Dooling v. Dooling , 303 Neb. 494 ( 2019 )


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    07/26/2019 09:06 AM CDT
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    DOOLING v. DOOLING
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    303 Neb. 494
    K ristina Michelle Dooling, appellee and
    cross-appellant, v. Shawn A llen Dooling,
    appellant and cross-appellee.
    ___ N.W.2d ___
    Filed July 5, 2019.     No. S-18-191.
    1. Divorce: Child Custody: Child Support: Property Division: Alimony:
    Attorney Fees: Appeal and Error. In a marital dissolution action, an
    appellate court reviews the case de novo on the record to determine
    whether there has been an abuse of discretion by the trial judge. This
    standard of review applies to the trial court’s determinations regarding
    custody, child support, division of property, alimony, and attorney fees.
    2. Evidence: Appeal and Error. In a review de novo on the record, an
    appellate court is required to make independent factual determina-
    tions based upon the record, and the court reaches its own independent
    conclusions with respect to the matters at issue. When evidence is in
    conflict, the appellate court considers and may give weight to the fact
    that the trial court heard and observed the witnesses and accepted one
    version of the facts rather than another.
    3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    4. Child Support: Rules of the Supreme Court. In general, child sup-
    port payments should be set according to the Nebraska Child Support
    Guidelines.
    5. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
    2016), the equitable division of property is a three-step process. The
    first step is to classify the parties’ property as marital or nonmarital, set-
    ting aside the nonmarital property to the party who brought that property
    to the marriage. The second step is to value the marital assets and mari-
    tal liabilities of the parties. The third step is to calculate and divide the
    net marital estate between the parties in accordance with the principles
    contained in § 42-365.
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    6. ____: ____. The ultimate test in determining the appropriateness of the
    division of property is fairness and reasonableness as determined by the
    facts of each case.
    7. Property Division: Proof. The burden of proof rests with the party
    claiming that property is nonmarital.
    8. Property Division: Appeal and Error. As a general principle, the date
    upon which a marital estate is valued should be rationally related to the
    property composing the marital estate. The date of valuation is reviewed
    for an abuse of the trial court’s discretion.
    9. Property Division. The marital estate includes property accumulated
    and acquired during the marriage through the joint efforts of the parties.
    10. Property Division: Wages: Equity. To the extent that employment
    benefits such as unused sick time, vacation time, and compensatory
    time have been earned during the marriage, they constitute deferred
    compensation benefits under Neb. Rev. Stat. § 42-366(8) (Reissue
    2016) and are considered part of the marital estate subject to equi-
    table division.
    11. Property Division. As a general rule, a spouse should be awarded one-
    third to one-half of the marital estate, the polestar being fairness and
    reasonableness as determined by the facts of each case.
    12. Divorce: Property Division: Alimony. In dividing property and consid-
    ering alimony upon a dissolution of marriage, a court should consider
    four factors: (1) the circumstances of the parties, (2) the duration of the
    marriage, (3) the history of contributions to the marriage, and (4) the
    ability of the supported party to engage in gainful employment without
    interfering with the interests of any minor children in the custody of
    each party.
    13. Divorce: Property Division. In addition to the specific criteria listed
    in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the
    income and earning capacity of each party and the general equities of
    the situation.
    14. Alimony. The purpose of alimony is to provide for the continued main-
    tenance or support of one party by the other when the relative economic
    circumstances make it appropriate.
    15. Alimony: Appeal and Error. In reviewing an alimony award, an appel-
    late court does not determine whether it would have awarded the same
    amount of alimony as did the trial court, but whether the trial court’s
    award is untenable such as to deprive a party of a substantial right or
    just result. The ultimate criterion is one of reasonableness.
    16. Modification of Decree: Divorce: Child Custody. If trial evidence
    establishes a joint physical custody arrangement, courts will so construe
    it, regardless of how prior decrees or court orders have characterized
    the arrangement.
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    17. Child Custody: Appeal and Error. Child custody determinations are
    matters initially entrusted to the discretion of the trial court, and
    although reviewed de novo on the record, the trial court’s determination
    will normally be affirmed absent an abuse of discretion.
    18. ____: ____. In child custody cases, where the credible evidence is in
    conflict on a material issue of fact, the appellate court considers, and
    may give weight to, the fact that the trial judge heard and observed the
    witnesses and accepted one version of the facts rather than another.
    Appeal from the District Court for Sarpy County: Stefanie
    A. M artinez, Judge. Affirmed in part, affirmed in part as
    modified, and in part reversed and remanded with directions.
    Christopher Perrone, of Perrone Law, for appellant.
    Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for
    appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Shawn Allen Dooling appeals from a decree of dissolution,
    assigning errors related to the issues of child support, division
    of the marital estate, and alimony. Kristina Michelle Dooling
    filed a cross-appeal which concerns the issues of child support,
    division of the marital estate, and the award of joint physical
    custody. We find error in the court’s child support calculation
    and its division of certain marital assets and determine the par-
    ties’ remaining arguments to be without merit. Therefore, we
    affirm in part, affirm in part as modified, and in part reverse
    and remand with directions.
    I. BACKGROUND
    Shawn and Kristina were married in May 2001 and divorced
    in January 2018. Three children were born of the marriage.
    During the marriage, Shawn was employed as a police officer
    for the city of La Vista, Nebraska; Kristina worked part time
    as a paraprofessional at a children’s school. When the parties
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    separated in July 2014, Shawn moved out of the family resi-
    dence on South River Rock Drive in Papillion, Nebraska. The
    parties maintained a joint checking account and paid for family
    expenses from the account. Throughout their separation, the
    parties followed a shared parenting time schedule.
    In July 2015, Kristina filed a complaint for dissolution of
    marriage in the district court for Sarpy County which requested
    “the temporary and permanent care, physical custody and
    control of the minor [children].” Shawn filed an answer and
    counterclaim which requested joint legal and physical custody.
    Pursuant to temporary orders entered in August 2015, the par-
    ties were awarded joint legal custody and Kristina was awarded
    “primary possession” of the children. Shawn was awarded par-
    enting time every Wednesday and every other weekend from
    Friday through Monday. Shawn was ordered to pay monthly
    child support in the amount of $1,412, maintain all parties on
    health insurance, pay 72 percent of daycare if daycare was
    needed, and make the minimum monthly payment of $300 on
    the parties’ Visa credit card. Kristina was awarded exclusive
    possession of the home and was ordered to pay the mortgage,
    taxes, and costs on the home, which totaled $1,642 per month.
    Kristina was ordered to pay the first $480 per year of uninsured
    health costs for the children. The court did not award tempo-
    rary alimony.
    The family home was sold in May 2016, and the court
    ordered that the $20,857.44 in proceeds be held in trust pend-
    ing trial. Trial was held on December 8, 2016, and June 21 and
    23, 2017. The issues tried included custody and parenting time,
    child support, alimony, and division of the parties’ assets and
    debts. The court heard testimony from two La Vista employees,
    Kristina, and Shawn.
    1. Trial
    (a) Evidence of Shawn’s
    Employment Benefits
    The city clerk of La Vista testified regarding Shawn’s
    employment contract and benefits. According to this witness,
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    upon leaving employment, a city employee who has attained
    10 years of service is paid for unused sick leave for the amount
    that exceeds 660 accumulated hours up to the maximum of
    880 hours. The clerk testified that upon leaving employment,
    an employee is awarded 100 percent of compensatory (comp)
    time. The court also heard from La Vista’s human resources
    manager, who stated that comp time is paid out at the end of
    every fiscal year on September 30, up to a maximum of 75
    hours. She also testified that the city matches the police offi-
    cers’ mandatory 7-percent contribution to their pensions. Both
    witnesses testified that city employees are paid for their unused
    vacation time upon leaving employment, up to a maximum of
    220 hours.
    (b) Kristina’s Testimony
    Kristina testified that during the marriage, she worked part
    time when school was in session and earned about $10 or $11
    an hour. In August 2015, Kristina obtained her first full-time
    job where she earns $13.50 an hour. She worked 40 hours a
    week with no 401K and no pension. She testified the parties’
    balance on their Visa credit card account was $17,737.82 as of
    October 2015.
    Before the parties purchased their house on South River
    Rock Drive, they owned a house on South 79th Street in
    La Vista. Kristina asked to be compensated for paying $6,880
    to replace the air conditioner in the South 79th Street house
    in 2010. She claimed she paid for the air conditioner using
    premarital funds kept in a Canadian bank account. Kristina
    testified the account originally held approximately $30,000 in
    Canadian dollars received from a personal injury settlement
    when she was 16 years old. She claimed she transferred $8,000
    out of the Canadian bank account to pay for the air condi-
    tioner. She produced a bank statement from February 2001
    showing a Canadian bank account held by Kristina and her
    father contained $29,580.95 in Canadian dollars and another
    statement from 2015 showing these funds had been depleted.
    On cross-examination, Kristina admitted that Shawn purchased
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    a new air conditioner for the South River Rock Drive residence
    after the parties had separated.
    Kristina acknowledged the parties received a check for
    $20,857.44 in proceeds from the sale of the home on South
    River Rock Drive. The parties received an additional check
    in the amount of $2,848.93 from escrow for excess real estate
    taxes, which they agreed to divide equally. When the home
    was sold, the parties originally agreed to pay their marital
    debt from the sale proceeds, but Kristina later claimed that
    she should receive the majority of the sale proceeds, reasoning
    she was responsible for making house payments, cleaning the
    home, painting interior walls, and selling the home “without a
    realtor.” In particular, she noted that to prepare the house for
    closing, she spent $810 to mudjack the front porch.
    Kristina testified that despite the temporary order giv-
    ing Shawn parenting time every Wednesday and every other
    weekend, Friday through Monday, she allowed Shawn addi-
    tional parenting time. At that time, Shawn was working as a
    detective and as a sniper on the SWAT team and held irregu-
    lar hours. From approximately January to May 2016, Shawn’s
    parenting time ranged between 5 and 11 overnight visits per
    month. In lieu of daycare, Shawn picked up the children and
    took them to school and saw them after school almost every
    day. Kristina requested the court award joint legal custody
    and a parenting plan schedule consistent with the tempo-
    rary order.
    (c) Shawn’s Testimony
    Shawn testified that at the time of trial, he had transferred
    to a road patrol position and that his hourly wage decreased
    from $36.04 to $34.54. He asked that the parenting schedule
    under the temporary order be adjusted to fit his new work
    schedule. He testified he now works 7 days in a 14-day period,
    consisting of workdays on Monday, Tuesday, Friday, Saturday,
    and Sunday during 1 week and Wednesday and Thursday the
    following week. He asked to be awarded parenting time for
    the 7 out of 14 days that he is not working.
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    Shawn testified that during the marriage, Kristina did not
    express a desire to be repaid for premarital money spent for
    family purposes. Shawn stated that he knew Kristina some-
    times received money from her father and that he did not
    know when or how much money was spent from the Canadian
    account. Shawn pointed out that Kristina purchased the air
    conditioner for the prior home in 2010. He asked that the
    court give him credit for making certain postseparation pay-
    ments, including $7,792 on the Visa credit card and about
    $4,000 to pay off a loan for the new air conditioner in the most
    recent home.
    An exhibit introduced into evidence showed that Shawn
    received monthly Veterans Affairs disability payments in the
    amount of $763.36.
    2. Decree
    The court issued tentative written findings in August 2017
    and asked Kristina’s counsel to prepare a decree in conformity
    therewith, after which both parties filed motions for reconsid-
    eration. The court then issued supplemental findings which
    modified the previous findings in several respects. The trial
    judge retired from the bench shortly thereafter, and the case
    was reassigned. Kristina’s trial counsel withdrew, filed an
    attorney lien, and was replaced with new counsel.
    The new judge entered a decree of dissolution on January 8,
    2018. The decree incorporated the prior judge’s tentative and
    supplemental findings and ordered the following:
    • The parties were awarded joint legal custody. Kristina was
    awarded “primary possession” of the children, subject to
    Shawn’s parenting time.
    • The parenting plan awarded Shawn 6 of every 14 days and 4
    additional weeks of summer parenting time for a total of 172
    days of custody of the children.
    • Kristina was not awarded any summer parenting time other
    than her regular parenting time.
    • Shawn was ordered to maintain health insurance for the
    children; the parties were to equally share the costs of the
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    children’s uninsured health expenses; Shawn was ordered to
    maintain Kristina’s health insurance for 6 months.
    • Shawn was ordered to pay $882 in monthly child support.
    • Shawn was ordered to pay monthly alimony of $500 for a
    period of 60 months.
    • The court valued the marital assets as of August 1, 2015. The
    decree sometimes referred to this date as the date of separa-
    tion, even though the parties separated in July 2014.
    • The court awarded Kristina $7,690.80 of the house proceeds
    “for monies expended to make the house marketable” and
    evenly divided the balance of the proceeds.
    • The court equally divided Shawn’s retirement, valued at
    $108,468.41, pursuant to a qualified domestic relations order.
    • The court equally divided Shawn’s vacation and comp time
    and ordered Shawn to pay Kristina $5,754.69 within 90 days.
    The court did not award Kristina any of Shawn’s sick time.
    • The court ordered Shawn to pay the balance on the parties’
    Visa credit card and ordered Kristina to pay a $637.73 medi-
    cal debt.
    • Shawn received a tax exemption for two minor children;
    Kristina received a tax exemption for one minor child.
    On January 17, 2018, Kristina filed a motion to alter or
    amend the decree in several respects. The court overruled the
    motion on January 30. Shawn timely appealed, and Kristina
    cross-appealed. We moved the appeal to our docket pursuant to
    our statutory authority to regulate the caseloads of the appellate
    courts of this State.
    II. ASSIGNMENTS OF ERROR
    Shawn assigns, summarized and restated, that the court erred
    in (1) calculating Shawn’s child support obligation by (a) mis-
    calculating Shawn’s income, (b) failing to include insurance
    premium costs, (c) not awarding Shawn credit for retirement
    contributions, and (d) not crediting Shawn for the correct
    number of days he was awarded visitation with the children;
    (2) awarding Kristina a larger share of the house proceeds and
    using the house proceeds to pay for the lien filed by Kristina’s
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    attorney; (3) calculating and splitting Shawn’s vacation time
    and comp time and giving Shawn only 90 days to pay Kristina
    her share of these assets; (4) calculating and dividing the par-
    ties’ debts; and (5) awarding alimony.
    On cross-appeal, Kristina assigns, restated, that the court
    erred in (1) ordering joint physical custody, (2) failing to award
    Kristina summer parenting time, (3) failing to include Shawn’s
    disability benefits in the child support calculation, (4) failing to
    allocate the children’s direct expenses and childcare costs, and
    (5) excluding Shawn’s sick time from the marital estate.
    III. STANDARD OF REVIEW
    [1-3] In a marital dissolution action, an appellate court
    reviews the case de novo on the record to determine whether
    there has been an abuse of discretion by the trial judge. This
    standard of review applies to the trial court’s determinations
    regarding custody, child support, division of property, alimony,
    and attorney fees.1 In a review de novo on the record, an
    appellate court is required to make independent factual deter-
    minations based upon the record, and the court reaches its own
    independent conclusions with respect to the matters at issue.2
    However, when evidence is in conflict, the appellate court con-
    siders and may give weight to the fact that the trial court heard
    and observed the witnesses and accepted one version of the
    facts rather than another.3 A judicial abuse of discretion exists
    if the reasons or rulings of a trial judge are clearly untenable,
    unfairly depriving a litigant of a substantial right and denying
    just results in matters submitted for disposition.4
    IV. ANALYSIS
    In this matter, we discuss the issues of child support, divi-
    sion of the marital estate, alimony, and joint physical custody,
    1
    Osantowski v. Osantowski, 
    298 Neb. 339
    , 
    904 N.W.2d 251
     (2017).
    2
    Id.
    3
    Id.
    4
    Id.
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    as well as a number of related concerns raised by the parties.
    For purposes of efficiency, we will address assignments of error
    raised in Shawn’s appeal and Kristina’s cross-appeal together
    where their arguments pertain to the same predominant issue.
    In consideration of both the appeal and cross-appeal, we find it
    appropriate to modify the court’s child support calculation and
    the division of certain marital assets and debts, and we deter-
    mine the remaining arguments to be without merit.
    1. Child Support
    Shawn argues that the court abused its discretion in its
    determination of child support. Shawn asserts that the court did
    not accurately determine his gross taxable income, the health
    insurance premium he pays for the children and himself, and
    his retirement contributions, and did not accurately state the
    number of days that the court awarded him custody of the chil-
    dren. We find no merit to Shawn’s claim regarding his gross
    taxable income, but determine his other arguments regarding
    child support do have merit. We also find merit to Kristina’s
    objections to the court’s findings regarding Shawn’s nontaxable
    income and its allocation of tax dependency exemptions and
    childcare expenses.
    (a) Gross Taxable Income
    [4] In general, child support payments should be set accord-
    ing to the Nebraska Child Support Guidelines.5 In the child
    support worksheets adopted by the court, Shawn’s gross
    monthly taxable income was set at $6,637. Shawn argues this
    figure is not correct, because it reflects his wages at $36.04 per
    hour and he testified that in his new position, he makes $34.54
    per hour. As a result, Shawn argues that his monthly income
    should have been set at $5,987, which he calculated by mul-
    tiplying $34.54 per hour by 40 hours per week for 52 weeks
    per year. Kristina argues that by annualizing Shawn’s income
    based on evidence in the record of a 5-month sample of his
    5
    Hotz v. Hotz, 
    301 Neb. 102
    , 
    917 N.W.2d 467
     (2018).
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    paychecks in 2017, Shawn’s monthly income should have been
    set at $6,643.33.
    Under the child support guidelines, all income should be
    annualized and divided by 12.6 Kristina’s figure differs from
    the amount set by the court by less than 1 percent, which
    was calculated based on evidence in the record consisting of
    a 9-month sample of Shawn’s paychecks in 2016. We find no
    abuse of discretion by the district court in utilizing this evi-
    dence to calculate Shawn’s gross taxable income.
    (b) Tax-Exempt Income
    We agree with the parties that the $763.36 that Shawn
    receives in disability benefits each month should have been
    included as nontaxable income for purposes of the child sup-
    port calculation. Under § 4-204, total monthly income for
    purposes of child support is income of both parties derived
    from all sources. Income for the purpose of child support is not
    necessarily synonymous with taxable income.7
    (c) Health Insurance Premium
    Shawn also argues that the court did not use the correct
    amounts for the health insurance premium that he pays for
    himself and the children. The child support guidelines provide
    that the increased cost to the parent for health insurance for
    the children shall be prorated between the parents. The parent
    paying the premium receives a credit against his or her share
    of the monthly support, provided that the parent requesting
    the credit submits proof of the cost of health insurance cover-
    age for the children.8 If not otherwise specified in the support
    order, “health insurance” includes coverage for medical, dental,
    orthodontic, optometric, substance abuse, and mental health
    treatment.9 The court set the health insurance premium Shawn
    6
    Neb. Ct. R. § 4-204 (rev. 2016).
    7
    Gangwish v. Gangwish, 
    267 Neb. 901
    , 
    678 N.W.2d 503
     (2004).
    8
    See Neb. Ct. R. § 4-215(A) (rev. 2011).
    9
    Id.
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    pays for himself at $0 and the amount he pays for the children
    at $63.80. Shawn submitted evidence that his monthly pre-
    mium for his own medical insurance is $63.80 and that he pays
    an additional $8.98 for his dental and vision insurance. Thus,
    the court erred in setting Shawn’s health insurance costs for
    himself at $0 rather than at the figure supported by the record
    of $72.78. We also agree with Shawn that the court erred by
    failing to set the amount that he pays for the children’s health
    insurance coverage at $177.80.
    (d) Retirement
    Next, Shawn contends that the court erred by incorrectly
    determining his monthly retirement contribution. The court set
    Shawn’s retirement contribution at $265.48. The undisputed
    evidence shows that Shawn pays 7 percent in mandatory retire-
    ment contributions each month. Having found that the court
    correctly set Shawn’s gross taxable income at $6,637, based
    on wages he earns working as a police officer, we find that the
    court erred by failing to set Shawn’s monthly retirement con-
    tribution at $464.59.
    (e) Days of Child Custody
    Shawn’s final argument on the issue of child support is that
    the court erred in setting the number of his annual days as a
    custodial parent at 151. The parenting plan incorporated into the
    decree awarded Shawn six overnight visits for every 14 days
    and 4 weeks of summer parenting time. As a result, Shawn has
    28 days of child custody when he is utilizing summer parenting
    time and 144 days during the other 48 weeks of the year, not
    counting holidays, which are evenly divided. Therefore, as the
    parties agree, the court should have set Shawn’s annual days as
    a custodial parent at 172 and Kristina’s at 193.
    (f) Tax Exemptions
    The decree awarded Shawn tax dependency exemptions for
    two of the children and Kristina a tax dependency exemption
    for one child. However, the child support calculation worksheet
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    awards each party equal dependency exemptions. We agree
    with the parties that the child support calculation worksheets
    should be modified to conform to the decree.
    (g) Allocation of Expenses
    In her cross-appeal, Kristina argues that because the court
    calculated child support using worksheet 3, the court erred in
    failing to account for the children’s direct expenses. Neb. Ct.
    R. § 4-212 (rev. 2011) provides that when child support is to
    be calculated using worksheet 3, “all reasonable and neces-
    sary direct expenditures made solely for the child(ren) such
    as clothing and extracurricular activities shall be allocated
    between the parents.” We note that Neb. Rev. Stat. § 42-364.17
    (Reissue 2016) also requires that a decree of dissolution “shall
    incorporate financial arrangements for each party’s responsibil-
    ity for reasonable and necessary medical, dental, and eye care,
    medical reimbursements, day care, extracurricular activity, edu-
    cation, and other extraordinary expenses of the child.”
    We recently held that it is sufficient if the decree and attach-
    ments made the necessary allocations on each of the required
    items.10 Here, however, the record does not show that the court
    allocated the parties’ responsibilities with respect to all of these
    expenses. We therefore remand the cause to the district court
    with directions to specifically address each party’s responsibil-
    ity for each of these statutorily required obligations based on
    the record.
    To summarize our conclusions regarding child support, we
    find the district court erred in setting the amount of Shawn’s
    nontaxable income, health insurance costs for himself and
    the children, retirement contributions, and days as a custodial
    parent, and in its allocation of tax dependency exemptions.
    We further find the court erred in not addressing each party’s
    responsibility for the reasonable and necessary expenses of
    the children based on the record and the expenses set forth in
    10
    Leners v. Leners, 
    302 Neb. 904
    , 
    925 N.W.2d 704
     (2019).
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    § 42-364.17. We reverse the award of child support and remand
    the cause to the district court for a proper calculation of child
    support, utilizing $763.36 for Shawn’s nontaxable income,
    $72.78 for Shawn’s health insurance, $177.80 for Shawn’s pay-
    ment of the children’s health insurance, $464.59 for Shawn’s
    retirement contribution, 172 for Shawn’s days as a custodial
    parent and 193 days for Kristina, and two dependency exemp-
    tions for Shawn and one for Kristina. We also direct the court
    to address the parties’ responsibility for the expenses listed in
    § 42-364.17 and rule § 4-212.
    2. Division of M arital
    Assets and Debts
    (a) House Sale Proceeds
    Shawn asserts that the court erred in its division of the
    proceeds from the parties’ sale of their home. The evidence
    showed that in May 2016, the parties sold their home on South
    River Rock Drive and obtained net proceeds in the amount of
    $20,857.44. Kristina claimed at trial that she should receive the
    greater share of the proceeds and provided documents showing
    that she paid $810 to mudjack the front porch in preparation
    for closing and $6,880 to replace the air conditioner in the
    parties’ previous house on South 79th Street. In its decree, the
    court awarded Kristina $7,690.80 from the $20,857.44 “for
    monies expended to make the house marketable” and evenly
    divided the balance. Based on the record, the court’s award of
    $7,690.80 represents compensation for $810 spent on mudjack-
    ing, $6,880 spent on an air conditioner, and an additional 80
    cents. Shawn does not object to reimbursing Kristina for the
    mudjacking costs, but objects to the remaining $6,880.80 of
    the $7,690.80.
    [5-7] In a dissolution of marriage proceeding, “[i]f the par-
    ties fail to agree upon a property settlement . . . the court shall
    order an equitable division of the marital estate.”11 Under Neb.
    11
    Neb. Rev. Stat. § 42-366(8) (Reissue 2016).
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    Rev. Stat. § 42-365 (Reissue 2016), the equitable division of
    property is a three-step process.12 The first step is to classify
    the parties’ property as marital or nonmarital, setting aside the
    nonmarital property to the party who brought that property to
    the marriage. The second step is to value the marital assets
    and marital liabilities of the parties. The third step is to cal-
    culate and divide the net marital estate between the parties in
    accordance with the principles contained in § 42-365.13 The
    ultimate test in determining the appropriateness of the division
    of property is fairness and reasonableness as determined by
    the facts of each case.14 Generally, all property accumulated
    and acquired by either spouse during a marriage is part of
    the marital estate.15 Exceptions include property that a spouse
    acquired before the marriage, or by gift or inheritance.16 The
    burden of proof rests with the party claiming that property
    is nonmarital.17
    Kristina’s position at trial was that she was entitled to reim-
    bursement for an air conditioner bought for the South 79th
    Street home, because she made the purchase using premarital
    or nonmarital funds. Based on the court’s award to Kristina,
    the court implicitly granted Kristina’s requested relief. Yet, the
    decree specifically stated the award was “for monies expended
    to make the house marketable,” and Shawn persuasively argues
    on appeal that Kristina’s purchase of the air conditioner for the
    South 79th Street home did not make the home on South Rock
    River Drive marketable. Shawn argues the award to Kristina
    was improper, because the court did not conduct an analysis
    of whether Kristina was entitled to reimbursement for any
    12
    Fetherkile v. Fetherkile, 
    299 Neb. 76
    , 
    907 N.W.2d 275
     (2018); Osantowski,
    supra note 1.
    13
    Id.
    14
    Id.
    15
    Osantowski, supra note 1.
    16
    Id.
    17
    Fetherkile, supra note 12; Osantowski, supra note 1.
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    premarital assets. Kristina appears to agree with this point.
    In her brief and at oral argument before this court, Kristina
    abandoned her position that she should be reimbursed for her
    purchase of the air conditioner, and instead attempts to justify
    the award using an alternate, post hoc rationalization. Kristina
    now argues that she is entitled to the greater share of the pro-
    ceeds based on the equity that she built during the 9-month
    period in which she was in sole possession of the home. We
    are not persuaded that this result is justified based on the
    record. Kristina made this same argument to the district court,
    and the court did not accept that argument. Kristina’s argument
    is partially based on reimbursement for real estate taxes paid
    during the operation of the temporary order, yet she already
    voluntarily split the refund for some of these payments with
    Shawn. The temporary order required Kristina to make equity
    contributions because she was awarded sole possession of the
    home. Kristina’s compliance with the temporary order does not
    entitle her to the benefit of an additional $6,880.80 from the
    house proceeds.
    Based on our de novo review of the record, we conclude
    that the court erred in its equitable division of the house
    proceeds and find that a fair and reasonable evaluation of
    the facts of this case requires that the division of the house
    proceeds be modified so that Kristina receives $11,238.72 and
    Shawn receives $9,618.72. We affirm this portion of the decree
    as modified.
    Shawn also argues that the court erred by authorizing a lien
    in the amount of $5,176.28 filed by Kristina’s trial counsel to
    be paid from the family home proceeds. Because the record
    shows that Kristina paid the lien from her share of the pro-
    ceeds, we find this argument to be without merit.
    (b) Employment Benefits
    (i) Valuation Date Reasonable
    Shawn argues that the court erred in ordering him to pay
    Kristina $5,754.69 from his employment benefits for two
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    reasons. First, he claims the court erred by awarding Kristina
    $4,592.40 in unused vacation time and $1,162.29 in comp
    time, because these figures reflected the value of Shawn’s
    benefits as of September 15, 2015. Shawn argues that the
    court stated it valued his benefits “at the time of separation”
    and that the parties separated in July 2014. Therefore, Shawn
    contends that the court abused its discretion in awarding
    Kristina any funds from vacation time or comp time, because
    there was no evidence regarding the value of these benefits as
    of July 2014.
    Second, Shawn argues that the court abused its discretion
    in ordering him to pay Kristina the $5,754.69 within 90 days.
    He argues that his employment benefits are not liquid assets
    and that because he is already obligated to pay child support,
    alimony, and other debts, he will be unable to comply with
    the court’s decree. Kristina argues in her cross-appeal that
    the court erred by failing to award her an equal portion of the
    value of Shawn’s unused sick time.
    [8] As a general principle, the date upon which a marital
    estate is valued should be rationally related to the prop-
    erty composing the marital estate.18 The date of valuation is
    reviewed for an abuse of the trial court’s discretion.19
    As discussed in the background section, the court valued
    the marital assets as of August 1, 2015, but the decree at times
    referred to the valuation date as the date of separation, which
    occurred in July 2014. Even so, the record indicates the court
    chose August 1, 2015, as the valuation date, which reflects the
    month in which the court entered temporary orders.
    We agree with Kristina that the evidence supports using
    August 1, 2015, as the valuation date, because even though
    the parties physically separated in July 2014, they maintained
    their financial lives as a married couple by using a joint
    checking account to pay for family expenses and did not
    18
    Osantowski, supra note 1.
    19
    Id.
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    separate financially until the court entered temporary orders.
    Based on the record, the valuation date applied by the district
    court was rationally related to the property composing the
    marital estate.
    The city human resources manager testified regarding the
    value of Shawn’s employment benefits and stated that the sup-
    porting documents were calculated on a quarterly basis. The
    court used the third quarter report as evidence of the value
    of the assets on August 1, 2015. Shawn argues that the court
    could have reached a more accurate figure by using the second
    quarter report, but that report was not offered into evidence,
    and there was no similar evidence offered to prove the value
    of the employment benefits as of July 2014. Even Shawn
    stated in his testimony that the valuation date should be July
    2015, the month Kristina filed for divorce. We find no abuse
    of discretion in the court’s use of August 1, 2015, as the valu-
    ation date.
    (ii) Deferred Compensation Benefits
    [9] We have not previously addressed whether employee
    benefits such as accrued sick leave, vacation time, and comp
    time are considered marital property subject to equitable dis-
    tribution in a dissolution action. We have long held that the
    marital estate includes property accumulated and acquired
    during the marriage through the joint efforts of the parties.20
    Section 42-366(8) states that for purposes of the division
    of property in a dissolution of marriage action, “[t]he court
    shall include as part of the marital estate . . . any pension
    plans, retirement plans, annuities, and other deferred com-
    pensation benefits owned by either party, whether vested
    or not vested.”21 (Emphasis supplied.) Generally, deferred
    20
    Tyma v. Tyma, 
    263 Neb. 873
    , 
    644 N.W.2d 139
     (2002).
    21
    See, Hosack v. Hosack, 
    267 Neb. 934
    , 
    678 N.W.2d 746
     (2004); Longo
    v. Longo, 
    266 Neb. 171
    , 
    663 N.W.2d 604
     (2003); Tyma, supra note
    20; Kullbom v. Kullbom, 
    209 Neb. 145
    , 
    306 N.W.2d 844
     (1981) (cases
    discussing deferred compensation benefits).
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    c­ ompensation is defined as compensation which is earned in
    exchange for services rendered.22 We have held that unvested
    employee stock options and stock retention shares qualify
    as “deferred compensation benefits” within the meaning of
    § 42-366(8).23 Conversely, we have found that health insur-
    ance is not deferred compensation, because insurance is based
    upon the payment of premiums rather than the rendering
    of services.24
    In Wiech v. Wiech,25 the Nebraska Court of Appeals deter-
    mined that unused sick, vacation, and comp time could be con-
    sidered part of the marital estate subject to equitable distribu-
    tion as long as the benefits were acquired during the marriage.
    Other jurisdictions have similarly held that employment ben-
    efits such as these earned during the marriage are considered
    marital property.26
    [10] As a result, we hold that to the extent employment ben-
    efits such as unused sick time, vacation time, and comp time
    have been earned during the marriage, they constitute deferred
    compensation benefits under § 42-366(8) and are considered
    part of the marital estate subject to equitable division.
    (iii) Payment Within 90 Days
    We turn to Shawn’s argument that the court erred by order-
    ing him to pay Kristina her share of the employment benefits
    within 90 days. The decree valued Kristina’s share of the
    22
    Livingston v. Metropolitan Util. Dist., 
    269 Neb. 301
    , 
    692 N.W.2d 475
    (2005). See Halpin v. Nebraska State Patrolmen’s Retirement System, 
    211 Neb. 892
    , 
    320 N.W.2d 910
     (1982).
    23
    Davidson v. Davidson, 
    254 Neb. 656
    , 
    578 N.W.2d 848
     (1998).
    24
    Christiansen v. County of Douglas, 
    288 Neb. 564
    , 
    849 N.W.2d 493
     (2014).
    25
    Wiech v. Wiech, 
    23 Neb. Ct. App. 370
    , 
    871 N.W.2d 570
     (2015).
    26
    Mann v. Mann, 
    778 P.2d 590
     (Alaska 1989); In re Marriage of Moore, 
    226 Cal. App. 4th 92
    , 
    171 Cal. Rptr. 3d 762
     (2014); In re Marriage of Cardona
    and Castro, 
    316 P.3d 626
     (Colo. 2014); Grund v. Grund, 
    151 Misc. 2d 852
    , 
    573 N.Y.S.2d 840
     (1991); Marriage of Williams, 
    84 Wash. App. 263
    ,
    
    927 P.2d 679
     (1996).
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    vacation time at $4,592.40 and her share of the comp time at
    $1,162.29, for a total of $5,754.69. Shawn argues that he has
    access to his employment benefits only upon retirement and
    presently lacks the funds to be able comply with the court-
    ordered payment.
    According to the collective bargaining agreement govern-
    ing Shawn’s employment, Shawn is correct that he will not
    receive payment for accrued vacation time until he leaves
    his employment. As for comp time, the city human resources
    manager testified, and the agreement confirms, that comp
    time is paid out at the end of every fiscal year, September
    30. However, the agreement contains an additional provision
    which permits an employee to request to be paid for accrued
    comp time at any time, and payment will be made by the
    next payday. The record therefore indicates that Shawn will
    have available to him $9,618.72 from the house proceeds and
    $1,162.29 from his share of the comp time to pay Kristina
    $5,754.69 within 90 days. We find no abuse of discretion by
    the district court.
    (iv) Sick Time
    Kristina argues that the court erred by failing to award her
    half of the value of Shawn’s accrued sick time. As discussed,
    the standard governing the division of marital property is fair-
    ness and reasonableness as determined by the facts of each
    case. Based on the evidence relied upon by the district court,
    Shawn had accrued 25.97 hours of compensable sick time,
    and based on this fact, the court could have awarded Kristina
    $467.98 for sick time.
    [11] As a general rule, a spouse should be awarded one-
    third to one-half of the marital estate, the polestar being fair-
    ness and reasonableness as determined by the facts of each
    case.27 As we will next show in our analysis of the court’s
    division of the total marital estate, the $467.98 that Kristina
    27
    Osantowski, supra note 1.
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    is requesting represents a small portion of the marital estate
    and declining to award Kristina this amount does not alter the
    fairness or reasonableness of the division of the total marital
    estate. We cannot conclude that the court abused its discretion
    in declining to award Kristina her share of Shawn’s unused
    sick time.
    (v) Division of Total Marital Estate
    Shawn objects to the court’s division of the parties’ debts
    and assets. Under the decree, Shawn was ordered to pay
    the parties’ credit card debt of $17,737.82 and Kristina was
    ordered to pay $637.73 for the children’s unpaid medical
    costs. Shawn argues that the court failed to list as a debt in
    the decree a credit union loan. We agree that Shawn produced
    evidence that he took out this loan to purchase an air condi-
    tioner for the home on South River Rock Drive and that this
    loan should have been listed as a marital debt. The evidence
    indicates that as of August 1, 2015, the balance of the loan was
    $3,545.37. We find that Shawn is responsible for paying this
    amount. Having included this loan as part of the marital estate,
    the following table represents the division of the parties’ total
    marital estate.
    Assets                    Amount         Shawn         Kristina
    House Proceeds          $ 20,857.44    $ 9,618.72     $11,238.72
    Shawn’s Retirement       108,468.41     54,234.21      54,234.20
    Shawn’s Vacation/
    Comp Time               11,509.37      5,754.69       5,754.69
    TOTAL               $140,835.22    $69,607.62     $71,227.61
    Debts
    Credit Card             $ 17,737.82    $17,737.82     $     0.00
    Medical Bills                637.73           0.00        637.73
    Loan                       3,545.37      3,545.37           0.00
    TOTAL               $ 21,920.92    $21,283.19     $   637.73
    Marital Estate          $118,914.30    $48,324.43     $70,589.88
    As noted, a district court generally has discretion to award
    each spouse between one-third and one-half of the marital
    estate. Having factored in our modifications to the district
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    court’s division of the marital estate, the calculations above
    show that Shawn has been awarded approximately 41 percent
    of the marital estate. Following our de novo review of the
    record, we find no abuse of discretion in the district court’s
    division of the marital estate and affirm this portion of the
    decree as modified.
    3. A limony
    [12,13] Shawn objects to the alimony award of $500 per
    month for 60 months that he was ordered to pay Kristina. In
    dividing property and considering alimony upon a dissolution
    of marriage, a court should consider four factors: (1) the cir-
    cumstances of the parties, (2) the duration of the marriage, (3)
    the history of contributions to the marriage, and (4) the ability
    of the supported party to engage in gainful employment with-
    out interfering with the interests of any minor children in the
    custody of each party.28 In addition, a court should consider
    the income and earning capacity of each party and the general
    equities of the situation.29 Alimony is not a tool to equalize the
    parties’ income, but a disparity of income or potential income
    might partially justify an alimony award.30
    The parties were married in May 2001, and Kristina filed
    for divorce in July 2015. The evidence indicates a significant
    disparity in the earning capacity of the parties. Kristina testi-
    fied that she has no formal educational or work background.
    During the marriage, Kristina was a stay-at-home mother and
    she began working part time once the children entered elemen-
    tary school. She obtained her first full-time job in August 2015
    and earned $13.50 an hour, with no opportunities for overtime
    and no 401K or pension. By comparison, Shawn is a career
    police officer who has earned approximately $80,000 per year,
    with a pension and retirement benefits and opportunities to
    28
    Wiedel v. Wiedel, 
    300 Neb. 13
    , 
    911 N.W.2d 582
     (2018); § 42-365.
    29
    Wiedel, supra note 28.
    30
    Id.
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    be compensated for unused sick, vacation, and comp time.
    Additionally, the record indicates that without alimony, Kristina
    is unable to pay her monthly expenses.
    [14,15] The purpose of alimony is to provide for the con-
    tinued maintenance or support of one party by the other when
    the relative economic circumstances make it appropriate.31 In
    reviewing an alimony award, an appellate court does not deter-
    mine whether it would have awarded the same amount of ali-
    mony as did the trial court, but whether the trial court’s award
    is untenable such as to deprive a party of a substantial right or
    just result.32 The ultimate criterion is one of reasonableness.33
    An appellate court is not inclined to disturb the trial court’s
    award of alimony unless it is patently unfair on the record.34 As
    to the award of alimony here, our de novo review shows that
    the district court did not abuse its discretion.
    4. Custody
    Kristina claims that the district court abused its discretion
    by awarding “de facto joint physical custody” based on her
    assertions that neither party requested joint physical custody,
    that the district court failed to specifically find that joint physi-
    cal custody is in the best interests of the minor children, and
    that she was denied due process when the court awarded joint
    physical custody following trial.35
    In an action for dissolution of marriage involving the
    custody of minor children, the court is required to make
    a determination of legal and physical custody based upon
    the children’s best interests.36 Such determinations shall be
    made by incorporation into the decree of a parenting plan,
    31
    Id.
    32
    Id.
    33
    Id.
    34
    Id.
    35
    See Zahl v. Zahl, 
    273 Neb. 1043
    , 
    736 N.W.2d 365
     (2007).
    36
    Neb. Rev. Stat. § 42-364(1)(b) (Cum. Supp. 2018).
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    developed either by the parties as approved by the court or
    by the court after an evidentiary hearing.37 The minor children
    may be placed with both parents on a joint physical custody
    basis where (1) both parents agree or (2) the court specifically
    finds that joint physical custody is in the best interests of the
    minor children.38
    Nebraska’s Parenting Act 39 defines joint physical custody as
    “mutual authority and responsibility of the parents regarding
    the child’s place of residence and the exertion of continuous
    blocks of parenting time by both parents over the child for
    significant periods of time.”40 Here, the court awarded Kristina
    “primary possession” of the children and set forth the parenting
    time in a parenting plan. While “primary possession” is not a
    statutorily defined term, we have indicated in our opinions that
    the label that a court uses is not controlling and that the clas-
    sification of a custody arrangement is ultimately dictated by
    parenting time.41
    [16] The parenting plan here awarded Shawn parenting time
    with the children every Tuesday and Thursday, every other
    Friday and Saturday, equally divided holidays, and 4 weeks
    of summer parenting time consisting of two 2-week periods.
    Under this parenting schedule, Kristina has custody of the
    children 193 days and Shawn has custody of the children 172
    days. We find that this custody arrangement falls within the
    statutory definition of joint physical custody, as distinguished
    from sole physical custody with liberal parenting time.42 If
    37
    See id.
    38
    § 42-364(3).
    39
    Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016).
    40
    § 43-2922(12).
    41
    See, e.g., Leners, supra note 10; Becher v. Becher, 
    299 Neb. 206
    , 
    908 N.W.2d 12
     (2018).
    42
    See, Heesacker v. Heesacker, 
    262 Neb. 179
    , 
    629 N.W.2d 558
     (2001);
    Elsome v. Elsome, 
    257 Neb. 889
    , 
    601 N.W.2d 537
     (1999); Hill v. Hill, 
    20 Neb. Ct. App. 528
    , 
    827 N.W.2d 304
     (2013).
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    trial evidence establishes a joint physical custody arrangement,
    courts will so construe it, regardless of how prior decrees or
    court orders have characterized the arrangement.43
    We also determine that Kristina is incorrect in stating that
    neither party requested joint physical custody and that the court
    did not find that the court-developed custody arrangement was
    in the best interests of the children. Shawn filed an answer and
    counterclaim which requested joint physical custody, and both
    Shawn and Kristina were questioned at trial regarding Shawn’s
    request for a “50/50” schedule. Because Kristina had notice
    that Shawn was seeking joint physical custody, and because
    she had an opportunity to present evidence in opposition to
    Shawn’s proposed custody arrangement, we conclude Kristina
    was afforded procedural due process.
    We further note arguments that Kristina made before the trial
    court which undermine her contention that she was denied due
    process. Kristina’s motion for reconsideration of the court’s
    tentative findings requested that the court use the joint physi-
    cal custody worksheet when calculating child support. In her
    motion for reconsideration following the entry of the decree
    of dissolution, Kristina did not object to the use of the joint
    physical custody worksheet, but, rather, requested additional
    clothing and extracurricular activity expenses premised on the
    court’s use of the joint physical custody worksheet.
    The record also indicates that the court made the necessary
    statutory findings for an award of joint physical custody under
    § 42-364(3). The court awarded “primary possession” of the
    children to Kristina, subject to the parenting time as set forth
    in the parenting plan incorporated into the decree, which the
    court found was in the best interests of the minor children. In
    addition, the decree incorporated the prior judge’s tentative
    and supplemental findings, which found that it is in the best
    interests of the minor children that “primary possession” be
    awarded to Kristina, subject to the parenting plan.
    43
    Becher, supra note 41; Elsome, supra note 42.
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    Kristina’s cross-appeal includes objections to the parenting
    time within the parenting plan. Kristina argues the award of
    joint physical custody is contrary to the court’s determina-
    tion that she be granted “primary possession” of the children.
    Kristina assigned error to the court’s award of 4 weeks of
    summer parenting time to Shawn and argues the parenting
    plan should have remained consistent with the temporary order
    which in effect would have awarded Kristina sole physical cus-
    tody with liberal parenting time to Shawn of 130 days.
    [17,18] Child custody determinations are matters initially
    entrusted to the discretion of the trial court, and although
    reviewed de novo on the record, the trial court’s determination
    will normally be affirmed absent an abuse of discretion.44 In
    child custody cases, where the credible evidence is in conflict
    on a material issue of fact, the appellate court considers, and
    may give weight to, the fact that the trial judge heard and
    observed the witnesses and accepted one version of the facts
    rather than another.45
    The record supports the court’s determination that the award
    of joint physical custody pursuant to the court-developed par-
    enting plan was in the children’s best interests. It was undis-
    puted that each parent was fit and proper and that the best
    interests of the children would be served with the ongoing
    involvement of both Shawn and Kristina. There was no evi-
    dence of significant communication difficulties between the
    parties, and there was evidence that the parties have been
    able to effectively communicate regarding matters affecting
    the children. Kristina argues that Shawn had never had the
    children 50 percent of the time since the parties separated in
    July 2014. However, the evidence showed that in 2016, the
    parties agreed that Shawn could exercise more parenting time
    than allowed under the temporary order. There was evidence
    that Shawn’s house is located near the children’s school, that
    44
    Schrag v. Spear, 
    290 Neb. 98
    , 
    858 N.W.2d 865
     (2015).
    45
    Id.
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    Kristina drops the children off at Shawn’s house, and that
    Shawn takes the children to school and sees them after school
    almost every day during the school year. This included days in
    which Kristina had the children.
    The court awarded Kristina the majority of the parenting
    time in the form of eight overnight visits for every 14 days,
    and it balanced the children’s opportunity to spend time with
    Shawn by awarding Shawn two extended periods of parenting
    time over the summer. Kristina argues that the parties should
    have been awarded the same amount of extended parenting
    time and that absent extended parenting time, the most that
    she will be able to travel with the children to visit her family
    in Canada is 4 days. We conclude it was within the district
    court’s discretion to conclude that declining to award Kristina
    extended parenting time would not greatly impact the best
    interests of the children. We find no abuse of discretion in the
    district court’s determination that joint physical custody and
    the parenting plan incorporated into the decree are in the best
    interests of the children.
    V. CONCLUSION
    The district court did not err in its award of alimony and
    joint physical custody and in developing a parenting plan
    based upon the best interests of the children. However, the
    court erred in its calculation of child support and in its divi-
    sion of the marital estate. We therefore affirm in part, affirm
    the court’s division of the marital estate as modified, and in
    part reverse and remand with directions to recalculate the child
    support as discussed above.
    A ffirmed in part, affirmed in part
    as modified, and in part reversed
    and remanded with directions.