Becher v. Becher , 299 Neb. 206 ( 2018 )


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    BECHER v. BECHER
    Cite as 
    299 Neb. 206
    Sonia Becher, appellee and cross-appellant,
    v. M ark A. Becher, appellant
    and cross-appellee.
    ___ N.W.2d ___
    Filed March 9, 2018.     Nos. S-16-054, S-16-793.
    1.	 Statutes: Appeal and Error. Statutory language is to be  given its
    plain and ordinary meaning, and an appellate court will not resort to
    interpretation to ascertain the meaning of statutory words which are
    plain, direct, and unambiguous.
    2.	 Statutes. It is not within the province of the courts to read a meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
    3.	 Appeal and Error. Generally, a party cannot complain of error which
    the party has invited the court to commit.
    4.	 Verdicts: Evidence: Appeal and Error. The recommended factual
    findings of a special master have the effect of a special verdict, and the
    report upon questions of fact, like the verdict of a jury, will not be set
    aside unless clearly against the weight of the evidence.
    5.	 Trial: Judgments. 
    Neb. Rev. Stat. § 25-1131
     (Reissue 2016) does not
    require a district court reviewing a referee’s decision to make spe-
    cific findings.
    6.	 Statutes. To the extent there is a conflict between two statutes on the
    same subject, the specific statute controls over the general.
    7.	 Child Custody: Visitation: Courts. A trial court has an independent
    responsibility to determine questions of custody and visitation of minor
    children according to their best interests, which responsibility cannot be
    controlled by an agreement or stipulation of the parties.
    8.	 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
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    regarding custody, child support, division of property, alimony, and
    attorney fees.
    9.	 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.
    10.	 Property Division. With some exceptions, the marital estate does
    not include property acquired by one of the parties through gift or
    inheritance.
    11.	 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.
    12.	 Waiver: Appeal and Error. Whether a party waived his or her right to
    appellate review is a question of law.
    13.	 Judgments: Appeal and Error. When reviewing questions of law,
    an appellate court resolves the questions independently of the lower
    court’s conclusions.
    14.	 Estoppel. The doctrine of equitable estoppel is applied to transactions
    in which it is found that it would be unconscionable to permit a person
    to maintain a position inconsistent with one in which he or she has
    acquiesced or of which he or she has accepted any benefit.
    15.	 Divorce: Judgments: Waiver: Appeal and Error. A spouse who
    accepts the benefits of a divorce judgment does not waive the right to
    appellate review under circumstances where the spouse’s right to the
    benefits accepted is conceded by the other spouse, the spouse was enti-
    tled as a matter of right to the benefits accepted such that the outcome
    of the appeal could have no effect on the right to those benefits, or the
    benefits accepted are pursuant to a severable award which will not be
    subject to appellate review.
    16.	 Contempt: Appeal and Error. In a civil contempt proceeding where
    a party seeks remedial relief for an alleged violation of a court order,
    an appellate court employs a three-part standard of review in which (1)
    the trial court’s resolution of issues of law is reviewed de novo, (2) the
    trial court’s factual findings are reviewed for clear error, and (3) the trial
    court’s determinations of whether a party is in contempt and of the sanc-
    tion to be imposed is reviewed for abuse of discretion.
    17.	 Courts: Restitution: Contempt. Through its inherent powers of con-
    tempt, a court may order restitution for damages incurred as a result of
    failure to comply with a past order.
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    BECHER v. BECHER
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    18.	 Contempt. Civil contempt proceedings are instituted to preserve and
    enforce the rights of private parties to a suit when a party fails to com-
    ply with a court order made for the benefit of the opposing party.
    Petition for further review from the Court of Appeals,
    Moore, Chief Judge, and R iedmann and Bishop, Judges, on
    appeal thereto from the District Court for Lancaster County,
    Steven D. Burns, Judge. Judgment of Court of Appeals in No.
    S-16-054 affirmed in part, and in part reversed and remanded
    with directions.
    Appeal from the District Court for Lancaster County:
    Steven D. Burns, Judge, and K aren Flowers, Judge, Retired.
    Judgment in No. S-16-793 affirmed.
    David P. Kyker for appellant in Nos. S-16-054 and S-16-793.
    Brad Sipp for appellant in No. S-16-054.
    Sally A. Rasmussen, of Mattson Ricketts Law Firm, for
    appellee.
    Heavican, C.J., Miller-Lerman, Cassel, K elch, and
    Funke, JJ.
    Cassel, J.
    I. INTRODUCTION
    These two appeals, which have been consolidated in this
    court, stem from marital dissolution proceedings. One chal-
    lenged the district court’s decree, and is before us on further
    review of a Nebraska Court of Appeals’ decision.1 Primarily,
    we disagree with the Court of Appeals’ determination that a
    district court must state specific findings in order to set aside
    or modify a referee’s report authorized by chapter 25 of the
    Nebraska Revised Statutes (Chapter 25)2 as clearly against
    the weight of the evidence. In this appeal, we affirm in part,
    1
    Becher v. Becher, 
    24 Neb. App. 726
    , 
    897 N.W.2d 866
     (2017).
    2
    See 
    Neb. Rev. Stat. §§ 25-1129
     to 25-1137 (Reissue 2016) (authorizing
    trial by referee).
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    and in part reverse and remand with directions. The assigned
    errors in the second appeal, flowing from contempt proceed-
    ings, lack merit. In that appeal, we affirm.
    II. BACKGROUND
    1. A ppeal No. S-16-054
    Mark A. Becher and Sonia Becher were married for 21
    years before Sonia filed a complaint for dissolution of mar-
    riage in 2013. Because they could not agree to the valuation
    and division of their vast marital estate or to the award of child
    custody, child support, alimony, and attorney fees and costs,
    they agreed to have these issues tried before a court-appointed
    referee. The consent cited § 25-1129 et seq.
    (a) District Court Proceedings
    After a 14-day trial, the referee submitted a report describ-
    ing its findings of fact on uncontested issues and its “analy-
    sis and recommendations” which are set forth in more detail
    below. Both parties initially filed exceptions to the report, but
    Mark later withdrew his. Therefore, only Sonia’s exceptions
    and the voluminous record produced at trial were submitted to
    the district court on review of the referee’s report.
    The district court entered a final decree in December 2015
    in which it adopted some of the referee’s factual findings and
    recommendations and set forth its own findings and conclu-
    sions on other issues. Specific findings and conclusions are
    discussed in our analysis.
    (b) Appeal to Court of Appeals
    Mark timely appealed and challenged the district court’s
    review and consideration of the referee’s report. He assigned
    error to certain findings of the court regarding the classifica-
    tion, valuation, and division of the parties’ assets and debts;
    custody and parenting time; child support; alimony; and attor-
    ney fees. Sonia cross-appealed and assigned error to the court’s
    allocation of holiday parenting time and its failure to classify
    certain property as nonmarital.
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    The Court of Appeals found several of Mark’s assigned
    errors had been waived pursuant to the acceptance of benefits
    doctrine and for failure to take exception to the referee’s report.
    After concluding that the majority of the issues were preserved
    for appeal, it addressed the remaining assigned errors concern-
    ing the district court’s revisions of the referee’s report.
    The Court of Appeals reviewed Nebraska precedents which
    generally provided that a referee’s findings are treated like a spe-
    cial verdict and can be set aside only where it is “‘clearly against
    the weight of the evidence.’”3 However, the court also relied on
    a case from the District Court of Appeal of Florida4 to find that a
    trial court must explicitly determine that a referee’s findings are
    clearly against the weight of the evidence before setting aside or
    modifying a referee’s report. With this new standard, the Court
    of Appeals concluded that the district court failed to apply the
    correct standard of review. The Court of Appeals then vacated
    those portions of the decree where the district court made find-
    ings and conclusions that were inconsistent with the referee’s
    report and modified it to incorporate the findings and conclu-
    sions of the referee.5
    We granted Mark’s and Sonia’s petitions for further review
    to address the correct standard of review owed to the findings
    and recommendations of court-appointed referees.
    2. A ppeal No. S-16-793
    While the first appeal was pending before the Court of
    Appeals, Mark and Sonia each filed cross-motions for orders
    3
    Brown v. O’Brien, 
    4 Neb. 195
    , 198 (1876). See, also, Mid America Agri
    Products v. Rowlands, 
    286 Neb. 305
    , 
    835 N.W.2d 720
     (2013) (reviewing
    recommended findings of special master appointed by Nebraska Supreme
    Court); Larkin v. Ethicon, Inc., 
    251 Neb. 169
    , 
    556 N.W.2d 44
     (1996)
    (reviewing recommended findings of special master appointed by Nebraska
    Supreme Court); Hodges v. Graham, 
    71 Neb. 125
    , 
    98 N.W. 418
     (1904);
    Gibson v. Gibson, 
    24 Neb. 394
    , 
    39 N.W. 450
     (1888).
    4
    Kalmutz v. Kalmutz, 
    299 So. 2d 30
     (Fla. App. 1974).
    5
    Becher v. Becher, 
    supra note 1
    .
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    to show cause, alleging numerous violations of the district
    court’s decree. Because the parties contest only a few of the
    findings of contempt, only those allegations and findings rel-
    evant to this appeal are set forth.
    Sonia alleged that Mark entered her residence uninvited,
    caused damage to the residence, and removed personal prop-
    erty that was not awarded to him under the decree. She fur-
    ther alleged that he repeatedly entered one of her commercial
    buildings without authorization, caused damage to the prop-
    erty, and removed property from the building that was not
    awarded to him under the decree.
    Mark alleged that Sonia failed to deliver certain personal
    property awarded to him under the decree. At the hearing,
    Sonia admitted to having sold certain items awarded to Mark,
    but maintained that several of the listed items were actually
    awarded to her. She alleged that she did not have any of the
    other items of property.
    The district court entered orders of contempt against both
    Mark and Sonia. The court did not make any findings as to
    whether Mark entered Sonia’s home or commercial building
    unauthorized, caused damage to the properties, or otherwise
    removed property from those locations. Rather, it disposed
    of these allegations with a blanket denial of all other relief
    requested. In its order of contempt against Sonia, the court
    found that she willfully and contumaciously failed to com-
    ply with the decree requiring she turn over all the property
    listed. Instead of ordering that she turn over the property, the
    court entered a judgment against Sonia and required that she
    pay $2,500 as “compensation for the property she did not
    turn over.”
    Mark timely appealed, and Sonia cross-appealed. We
    moved the appeal to our docket6 and consolidated the appeal
    with the appeal in case No. S-16-054 for oral argument and
    disposition.
    6
    See 
    Neb. Rev. Stat. § 24-1106
    (3) (Supp. 2017).
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    III. ASSIGNMENTS OF ERROR
    In appeal No. S-16-054, the dissolution proceeding, Mark
    assigns that the Court of Appeals erred in (1) finding that he
    waived his right to appeal the award of three commercial prop-
    erties to Sonia, because he quitclaimed the deeds to Sonia in
    compliance with the district court’s decree; (2) adopting the
    referee’s determination of custody and parenting time instead
    of remanding the issues to consider new developments in the
    18 months the appeal has been pending; and (3) not remanding
    for further hearing to conduct a complete accounting.
    Sonia assigns that the Court of Appeals erred in (1) applying
    its standard of review and (2) concluding that the acceptance of
    benefits doctrine did not bar Mark’s appeal as it relates to the
    division of property.
    In appeal No. S-16-793, the civil contempt proceeding,
    Mark assigns that the district court (1) erred in modifying its
    decree of dissolution while the appeal of the decree was pend-
    ing, (2) abused its discretion in ordering Sonia to pay restitu-
    tion for selling or retaining personal property awarded to Mark
    in an amount less than the value of the property, and (3) abused
    its discretion and violated Mark’s right to due process in refus-
    ing to permit Mark to offer evidence or otherwise rebut Sonia’s
    evidence in support of her motion for contempt.
    Sonia cross-appeals and assigns that the district court erred
    in failing to find Mark in contempt for (1) his unauthorized
    entry into Sonia’s home and the damage he caused while at the
    home and (2) his unauthorized entry into Sonia’s commercial
    building and the removal of property not awarded to him in
    the decree.
    IV. ANALYSIS
    1. Standard of R eview of Chapter 25
    R eferee’s R eport
    Sonia argues that the Court of Appeals incorrectly applied
    its standard of review, because it “took issue with the fact that
    the trial judge had not specifically stated the referee’s report
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    (in certain, limited respects) was ‘against the weight of the
    evidence.’”7 We agree. In addressing this assignment of error,
    it is first necessary to clarify the standard of review owed to
    a court-appointed referee’s findings. Because the referee in
    this case additionally made findings and recommendations as
    to child custody, child support, and alimony, it is also neces-
    sary to discuss the effect of the child support referee statutes8
    and the Parenting Act.9 This requires statutory interpretation.
    Therefore, we begin by recalling basic guiding principles of
    statutory interpretation.
    [1,2] Statutory language is to be given its plain and ordinary
    meaning, and an appellate court will not resort to interpretation
    to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.10 It is not within the province of the
    courts to read a meaning into a statute that is not there or to
    read anything direct and plain out of a statute.11
    (a) District Court’s Standard of Review
    (i) Chapter 25 Referee Statutes
    [3] Our civil procedure statutes have provided for trial by
    referee since Nebraska became a state.12 But we have been
    unable to find a reported decision where this procedure has
    been used in a divorce case since 1888.13 Prior to the adoption
    of Nebraska’s no-fault divorce statute in 1972,14 our divorce
    statute stated that suits for divorce “shall be conducted in
    the same manner as other suits in courts of equity.”15 But our
    7
    Brief for appellee in support of petition for further review at 3.
    8
    
    Neb. Rev. Stat. §§ 43-1608
     to 43-1613 (Reissue 2016 & Supp. 2017).
    9
    
    Neb. Rev. Stat. §§ 43-2920
     to 43-2943 (Reissue 2016 & Supp. 2017).
    10
    Jill B. v. State, 
    297 Neb. 57
    , 
    899 N.W.2d 241
     (2017).
    11
    In re Guardianship of Kaiser, 
    295 Neb. 532
    , 
    891 N.W.2d 84
     (2017).
    12
    See Rev. Stat. §§ 299 to 306 (1867).
    13
    See Gibson v. Gibson, supra note 3.
    14
    See 1972 Neb. Laws, L.B. 820.
    15
    
    Neb. Rev. Stat. § 42-307
     (Reissue 1968).
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    current divorce statutes contain no such language. It is an
    open question whether the Legislature intended the Chapter 25
    referee provisions to apply to a dissolution action. But even if
    doing so was error, it was one invited by the parties. Generally,
    a party cannot complain of error which the party has invited
    the court to commit.16 Thus, we assume that a Chapter 25 ref-
    eree may be appointed in a dissolution action, and turn to the
    specific issue presented here.
    Section 25-1131 provides the relevant standard of review for
    a general court-appointed referee’s findings:
    The trial before referees is conducted in the same
    manner as a trial by the court. . . . They must state the
    facts found and the conclusions of law, separately, and
    their decision must be given, and may be excepted to
    and reviewed in like manner. . . . When the reference
    is to report the facts, the report has the effect of a spe-
    cial verdict.
    (Emphasis supplied.) By its plain language, a Chapter 25 ref-
    eree’s factual findings are entitled to some deference. This is
    in line with our historical standard of review for the recom-
    mended findings of special masters appointed by this court
    pursuant to § 25-1129.17 But without similar language limiting
    the district court’s review of a referee’s conclusions or recom-
    mendations, we decline to read such language into the statute.
    Therefore, we conclude that the district court owed no defer-
    ence to the referee’s conclusions or recommendations.
    [4] Our case law establishes that the recommended factual
    findings of a special master have the effect of a special verdict,
    and the report upon questions of fact, like the verdict of a jury,
    will not be set aside unless clearly against the weight of the
    evidence.18 The recommended factual findings of the referee
    were entitled to the same treatment.
    16
    Burcham v. Burcham, 
    24 Neb. App. 323
    , 
    886 N.W.2d 536
     (2016).
    17
    See cases cited supra note 3 and accompanying text.
    18
    See, e.g., Mid America Agri Products v. Rowlands, 
    supra note 3
    .
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    [5] But the Court of Appeals went further. It reasoned that
    because the district court did not make an explicit determi-
    nation on the record that the findings were against the clear
    weight of the evidence, it did not give deference to rec-
    ommended factual findings.19 However, § 25-1131 does not
    require a district court reviewing a referee’s decision to make
    specific findings. Our divorce statutes do not require specific
    findings in the division of property,20 except a finding whether
    a property settlement agreement is or is not unconscionable.21
    That is not to say that specific findings are not helpful. In
    some instances, we have stated that they would have been.22
    But even where our civil procedure code mandates specific
    findings, it does so only upon a party’s request.23 Our case
    law teaches that unless a statute requires specific findings or
    we mandated them as a matter of case law, explicit findings
    are not required.24 Because nothing in the plain language of
    § 25-1131 requires such explicit findings, a district court may
    implicitly find that a referee’s findings are against the clear
    weight of the evidence.
    (ii) Child Support Referee Statutes
    Having determined the correct standard of review for a
    referee’s factual findings, we must now harmonize the appar-
    ently conflicting standard espoused in the child support ref-
    eree statutes.
    19
    Becher v. Becher, 
    supra note 1
    .
    20
    See 
    Neb. Rev. Stat. §§ 42-365
     and 42-366 (Reissue 2016).
    21
    See § 42-366(2) to (4).
    22
    See, e.g., Liming v. Liming, 
    272 Neb. 534
    , 
    723 N.W.2d 89
     (2006).
    23
    See 
    Neb. Rev. Stat. § 25-1127
     (Reissue 2016).
    24
    See, e.g., State v. Rogers, 
    297 Neb. 265
    , 
    899 N.W.2d 626
     (2017) (specific
    factual findings not required to justify sentence even where factors are
    enumerated by statute); State ex rel. Amanda M. v. Justin T., 
    279 Neb. 273
    ,
    
    777 N.W.2d 565
     (2010) (specific finding not required in creating parenting
    plan under Parenting Act); Jacox v. Pegler, 
    266 Neb. 410
    , 
    665 N.W.2d 607
    (2003) (encouraging but not requiring specific findings on record at each
    step of Batson challenge).
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    [6] The child support referee statutes allow a trial court
    to refer a case involving the establishment, modification,
    enforcement, and collection of child, spousal, or medical sup-
    port and protection orders to a court-appointed child support
    referee.25 Like Chapter 25 referees, child support referees
    must submit a written report containing findings of fact and
    recommendations to the trial court, which may be excepted
    to by the parties.26 But, the trial court owes no deference to
    these findings and recommendations and “may accept or reject
    all or any part of the report and enter judgment based on the
    court’s own determination.”27 This necessarily conflicts with
    the Chapter 25 referee statutes. To the extent there is a con-
    flict between two statutes on the same subject, the specific
    statute controls over the general.28 Accordingly, the standard
    of review for the findings and recommendations of child sup-
    port referees directs the district court’s review of findings and
    recommendations on the issues of child support, including
    payment of reasonable education expenses,29 and spousal sup-
    port or alimony.
    (iii) Parenting Act
    [7] The referee’s report also included recommended find-
    ings of fact related to child custody and a proposed parenting
    plan. These recommended findings are subject to the standard
    of review in § 25-1131, but the proposed parenting plan is
    subject to the Parenting Act. The Parenting Act provides that a
    court rule may provide for the parenting plan to be developed
    by the parties or their counsel, a court conciliation program,
    an approved mediation center, or a private mediator.30 Though
    25
    See § 43-1609(1).
    26
    § 43-1612(3).
    27
    § 43-1613 (emphasis supplied).
    28
    SFI Ltd. Partnership 8 v. Carroll, 
    288 Neb. 698
    , 
    851 N.W.2d 82
     (2014).
    29
    
    Neb. Rev. Stat. § 42-369
    (3) (Reissue 2016).
    30
    § 43-2929(1).
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    it does not specifically provide that a court-appointed referee
    may propose a parenting plan, no one has challenged the ref-
    eree’s authority to propose a parenting plan. But, regardless of
    the referee’s authority, a trial court has an independent respon-
    sibility to determine questions of custody and visitation of
    minor children according to their best interests, which respon-
    sibility cannot be controlled by an agreement or stipulation of
    the parties.31
    A court is required to review a parenting plan and determine
    if it meets the requirements of the Parenting Act and if is in the
    best interests of the minor child or children. If the parenting
    plan lacks any of the elements required by the act or is not in
    the child’s best interests, the court shall modify and approve
    the parenting plan as modified, reject the parenting plan and
    order the parties to develop a new parenting plan, or reject
    the parenting plan and create a parenting plan that meets all
    the required elements and is in the best interests of the child.32
    However, if the court rejects a parenting plan, it must provide
    written findings as to why the parenting plan is not in the best
    interests of the child.33
    This multiplicity of review standards counsels against using
    Chapter 25 referees routinely in dissolution actions. And it may
    explain why 130 years have passed since the last reported deci-
    sion documenting its use.
    (b) Appellate Court
    Standard of Review
    [8] Although the district court’s review of the referee’s
    report was necessarily complicated by the effect of these differ-
    ent statutes, the standard of review on appeal remains the same.
    In a marital dissolution action, an appellate court reviews the
    case de novo on the record to determine whether there has
    31
    See Zahl v. Zahl, 
    273 Neb. 1043
    , 
    736 N.W.2d 365
     (2007).
    32
    § 43-2935(1).
    33
    See § 43-2923(4).
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    been an abuse of discretion by the trial judge.34 This standard
    of review applies to the trial court’s determinations regarding
    custody, child support, division of property, alimony, and attor-
    ney fees.35
    [9] In a review de novo on the record, an appellate court
    is required to make independent factual determinations based
    upon the record, and the court reaches its own independent
    conclusions with respect to the matters at issue.36 However,
    when evidence is in conflict, the appellate court considers
    and may give weight to the fact that the trial court heard and
    observed the witnesses and accepted one version of the facts
    rather than another.37 In this case, the appellate court would
    give weight to the fact that the court-appointed referee heard
    and observed the witnesses and accepted one version of the
    facts rather than another.
    (c) Application of Standard of Review
    Because the Court of Appeals did not correctly apply its
    standard of review, we must review the district court’s decree
    for an abuse of discretion, keeping in mind the multifaceted
    standard of review that the district court was to apply to the
    referee’s report.
    The Court of Appeals correctly concluded that Mark waived
    any challenge where the district court came to the same con-
    clusion as a referee, because he withdrew his exceptions to
    the referee’s report. Therefore, we limit our review to those
    instances where the Court of Appeals modified the district
    court’s decree to incorporate the referee’s findings and recom-
    mendations. Though Mark filed a motion to strike the argument
    in Sonia’s supplemental brief related to this assignment of
    error, we overrule the motion.
    34
    Osantowski v. Osantowski, 
    298 Neb. 339
    , 
    904 N.W.2d 251
     (2017).
    35
    
    Id.
    36
    
    Id.
    37
    
    Id.
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    (i) Division of Marital Estate
    a. Classification of Nonmarital Property
    During the parties’ marriage, Sonia’s father gave her mon-
    etary gifts totaling over $1.7 million. Both the referee and
    the district court determined that the monetary gifts were not
    traceable to identifiable assets with two exceptions—the gift
    used to purchase the West O Development/Dollar General
    building and the gift used to pay off the mortgage on the mari-
    tal home.
    i. West O Development/
    Dollar General Building
    The West O Development/Dollar General building was pur-
    chased by Sonia and her sister using an $825,000 gift from
    their father. Later, Sonia purchased her sister’s interest in the
    building with a $500,000 loan on the building and $25,000
    from a savings account. Additional money was put into the
    property for repairs and improvements. The referee determined
    the $825,000 gift did not retain its status as a gift, because the
    equity in the building was encumbered by loans in order to pay
    the sister back and money generated during the marriage was
    invested into the building for repairs.
    The district court disagreed with the referee’s determina-
    tion and found that “[t]here is no evidence of any marital
    funds being used for the purchase or continued operation
    of [the property].” Because the rents and gifts from Sonia’s
    father exceeded the costs associated with the property, the
    court concluded that Mark had no claim to it. The court also
    noted an additional monetary gift from Sonia’s father for
    repairs to the building which was not discussed by the ref-
    eree. Therefore, the court implicitly determined that the ref-
    eree’s finding as to the gift status of the property was against
    the clear weight of the evidence and set aside the property to
    Sonia as nonmarital property.
    The district court reviewed the evidence and concluded
    that no evidence supported a finding that the monetary gifts
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    represented by the West O Development/Dollar General
    building lost their gift status. Accordingly, it did not abuse
    its discretion when it substituted its own findings for that of
    the referee.
    ii. Mortgage Payoff
    Sonia’s father made another gift to Sonia in the amount of
    $432,948. Of this amount, $220,300 was used to pay off the
    mortgage on the marital home. The remainder was placed in a
    certificate of deposit held in Mark’s name only. Mark spent the
    entirety of the certificate of deposit during a period of separa-
    tion, and Sonia has not challenged this expenditure.
    The referee determined that the monetary gift was a gift to
    the marriage, or at least that it lost its status as a gift when it
    was applied to the marital debt. Nonetheless, it concluded that
    Sonia was entitled to some credit in equity and reduced the fair
    market value of the marital home awarded to Sonia by one-
    half of the payoff value ($110,150). The district court noted
    the same evidence, but determined that Sonia was entitled to a
    credit for the entire mortgage payoff ($220,300) in recognition
    of the gift.
    [10] With some exceptions, the marital estate does not
    include property acquired by one of the parties through gift
    or inheritance.38 And, there is no exception where an other-
    wise nonmarital monetary gift is spent on a family expense.39
    Therefore, the referee’s finding that the portion of the gift
    spent on the mortgage payoff lost its gift status because it
    was applied to a marital expense was contrary to the law
    and against the weight of the evidence. The district court did
    not err in its determination that the mortgage payoff money
    retained its status as a gift. Even assuming that it did lose its
    status, it was within the district court’s power in equity to give
    38
    Heald v. Heald, 
    259 Neb. 604
    , 
    611 N.W.2d 598
     (2000).
    39
    See, e.g., Mathew v. Palmer, 
    8 Neb. App. 128
    , 
    589 N.W.2d 343
     (1999).
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    credit to Sonia for one-half of the gift where Mark dissipated
    the other half.40
    b. Valuation of Business Entities
    The district court awarded two businesses to Mark at dif-
    ferent values than those recognized by the court-appointed
    referee. The valuation of a business is a question of fact. As
    a result, the findings of the referee on the issue had the effect
    of a special verdict.
    i. Sark Tile, Inc.
    The referee awarded Sark Tile, Inc., to Mark at a value of
    $491,353 after altering the formula used in one of the expert
    valuations. The district court also awarded the business to
    Mark, but at a value of $570,000. It is apparent from the record
    that the district court reweighed the testimony and the evidence
    and used a different formula than that used by the referee. This
    was an abuse of discretion.
    The district court effectively retried the issue, taking on
    the role of the fact finder, and did not engage in any analysis
    of whether the value accepted by the referee was against the
    clear weight of the evidence. Because we find, in our de novo
    review, that it was not against the clear weight of the evidence,
    Sark Tile should have been awarded at the value assigned by
    the referee.
    ii. Lamp & Lighting of Lincoln, Inc.
    The referee awarded Lamp & Lighting of Lincoln, Inc., to
    Mark at a value of $107,000 after altering the formula used
    in one of the expert valuations similar to that used in Sark
    Tile. The district court also awarded the business to Mark
    40
    See 
    Neb. Rev. Stat. § 42-365
     (Reissue 2016). See, also, Parde v. Parde,
    
    258 Neb. 101
    , 108, 
    602 N.W.2d 657
    , 662 (1999) (“[i]n determining
    what assets constitute the marital estate and how the property should be
    divided, . . . Nebraska, by statute, is an equitable property distribution
    jurisdiction”).
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    at a net value of $107,000 after applying a $150,000 debt to
    the business. However, the referee appears to have set the
    $150,000 debt over to Mark separate from the business valued
    at $107,000. After a careful review of the record, it is plain that
    this was done in error.
    The expert valuation relied upon by the referee included the
    $150,000 debt in its calculation. Therefore, the referee gave
    credit to Mark for the $150,000 debt twice—once in arriving
    at the net value using the expert’s formula and once in setting
    the $150,000 debt over to Mark in its division of the marital
    estate. Because the district court arrived at the same net value
    for Lamp & Lighting of Lincoln as the referee and did not
    carry over the double credit for the debt, there was no error in
    the district court’s valuation of the business.
    c. Valuation of Personal Property
    The district court adopted the referee’s allocation of per-
    sonal property, but valued the property awarded to Sonia at
    $27,365 and the property award to Mark at $23,870. The
    referee had awarded the property to Sonia at $13,340 and the
    property to Mark at $21,495. It appears that the court awarded
    the personal property within the marital home to Sonia at the
    value assigned by an appraiser, reduced by the appraised val-
    ues of the individual items awarded to Mark. However, the
    court awarded these items to Mark at the higher value Mark
    proposed and not the appraised value. This was an abuse
    of discretion.
    The valuation of personal property is a question of fact,
    and the referee’s valuations had the effect of a special verdict.
    The district court does not appear to have found either the
    appraised values or Mark’s values for the personal property to
    be against the clear weight of the evidence, because it accepted
    the values assigned by both for different items of property.
    Because the referee’s findings cannot be set aside unless they
    are against the clear weight of the evidence, the district court
    abused its discretion in assigning different values to the per-
    sonal property awarded.
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    d. Separate Valuation of
    Shipping Containers
    The district court separately valued the shipping containers
    used by Sark Tile and awarded them to Mark as personal prop-
    erty. However, the shipping containers were already accounted
    for in the referee’s valuation of Sark Tile. Because the ref-
    eree’s valuation of Sark Tile was not against the clear weight
    of the evidence, the district court erred in separately valuing
    the shipping containers.
    e. Summary
    We reverse the Court of Appeals’ decision to the extent
    that it is inconsistent with this opinion. Specifically, we find
    that the district court did not err in its award of the West O
    Development/Dollar General building to Sonia as nonmari-
    tal property, in its determination that Sonia was entitled to
    a credit of $220,300 against the value of the marital home
    in recognition of the monetary gift from her father, or in its
    valuation of Lamp & Lighting of Lincoln. We agree with
    the Court of Appeals that the district court abused its discre-
    tion by substituting its valuations of Sark Tile and the per-
    sonal property awarded for those of the referee and in sepa-
    rately valuing the shipping containers as personal property.
    Accordingly, we modify the district court’s marital property
    distribution and decrease Sonia’s share of the marital estate
    by $14,025 (the difference between the court’s value for
    the personal property awarded and the referee’s value) and
    decrease Mark’s share by $142,174 (the difference between
    the court’s values for Sark Tile, the shipping containers, and
    the personal property awarded and the referee’s values for
    the same).
    (ii) Child Custody
    The referee found that joint legal custody of all three of
    the parties’ minor children was in their best interests. It rec-
    ommended a split physical custody arrangement, with Mark
    having primary physical custody of the parties’ son and Sonia
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    having primary physical custody of the parties’ two daughters.
    Based upon the recommendations of a counselor, the proposed
    parenting plan did not provide a parenting schedule for the
    two oldest children. Parenting time with Mark for the youngest
    child was scheduled on alternating weekends, with one over-
    night on the alternating weeks.
    The district court found that a split and joint custody
    arrangement with modifications to the proposed parenting plan
    designed to reduce potential conflicts was in the best interests
    of the children. In its decree, the court ordered that Sonia have
    permanent legal and physical care, custody, and control of the
    parties’ two daughters, while Mark have permanent legal and
    physical care, custody, and control of the parties’ son with
    each “subject to the rights of parenting time for the noncus-
    todial parent as set forth in the parenting plan.” However, the
    court-ordered parenting plan provided that the parties would
    share joint legal custody of all three children, with Mark hav-
    ing primary physical custody of the parties’ son, Sonia having
    primary physical custody of the parties’ oldest daughter, and
    shared joint physical custody of the parties’ youngest daughter.
    Like the proposed parenting plan, the court-ordered parenting
    plan did not provide a parenting schedule for the two oldest
    children. It did provide a joint physical custody arrangement
    for the youngest child with Mark and Sonia having equal par-
    enting time on alternating weeks.
    The district court did not abuse its discretion in modifying
    the proposed parenting plan, because it had an independent
    responsibility to determine custody and parenting time accord-
    ing to the children’s best interests.41 And, it provided written
    findings of why the modifications to reduce potential con-
    flicts were in the children’s best interests. Therefore, only two
    issues remain.
    [11] First, the parties agreed on appeal that the decree’s lan-
    guage concerning physical custody of the youngest child was
    41
    See supra note 31 and accompanying text.
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    inconsistent with that in the parenting plan. In our review, we
    find that at times, the court characterizes the custody arrange-
    ment as “split and joint” and at other times, it uses language
    consistent with sole custody arrangements. 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.42
    Our statutes define joint physical custody as “mutual author-
    ity 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.”43 Here, the parents’ custody was awarded subject to the
    parenting time in the parenting plan. That plan provided that
    the youngest child will have “parenting time with her Father
    and Mother on alternating weeks, commencing on Friday after
    school until the following Friday after school.” Summer par-
    enting time is equally divided, with each parent having parent-
    ing time for exactly one half of the summer break. This meets
    the statutory definition of joint physical custody.
    Second, Sonia alleged that the district court erred in allo-
    cating parenting time over the Christmas holiday. The court
    ordered “[e]very year the parent who does not have parenting
    time on Christmas Day as a result of the weekly rotation . . .
    shall have parenting time beginning on December 24 at noon
    until December 24 at 11:30 p.m.” In light of the specific find-
    ings of the animosity between the parents and the difficulties
    of past parenting time exchanges, we do not find that the dis-
    trict court abused its discretion in ordering a default holiday
    schedule that minimizes communication between the parties
    and preserves the child’s typical schedule.
    Ultimately, the labels make little difference. The provi-
    sions of the decree adequately set forth each party’s rights
    and responsibilities.
    42
    Elsome v. Elsome, 
    257 Neb. 889
    , 
    601 N.W.2d 537
     (1999).
    43
    See § 43-2922(12).
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    (iii) Child Support, Private School
    Tuition, and Alimony
    The district court made findings and conclusions concerning
    child support, payment of the children’s private school tuition,
    and alimony which differed from those in the referee’s report.
    However, because the referee’s findings and recommendations
    on these issues are governed by the child support referee stat-
    utes, the district court was free to accept or reject any or all
    of the referee’s findings and recommendations.44 Our review
    is limited to whether the district court abused its discretion in
    the child support, private school tuition, and alimony ordered.
    Finding none, we affirm the district court’s decree as it relates
    to these issues.
    2. Acceptance of Benefits
    Marks assigns that the Court of Appeals erred in applying
    the acceptance of the benefits doctrine to find that he waived
    his right to appeal the award of three commercial properties
    to Sonia.
    (a) Additional Facts
    Sonia was awarded three commercial properties in the
    district court’s decree that the referee had recommended be
    awarded to Mark: “Mini Storage,” the West O Development/
    Dollar General building, and 901 Sun Valley. Before filing an
    appeal, Mark moved to determine a supersedeas bond. The
    district court entered an order setting the supersedeas bond at
    $600,000 and providing that Mark would not be required to
    transfer any ownership interest he may have in the real estate
    awarded to Sonia during the pendency of any appeal if he filed
    the bond. However, there is nothing in the record before us or
    in the court’s trial docket entry that shows Mark ever filed a
    supersedeas bond.
    After filing his appeal, Mark executed quitclaim deeds con-
    veying his interest in three commercial properties to Sonia,
    44
    See § 43-1613.
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    refinanced loans, utilized the proceeds of rent and receipts
    from businesses awarded to him, and created a new corpora-
    tion to hold title to properties awarded to him under the decree.
    Sonia then sold one of the commercial properties awarded to
    her in an arm’s-length sale to a third party.
    The Court of Appeals found that Mark had waived his
    right to appeal the award of the three commercial prop-
    erties to Sonia, because his voluntary conveyance of the
    properties evidenced an intent to be bound by the decree. It
    applied the exception to the doctrine outlined in Kassebaum v.
    Kassebaum45 to find that Mark had not waived his right with
    regard to the other issues on appeal.
    (b) Standard of Review
    [12,13] Whether a party waived his or her right to appellate
    review is a question of law.46 When reviewing questions of
    law, an appellate court resolves the questions independently of
    the lower court’s conclusions.47
    (c) Analysis
    Mark argues that executing the quitclaim deeds was not an
    acceptance of a benefit, but, rather, was an “involuntary accept­
    ance of a detriment.”48 We agree and conclude that the accept­
    ance of the benefits doctrine did not apply in this instance,
    because Sonia—not Mark—accepted the benefits in that trans-
    action. However, we find that Mark is nonetheless equitably
    estopped from challenging the award of Mini Storage.
    45
    Kassebaum v. Kassebaum, 
    178 Neb. 812
    , 815, 
    135 N.W.2d 704
    , 706
    (1965) (“‘[i]f the outcome of the appeal could have no effect on the
    appellant’s right to the benefit accepted, its acceptance does not preclude
    the appeal’”) (quoting 4 Am. Jur. 2d Appeal and Error § 253 (1962)).
    Accord Liming v. Liming, 
    supra note 22
    .
    46
    Liming v. Liming, 
    supra note 22
    .
    47
    Frohberg Elec. Co. v. Grossenburg Implement, 
    297 Neb. 356
    , 
    900 N.W.2d 32
     (2017).
    48
    Supplemental brief for appellant on petition for further review at 13.
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    (i) Mini Storage
    [14] The doctrine of equitable estoppel is applied to trans-
    actions in which it is found that it would be unconscionable
    to permit a person to maintain a position inconsistent with
    one in which he or she has acquiesced or of which he or
    she has accepted any benefit.49 Mark had the opportunity to
    supersede the divorce decree and elected not to file a super-
    sedeas bond. He refinanced loans such that the three commer-
    cial properties were unencumbered by his debt and executed
    quitclaim deeds on the properties in favor of Sonia. And, at
    least with regard to Mini Storage, Sonia relied on Mark’s
    actions and exercised her ownership right to sell the property
    to a third party. That property cannot now be recovered on
    appeal. Therefore, Mark waived his right to challenge Sonia’s
    ownership of Mini Storage.
    (ii) West O Development/
    Dollar General Building
    and 901 Sun Valley
    Equitable estoppel does not apply to Mark’s assignment of
    error concerning West O Development/Dollar General build-
    ing and 901 Sun Valley, because Sonia did not detrimentally
    rely on Mark’s actions. But, Mark does not identify how the
    award of those properties to Sonia constituted an abuse of
    discretion—his argument is limited to the court’s “failing to
    review the Referee’s Report.”50 As explained above, the dis-
    trict court owed deference only to the referee’s factual find-
    ings and could reach its own determinations on what to order
    in its decree.
    Because we find no abuse of discretion in the court’s award
    of the two commercial properties to Sonia, we affirm that part
    of the district court’s decree.
    49
    Fitzgerald v. Community Redevelopment Corp., 
    283 Neb. 428
    , 
    811 N.W.2d 178
     (2012).
    50
    Brief for appellant at 30.
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    (iii) Other Assignments
    of Error on Appeal
    In applying the exception to the acceptance of the ben-
    efits doctrine to Mark’s other assignments of error, the Court
    of Appeals reviewed each assignment to determine whether
    the outcome of the appeal could affect his acceptance of the
    related benefits. Without concluding whether this was the
    correct analysis, we find that another exception to the doc-
    trine applied.
    [15] A spouse who accepts the benefits of a divorce judg-
    ment does not waive the right to appellate review under cir-
    cumstances where the spouse’s right to the benefits accepted
    is conceded by the other spouse, the spouse was entitled as
    a matter of right to the benefits accepted such that the out-
    come of the appeal could have no effect on the right to those
    benefits, or the benefits accepted are pursuant to a severable
    award which will not be subject to appellate review.51 Sonia
    did not challenge Mark’s right to the benefits he accepted
    either at trial or on appeal. Because Mark accepted only those
    benefits which Sonia conceded his right to, Mark did not
    waive his right to appellate review of his assignments of error
    discussed above.
    3. Contempt Orders
    (a) Standard of Review
    [16] In a civil contempt proceeding where a party seeks
    remedial relief for an alleged violation of a court order, an
    appellate court employs a three-part standard of review in
    which (1) the trial court’s resolution of issues of law is
    reviewed de novo, (2) the trial court’s factual findings are
    reviewed for clear error, and (3) the trial court’s determinations
    of whether a party is in contempt and of the sanction to be
    imposed is reviewed for abuse of discretion.52
    51
    Liming v. Liming, 
    supra note 22
    .
    52
    Martin v. Martin, 
    294 Neb. 106
    , 
    881 N.W.2d 174
     (2016).
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    (b) Analysis
    (i) Mark’s Appeal
    Mark argues that (1) the district court inappropriately modi-
    fied its decree of dissolution while the appeal of the decree was
    pending when it ordered Sonia to pay restitution for her viola-
    tion of the decree, (2) the restitution was insufficient, and (3)
    the court abused its discretion when it refused to permit him
    to offer evidence or rebut Sonia’s evidence in her motion for
    contempt. However, Mark did not appeal from the order find-
    ing him in contempt and did not make an offer of proof for the
    two rebuttal witnesses he was not allowed to call. Therefore,
    we find that Mark failed to preserve his third argument for
    appeal and we address only his first two.
    [17] Through its inherent powers of contempt, a court may
    order restitution for damages incurred as a result of failure to
    comply with a past order.53 In ordering Sonia to compensate
    Mark for the personal property she did not turn over to him, the
    district court did not modify the district court decree. Instead,
    it ordered restitution for the loss of the personal property to
    which Mark was entitled. This was an appropriate remedy for
    a finding of contempt.
    Mark further maintains that restitution was inadequate to
    compensate him for his loss and requests that the issue be
    remanded for a recalculation of the items Sonia did not turn
    over. Though the district court did not itemize its accounting,
    it is apparent that it ordered restitution in the amount that the
    missing personal property was initially valued when set over
    to Mark in the decree. The valuation was not challenged then
    and it cannot be challenged now on appeal. Accordingly, we
    find no merit to Mark’s arguments on appeal.
    (ii) Sonia’s Cross-Appeal
    Sonia cross-appealed from the order finding Mark in con-
    tempt and argues that the district court abused its discretion
    53
    Sickler v. Sickler, 
    293 Neb. 521
    , 
    878 N.W.2d 549
     (2016).
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    when it failed to find Mark in contempt for his unauthorized
    entry into her residence and commercial building and the
    removal and destruction of property on the premises.
    [18] Civil contempt proceedings are instituted to preserve
    and enforce the rights of private parties to a suit when a party
    fails to comply with a court order made for the benefit of the
    opposing party.54 They are not instituted to provide relief for
    other wrongdoings by a private party where other relief is
    available by statute. The district court’s jurisdiction over the
    decree did not preclude Sonia from seeking separate relief in
    tort for trespass and conversion. Therefore, it did not err in
    denying the same relief under the guise of a contempt order.
    V. CONCLUSION
    For the reasons stated above, we affirm in part, and in part
    reverse and remand case No. S-16-054 with directions that the
    district court is to divide the marital estate in accordance with
    this opinion. We affirm the orders of contempt in case No.
    S-16-793 in all respects.
    Judgment in No. S-16-054 affirmed
    in part, and in part reversed and
    remanded with directions.
    Judgment in No. S-16-793 affirmed.
    K elch, J., not participating in the decision.
    Wright and Stacy, JJ., not participating.
    54
    
    Id.