Kelly v. Kelly

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
Kirsten W. Kelly, appellee, v.
Gary B. Kelly, appellant.
___ N.W.2d ___
Filed November 24, 2020. No. A-20-084.
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. Visitation. Placing in a psychologist the authority to effectively deter-
mine visitation, and to control the extent and time of such visitation,
is not the intent of the law and is an unlawful delegation of the trial
court’s duty.
4. Child Custody: Visitation: Stipulations. It is the responsibility of the
trial court to determine questions related to custody and parenting time
according to the best interests of the minor children. This is an indepen-
dent responsibility and cannot be controlled by the agreement or stipula-
tion of the parties themselves or by third parties.
5. Visitation: Appeal and Error. Parenting time determinations are mat-
ters initially entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion.
6. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late 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.
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KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
7. Child Support: Rules of the Supreme Court. The Nebraska Child
Support Guidelines recognize other incidents of support that are wholly
or partly outside of the monthly installment, including the expenses
specified in Neb. Rev. Stat. § 42-364.17 (Reissue 2016).
8. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
9. Child Support: Taxation: Presumptions. In general, the custodial par-
ent is presumptively entitled to the federal tax exemption for a depen-
dent child.
10. Child Support: Taxation: Waiver. A court may exercise its equitable
powers and order the custodial parent to execute a waiver of his or her
right to claim the tax exemption for a dependent child if the situation of
the parties so requires.
11. 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. In addition, a court should consider the income and earning
capacity of each party and the general equities of the situation.
12. 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.
13. 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.
14. Divorce: Attorney Fees. In awarding attorney fees in a dissolution
action, a court shall consider the nature of the case, the amount involved
in the controversy, the services actually performed, the results obtained,
the length of time required for preparation and presentation of the case,
the novelty and difficulty of the questions raised, and the customary
charges of the bar for similar services.
Appeal from the District Court for Saunders County:
Christina M. Marroquin, Judge. Affirmed in part as modi-
fied, and in part vacated.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
Mark A. Steele, of Steele Law Office, for appellant.
John H. Sohl for appellee.
Moore, Bishop, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Gary B. Kelly appeals from the decree entered by the
Saunders County District Court dissolving his marriage to
Kirsten W. Kelly, awarding legal and physical custody of the
parties’ three children to Kirsten, and ordering Gary to pay
child support and alimony. Gary challenges decisions made
related to the parenting plan, private school tuition, extracur-
ricular and other expenses, tax exemptions, equalization of the
marital estate, alimony, and attorney fees. We affirm in part as
modified, and in part vacate.
II. BACKGROUND
Gary and Kirsten married in September 2007, and three
children were born during the marriage: the first in 2008, the
second in 2009, and the third in 2010. Kirsten separated from
Gary in November 2018 and moved with the minor children
out of the marital home. Kirsten then sought and obtained a
protection order against Gary based on allegations of domes-
tic abuse by Gary against her and the children for which he
received a criminal citation and was sentenced to probation.
Kirsten filed for divorce shortly after the separation in
November 2018. On January 14, 2019, the district court granted
Kirsten’s motion for temporary legal and physical custody. The
court restricted Gary from contacting the children until the
children met with a mental health professional and that pro-
fessional gave a report and recommendation to the court. The
temporary order required Gary to pay $2,109 per month in
child support. The temporary order also required Gary to pay
$3,606 per month in spousal support, to be reduced to $1,708
per month beginning in February. Gary was also responsible
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KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
for two-thirds of daycare and health care expenses incurred
for the children. The court entered a second temporary order
on February 5 concerning Gary and Kirsten’s agreement to the
sale of the marital residence. On September 30, the court modi-
fied the first temporary order to allow Gary to have supervised
therapeutic sessions with the oldest child.
Trial took place on October 24 and 25, 2019. In the analy-
sis section below, we will discuss the trial evidence relevant
to the errors assigned. A decree dissolving the marriage was
entered by the district court on November 12. Pursuant to the
decree and an order nunc pro tunc entered shortly thereafter
on November 18, and another nunc pro tunc order entered on
February 3, 2020, the district court awarded Kirsten legal and
physical custody of the minor children, noting “there [was]
credible evidence that [Gary] has perpetuated child abuse and
domestic intimate partner abuse.” The court concluded that
Kirsten should have sole legal and physical custody, which was
“in the best interest of the minor children.”
The decree established certain provisions in the parenting
plan for Gary, which consists of the following four phases:
PHASE 1 - THERAPUTIC VISITS: [Gary] shall have
family therapy with the minor children twice a month
(every-other-week). The therapeutic session shall be con-
ducted by a licensed mental health practitioner designated
as the therapist for the child. Family therapy sessions shall
commence immediately between [the oldest child] and
[Gary]. Family therapy sessions between [Gary] and the
other two minor children shall commence upon the rec-
ommendation of the minor children’s therapist. [Kirsten]
shall sign all necessary releases to ensure that [Gary] can
communicate with the children’s therapist(s).
PHASE 2 - SUPERVISED VISITS: At the recom-
mendation of each child’s treating therapist, visita-
tion shall move to supervised visits. These shall occur
every Wednesday evening from 3:30 (after school) until
7:00 p.m. and every-other Saturday from 1:00 p.m. until
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KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
5:00 p.m. Visits shall be supervised by [one of Gary’s
adult children from a prior marriage], or another third
party as agreed upon by the parties, or a professional
agency at the expense of [Gary]. [Gary] shall not con-
sume alcohol immediately prior to or during the visita-
tion. [Gary] shall not physically discipline the minor
children. Provided there are no safety concerns, visitation
shall move to Phase 3 after six months.
PHASE 3 - UNSUPERVISED VISITS: At the rec-
ommendation of each child’s treating therapist, visita-
tion shall move to unsupervised visits. These shall occur
every Wednesday evening from 3:30 (after school) until
7:00 p.m. and every-other Saturday from 1:00 p.m. until
5:00 p.m. [Gary] shall not consume alcohol immediately
prior to or during the visitation. [Gary] shall not physi-
cally discipline the minor children. Provided there are
no safety concerns, visitation shall move to Phase 4 after
six months.
PHASE 4 - ONGOING PARENTING PLAN: At the
recommendation of each child’s treating therapist, visita-
tion shall occur as follows:
[Gary] shall a [sic] have parenting time every
Wednesday evening from 3:30 p.m. until 7:30 p.m. [Gary]
shall have every other weekend from Friday at 3:30 p.m.
until Sunday at 5:00 p.m.
Phase 4 of the parenting plan also included a holiday parenting
time schedule.
Relevant to this appeal, the decree also required Gary to
pay $1,980 per month in child support for three children.
The district court divided expenses such that Gary would be
responsible for 70 percent of childcare and extracurricular
expenses incurred on behalf of the children and 50 percent of
the cost of tuition for the children to continue attending pri-
vate school. Gary was also ordered to pay other miscellaneous
expenses related to the children. The decree gave Kirsten the
sole right to claim the children for state and federal income
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KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
tax purposes. As part of the division of marital property, the
court ordered Gary to pay Kirsten an equalization payment
of $15,841. The decree additionally required Gary to pay
Kirsten $500 per month in alimony for 5 years and awarded
Kirsten $8,000 in attorney fees.
Following the entry of the decree, Gary filed a motion for
new trial and/or reconsideration. The district court denied his
motion on January 9, 2020. Gary then timely filed this appeal.
III. ASSIGNMENTS OF ERROR
Gary claims the district court erred by (1) formulating an
unreasonably restrictive phased parenting plan, (2) requiring
Gary to pay 50 percent of private school tuition for the chil-
dren, (3) requiring Gary to pay 70 percent of the costs for
the children’s extracurricular activities, (4) allocating solely
to Kirsten the right to claim the children for state and federal
income tax purposes, (5) ordering Gary to pay Kirsten a prop-
erty equalization payment of $15,841, (6) ordering Gary to pay
Kirsten alimony of $500 per month for 5 years, and (7) ordering
Gary to pay Kirsten $8,000 for attorney fees.
IV. STANDARD OF REVIEW
[1,2] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. Doerr
v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (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. 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. Id.
V. ANALYSIS
1. Parenting Plan
The district court ordered the implementation of the phased
parenting plan described above. Based on the evidence
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KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
presented at trial, the district court found the phased parent-
ing plan to be in the best interests of the minor children. In its
decree, the court stated that it found “by a preponderance of
evidence that there is credible evidence that [Gary] perpetuated
child abuse and domestic intimate partner abuse” and “limita-
tion on parenting time between [Gary] and the minor children
must be implemented to provide for their safety and well-
being.” Notably, Neb. Rev. Stat. § 43-2932(1) (Reissue 2016)
provides that when there is evidence of child abuse or domestic
intimate partner abuse, limitations on parenting time may be
imposed that are “reasonably calculated to protect the child
or child’s parent from harm.” There is considerable evidence
in the record related to the inappropriate, harmful behaviors in
which Gary engaged with either the children and/or Kirsten. It
is unnecessary to detail those instances here given the limited
nature of Gary’s assigned error.
Gary does not argue that the phased approach to parent-
ing time is by itself problematic. Rather, he contends that the
“phases required the approval and recommendation for each
phase by the children’s therapist and last for a period of six
months between phases” and that this “restrictive parenting
time . . . was arbitrary and unsupported by the evidence, and
unjustifiably interferes with his parenting relationship with the
minor children.” Brief for appellant at 13. He asserts that he
has “taken the necessary steps to modify his behaviors and
testified to his ability to interact successfully with the minor
children.” Id. at 15. He further contends that “the duration of
any phases should not be for definitive times; but instead moni-
tored and moved forward under direct therapist supervision and
recommendations.” Id.
We understand Gary’s arguments as challenging the specific
6-month duration of the parenting phases and not allowing for
greater flexibility; he suggests a faster progression through
each phase should be permitted if recommended by the thera-
pist, based upon the parenting plan being “closely monitored
and supervised for cooperation and progress.” Id. We do not
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KELLY v. KELLY
Cite as 29 Neb. Ct. App. 198
read the parenting plan to be quite as restrictive as Gary sug-
gests, at least as to Phase 2 through Phase 4.
[3,4] We begin our analysis with the understanding that
while it is not an abuse of discretion for a trial court to order
counseling, “placing in a psychologist the authority to effec-
tively determine visitation, and to control the extent and time
of such visitation, is not the intent of the law and is an unlaw-
ful delegation of the trial court’s duty.” Deacon v. Deacon, 207
Neb. 193, 200, 297 N.W.2d 757, 762 (1980), disapproved on
other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d
898 (2002). It is the responsibility of the trial court to deter-
mine questions related to custody and parenting time accord-
ing to the best interests of the minor children. See id. This is
an independent responsibility and cannot be controlled by the
agreement or stipulation of the parties themselves or by third
parties. Id.
Therefore, in this case, it was necessary for the district court
to provide a specified duration of time for each parenting phase
rather than leaving the transition from phase to phase solely
at the discretion of a therapist. Such a delegation of author-
ity from the district court to each child’s therapist would have
constituted error whether reviewed for plain error or an abuse
of discretion. See, Hajenga v. Hajenga, 257 Neb. 841, 601
N.W.2d 528 (1999) (order that father’s parenting time would
be increased at discretion of family therapist was wrongful
abdication of trial court’s duty and constituted plain error;
plain error affects substantial right and is of such nature that
to leave it uncorrected would cause miscarriage of justice or
result in damage to integrity, reputation, and fairness of judi-
cial process); Deacon v. Deacon, supra (not abuse of discretion
to order counseling, but portion of order effectively placing
authority in psychologist to determine visitation and control
extent and time of such visitation was unlawful delegation of
trial court’s duty). But see In re Guardianship of K.R., 26 Neb.
App. 713, 923 N.W.2d 435 (2018) (trial court did not improp-
erly delegate decisions regarding visitation, family therapy,
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and guardianship to child’s therapist where trial court expressly
reserved authority to make those decisions if and when child’s
therapist stated child was ready for such steps).
Accordingly, as for Phase 2 through Phase 4, the district
court did not abuse its discretion in ordering fixed durations
before parenting time had to transition to the next phase, in
the absence of safety concerns. It was necessary for the court
to impose limits on each phase so that the transitions were not
left completely at the discretion of a therapist. Further, as to
Gary’s argument about flexibility to allow for faster progres-
sion through each phase if recommended by the therapist,
we read the parenting plan to provide that flexibility. Gary’s
supervised parenting time could transition to unsupervised
parenting time at the recommendation of each child’s therapist,
which could occur before 6 months on such a recommenda-
tion. But unless there were safety concerns, the supervised
parenting time had to transition to unsupervised parenting
time after 6 months. The same applies to the transition from
unsupervised parenting time to the ongoing parenting plan.
Implicit in the plan is that if a child’s therapist determined that
safety concerns still existed at the 6-month mark for the next
transition, the therapist could elect to not recommend moving
to the next parenting phase, and if Gary disagreed with that
decision, the matter would have to return to the district court
for a determination as to whether an extension of time was
warranted under the parenting phase at issue. Therefore, Phase
2 through Phase 4 provided flexibility for faster progression
upon the recommendation of each child’s therapist, but also
limited each phase to 6 months, barring safety concerns, so
that the court, not the therapist, was determining the maximum
duration of those phases.
However, while not specifically assigned as error by Gary,
we do find plain error regarding the lack of a specified dura-
tion for therapeutic visits in Phase 1, as well as the lack of
a specified time for when Gary would commence family
therapy sessions with the two younger children. Unlike the
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other phases, the court delegated to each child’s therapist the
discretion to determine when Gary could move from thera-
peutic visits in Phase 1 to supervised visits in Phase 2. And
as to the two younger children, the family therapy sessions
were to commence “upon the recommendation of the minor
children’s therapist.” As discussed above, this constitutes an
improper delegation of authority from the district court to each
child’s therapist. See Hajenga v. Hajenga, supra (order that
father’s parenting time would be increased at discretion of
family therapist was wrongful abdication of trial court’s duty
and constituted plain error). To eliminate this improper delega-
tion of authority to each child’s therapist, and considering the
district court’s determination that 6-month blocks were appro-
priate for the other transition phases, we modify the parenting
plan to provide that transition to “Phase 2 - SUPERVISED
VISITS” shall take place after 6 months of the therapeutic vis-
its described in Phase 1, provided there are no safety concerns.
Further, to the extent family therapy has not commenced with
the two younger children, that should commence immediately,
unless there are safety concerns. If safety concerns exist, given
the amount of time that has already lapsed during the pendency
of this appeal, the matter will need to be scheduled before the
district court for further consideration of when such family
therapy shall commence for the two younger children.
[5,6] With regard to the district court’s determination of
6-month transitional phases rather than phases of shorter dura-
tion, we cannot say the court abused its discretion, particu-
larly since the parenting plan did provide the flexibility for
faster progression than 6 months if recommended by a child’s
therapist. Parenting time determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Bornhorst v. Bornhorst, 28 Neb. Ct. App. 182, 941 N.W.2d 769
(2020). When evidence is in conflict, an appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
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and observed the witnesses and accepted one version of the
facts rather than another. Donald v. Donald, 296 Neb. 123, 892
N.W.2d 100 (2017).
Gary’s arguments focus largely on efforts he has been mak-
ing to be a better parent. And while such efforts are to be
commended, the district court also had to consider what was
in the best interests of the children. It is evident that the court
put in place a transitional schedule that will give the children
sufficient time and space to heal from the past traumatic expe-
riences caused by Gary’s abusive behaviors toward the children
and Kirsten. As just one example of the need for caution in
moving forward with parenting time, there was evidence that
as a result of Gary’s interactions with one child, the child went
to Kirsten crying and told her “he can’t take it anymore, he just
wants to kill himself.” Given the nature of the evidence under-
lying the district court’s findings related to child abuse and
domestic intimate partner abuse, we cannot say a graduated
parenting time schedule like the one before us, as modified,
was an abuse of discretion.
2. Expenses in Addition to
Monthly Child Support
In calculating its order for child support ($1,980 per month)
by using a basic net income and support calculation, work-
sheet 1, the district court determined Gary’s gross monthly
income to be $12,048.25 and Kirsten’s gross monthly income
to be $5,000. See Neb. Ct. R. ch. 4, art. 2, worksheet 1 (rev.
2016). Gary claims the district court abused its discretion in
ordering Gary to be responsible for 50 percent of the cost of
private school tuition for the minor children in addition to the
order to pay $1,980 per month in child support. Gary also con-
tends the district court abused its discretion in ordering him to
be responsible for 70 percent of all extracurricular expenses
incurred on behalf of the minor children upon which the par-
ties mutually agree in advance. Gary also takes issue with the
court’s order requiring the parties to equally share “the cost of
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school lunches (purchased from the school), required school
supplies, haircuts, and items of clothing the parties expect the
children to wear at both residences, i.e., winter coats, hats, mit-
tens, winter boots, backpacks, and tennis shoes.”
(a) Applicable Law
Prior to the existence of the Nebraska Child Support
Guidelines, Nebraska statutory law addressed various expenses
to be considered in support orders: “A support order, decree,
or judgment may include the providing of necessary shelter,
food, clothing, care, medical support as defined in section
43-412, medical attention, expenses of confinement, education
expenses, funeral expenses, and any other expenses the court
may deem reasonable and necessary.” See Neb. Rev. Stat.
§ 42-369(3) (Cum. Supp. 2018).
In 1984, Congress required the states to develop guidelines
for child support awards; noncompliance would result in the
loss of federal funds for various programs. See Schmitt v.
Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991). Nebraska com-
plied in 1985 with the passage of 1985 Neb. Laws, L.B. 7, § 18,
2d Spec. Sess. See Neb. Rev. Stat. § 42-364.16 (Reissue 2016)
(requires Nebraska Supreme Court to create guidelines that
serve as rebuttable presumption in setting child support obliga-
tions). See, also, Schmitt v. Schmitt, supra. The Nebraska Child
Support Guidelines subsequently became operative October 1,
1987. See Schmitt v. Schmitt, supra.
[7] Then, in 2008, the Legislature passed 2008 Neb. Laws,
L.B. 1014, § 33, codified at Neb. Rev. Stat. § 42-364.17
(Reissue 2016), which specifically sets forth certain categories
of expenses that could be considered in determining parents’
financial responsibilities related to their children; it provides
as follows:
A decree of dissolution, legal separation, or order
establishing paternity shall incorporate financial arrange-
ments for each party’s responsibility for reasonable
and necessary medical, dental, and eye care, medical
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reimbursements, day care, extracurricular activity, educa-
tion, and other extraordinary expenses of the child and
calculation of child support obligations.
The Nebraska Supreme Court has clarified that § 42-364.17
provides categories of expenses incurred by a child which can
be ordered by a trial court in addition to the monthly child sup-
port calculation determined under the guidelines. “The com-
mon meaning of ‘support’ clearly includes all of the incidents
of a child’s needs.” Caniglia v. Caniglia, 285 Neb. 930, 934,
830 N.W.2d 207, 211 (2013). One incident of support is
the regular monthly payment established under the Nebraska
Child Support Guidelines. See Caniglia v. Caniglia, supra.
“But the guidelines recognize other incidents of ‘support’
that are wholly or partly outside of the monthly installment.”
Caniglia v. Caniglia, 285 Neb. at 934, 830 N.W.2d at 211.
“The expenses stated in § 42-364.17—including, among others,
extracurricular, education, and other extraordinary expenses—
merely represent other incidents of ‘support’ to be addressed in
a dissolution decree.” Caniglia v. Caniglia, 285 Neb. at 934,
830 N.W.2d at 211. Thus, a district court has the authority to
order the categories of expenses specified in § 42-364.17 in
addition to the monthly child support obligation calculated
under the guidelines.
Notably, as applicable here, § 42-364.17 refers specifi-
cally to extracurricular, education, and other “extraordinary”
expenses that may be considered in addition to the monthly
child support obligation, while § 42-369(3) refers more gen-
erally to “necessary shelter, food, clothing, care,” and educa-
tion expenses, and “any other expenses the court may deem
reasonable and necessary.” Under § 42-364.17, any expense
beyond “reasonable and necessary medical, dental, and eye
care, medical reimbursements, day care, extracurricular activ-
ity, [and] education” would have to qualify as “extraordinary.”
Whereas, under § 42-369(3), expenses may include neces-
sary food, clothing, and care, as well as any other expenses
deemed “reasonable and necessary” by the court. The older
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statute certainly contemplates a very broad range of expenses
associated with caring for a child, while the newer statute has
narrowed the types of expenses that may coincide with a calcu-
lation of child support obligations.
[8] To reconcile the two statutes, we note that child support
statutes should be read in conjunction with the Nebraska Child
Support Guidelines. See Hoover v. Hoover, 2 Neb. Ct. App. 239,
508 N.W.2d 316 (1993). Also, components of a series or col-
lection of statutes pertaining to a certain subject matter are in
pari materia and should be conjunctively considered and con-
strued to determine the intent of the Legislature, so that differ-
ent provisions are consistent, harmonious, and sensible. Tyler
F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020). Because
the broader, more general terms contained in § 42-369(3)
preceded the adoption of the guidelines and the passage of
§ 42-364.17, we construe the guidelines and § 42-364.17 to
control what categories of expenses can be ordered in addition
to the monthly child support obligation determined under the
guidelines. Since there were no mandatory child support guide-
lines in existence until the passage of the guidelines in 1987,
the broader language of § 42-369(3) essentially provided for
types of expenses that could be considered when determining
support for children, including basic necessities such as shelter,
food, and clothing. However, the adoption of the guidelines
necessarily incorporated basic necessities such as shelter, food,
and clothing, and the passage of § 42-364.17 further delineated
specific expenses that could be ordered in addition to those
basic necessities now incorporated into the guidelines. To con-
strue § 42-369(3) to require a parent to pay for basic necessi-
ties such as shelter, food, and clothing in addition to a monthly
child support obligation which has been calculated using the
basic net income and support calculation, worksheet 1, would
make inexplicable what the monthly child support was other-
wise intended to cover in terms of a child’s needs.
However, an order requiring a parent to contribute to a
child’s clothing expenses, or other reasonable and necessary
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direct expenditures, may be appropriate in joint physical cus-
tody situations. In those cases, the determination of each par-
ent’s monthly child support obligation is significantly lower
when using the joint physical custody child support calcula-
tion, worksheet 3, due to the more equal sharing of parenting
time between the parents. See Neb. Ct. R. ch. 4, art. 2, work-
sheet 3 (rev. 2007). Neb. Ct. R. § 4-212 (rev. 2011), related
to joint physical custody, provides in relevant part: “If child
support is determined under this paragraph, all reasonable and
necessary direct expenditures made solely for the child(ren)
such as clothing and extracurricular activities shall be allocated
between the parents, but shall not exceed the proportion of
the obligor’s parental contributions . . . .” Therefore, in addi-
tion to the monthly child support obligation calculated for
joint physical custody, a trial court may apportion between the
parents a child’s clothing and other reasonable and necessary
direct expenditures.
With these legal principles in mind, we now consider the
expenses Gary was ordered to pay in addition to his monthly
child support obligation which was calculated using the basic
net income and support calculation, worksheet 1, rather than
the joint physical custody child support calculation, work-
sheet 3.
(b) Private School Tuition
During the course of the marriage, Gary and Kirsten enrolled
the children in a private school. Kirsten testified that she had
continued the children’s enrollment in the same private school
after the parties separated and during the dissolution proceed-
ings. Gary testified that he objected to having the children
attend private school, but had allowed the children’s attendance
during the marriage.
Gary suggests the district court had the discretionary
authority to provide a support order to include educational
expenses pursuant to § 42-369(3); however, he claims this
constitutes a deviation from the Nebraska Child Support
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Guidelines. In response, Kirsten also directs us to § 42-364.17.
Gary claims that because Kirsten “unilaterally [chose] to con-
tinue to enroll the minor children in a private school” and
“offered [no evidence] regarding the minor children[’s] need
for such an education, or that it had any beneficial [e]ffect or
consequences,” then the cost of the children’s tuition should
be Kirsten’s responsibility alone. Brief for appellant at 18. He
therefore contends that making him responsible for 50 percent
of the cost of private school tuition for the children was an
abuse of discretion.
Education is one of the expenses specifically referenced in
§ 42-364.17, and it therefore represents a type of support the
district court may award in addition to the monthly child sup-
port obligation. See Caniglia v. Caniglia, 285 Neb. 930, 830
N.W.2d 207 (2013). Private school education has been recog-
nized as an expense that may be allocated separately from a
monthly child support award. See Becher v. Becher, 299 Neb.
206, 908 N.W.2d 12 (2018) (affirming district court’s order
directing father to pay school tuition for children’s private
school education).
In light of the evidence that the children have attended the
same private school throughout the marriage and the dissolu-
tion process, we cannot say the district court abused its discre-
tion in ordering Gary to be responsible for 50 percent of the
children’s private school tuition costs. Although Gary is pay-
ing $1,980 per month in child support and $500 per month in
alimony ($2,480 per month total support), his gross monthly
income of $12,048.25 is still much greater than Kirsten’s gross
monthly income of $5,000. Even after adjusting for Gary’s
outgoing support obligations and Kirsten’s incoming support
amounts, Gary can afford to contribute equally with Kirsten to
maintain their children in the education environments which
were established during the marriage. Maintaining stability
and continuity in the children’s educational routine is cer-
tainly in their best interests. See State on behalf of Kaaden S.
v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019) (relevant
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considerations of child’s best interests include stability in
child’s routine).
(c) Extracurricular Expenses
We likewise cannot say that the district court abused its
discretion by making Gary responsible for 70 percent of the
extracurricular expenses incurred on behalf of the children
that the parties mutually agree upon in advance. As noted pre-
viously, extracurricular expenses are specifically referenced
in § 42-364.17; this is another type of support that may be
awarded in addition to the monthly payment established by
the child support guidelines. See Caniglia v. Caniglia, supra.
Notably, the district court requires the sharing of only those
extracurricular expenses that the parties have agreed to in
advance, although the court also noted that consent should not
be unreasonably withheld. This provision appears to encour-
age both parents to participate in making decisions about such
activities for their children. Further, with the contributions of
both parents to the costs associated with such activities, they
will likely be more mutually supportive of their children’s
involvement in those activities. We cannot say that the district
court abused its discretion in its allocation of these expenses
between the parties in this manner.
(d) Other Miscellaneous Expenses
With respect to the part of the order requiring Gary to be
responsible for half of “the cost of school lunches (purchased
from the school), required school supplies, haircuts, and items
of clothing the parties expect the children to wear at both
residences, i.e., winter coats, hats, mittens, winter boots, back-
packs, and tennis shoes,” we find the district court abused
its discretion.
As discussed above, § 42-364.17 sets forth those expenses
which a parent may be ordered to pay in addition to his or
her monthly child support obligation. These include “reason-
able and necessary medical, dental, and eye care, medical
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reimbursements, day care, extracurricular activity, education,
and other extraordinary expenses of the child.” While it is con-
ceivable that school lunches and school supplies might qualify
as an “education” expense, we conclude that such a broad read-
ing is not warranted in the present matter. With a child support
award of $1,980 per month, these items can be adequately cov-
ered and seem better characterized as basic necessities covered
by the monthly child support obligation.
As for the order’s remaining items, haircuts and clothing,
the only category under which they could possibly qualify
under § 42-364.17 would be “extraordinary expenses.” We
conclude that such expenses fall within the basic necessities
intended to be covered by a monthly child support obligation
calculated using the basic net income and support calcula-
tion, worksheet 1, and do not rise to the level of “extraordi-
nary expenses.”
The district court abused its discretion in ordering Gary to
pay for these expenses, and we therefore vacate this portion of
the decree.
3. Tax Dependency Exemptions
Gary claims on appeal that the district court abused its dis-
cretion in awarding Kirsten the sole right to claim the children
for state and federal income tax purposes.
For purposes of the district court’s child support calcula-
tion, Gary’s gross income was calculated to be $12,048.25 per
month and Kirsten’s was calculated to be $5,000 per month.
The district court ordered Gary to pay additional expenses
described previously in addition to the monthly child support
sum of $1,980.
Gary asserts that because he “is paying [his] proportion-
ate share of direct living expenses for the care of the minor
children through his child support obligation[,] [h]e should
receive some benefit for this obligation in the form of a tax
exemption.” Brief for appellant at 20-21. He further claims his
marginal tax rate would be “detrimentally unfair to [Kirsten’s]
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marginal tax rate, claiming the tax dependency credits for all
three minor children.” Id. at 21.
[9,10] A tax dependency exemption is an economic ben-
efit nearly identical to an award of child support or alimony.
Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).
In general, the custodial parent is presumptively entitled to the
federal tax exemption for a dependent child. Id. But a court
may exercise its equitable powers and order the custodial par-
ent to execute a waiver of his or her right to claim the tax
exemption for a dependent child if the situation of the parties
so requires. Id.
Although Gary claims that the district courts “have routinely
equally divided the tax dependency exemptions between the
parents,” brief for appellant at 21, we note that a departure
from this routine does not necessarily equate to an abuse of
discretion. The considerations of the district court included the
totality of the facts and circumstances of the parties and were
not constrained to comparisons of income and allocation of
expenses. We cannot say the district court abused its discretion
in granting Kirsten the sole right to claim the minor children
for state and federal income tax purposes.
4. Equalization Payment
Gary does not disagree with “the identification of marital
assets and liabilities, nor the valuations determined by the [dis-
trict court].” Brief for appellant at 22. However, he contends
the district court abused its discretion in determining he owed
Kirsten a payment of $15,841 to equalize the marital estate. He
asserts the property division was not supported by the evidence
related to the sale of the marital residence, as the division of
the marital residence and all liens and encumbrances against it
had been divided prior to trial and were erroneously factored
into the district court’s calculations. We agree that the evidence
supports Gary’s argument.
While the dissolution action was pending, Kirsten motioned
the district court to order the sale of the marital residence.
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The district court granted this order. The closing on the sale
occurred on May 2, 2019; trial took place in October. At the
time of closing, Gary’s support obligations under the January
14 temporary order were in arrears; he owed $5,066.14 in
child support and $9,819.09 in spousal support (total owed
of $14,885.23).
According to the closing statement for the marital home
received into evidence, the sale price was $196,500. The clos-
ing statement reflects that the mortgage and home equity line
of credit encumbering the marital residence, as well as all
other fees associated with the closing, were deducted from the
sale proceeds. Also, as part of the closing costs, the combined
amount of Gary’s outstanding support obligations ($14,885.23)
was deducted for distribution to Kirsten. The remaining net
proceeds of the sale amounted to $14,954.71 and were placed
into escrow. We note that the net sale proceeds would have
totaled $29,839.94 but for the payment made to pay off Gary’s
outstanding support obligations. Ordinarily, such net proceeds
would have been split in half, resulting in the receipt by each
party of $14,919.97. However, instead of receiving his share of
the net profit, Gary’s share was applied to his outstanding sup-
port obligations of $14,885.23. Gary contends that the remain-
ing balance of $14,954.71 constituted Kirsten’s one-half share
and that this amount was distributed to Kirsten. The record is
unclear as to whether the $14,954.71 was still held in escrow
at the time of trial or whether those funds had actually been
distributed to Kirsten as Gary indicates.
The district court’s calculation error appears to stem from
Kirsten’s assets and liabilities spreadsheet, offered and received
as exhibit 11. The district court adopted the values, the divi-
sion, and the equalization amount of $15,841 as set forth on
that exhibit. However, exhibit 11 reflects both parties receiving
$22,791.59 in equity from the home, which is not supported
by the closing statement. Further, exhibit 11 credits Kirsten’s
equity in the home with the amounts owed by Gary in child
and spousal support described previously. However, as Gary
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points out, the real estate closing document shows that these
outstanding obligations were deducted from his share of the
house sale proceeds at the time of closing. Kirsten’s only
response to Gary’s argument is that she divided the house pro-
ceeds equally on her spreadsheet and deducted the delinquent
support “by showing it as a negative figure” to make sure she
would not be paying for half of Gary’s outstanding support
obligations. Brief for appellee at 16. She does not explain why
giving her the delinquent support credits on her spreadsheet
was appropriate given Gary’s share of the net proceeds from
the house sale had already satisfied those delinquencies. Nor
does she otherwise challenge Gary’s explanation regarding the
application of his share of the home equity to those outstanding
support obligations.
After considering the evidence in the record, we agree with
Gary that the remaining net proceeds of $14,954.71 from
the sale which were placed into escrow represented Kirsten’s
share of the equity in the marital home and that the amount of
$14,885.23 paid to Kirsten in satisfaction of his support obliga-
tions represented Gary’s share of the equity. These combined
amounts represent the remaining equity in the home following
the deduction of all related liens, costs, and fees from the sale
price of the marital home as evidenced by the closing state-
ment. Gary, instead of receiving his share of the net proceeds,
had his share paid to Kirsten to satisfy his delinquent sup-
port obligations. The amounts of Gary’s satisfied obligations
should not have been included on the assets and liabilities
spreadsheet, and the equalization calculation should be modi-
fied accordingly.
Before setting forth our modified calculation of the marital
estate, we note that our modification assumes the net pro-
ceeds of $14,954.71 from the sale of the marital home were
distributed entirely to Kirsten. As noted previously, the record
is unclear whether those funds were distributed to Kirsten or
whether they are still in escrow. If the latter, those funds should
be released entirely to Kirsten.
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Using the asset and liability values set forth on exhibit 11, as
now modified to reflect each party’s share of the net proceeds
from the sale of the home, we have calculated the property
equalization as follows:
Kirsten Gary
Net house sale proceeds $14,954.71 $14,885.23
(Gary’s share used to
pay outstanding support)
Other assets $   475.78 $40,304.75
Total assets $15,430.49 $55,189.98
Liabilities [$13,202.01] [$36,234.19]
Net marital estate $ 2,228.48 $18,955.79
Equalization due to Kirsten $ 8,364.00 [$ 8,364.00]
Equalized marital estate $10,592.48 $10,591.79
Accordingly, we modify the district court’s decree to reflect
that Gary’s property equalization judgment owed to Kirsten is
$8,364 rather than $15,841.
5. Alimony
Gary argues on appeal that the district court abused its dis-
cretion in ordering him to pay $500 per month in alimony to
Kirsten for 5 years.
As described previously, the district court, in calculating
child support, determined Gary’s monthly gross income at the
time of trial to be $12,048.25 and Kirsten’s monthly gross
income to be $5,000. For the majority of the 12-year marriage
until July 2016, Kirsten was employed. In July 2016, Kirsten
and Gary agreed that Kirsten should quit her job to stay home
with the minor children, forgoing her then-current yearly sal-
ary of $89,000. Thereafter, she was not employed again until
March 2019.
Kirsten’s expenses at the time of trial were approximately
$4,543 per month; such expenses included $950 for rent,
$1,084 for groceries, $300 for her car payment, $239 for vehi-
cle gas, $200 for utilities, $945 for daycare for the children,
and various other expenses including cell phone payments,
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internet, renter’s and vehicle insurance, and clothing and enter-
tainment expenses for the children.
Gary neither testified as to nor provided a list of his monthly
expenses. As described previously, he is obligated to pay
$1,980 in child support to Kirsten as well as certain other
expenses. He is also required to maintain health insurance
through his employer for the benefit of the children, and his
weekly payroll deduction for that insurance is $42.
The district court acknowledged the 12-year duration of the
parties’ marriage and the parties’ three minor children. The
court also identified Kirsten’s decreased income compared to
her previous employment, noting that “she is not in the same
advanced position she was when her employment ended” and
that “it will take her several years to obtain the same respective
position.” Drawing on these facts, the court ordered Gary to
pay $500 per month in alimony to Kirsten for 5 years.
[11-13] 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. Wiedel v. Wiedel, 300
Neb. 13, 911 N.W.2d 582 (2018). In addition, a court should
consider the income and earning capacity of each party and
the general equities of the situation. Id. In reviewing an ali-
mony award, an appellate court does not determine whether
it would have awarded the same amount of alimony as did
the trial court, but whether the trial court’s award is untenable
such as to deprive a party of a substantial right or just result.
Id. Alimony is not a tool to equalize the parties’ income, but
a disparity of income or potential income might partially jus-
tify an alimony award. Anderson v. Anderson, 290 Neb. 530,
861 N.W.2d 113 (2015).
Gary argues that the evidence cannot justify an award of
alimony to Kirsten, as “she has funds to pay for her[] and the
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minor children[’s] . . . normal maintenance and expenses.”
Brief for appellant at 26. He further asserts that an award for
alimony is not warranted because “[n]o circumstances dictate
that [Kirsten] economically suffered during the marriage” and
Kirsten “was not left without assets or significant earning
capacity.” Id. at 27. Gary also points out that his own income
is “directly reduce[d]” to the extent that factoring in Kirsten’s
income and the other amounts Gary is required to pay to her,
“the net difference in the available earnings [is] not substan-
tially different.” Id. at 27.
In addition to a significant disparity between each party’s
employment income, Kirsten’s present income amounts to only
approximately two-thirds of her previous income before she
ended her employment in July 2016 to take care of the chil-
dren, and it will take a number of years for Kirsten’s level of
income to reach that same level again. While she builds up her
income toward its previous level, she will also be primarily
responsible for raising three children.
In light of the record before us regarding the parties’ indi-
vidual circumstances, we cannot say the district court abused
its discretion in ordering Gary to pay $500 per month in ali-
mony to Kirsten for a period of 5 years.
6. Attorney Fees
Gary claims the district court abused its discretion in order-
ing him to pay $8,000 in attorney fees to Kirsten.
According to an affidavit for attorney fees received into
evidence, Kirsten’s attorney charged her at a rate of $300 per
hour. Prior to the conclusion of trial, the affidavit indicates
that Kirsten had incurred $16,849.09 in attorney fees and
expenses. This amount did not take into consideration the fees
associated with the trial. Kirsten requested that the district
court order Gary to pay for a portion, if not all, of her attor-
ney fees.
[14] It has been held that in awarding attorney fees in a dis-
solution action, a court shall consider the nature of the case,
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the amount involved in the controversy, the services actually
performed, the results obtained, the length of time required
for preparation and presentation of the case, the novelty and
difficulty of the questions raised, and the customary charges
of the bar for similar services. Garza v. Garza, 288 Neb. 213,
846 N.W.2d 626 (2014). Additionally, in dissolution cases,
as a matter of custom, attorney fees and costs are awarded to
prevailing parties. Moore v. Moore, 302 Neb. 588, 924 N.W.2d
314 (2019). The award of attorney fees is discretionary with
the trial court, is reviewed de novo on the record, and will be
affirmed in the absence of an abuse of discretion. See Dooling
v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
The district court ordered Gary to pay $8,000 toward
Kirsten’s attorney fees “[d]ue to the discrepancy in income
between the parties . . . .” In light of the record before us with
respect to the parties’ circumstances as previously described,
we cannot say the district court abused its discretion by order-
ing Gary to pay attorney fees to Kirsten.
VI. CONCLUSION
The district court’s decree is modified to reflect the changes
to the parenting plan and the property equalization judgment
as discussed above. The portion of the decree ordering Gary to
pay certain expenses, as discussed above, is vacated. All other
aspects of the decree are affirmed. Therefore, we affirm in part
as modified, and in part vacate.
Affirmed in part as modified,
and in part vacated.