burden of proof rests with the party claiming that property
is nonmarital.17
Kristina’s position at trial was that she was entitled to reim-
bursement for an air conditioner bought for the South 79th
Street home, because she made the purchase using premarital
or nonmarital funds. Based on the court’s award to Kristina,
the court implicitly granted Kristina’s requested relief. Yet, the
decree specifically stated the award was “for monies expended
to make the house marketable,” and Shawn persuasively argues
on appeal that Kristina’s purchase of the air conditioner for the
South 79th Street home did not make the home on South Rock
River Drive marketable. Shawn argues the award to Kristina
was improper, because the court did not conduct an analysis
of whether Kristina was entitled to reimbursement for any
12
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018); Osantowski,
supra note 1.
13
Id.
14
Id.
15
Osantowski, supra note 1.
16
Id.
17
Fetherkile, supra note 12; Osantowski, supra note 1.
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premarital assets. Kristina appears to agree with this point.
In her brief and at oral argument before this court, Kristina
abandoned her position that she should be reimbursed for her
purchase of the air conditioner, and instead attempts to justify
the award using an alternate, post hoc rationalization. Kristina
now argues that she is entitled to the greater share of the pro-
ceeds based on the equity that she built during the 9-month
period in which she was in sole possession of the home. We
are not persuaded that this result is justified based on the
record. Kristina made this same argument to the district court,
and the court did not accept that argument. Kristina’s argument
is partially based on reimbursement for real estate taxes paid
during the operation of the temporary order, yet she already
voluntarily split the refund for some of these payments with
Shawn. The temporary order required Kristina to make equity
contributions because she was awarded sole possession of the
home. Kristina’s compliance with the temporary order does not
entitle her to the benefit of an additional $6,880.80 from the
house proceeds.
Based on our de novo review of the record, we conclude
that the court erred in its equitable division of the house
proceeds and find that a fair and reasonable evaluation of
the facts of this case requires that the division of the house
proceeds be modified so that Kristina receives $11,238.72 and
Shawn receives $9,618.72. We affirm this portion of the decree
as modified.
Shawn also argues that the court erred by authorizing a lien
in the amount of $5,176.28 filed by Kristina’s trial counsel to
be paid from the family home proceeds. Because the record
shows that Kristina paid the lien from her share of the pro-
ceeds, we find this argument to be without merit.
(b) Employment Benefits
(i) Valuation Date Reasonable
Shawn argues that the court erred in ordering him to pay
Kristina $5,754.69 from his employment benefits for two
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reasons. First, he claims the court erred by awarding Kristina
$4,592.40 in unused vacation time and $1,162.29 in comp
time, because these figures reflected the value of Shawn’s
benefits as of September 15, 2015. Shawn argues that the
court stated it valued his benefits “at the time of separation”
and that the parties separated in July 2014. Therefore, Shawn
contends that the court abused its discretion in awarding
Kristina any funds from vacation time or comp time, because
there was no evidence regarding the value of these benefits as
of July 2014.
Second, Shawn argues that the court abused its discretion
in ordering him to pay Kristina the $5,754.69 within 90 days.
He argues that his employment benefits are not liquid assets
and that because he is already obligated to pay child support,
alimony, and other debts, he will be unable to comply with
the court’s decree. Kristina argues in her cross-appeal that
the court erred by failing to award her an equal portion of the
value of Shawn’s unused sick time.
[8] As a general principle, the date upon which a marital
estate is valued should be rationally related to the prop-
erty composing the marital estate.18 The date of valuation is
reviewed for an abuse of the trial court’s discretion.19
As discussed in the background section, the court valued
the marital assets as of August 1, 2015, but the decree at times
referred to the valuation date as the date of separation, which
occurred in July 2014. Even so, the record indicates the court
chose August 1, 2015, as the valuation date, which reflects the
month in which the court entered temporary orders.
We agree with Kristina that the evidence supports using
August 1, 2015, as the valuation date, because even though
the parties physically separated in July 2014, they maintained
their financial lives as a married couple by using a joint
checking account to pay for family expenses and did not
18
Osantowski, supra note 1.
19
Id.
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separate financially until the court entered temporary orders.
Based on the record, the valuation date applied by the district
court was rationally related to the property composing the
marital estate.
The city human resources manager testified regarding the
value of Shawn’s employment benefits and stated that the sup-
porting documents were calculated on a quarterly basis. The
court used the third quarter report as evidence of the value
of the assets on August 1, 2015. Shawn argues that the court
could have reached a more accurate figure by using the second
quarter report, but that report was not offered into evidence,
and there was no similar evidence offered to prove the value
of the employment benefits as of July 2014. Even Shawn
stated in his testimony that the valuation date should be July
2015, the month Kristina filed for divorce. We find no abuse
of discretion in the court’s use of August 1, 2015, as the valu-
ation date.
(ii) Deferred Compensation Benefits
[9] We have not previously addressed whether employee
benefits such as accrued sick leave, vacation time, and comp
time are considered marital property subject to equitable dis-
tribution in a dissolution action. We have long held that the
marital estate includes property accumulated and acquired
during the marriage through the joint efforts of the parties.20
Section 42-366(8) states that for purposes of the division
of property in a dissolution of marriage action, “[t]he court
shall include as part of the marital estate . . . any pension
plans, retirement plans, annuities, and other deferred com-
pensation benefits owned by either party, whether vested
or not vested.”21 (Emphasis supplied.) Generally, deferred
20
Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002).
21
See, Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004); Longo
v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003); Tyma, supra note
20; Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981) (cases
discussing deferred compensation benefits).
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c­ ompensation is defined as compensation which is earned in
exchange for services rendered.22 We have held that unvested
employee stock options and stock retention shares qualify
as “deferred compensation benefits” within the meaning of
§ 42-366(8).23 Conversely, we have found that health insur-
ance is not deferred compensation, because insurance is based
upon the payment of premiums rather than the rendering
of services.24
In Wiech v. Wiech,25 the Nebraska Court of Appeals deter-
mined that unused sick, vacation, and comp time could be con-
sidered part of the marital estate subject to equitable distribu-
tion as long as the benefits were acquired during the marriage.
Other jurisdictions have similarly held that employment ben-
efits such as these earned during the marriage are considered
marital property.26
[10] As a result, we hold that to the extent employment ben-
efits such as unused sick time, vacation time, and comp time
have been earned during the marriage, they constitute deferred
compensation benefits under § 42-366(8) and are considered
part of the marital estate subject to equitable division.
(iii) Payment Within 90 Days
We turn to Shawn’s argument that the court erred by order-
ing him to pay Kristina her share of the employment benefits
within 90 days. The decree valued Kristina’s share of the
22
Livingston v. Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475
(2005). See Halpin v. Nebraska State Patrolmen’s Retirement System, 211
Neb. 892, 320 N.W.2d 910 (1982).
23
Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
24
Christiansen v. County of Douglas, 288 Neb. 564, 849 N.W.2d 493 (2014).
25
Wiech v. Wiech, 23 Neb. Ct. App. 370, 871 N.W.2d 570 (2015).
26
Mann v. Mann, 778 P.2d 590 (Alaska 1989); In re Marriage of Moore, 226
Cal. App. 4th 92, 171 Cal. Rptr. 3d 762 (2014); In re Marriage of Cardona
and Castro, 316 P.3d 626 (Colo. 2014); Grund v. Grund, 151 Misc. 2d
852, 573 N.Y.S.2d 840 (1991); Marriage of Williams, 84 Wash. App. 263,
927 P.2d 679 (1996).
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vacation time at $4,592.40 and her share of the comp time at
$1,162.29, for a total of $5,754.69. Shawn argues that he has
access to his employment benefits only upon retirement and
presently lacks the funds to be able comply with the court-
ordered payment.
According to the collective bargaining agreement govern-
ing Shawn’s employment, Shawn is correct that he will not
receive payment for accrued vacation time until he leaves
his employment. As for comp time, the city human resources
manager testified, and the agreement confirms, that comp
time is paid out at the end of every fiscal year, September
30. However, the agreement contains an additional provision
which permits an employee to request to be paid for accrued
comp time at any time, and payment will be made by the
next payday. The record therefore indicates that Shawn will
have available to him $9,618.72 from the house proceeds and
$1,162.29 from his share of the comp time to pay Kristina
$5,754.69 within 90 days. We find no abuse of discretion by
the district court.
(iv) Sick Time
Kristina argues that the court erred by failing to award her
half of the value of Shawn’s accrued sick time. As discussed,
the standard governing the division of marital property is fair-
ness and reasonableness as determined by the facts of each
case. Based on the evidence relied upon by the district court,
Shawn had accrued 25.97 hours of compensable sick time,
and based on this fact, the court could have awarded Kristina
$467.98 for sick time.
[11] As a general rule, a spouse should be awarded one-
third to one-half of the marital estate, the polestar being fair-
ness and reasonableness as determined by the facts of each
case.27 As we will next show in our analysis of the court’s
division of the total marital estate, the $467.98 that Kristina
27
Osantowski, supra note 1.
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is requesting represents a small portion of the marital estate
and declining to award Kristina this amount does not alter the
fairness or reasonableness of the division of the total marital
estate. We cannot conclude that the court abused its discretion
in declining to award Kristina her share of Shawn’s unused
sick time.
(v) Division of Total Marital Estate
Shawn objects to the court’s division of the parties’ debts
and assets. Under the decree, Shawn was ordered to pay
the parties’ credit card debt of $17,737.82 and Kristina was
ordered to pay $637.73 for the children’s unpaid medical
costs. Shawn argues that the court failed to list as a debt in
the decree a credit union loan. We agree that Shawn produced
evidence that he took out this loan to purchase an air condi-
tioner for the home on South River Rock Drive and that this
loan should have been listed as a marital debt. The evidence
indicates that as of August 1, 2015, the balance of the loan was
$3,545.37. We find that Shawn is responsible for paying this
amount. Having included this loan as part of the marital estate,
the following table represents the division of the parties’ total
marital estate.
Assets Amount Shawn Kristina
House Proceeds $ 20,857.44 $ 9,618.72 $11,238.72
Shawn’s Retirement 108,468.41 54,234.21 54,234.20
Shawn’s Vacation/
Comp Time   11,509.37   5,754.69   5,754.69
TOTAL $140,835.22 $69,607.62 $71,227.61
Debts
Credit Card $ 17,737.82 $17,737.82 $     0.00
Medical Bills 637.73 0.00 637.73
Loan    3,545.37   3,545.37       0.00
TOTAL $ 21,920.92 $21,283.19 $   637.73
Marital Estate $118,914.30 $48,324.43 $70,589.88
As noted, a district court generally has discretion to award
each spouse between one-third and one-half of the marital
estate. Having factored in our modifications to the district
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court’s division of the marital estate, the calculations above
show that Shawn has been awarded approximately 41 percent
of the marital estate. Following our de novo review of the
record, we find no abuse of discretion in the district court’s
division of the marital estate and affirm this portion of the
decree as modified.
3. A limony
[12,13] Shawn objects to the alimony award of $500 per
month for 60 months that he was ordered to pay Kristina. In
dividing property and considering alimony upon a dissolution
of marriage, a court should consider four factors: (1) the cir-
cumstances of the parties, (2) the duration of the marriage, (3)
the history of contributions to the marriage, and (4) the ability
of the supported party to engage in gainful employment with-
out interfering with the interests of any minor children in the
custody of each party.28 In addition, a court should consider
the income and earning capacity of each party and the general
equities of the situation.29 Alimony is not a tool to equalize the
parties’ income, but a disparity of income or potential income
might partially justify an alimony award.30
The parties were married in May 2001, and Kristina filed
for divorce in July 2015. The evidence indicates a significant
disparity in the earning capacity of the parties. Kristina testi-
fied that she has no formal educational or work background.
During the marriage, Kristina was a stay-at-home mother and
she began working part time once the children entered elemen-
tary school. She obtained her first full-time job in August 2015
and earned $13.50 an hour, with no opportunities for overtime
and no 401K or pension. By comparison, Shawn is a career
police officer who has earned approximately $80,000 per year,
with a pension and retirement benefits and opportunities to
28
Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 582 (2018); § 42-365.
29
Wiedel, supra note 28.
30
Id.
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be compensated for unused sick, vacation, and comp time.
Additionally, the record indicates that without alimony, Kristina
is unable to pay her monthly expenses.
[14,15] The purpose of alimony is to provide for the con-
tinued maintenance or support of one party by the other when
the relative economic circumstances make it appropriate.31 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.32 The ultimate criterion is one of reasonableness.33
An appellate court is not inclined to disturb the trial court’s
award of alimony unless it is patently unfair on the record.34 As
to the award of alimony here, our de novo review shows that
the district court did not abuse its discretion.
4. Custody
Kristina claims that the district court abused its discretion
by awarding “de facto joint physical custody” based on her
assertions that neither party requested joint physical custody,
that the district court failed to specifically find that joint physi-
cal custody is in the best interests of the minor children, and
that she was denied due process when the court awarded joint
physical custody following trial.35
In an action for dissolution of marriage involving the
custody of minor children, the court is required to make
a determination of legal and physical custody based upon
the children’s best interests.36 Such determinations shall be
made by incorporation into the decree of a parenting plan,
31
Id.
32
Id.
33
Id.
34
Id.
35
See Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
36
Neb. Rev. Stat. § 42-364(1)(b) (Cum. Supp. 2018).
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developed either by the parties as approved by the court or
by the court after an evidentiary hearing.37 The minor children
may be placed with both parents on a joint physical custody
basis where (1) both parents agree or (2) the court specifically
finds that joint physical custody is in the best interests of the
minor children.38
Nebraska’s Parenting Act 39 defines joint physical custody as
“mutual authority and responsibility of the parents regarding
the child’s place of residence and the exertion of continuous
blocks of parenting time by both parents over the child for
significant periods of time.”40 Here, the court awarded Kristina
“primary possession” of the children and set forth the parenting
time in a parenting plan. While “primary possession” is not a
statutorily defined term, we have indicated in our opinions that
the label that a court uses is not controlling and that the clas-
sification of a custody arrangement is ultimately dictated by
parenting time.41
[16] The parenting plan here awarded Shawn parenting time
with the children every Tuesday and Thursday, every other
Friday and Saturday, equally divided holidays, and 4 weeks
of summer parenting time consisting of two 2-week periods.
Under this parenting schedule, Kristina has custody of the
children 193 days and Shawn has custody of the children 172
days. We find that this custody arrangement falls within the
statutory definition of joint physical custody, as distinguished
from sole physical custody with liberal parenting time.42 If
37
See id.
38
§ 42-364(3).
39
Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016).
40
§ 43-2922(12).
41
See, e.g., Leners, supra note 10; Becher v. Becher, 299 Neb. 206, 908
N.W.2d 12 (2018).
42
See, Heesacker v. Heesacker, 262 Neb. 179, 629 N.W.2d 558 (2001);
Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999); Hill v. Hill, 20
Neb. Ct. App. 528, 827 N.W.2d 304 (2013).
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trial evidence establishes a joint physical custody arrangement,
courts will so construe it, regardless of how prior decrees or
court orders have characterized the arrangement.43
We also determine that Kristina is incorrect in stating that
neither party requested joint physical custody and that the court
did not find that the court-developed custody arrangement was
in the best interests of the children. Shawn filed an answer and
counterclaim which requested joint physical custody, and both
Shawn and Kristina were questioned at trial regarding Shawn’s
request for a “50/50” schedule. Because Kristina had notice
that Shawn was seeking joint physical custody, and because
she had an opportunity to present evidence in opposition to
Shawn’s proposed custody arrangement, we conclude Kristina
was afforded procedural due process.
We further note arguments that Kristina made before the trial
court which undermine her contention that she was denied due
process. Kristina’s motion for reconsideration of the court’s
tentative findings requested that the court use the joint physi-
cal custody worksheet when calculating child support. In her
motion for reconsideration following the entry of the decree
of dissolution, Kristina did not object to the use of the joint
physical custody worksheet, but, rather, requested additional
clothing and extracurricular activity expenses premised on the
court’s use of the joint physical custody worksheet.
The record also indicates that the court made the necessary
statutory findings for an award of joint physical custody under
§ 42-364(3). The court awarded “primary possession” of the
children to Kristina, subject to the parenting time as set forth
in the parenting plan incorporated into the decree, which the
court found was in the best interests of the minor children. In
addition, the decree incorporated the prior judge’s tentative
and supplemental findings, which found that it is in the best
interests of the minor children that “primary possession” be
awarded to Kristina, subject to the parenting plan.
43
Becher, supra note 41; Elsome, supra note 42.
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Kristina’s cross-appeal includes objections to the parenting
time within the parenting plan. Kristina argues the award of
joint physical custody is contrary to the court’s determina-
tion that she be granted “primary possession” of the children.
Kristina assigned error to the court’s award of 4 weeks of
summer parenting time to Shawn and argues the parenting
plan should have remained consistent with the temporary order
which in effect would have awarded Kristina sole physical cus-
tody with liberal parenting time to Shawn of 130 days.
[17,18] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.44 In
child custody cases, where the credible evidence is in conflict
on a material issue of fact, 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.45
The record supports the court’s determination that the award
of joint physical custody pursuant to the court-developed par-
enting plan was in the children’s best interests. It was undis-
puted that each parent was fit and proper and that the best
interests of the children would be served with the ongoing
involvement of both Shawn and Kristina. There was no evi-
dence of significant communication difficulties between the
parties, and there was evidence that the parties have been
able to effectively communicate regarding matters affecting
the children. Kristina argues that Shawn had never had the
children 50 percent of the time since the parties separated in
July 2014. However, the evidence showed that in 2016, the
parties agreed that Shawn could exercise more parenting time
than allowed under the temporary order. There was evidence
that Shawn’s house is located near the children’s school, that
44
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
45
Id.
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Kristina drops the children off at Shawn’s house, and that
Shawn takes the children to school and sees them after school
almost every day during the school year. This included days in
which Kristina had the children.
The court awarded Kristina the majority of the parenting
time in the form of eight overnight visits for every 14 days,
and it balanced the children’s opportunity to spend time with
Shawn by awarding Shawn two extended periods of parenting
time over the summer. Kristina argues that the parties should
have been awarded the same amount of extended parenting
time and that absent extended parenting time, the most that
she will be able to travel with the children to visit her family
in Canada is 4 days. We conclude it was within the district
court’s discretion to conclude that declining to award Kristina
extended parenting time would not greatly impact the best
interests of the children. We find no abuse of discretion in the
district court’s determination that joint physical custody and
the parenting plan incorporated into the decree are in the best
interests of the children.
V. CONCLUSION
The district court did not err in its award of alimony and
joint physical custody and in developing a parenting plan
based upon the best interests of the children. However, the
court erred in its calculation of child support and in its divi-
sion of the marital estate. We therefore affirm in part, affirm
the court’s division of the marital estate as modified, and in
part reverse and remand with directions to recalculate the child
support as discussed above.
A ffirmed in part, affirmed in part
as modified, and in part reversed
and remanded with directions.