Becher v. Becher , 24 Neb. Ct. App. 726 ( 2017 )

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BECHER v. BECHER
Cite as 24 Neb. App. 726Sonia Becher, appellee and cross-appellant,
v. M ark A. Becher, appellant
and cross-appellee.
___ N.W.2d ___
Filed June 6, 2017. No. A-16-054.
1. Appeal and Error: Waiver. Whether a party waived his or her right to
appellate review is a question of law.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach
an independent conclusion irrespective of the determination made by the
court below.
3. Judgments: Proof: Waiver: Affidavits: Appeal and Error. In order
to establish whether a party has so dealt with a judgment or other order
appealed from as to have waived any right to review, it is permissible to
present affidavits foreign to the record thereto.
4. Judgments: Appeal and Error. An appellant may not voluntarily
accept the benefits of part of a judgment in the appellant’s favor and
afterward prosecute an appeal or error proceeding from the part that is
against the appellant.
5. Divorce: Judgments: 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 entitled 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.
6. Verdicts: Evidence: Appeal and Error. 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.
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Cite as 24 Neb. App. 7267. Judgments: Appeal and Error. Where parties consent that the report
of a referee containing the evidence taken by said referee, and his
findings of fact and conclusions of law, shall be submitted to the
court, together with the objections and exceptions thereto, for deter-
mination on the merits by the court, they are precluded by such sub-
mission from assigning error by the court in setting aside the report
and findings of the referee, and substituting therefor the findings of
the court.
8. ____: ____. Where parties consent that the report of a referee contain-
ing the evidence taken by said referee, and his findings of fact and
conclusions of law, shall be submitted to the court, together with the
objections and exceptions thereto, for determination on the merits by
the court, an appellate court will only consider the correctness of the
findings and judgment of the district court.
9. Trial: Witnesses: Testimony. Witness credibility and the weight to be
given a witness’ testimony are questions for the trier of fact.
10. Judgments. A trial court may only set aside or modify the report of a
referee issued pursuant to Neb. Rev. Stat. § 25-1129 et seq. (Reissue
2016) upon a determination that the referee’s findings were clearly
against the weight of the evidence.
11. 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, 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 calculate and divide the net
marital estate between the parties in accordance with the principles con-
tained in § 42-365.
12. ____: ____. Generally, all property accumulated and acquired by either
spouse during a marriage is part of the marital estate. Exceptions
include property that a spouse acquired before the marriage, or by gift
or inheritance.
13. Divorce: Courts: Property Division. The manner in which property is
titled or transferred by the parties during the marriage does not restrict
the trial court’s ability to determine how the property should be divided
in an action for dissolution of marriage.
14. Divorce: Property Division. In an action for dissolution of marriage,
a court may divide property between the parties in accordance with the
equities of the situation, irrespective of how legal title is held.
15. Property Division: Proof. The burden of proof rests with the party
claiming that property is nonmarital.
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Cite as 24 Neb. App. 72616. Modification of Decree: Child Support. The paramount concern in
child support cases, whether in the original proceeding or subsequent
modification, remains the best interests of the child.
17. Rules of the Supreme Court: Child Support. In general, child
support payments should be set according to the Nebraska Child
Support Guidelines.
18. Child Support. Use of earning capacity to calculate child support is
useful when it appears that the parent is capable of earning more income
than is presently being earned.
19. Child Support: Evidence. Generally, earning capacity should be used
to determine a child support obligation only when there is evidence that
the parent can realize that capacity through reasonable efforts.
20. Child Support. In calculating child support, the court must consider the
total monthly income, defined as income of both parties derived from
all sources.
21. Divorce: Alimony. In considering alimony, a court should weigh four
factors: (1) the circumstances of the parties, (2) the duration of the mar-
riage, (3) the history of contributions to the marriage, and (4) the ability
of the party seeking support to engage in gainful employment without
interfering with the interests of any minor children in the custody of
each party.
22. ____: ____. In addition to the specific criteria listed in Neb. Rev. Stat.
§ 42-365 (Reissue 2016), a court should consider the income and earn-
ing capacity of each party and the general equities before deciding
whether to award alimony.
23. Divorce: Property Division: Alimony. The statutory criteria for divid-
ing property and awarding alimony overlap, but the two serve different
purposes and courts should consider them separately.
24. Property Division. The purpose of a property division is to distribute
the marital assets equitably between the parties.
25. 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 and the other criteria enumerated in Neb. Rev. Stat.
§ 42-365 (Reissue 2016) make it appropriate.
26. Divorce: Alimony. In weighing a request for alimony, the court may
take into account all of the property owned by the parties when enter-
ing the decree, whether accumulated by their joint efforts or acquired
by inheritance.
27. Divorce: Attorney Fees. In a marital dissolution action, an award of
attorney fees depends on a variety of factors, including the amount of
property and alimony awarded, the earning capacity of the parties, and
the general equities of the situation.
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Cite as 24 Neb. App. 72628. ____: ____. A dissolution court deciding whether to award attorney fees
should consider the nature of the case, the amount involved in the con-
troversy, the services actually performed, the results obtained, the length
of time required for preparation and presentation of the case, the novelty
and difficulty of the questions raised, and the customary charges of the
bar for similar services.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed as modified.
David P. Kyker and Brad Sipp for appellant.
Sally A. Rasmussen, of Mattson Ricketts Law Firm, for
appellee.
Moore, Chief Judge, and R iedmann and Bishop, Judges.
Moore, Chief Judge.
I. INTRODUCTION
In this dissolution of marriage action, the parties agreed
to trial before a referee. The referee’s report was filed with
the district court for Lancaster County, and the parties filed
exceptions to the report. The court subsequently entered a
decree of dissolution from which the parties have appealed.
Mark A. Becher assigns error to the manner in which the
district court reviewed and modified the referee’s report.
Mark challenges certain findings of the court regarding the
classification, valuation, and division of the parties’ assets
and debts; custody and parenting time; child support; ali-
mony; and attorney fees. In her cross-appeal, Sonia Becher
assigns error to the court’s allocation of Christmas holi-
day parenting time and the court’s failure to classify certain
property as nonmarital. Sonia also seeks summary dismissal
of Mark’s appeal based upon Mark’s acceptance of the ben-
efits of the decree. For the reasons that follow, we affirm as
modified, vacating and setting aside certain findings of the
district court.
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BECHER v. BECHER
Cite as 24 Neb. App. 726II. BACKGROUND
The parties were married in December 1991. They have
three children: Daniel Becher, born in 2000; Cristina Becher,
born in 2002; and Susana Becher, born in 2008.
On February 1, 2013, Sonia filed a complaint for dissolution
of marriage in the district court, and Mark thereafter filed an
answer. Both parties sought custody of the children, child sup-
port, alimony, attorney fees, and an equitable division of the
parties’ property.
The parties entered into a stipulation with respect to tem-
porary matters. On April 19, 2013, the district court approved
the stipulation and awarded the parties temporary joint legal
custody of the children. Temporary physical custody of the
children was awarded to Sonia, subject to Mark’s rights of
parenting time as set forth in the attached parenting plan. The
court ordered Mark to pay temporary child support of $4,000
per month beginning May 1 and spousal support of $6,000
per month. The court also ordered Mark to pay the “school
tuition and matriculation fees” for the minor children to attend
a particular elementary school and temporary attorney fees on
behalf of Sonia of $2,000.
Soon thereafter, Mark filed a motion to modify both tem-
porary custody and support. In his motion, Mark alleged that
Daniel’s primary physical custody had been maintained with
Mark since May 2013. Mark alleged that the temporary child
support award should be adjusted to reflect this split custody
arrangement. Mark also alleged that the children were attend-
ing a different school than that contemplated in the April
2013 temporary order, at a significantly higher cost, and that
“[s]upport should be adjusted to reflect the increased educa-
tion expense.”
On November 25, 2013, the district court entered another
temporary order. The court awarded Mark temporary custody
of Daniel and awarded Sonia parenting time with Daniel.
The court denied Mark’s motion for a reduction in his child
support obligation and reserved that issue for trial. The court
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Cite as 24 Neb. App. 726also ordered the parties to complete a custody evaluation by
a psychologist, with each party paying one-half of any neces-
sary expenses.
On December 10, 2014, the parties filed a stipulation agree-
ing to a trial before a referee due to the complex financial and
business valuation issues involved in their divorce as well as
the issues of parenting time, child support, and alimony. The
district court approved the stipulation and appointed a referee.
Trial was held before the referee on multiple dates from
December 11, 2014, to July 23, 2015. The voluminous trial
record contains more than 2,300 pages of testimony and
nearly 200 exhibits. We have set forth the evidence relevant
to the parties’ assignments of error in the corresponding sec-
tions below.
On October 20, 2015, the referee’s report and the parties’
exceptions thereto were filed with the district court. The ref-
eree’s detailed and thorough report is 34 pages, excluding
the attached parenting plan, child support worksheets, and
spreadsheet of the property valuation and division. We have
discussed specific findings of fact, analyses, and recommen-
dations made by the referee as necessary in the analysis sec-
tion below.
On November 4, 2015, the district court received into evi-
dence the transcribed trial testimony and exhibits from the
trial before the referee for purposes of reviewing the record.
The court heard Sonia’s arguments in support of her excep-
tions to the referee’s report. Mark withdrew his exceptions to
the referee’s report, but he asked the court to modify the pay-
ment schedule for the equalization payment to Sonia. Mark’s
counsel informed the court that Mark was “am[en]able to
having joint custody of his children” but asked the court to
change his support obligation accordingly if joint custody was
awarded. Finally, he asked the court “to adopt the report with
the exception that [he] believe[d] that the court may fashion a
different parenting plan or one that the court believes is more
in the best interest of these children.”
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Cite as 24 Neb. App. 726On December 21, 2015, the district court entered a detailed
25-page decree. We have discussed specific findings in the
decree in the analysis section below.
Mark filed a motion to determine supersedeas bond. On
January 26, 2016, the district court entered an order finding
that during the pendency of any appeal by either party, each
party shall manage, operate, and control the real estate awarded
to that party pursuant to the decree and be entitled to collect
and receive all rents due and payable with regard to the real
estate awarded. The court also found that during the pendency
of any appeal, Sonia shall be entitled to collect and receive
all rents due and payable with regard to the three commercial
properties awarded to her and each party shall service the debt
obligation on the real estate allocated in the decree. Finally,
the court found that upon Mark’s posting a supersedeas bond
of $600,000 to be approved by the court, Mark shall not be
required during the pendency of any such appeal to transfer to
Sonia any ownership interest he might have in the real estate
awarded to Sonia. The record does not show that Mark ever
filed a supersedeas bond.
On July 1, 2016, after Mark had perfected his appeal, Sonia
filed a motion for summary dismissal of Mark’s appeal with
this court. She asserted that Mark had accepted the benefits
of the decree and had forfeited his right to appeal all issues
except those pertaining to the children. We overruled Sonia’s
motion without prejudice, and we have addressed the issue of
acceptance of the benefits in this opinion. On December 14,
just prior to oral argument in this case, Sonia filed a renewed
motion to dismiss, and we address Sonia’s renewed motion as
well in the analysis section below.
III. ASSIGNMENTS OF ERROR
Mark asserts, restated, that the district court erred in (1)
modifying the referee’s report without determining whether
the referee’s findings were clearly against the weight of
the evidence; (2) setting aside certain property to Sonia as
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Cite as 24 Neb. App. 726nonmarital; (3) awarding Sonia three commercial properties;
(4) valuing Sark Tile, Inc., Lamp & Lighting of Lincoln, Inc.
(Lamp & Lighting), and Grab It Hardware; (5) dividing the
parties’ personal property; (6) treating Sark Tile’s shipping
containers as personal property; (7) determining marital debt;
(8) setting forth conflicting custodial arrangements for Susana;
(9) determining the parties’ incomes for purposes of child sup-
port; (10) failing to prepare a “worksheet 3” in calculating
child support; (11) improperly crediting Mark for overpayment
of temporary child support; (12) requiring Mark to pay pri-
vate school tuition; (13) awarding alimony; and (14) awarding
attorney fees.
On cross-appeal, Sonia asserts that the district court erred
in (1) allocating parenting time over the Christmas holiday;
(2) failing to characterize a life insurance policy purchased
by Sonia’s father as nonmarital; and (3) failing to award her
nonmarital equity in Capitol Park, LLC, Lamp & Lighting, and
certain residential rental property.
IV. ANALYSIS
1. Sonia’s Motions to Dismiss
[1,2] Before addressing the merits of Mark’s assigned errors
on appeal, we first address whether he waived his right to
appeal from the decree by accepting the benefits of the judg-
ment. Whether a party waived his or her right to appellate
review is a question of law. Edwards v. Edwards, 16 Neb. App.
297, 744 N.W.2d 243 (2008). To the extent an appeal calls for
statutory interpretation or presents questions of law, an appel-
late court must reach an independent conclusion irrespective of
the determination made by the court below. Devney v. Devney,
295 Neb. 15, 886 N.W.2d 61 (2016).
[3] Although Mark has not argued that Sonia has waived
her right to cross-appeal, for the sake of completeness, we
have also addressed the effect of Sonia’s acceptance of certain
benefits on her right to cross-appeal. In addressing the issue
of acceptance of benefits by the parties, we have reviewed
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Cite as 24 Neb. App. 726both of Sonia’s motions to dismiss and her supporting affi-
davits. The Nebraska Supreme Court has held that in order
to establish whether a party has so dealt with a judgment
or other order appealed from as to have waived any right to
review, it is permissible to present affidavits foreign to the
record thereto. See Phelps v. Blome, 150 Neb. 547, 35 N.W.2d
93 (1948).
(a) Sonia’s First Motion to Dismiss
In the affidavit in support of her first motion to dismiss,
Sonia stated that following entry of the decree and Mark’s
failure to post a supersedeas bond, she and Mark both took
full ownership and control over the residential and commercial
properties awarded to them by the district court. She stated that
during the appeal, the parties have executed and recorded quit-
claim deeds transferring their ownership interests in each oth-
er’s properties. Sonia also stated that Mark has created a new
corporation, John Galt Development, LLC, which now holds
title to the properties awarded to him. Sonia attached copies of
the quitclaim deeds executed and recorded by the parties and
certified copies of the certificate of organization and proof of
publication for John Galt Development filed by Mark with the
Nebraska Secretary of State. Sonia also stated that Mark had
refinanced the loans associated with his properties, releasing
her as guarantor and her properties as collateral for those notes.
She attached copies of recorded deeds of reconveyance releas-
ing her properties as collateral.
In her affidavit, Sonia stated that during the appeal, Mark has
utilized rents and receipts from Sark Tile, one of the businesses
awarded to him, to pay personal expenses. She attached docu-
mentation showing that checks from Sark Tile had been used to
pay postdecree judgments to the district court for garage door
openers and for the children’s health care expenses.
Finally, Sonia attached additional documents and outlined
steps she had taken with respect to the commercial and residen-
tial property awarded to her; detailed her attempts to refinance
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Cite as 24 Neb. App. 726a loan associated with a building housing a Dollar General
store; and stated that, like Mark, she had utilized rents and
receipts from the properties awarded to her to pay both busi-
ness and personal expenses.
(b) Sonia’s Renewed
Motion to Dismiss
In the affidavit attached to her renewed motion to dismiss,
Sonia stated that since submission of her first affidavit, both
parties had independently obtained refinancing for those com-
mercial properties awarded to each of them, that a former
“blanket loan” which was cross-collateralized by both parties’
properties had been satisfied, and that she had renegotiated
the terms and conditions for a loan on her commercial proper-
ties only and was making the loan payments pursuant to those
terms and conditions. Finally, Sonia stated that she had sold
Mini Storage, one of the commercial properties awarded to
her, in an arm’s-length sale to a third party. Sonia stated that
she no longer owns any part of Mini Storage and has “no say”
in how that business is operated.
(c) Relevant Case Law
[4] Under the general acceptance of benefits rule, an appel-
lant may not voluntarily accept the benefits of part of a
judgment in the appellant’s favor and afterward prosecute an
appeal or error proceeding from the part that is against the
appellant. Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89(2006). There are, however, exceptions to this general rule.
An exception to the acceptance of benefits rule exists
where the outcome of the appeal could have no effect on the
appellant’s right to the benefit accepted. See Kassebaum v.
Kassebaum, 178 Neb. 812, 135 N.W.2d 704 (1965) (appel-
lant who withdrew $200 from former jointly held account
assigned by divorce decree to him not estopped from appeal-
ing from decree on ground that property division awarded him
was insufficient).
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Cite as 24 Neb. App. 726[5] In Liming v. Liming, supra, the Nebraska Supreme
Court held that in a dissolution action, 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 entitled 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 pursu-
ant to a severable award which will not be subject to appellate
review. The court in Liming observed:
The reasoning for these exceptions is that to preclude
appeal by the acceptance of the benefits of a divorce
judgment, the acceptance of benefits must be of such a
nature as to clearly indicate an intention to be bound by
the divorce decree. . . . There must be unusual circum-
stances, demonstrating prejudice to the appellee, or a very
clear intent to accept the judgment and waive the right
to appeal, to keep an appellate court from reaching the
merits of the appeal.
272 Neb. at 543, 723 N.W.2d at 96-97 (citations omitted).
Given Sonia’s arguments in her brief in support of her first
motion to dismiss, some discussion of the Nebraska Supreme
Court’s holding in Giese v. Giese, 243 Neb. 60, 497 N.W.2d
369 (1993), is warranted. The holding in Giese (along with
the holding in Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d
574 (1992)), was disapproved of to a certain extent by the
court in Liming v. Liming, supra, but Sonia argues that the
court’s holding in Giese still has some applicability in the
present case.
In Giese v. Giese, supra, the wife claimed that the husband
waived his right to appeal because he had accepted various
aspects of the property settlement, had taken possession of a
drycleaning business awarded to him, and had used the dry-
cleaning business’ assets to pay personal expenses and satisfy
other obligations under the decree. The Nebraska Supreme
Court in Giese noted its prior rulings in both Kassebaum and
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Cite as 24 Neb. App. 726Shiers and observed that the court-ordered sale of certain joint
assets and equal division of the proceeds did not confer a right
which did not exist in the parties prior to the judgment and
was permitted under Kassebaum. However, the Giese court
determined that the husband’s acceptance of the drycleaning
business did not fall under the Kassebaum exception. The court
concluded that in taking sole possession of the drycleaning
business, which had been a joint asset of the parties, and using
its assets, the husband waived his arguments except for those
with respect to child support.
The Nebraska Supreme Court in Liming v. Liming, 272
Neb. 534, 723 N.W.2d 89 (2006), characterized the holding
in Giese as a departure from the exception to the acceptance
of benefits rule set forth in Kassebaum v. Kassebaum, 178
Neb. 812, 135 N.W.2d 704 (1965). The Liming court noted
that while it had not previously revisited the holding in Giese
(and Shiers), this court, in Paulsen v. Paulsen, 11 Neb. App.
362, 650 N.W.2d 497 (2002) (relying on exception that if
outcome of appeal could have no effect on appellant’s right
to benefit accepted, its acceptance does not preclude appeal),
allowed an appellant to challenge an alimony award although
the appellant had accepted the benefits of the property settle-
ment. The Supreme Court in Liming went on to reiterate the
acceptance of benefits rule set forth in Kassebaum and stated
further, “When there is no possibility that an appeal may
lead to a result showing that the appellant was not entitled
to what was received under the judgment appealed from, the
right to appeal is unimpaired by the acceptance of benefits.”
272 Neb. at 542, 723 N.W.2d at 96. The court then held to
the extent that Giese (and Shiers) limit the exceptions to the
acceptance of benefits rule in a dissolution of marriage action
to issues affecting the interests and welfare of children, they
are disapproved.
Sonia argues that while the Nebraska Supreme Court in
Liming disapproved of Giese v. Giese, 243 Neb. 60, 497
N.W.2d 369 (1993), to the extent that it limited exceptions to
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Cite as 24 Neb. App. 726the acceptance of benefits rule to issues with respect to chil-
dren, it did not overturn the Giese court’s determination that
under Kassebaum, the husband accepted the benefits of the
decree and waived his right to appeal when he took control
of the parties’ drycleaning business and treated it as his own.
In other words, she relies on this determination from Giese to
support her argument that by taking control of the properties
awarded to him in this case and using them as his own, Mark
is precluded from appealing all issues except those relating
to the parties’ children. We disagree. The Nebraska Supreme
Court’s discussion of the Kassebaum exception in Liming v.
Liming, supra, makes it clear that acceptance of a benefit does
not preclude appeal where the outcome of the appeal can have
no effect on the appellant’s right to the benefit accepted. Here,
while Sonia’s affidavits support a conclusion that both Mark
and Sonia have accepted certain benefits as outlined above, we
must examine each party’s assignments of error to determine
whether the outcome of the appeal with respect to those issues
can have any effect on the right to the benefits accepted by that
party. If there is no possibility that the appeal of a particular
issue will lead to a result showing that party was not entitled
to the benefits he or she accepted, that party’s right to appeal
that issue is not waived. We proceed to consider both party’s
assignments of error in light of this and the other exceptions
set forth above to determine which, if any, issues can be
addressed on the merits.
(d) Issue Relating to Parties’
Children Not Waived
With respect to the parties’ children, Mark asserts that
the district court erred in setting forth conflicting custodial
arrangements for the parties’ youngest child, Susana; determin-
ing the parties’ incomes for purposes of child support; fail-
ing to prepare a “worksheet 3” in calculating child support;
improperly crediting Mark for overpayment of temporary child
support; and requiring Mark to pay private school tuition. By
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Cite as 24 Neb. App. 726his assumption of control and ownership of the properties
awarded to him, Mark has not waived his right to appeal these
issues. See Reynek v. Reynek, 193 Neb. 404, 227 N.W.2d 578(1975). Likewise, by Sonia’s assumption of control and owner-
ship of the properties awarded to her, she has not waived her
right to cross-appeal the district court’s allocation of parenting
time over the Christmas holiday, because that is an issue affect-
ing the children’s interests.
(e) Other Issues Not Waived
Mark asserts that the district court erred in its valuation
of Sark Tile, Lamp & Lighting, and Grab It Hardware. Sonia
does not challenge the award of these properties to Mark, and
his alleged error with respect to the valuation of these proper-
ties could have no effect on his right to the ownership and
operation of Sark Tile and Lamp & Lighting (Grab It Hardware
closed in 2014). Mark has not waived his right to appeal the
issue of the valuation of these businesses.
Similarly, Mark has not waived his right to appeal the dis-
trict court’s division of the parties’ personal property or the
court’s treatment of Sark Tile’s shipping containers as personal
property. Sonia has not challenged these awards on cross-
appeal, and the outcome of this appeal with respect to those
issues can have no effect on Mark’s assumption of ownership
and use of the business, residential, and commercial properties
awarded to him.
Mark asserts that the district court erred in setting aside
the mortgage payoff on the marital residence to Sonia as non-
marital property. Although he signed a quitclaim deed with
respect to the marital residence, his doing so is not inconsistent
with his position with respect to the mortgage payoff. In this
assignment of error, Mark does not challenge the award of the
marital residence to Sonia; rather, he challenges the court’s
determination that Sonia was entitled to this particular set off
of nonmarital funds gifted by her father. Mark has not waived
his right to appeal this issue.
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Cite as 24 Neb. App. 726Mark asserts that the district court erred in determining mar-
ital debt with respect to “$150,000.00 in loans made to Mark
from Craig Smith,” brief for appellant at 67, and loans relating
to Sark Tile and the Dollar General building. We determine
that Mark has not waived his right to appeal the determination
of marital debt to the extent he is asking that these debts be
included in the overall division of the marital estate.
Finally, Mark has not waived his right to appeal the awards
of alimony and attorney fees, which awards Sonia has not
challenged on cross-appeal. Again, the outcome of this appeal
with respect to the awards of alimony and attorney fees can
have no effect on Mark’s assumption of ownership and use of
the business, residential, and commercial properties awarded
to him.
On cross-appeal, Sonia asserts that the district court erred
in failing to characterize a life insurance policy purchased by
her father as nonmarital. The court included the life insurance
policy in the marital estate and awarded it to Sonia at a cash
value of $104,600. Mark does not challenge the award of the
life insurance policy to Sonia, and her assumption of full own-
ership and control of the residential and commercial properties
awarded to her can have no effect on the issue of whether the
policy should have been included in the marital estate. Sonia
has not waived the right to cross-appeal this issue.
Sonia also asserts that the district court erred in failing to
award her nonmarital equity in Capitol Park, Lamp & Lighting,
and certain residential rental property. She signed quitclaim
deeds with respect to Capitol Park and the residential rental
property identified in this assignment of error. She also signed
quitclaim deeds with respect to certain other real property not
identified in this assignment of error. Sonia’s signing of the
quitclaim deeds with respect to the relevant residential rental
property and Capitol Park is not inconsistent, however, with
her position on cross-appeal. Sonia does not directly challenge
the award to Mark of the assets identified in this assignment
of error; rather, she argues that she traced certain funds gifted
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Cite as 24 Neb. App. 726from her father to these assets and was thus entitled to some
sort of compensation for the traced nonmarital funds. Sonia has
not waived her right to cross-appeal this issue.
(f) Issues Waived by Mark
Mark asserts that the district court erred in awarding Sonia
three commercial properties, namely, the Dollar General build-
ing, Sun Valley, and Mini Storage. Mark signed a quitclaim
deed transferring to West O Development, LLC, his interest
in the Dollar General building. West O Development was
awarded to Sonia by the district court. Mark also signed a
quitclaim deed transferring his interest in Sun Valley and
Mini Storage to Sonia as trustee of the Becher Trust. Mark’s
voluntary signing of the quitclaim deeds evidences an intent
to be bound by the decree with respect to the award of these
properties to Sonia, and he has thus waived his right to appeal
this award. See Liming v. Liming, 272 Neb. 534, 723 N.W.2d
89 (2006). However, Mark has not waived the right to appeal
the district court’s determination that the West O Development/
Dollar General building should be set aside to Sonia as her
nonmarital property. Mark’s position that this asset should be
considered as marital property does not affect Sonia’s receipt
of this asset; rather, it impacts the final division of the marital
estate and the amount of the monetary judgment.
2. R eview of R eferee’s R eport
Mark asserts that the district court erred as a matter of law
or otherwise abused its discretion in reviewing and modifying
the referee’s report without determining whether the referee’s
findings were clearly against the weight of the evidence.
We first note Sonia’s argument that Mark cannot appeal
from the referee’s report because he withdrew his exceptions.
See Corn Belt Products Co. v. Mullins, 172 Neb. 561, 110
N.W.2d 845 (1961) (where no exceptions are filed to findings
of fact of referee prior to confirmation by trial court, findings
of fact are binding on all parties). However, to the extent that
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Cite as 24 Neb. App. 726the court’s decree altered the referee’s findings, Mark is not
prohibited from appealing those changes in the decree.
The parties in this case stipulated to trial before a ref-
eree, in accordance with Neb. Rev. Stat. § 25-1129 (Reissue
2016), which provides, “All or any of the issues in the action,
whether of fact or law, or both, may be referred to a referee
upon the written consent of the parties or upon their oral con-
sent in court entered upon the journal.” With respect to trial
before a referee, Neb. Rev. Stat. § 25-1131 (Reissue 2016)
provides:
The trial before referees is conducted in the same man-
ner as a trial by the court. They have the same power
to summon and enforce the attendance of witnesses, to
administer all necessary oaths in the trial of the case, and
to grant adjournments, as the court upon such trial. 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. The report of
the referees upon the whole issue stands as the decision
of the court, and judgment may be entered thereon in the
same manner as if the action had been tried by the court.
When the reference is to report the facts, the report has
the effect of a special verdict.
Mark’s first assignment of error asks this court to consider
whether the district court erred by making its own findings
without first explicitly determining that the referee’s findings
were clearly against the weight of the evidence.
[6] The Nebraska Supreme Court has previously addressed
a standard of review for reports on factual recommendations
from a special master appointed by the court. Mid America
Agri Products v. Rowlands, 286 Neb. 305, 835 N.W.2d 720(2013), involved a mandamus action in which the defendant
sought disqualification of the plaintiff’s counsel in the under-
lying civil case on the ground that plaintiff’s counsel had
retained an expert witness who, before being retained, had
consulted with the defendant’s counsel on the same matter. In
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Cite as 24 Neb. App. 726the mandamus action, the Nebraska Supreme Court appointed
a special master who made factual findings about the rela-
tionships and communications involved in the dispute. The
Supreme Court stated:
We review the findings of the special master to deter-
mine whether such findings are clearly against the weight
of the evidence. Recommended factual findings of a spe-
cial 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.
Id. at 320, 835 N.W.2d at 731. The Supreme Court determined
that the special master’s finding that the expert witness did not
convey the confidential information at issue to the plaintiff’s
counsel was not clearly against the weight of the evidence.
The Nebraska Supreme Court applied this same standard of
review in considering the factual findings of a special master
it had appointed in Larkin v. Ethicon, Inc., 251 Neb. 169, 556
N.W.2d 44 (1996). In that case, the plaintiff appealed from
a trial court decision granting summary judgment in favor
of the defendant. Before oral argument, the Supreme Court
appointed a special master to take evidence on the issue of the
defendant’s conduct during discovery and make recommended
factual findings. On appeal, the Supreme Court considered the
special master’s findings in determining whether to reverse the
summary judgment and remand the cause for further proceed-
ings. The court noted that recommended factual findings of a
special master are given 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.
Id. The court determined that the special master’s factual find-
ings were not clearly against the weight of the evidence and
adopted those findings before proceeding to consider whether
summary judgment had been properly entered.
While Mid America Agri Products and Larkin involved
the Nebraska Supreme Court’s review of factual findings of
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Cite as 24 Neb. App. 726a special master appointed directly by the Supreme Court,
in Brown v. O’Brien, 4 Neb. 195 (1876), the Supreme Court
reviewed a referee’s factual findings after trial before the ref-
eree and confirmation of the referee’s report and dismissal of
the case by the trial court. In that case, which involved a con-
tract dispute over a partnership with respect to certain cattle
and grain, all issues of both fact and law were referred to and
tried before a referee. The plaintiff took several exceptions to
the report which were overruled by the trial court. The trial
court confirmed the referee’s report and dismissed the case. On
appeal, the Supreme Court in Brown noted:
The referee who finds there is no partnership between
[the plaintiff and one of the defendants] in the grain in
controversy, has heard the witnesses and is the best judge
as to what the truth of the matter really is. The report is
only to be set aside when the finding is clearly against the
weight of the evidence.
4 Neb. at 198. The Supreme Court determined that the main
question for its consideration was whether the plaintiff’s excep-
tions were well taken. The Supreme Court observed, “As to all
the questions of fact, submitted to the referee, his report there-
upon must have the same effect and be treated in all respects
as the verdict of a jury.” Id. at 199. The Supreme Court fur-
ther observed, “The court has no right to set it aside unless
it be manifestly against the weight of the evidence.” Id. After
reviewing the evidence, the Supreme Court found nothing to
support reversal and affirmed.
[7,8] The Nebraska Supreme Court also considered a trial
court’s findings with respect to a referee’s report in Hodges v.
Graham, 71 Neb. 125, 98 N.W. 418 (1904). In that case, the
parties consented to trial before a referee. The referee filed a
report containing his findings of fact and conclusions of law,
which were in favor of the plaintiff. The defendant filed objec-
tions to the referee’s report and a motion for new trial, after
which the trial court set aside the referee’s findings of fact and
conclusions of law and awarded a new trial. The subsequent
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Cite as 24 Neb. App. 726proceedings are somewhat confusing, but apparently the par-
ties eventually decided against having a new trial and agreed
to resubmit the matter to the trial court on the evidence previ-
ously taken before the referee and to have the trial court make
findings on the merits as it deemed proper. Subsequently, the
trial court again set aside the referee’s findings and conclu-
sions and entered its own findings in favor of the defendant.
In setting aside the referee’s findings, the trial court found that
the referee’s findings were contrary to the clear weight of the
evidence. On appeal, the Nebraska Supreme Court determined
that because the parties had in fact agreed that the trial court
should make its own findings upon the evidence previously
submitted, the only issue for its consideration was whether the
trial court erred in its findings and judgment. The Supreme
Court held:
Where parties consent that the report of a referee, con-
taining the evidence taken by said referee and his find-
ings of fact and conclusions of law, shall be submitted
to the court, together with the objections and exceptions
thereto, for determination on the merits by the court,
they are precluded by such submission from assigning
error by the court in setting aside the report and findings
of the referee and substituting therefor the findings of
the court.
71 Neb. at 125, 98 N.W. at 418 (syllabus of court). The
Supreme Court further held, “In such case this court will only
consider the correctness of the findings and judgment of the
district court.” Id. at 126, 98 N.W. at 418 (syllabus of court).
In our research, we have found no cases where the Nebraska
Supreme Court has considered whether a trial court must
explicitly determine that the findings in a referee’s report are
clearly against the weight of the evidence before making its
own contrary findings. Mark cites to a Florida case, which
is helpful to our consideration of this issue. In Kalmutz v.
Kalmutz, 299 So. 2d 30 (Fla. App. 1974), a Florida District
Court of Appeals reviewed a trial court’s (chancellor’s) actions
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Cite as 24 Neb. App. 726with respect to several findings in a referee’s (special master’s)
report of findings of fact, conclusions of law, and recommen-
dations to the court in a dissolution of marriage action. In that
case, the chancellor appointed a special master to take evidence
and report his findings of fact, conclusions of law, and recom-
mendations to the court. The husband filed exceptions to the
master’s report, and after the chancellor entered a final judg-
ment which made certain changes to the master’s recommenda-
tions, the wife appealed.
On appeal, the Kalmutz court first reviewed an earlier case
from the Florida Supreme Court with respect to a chancellor’s
actions in overruling a master:
“While it cannot be questioned that in a case where the
chancellor has appointed a master and empowered him
to make findings he may override or modify them in any
manner consistent with the justice of the case, he may not
do this except for good cause. We interpret ‘good cause’
to mean a showing that the findings of fact by the master
were clearly erroneous.
“From our study of the subject it seems to us logical, if
the master has heard all the testimony, that an exceptant
to his findings undertakes the burden of showing that the
master has clearly made a mistake—in other words, the
same burden as an appellant who challenges in this court
the conclusions of fact reached by the chancellor who has
heard the witnesses. After all the master acts as an agent
of the chancellor, and what he does in the capacity is in
effect done by the court. These recommendations should
be set aside only upon good cause, even though the find-
ings were . . . advisory. . . .
“In fine [sic], we have the view that where, as in this
case, a competent master is selected by the chancellor
and attentively conducts the hearings, thoroughly digests
the testimony of the witnesses, and arrives at conclu-
sions which are logical and well supported, his findings,
although advisory, should not be set aside arbitrarily or
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Cite as 24 Neb. App. 726capriciously (of which there is no claim in this case) nor
should they be disregarded or overruled by the chancellor
simply because of an opinion of the chancellor at variance
with that of the master. As we have said, the master was
acting as an accredited agent of the chancellor and was
at the time performing a service which would have been
performed by the chancellor himself but for the appoint-
ment. Having seen and heard the witnesses, he had a defi-
nite advantage over the chancellor, who reviewed the case
from a typewritten record.”
Kalmutz v. Kalmutz, 299 So. 2d 30, 33-34 (Fla. App. 1974),
quoting Harmon v. Harmon, 40 So. 2d 209 (Fla. 1949) (cita-
tions omitted).
The appellate court in Kalmutz then reviewed the master’s
findings and recommendations, the transcribed testimony, the
exceptions to the master’s report, and the chancellor’s order.
After doing so, the appellate court concluded that the master’s
findings were not shown to be clearly erroneous. The appellate
court in Kalmutz determined:
While a chancellor’s view of the evidence may be at
variance with the master such a variance or difference of
opinion is not sufficient to override or modify the mas-
ter’s report absent a showing “that the findings of fact
made by the master were clearly erroneous”. Accordingly,
as hereinafter delineated, in those instances where there
was competent substantial (although conflicting) evidence
to support the findings of the master his findings must
be sustained and the order of the chancellor vacated and
set aside.
299 So. 2d at 34.
The appellate court then determined whether there was
competent substantial evidence to support each of the four
findings made by the master. The chancellor had modified
three of the master’s findings and made no reference to the
fourth finding in its order. The appellate court found that with
respect to two of the modified findings, the chancellor had
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Cite as 24 Neb. App. 726based its modification on a view of the evidence at variance
with the master’s. With respect to those two findings, the
appellate court found evidence to support the master’s find-
ings. With respect to the third finding modified by the chan-
cellor, the appellate court found the evidence did not support
the master’s determination, which was thus clearly erroneous,
giving the chancellor the power to override the recommenda-
tion. Based on the record before it, the appellate court was
not prepared to make a determination with respect to the
master’s fourth finding, which dealt with a contempt issue.
Accordingly, the appellate court remanded that issue to the
chancellor to “make specific findings.” Id. at 35.
[9] In the present case, the district court made some refer-
ences in the decree to the referee’s findings and in several
instances, the district court’s findings follow those of the
referee word for word. The court, however, made numer-
ous findings that differed from those of the referee. In those
instances, the court did not specifically determine that the ref-
eree’s findings were clearly against the weight of the evidence.
Rather, the district court essentially conducted a de novo
review, substituting its view of the evidence in making its
determination. In addition, the court made numerous explicit
findings with respect to the weight and credibility of certain
testimony from the parties, despite the fact that the court did
not have the benefit of seeing and hearing the witnesses as
did the referee. Generally, witness credibility and the weight
to be given a witness’ testimony are questions for the trier of
fact. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38(2012). See, also, Stutzman v. Bates, 118 Neb. 520, 225 N.W.
678 (1929) (finding of referee on fairly conflicting evidence
is binding on appellate court); Creedon v. Patrick, 3 Neb.
(Unoff.) 459, 91 N.W. 872 (1902) (appellate court declined to
reach independent conclusion where evidence before referee
was conflicting, referee’s report had been confirmed by trial
court, and appellate court found sufficient evidence to sustain
referee’s findings).
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Cite as 24 Neb. App. 726[10] We conclude that the district court erred in failing to
apply the correct standard of review with respect to the ref-
eree’s report. We hold that a trial court may only set aside or
modify the report of a referee issued pursuant to Neb. Rev.
Stat. § 25-1129 et seq. (Reissue 2016) upon a determination
that the referee’s findings were clearly against the weight of
the evidence.
We have reviewed the referee’s findings, the parties’ excep-
tions, and the court’s decree to determine which of the parties’
assigned errors relate to matters in which the district court
made findings inconsistent with those of the referee. In those
instances, we will determine whether the relevant findings of
the referee were clearly against the weight of the evidence.
The evidence in this case was conflicting. We consider the fact
that the referee saw and heard the witnesses and observed their
demeanor while testifying, and we will give great weight to
the referee’s determinations as to credibility. The district court
clearly had its own strong feelings about the witnesses’ cred-
ibility in this case, but we determine that the district court’s
differing view of the evidence is not sufficient to override the
referee’s view of the evidence absent a showing that the ref-
eree’s findings were clearly against the weight of the evidence.
In those instances where there was competent substantial, but
conflicting, evidence to support the referee’s findings, the
differing findings of the district court must be vacated and
set aside.
3. Classification and Division
of M arital Estate
[11] 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 non-
marital, 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 calculate and divide the net marital estate
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Cite as 24 Neb. App. 726between the parties in accordance with the principles contained
in § 42-365. Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d
705 (2016).
[12-15] Generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital estate. Id.Exceptions include property that a spouse acquired before the
marriage, or by gift or inheritance. Id. The manner in which
property is titled or transferred by the parties during the mar-
riage does not restrict the trial court’s ability to determine how
the property should be divided in an action for dissolution of
marriage. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d
503 (2004). In an action for dissolution of marriage, a court
may divide property between the parties in accordance with the
equities of the situation, irrespective of how legal title is held.
Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).
The burden of proof rests with the party claiming that prop-
erty is nonmarital. Stanosheck v. Jeanette, 294 Neb. 138, 881
N.W.2d 599 (2016).
(a) Sonia’s Nonmarital Property
Mark asserts that the district court erred in setting aside
certain property to Sonia as nonmarital. Sonia asserts that the
district court erred in failing to characterize a life insurance
policy purchased by her father as nonmarital and in failing to
award her nonmarital equity in Capitol Park, Lamp & Lighting,
and certain residential rental property.
Evidence was adduced that between 1993 and 2008, Sonia’s
father made gifts to her of over $1.7 million. Generally, Sonia
attempted to trace some of these gifts to assets acquired dur-
ing the marriage. Mark claimed that all of the money had
been commingled with marital property and was untrace-
able. The referee found that the evidence made it nearly
impossible to trace most of the monetary gifts from Sonia’s
father to current identifiable assets. Sonia filed an exception
to the referee’s failure to properly credit her for gifts from
her family.
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Cite as 24 Neb. App. 726(i) West O Development/Dollar
General Building
Sonia and her sister purchased the West O Development
property in 2005, using a gift from their father of $825,000.
Sonia later purchased her sister’s interest with funds obtained
from a loan. The West O Development entity includes a Dollar
General building. Various repairs and improvements to the
building were made over the years with additional loans.
Although the referee recognized the $825,000 gift to purchase
the West O Development/Dollar General building, it found
that it did not retain its status as a gift because the equity in
the building became encumbered by loans, the building was
pledged as security for other loans, and moneys generated dur-
ing the marriage were invested into the building in order to
improve it. The referee awarded West O Development to Mark
as a marital asset at a value of $1,263,950.
The district court, on the other hand, found that the gift
of $825,000 was traceable and that the property which now
represents the gift was identifiable. The court awarded Sonia
this asset as nonmarital property valued at $1,263,950, subject
to the existing debt of $610,000. The court found that there
was no evidence of marital funds being used for the continued
operation of West O Development or that marital resources
were used to service the debt. The court also noted that rents
developed from the property were sufficient to service the
debt. The district court did not discuss the referee’s findings or
determine that the referee’s findings were clearly against the
weight of the evidence.
Although Mark has waived his right to assert error with
respect to the award of this property to Sonia, he has preserved
his argument that the property should be considered mari-
tal. The evidence was clearly conflicting on whether marital
resources were invested in this entity. As noted by the referee,
the testimony of the parties showed that they both borrowed
$500,000 and added another $25,000 of their savings in order
to buy out Sonia’s sister’s interest. The referee further noted
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Cite as 24 Neb. App. 726Mark’s testimony that a significant amount of additional work
and money was put into the Dollar General building. The
referee also referred to evidence that the building had been
pledged as security for several loans. There is evidence in the
record to support the referee’s finding that the gift of money
from Sonia’s father to purchase the building did not retain its
status as a gift and that the entire value of West O Development
should be considered a marital asset. The finding of the referee
in this regard is not clearly against the weight of the evidence.
The district court erred in determining that this asset should be
treated as a nonmarital asset.
(ii) Mortgage Payoff on
Marital Residence
Evidence was adduced about another gift made to Sonia
from her father in 2008. The referee found this gift of $432,948
was a gift to the marriage and was not intended solely for the
use of Sonia. The referee found that even if it was a gift to
Sonia, the money was applied to marital debt and spent on
marital business activities. Nevertheless, the referee found
that the equities involved required some recognition of this
gift, and he reduced the fair market value of the marital home
awarded to Sonia by one-half of the funds used to pay off
the mortgage balance (half of $220,300, or $110,150). The
district court, on the other hand, gave Sonia credit for the full
$220,300 mortgage payoff on the marital residence. The dis-
trict court did not discuss the referee’s findings or determine
that the referee’s findings were clearly against the weight of
the evidence.
There was evidence in the record to support the referee’s
finding either that this gift was not intended solely for Sonia
($212,647 of the $455,401 was placed in a certificate of deposit
in Mark’s name only with the balance of $220,300 being used
to pay off the family home mortgage) or that it lost its status
as a gift as it was applied to marital debt and spent on mari-
tal business activities. The referee’s finding was not clearly
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Cite as 24 Neb. App. 726against the weight of the evidence. The district court erred in
its determination that Sonia is entitled to a credit of $220,300,
instead of the credit of $110,150 given by the referee, against
the value of the marital home as a gift.
(iii) Life Insurance Policy
The referee awarded Sonia a life insurance policy as a mari-
tal asset valued at $104,600, having determined that any mon-
eys advanced for life insurance payments could not be traced
with any certainty. The district court also awarded Sonia this
policy at a value of $104,600 and included it as a marital asset
in its division ledger. The court did not specifically discuss the
policy in its findings regarding the traceability of nonmarital
funds. Sonia argues that this asset should have been charac-
terized as nonmarital because her father purchased it for her
when she was 17 years old.
Sonia and her father testified that he purchased a life insur-
ance policy for Sonia when she was 17 and that he paid the
annual premiums directly to the life insurance company for
many years. At some point, however, he stopped making the
premium payments directly and began giving Sonia money to
make the payments herself. According to Sonia, this money
was placed in a joint account with Mark and premiums were
paid from this account. However, the record shows that other
money was deposited into this account by the parties during the
marriage and that other checks were written from this account
for the parties’ house and living expenses. In other words, there
has been a commingling of the money advanced by Sonia’s
father such that the life insurance policy did not retain its status
as a nonmarital asset.
We conclude that the referee’s finding that the money
advanced for the life insurance premium payments from
Sonia’s father could not be traced with sufficient certainty was
not clearly against the weight of the evidence, and the district
court did not err in awarding Sonia the life insurance policy as
a marital asset.
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Cite as 24 Neb. App. 726(iv) Nonmarital Equity
in Certain Property
Sonia asserts that the district court failed to award her
nonmarital equity in Capitol Park, Lamp & Lighting, Sark
Motors, and certain residential rental property. These assets
were awarded to Mark as marital property by both the referee
and the district court. Sonia argues that these are “mixed”
marital assets and that at least some of their value should be
considered nonmarital for which she should be given a credit.
Brief for appellee on cross-appeal at 73. Both the referee and
the district court found that the evidence was insufficient to
trace any gifted money to Sonia to these assets. We agree.
The referee’s findings in this regard were not clearly against
the weight of the evidence, and the district court did not err in
affirming this determination.
(b) Award of Commercial
Properties to Sonia
As we determined above, Mark has waived his argument
that the district court erred in awarding Sonia three com-
mercial properties: West O Development, Sun Valley, and
Mini Storage.
(c) Valuation of Commercial Property
Mark asserts that the district court erred in its valuation of
Sark Tile, Lamp & Lighting, and Grab It Hardware.
(i) Sark Tile
Sark Tile is a corporation owned by the parties. Both the
referee and the district court made extensive findings about the
valuation of this property and gave differing reasons for reach-
ing their respective valuations. The referee awarded Sark Tile
to Mark at a value of $491,353. Sonia filed an exception to
the referee’s valuation of Sark Tile. The district court awarded
Sark Tile to Mark at a value of $570,000. Although the district
court referenced the referee’s conclusion that the value of Sark
Tile was “not less than $540,327,” the court did not reference
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Cite as 24 Neb. App. 726the referee’s final determination of value at $491,353. Nor did
the court find that the referee’s finding of the value of this asset
was clearly against the weight of the evidence.
There was significant evidence adduced by both parties
regarding the value of this company, particularly with regard
to the extensive inventory. There were numerous expert valua-
tions submitted into evidence containing analyses of inventory
records, corporate tax returns, and balance sheets. The referee
concluded, after a review of this evidence, that “it remains
nearly impossible for the Referee to know what this business
is worth because of the irreconcilable evidence and testimony
offered by the experts on behalf of Mark and Sonia.” Because
of the continuing concerns the referee had about the value of
the Sark Tile inventory, he requested and received permis-
sion to retain an expert to conduct a fair market valuation of
the inventory. After this valuation of the inventory was done,
adjustments to the business valuation were made by the experts
although the valuations continued to vary significantly. After
reviewing the “irreconcilable evidence,” the referee determined
that the value of the tile (i.e., inventory) was not less than
$540,327, which he derived by averaging the 2013 tax return
value of the inventory and his expert’s appraisal and then
subtracting 20 percent from that amount based upon another
expert’s opinion that 80 percent of the inventory is salable,
together with another 10 percent reduction to account for the
normal markup over cost. Incorporating this inventory value
of $540,327 into an expert’s adjusted 2013 balance sheet, the
referee determined the value of Sark Tile as an ongoing entity
to be $491,353.
The district court noted that the valuations of this business
ranged from $15,000 to $1,482,664. The court rejected the
inventory figures used by all the experts and arrived at its own
conclusion of the value of the inventory based upon its extrap-
olation of the original cost of products stored in the shipping
containers and the cost of sales information contained in the
corporate tax returns. The court found that the value of Sark
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Cite as 24 Neb. App. 726Tile was $570,000. The district court made no reference to the
referee’s findings in connection with this asset nor did it find
that they were clearly against the weight of the evidence.
We conclude that there was sufficient credible evidence to
support the referee’s findings and that these findings of value
of the inventory and business were not clearly against the
weight of the evidence. The district court erred in substituting
its determination of value for Sark Tile.
(ii) Lamp & Lighting
Lamp & Lighting is another corporation owned by the
parties. Again, both the referee and the district court made
numerous findings with respect to this asset. The referee
awarded this business to Mark at a value of $107,000. The
referee also assigned a loan for Lamp & Lighting of $150,000
to Mark. Sonia filed an exception to the referee’s valuation of
Lamp & Lighting. The district court, using a somewhat differ-
ent analysis than the referee, determined the value of Lamp
& Lighting to be $257,000. The district court further noted
the existence of a $150,000 debt, bringing the net value of
Lamp & Lighting to $107,000. The district court did not make
a determination that the findings of the referee were clearly
against the weight of the evidence.
As was the case with the Sark Tile valuation, both par-
ties provided expert valuation evidence with respect to Lamp
& Lighting which differed significantly. Because of the ref-
eree’s concern about the accuracy of the inventory values of
Lamp & Lighting, it requested and received permission to
appoint an expert to provide a fair market value of the inven-
tory. The referee rejected this expert’s inventory value as
essentially being too low but determined that the inventory
number on the tax returns was “over-stated.” Because of the
“irreconcilable [and] conflicting” evidence, the referee valued
the inventory at not less than $190,000, which was arrived at
by averaging the expert’s inventory appraisal with the year-
end inventory reported on Lamp & Lighting’s 2013 tax return
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Cite as 24 Neb. App. 726and deducting 10 percent based upon nonsalable items or the
markup that a potential buyer may exclude from an offer to
purchase the business. After incorporating the $190,000 value
for the inventory into Mark’s expert’s analysis, the referee
determined the value of Lamp & Lighting to be $107,000.
The district court noted that the expert’s valuations of Lamp
& Lighting varied between $25,001 and $650,000. Similar to
its method of valuation of Sark Tile, the court looked at gross
sales and costs of goods sold on tax returns to arrive at its
value of $257,000. The district court did not determine that
the referee’s finding of value was clearly against the weight of
the evidence.
We conclude that there was sufficient credible evidence to
support the referee’s value of Lamp & Lighting and that it
was not clearly against the weight of the evidence. The district
court erred in substituting its own determination of value of
this asset.
(iii) Grab It Hardware
Grab It Hardware was another business owned by the par-
ties; it was closed in 2014. The referee made no findings with
respect to this business, and it is not included in the appendix
to the report which shows the division of assets and debts. The
district court found that at the time of its closing in 2014 (after
the valuation date of December 31, 2013), the assets of this
business sold for $5,000. The court placed a value of $5,000
for this business and assigned it as a marital asset to Mark.
The district court did not determine that the exclusion of this
asset from the referee’s division of assets was clearly against
the weight of the evidence. However, because the referee did
not make any findings regarding this business, we find no error
by the district court in including the value of $5,000 for this
business as a marital asset.
(d) Division of Personal Property
Mark asserts that the district court erred in dividing the par-
ties’ personal property.
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Cite as 24 Neb. App. 726The parties presented a significant amount of information
concerning personal property. The referee made extensive find-
ings and a detailed division of the parties’ personal property.
The referee awarded Sonia personal property valued at $13,340.
The referee awarded Mark certain personal property valued at
$7,470 and certain undervalued personal property in Sonia’s
possession valued at $9,650, as well as other personal prop-
erty (“[p]ing pong table”; “[f]oosball table”; pool table, cues,
and rack; compressor; and “Yamaha ATV”), at a total value
of $4,375. The referee also awarded Mark “sentimental and
pre-marital items” valued at $0. The total value of the personal
property awarded to Mark by the referee was $21,495. Sonia
filed an exception to the referee’s valuation of the personal
property and to the referee’s overall allocation of the marital
estate. The district court adopted the referee’s allocation of per-
sonal property, “with a few minor modifications.” The district
court valued the personal property awarded to Sonia at $27,365
and to Mark at $23,870. It is next to impossible to determine
the reason for the different valuations. The district court did
not determine that the referee’s findings were clearly against
the weight of the evidence. We conclude that the district court
erred in substituting its own valuation and division of personal
property for that of the referee.
(e) Sark Tile’s Shipping Containers
Mark asserts that the district court erred in treating Sark
Tile’s shipping containers as personal property. There was evi-
dence adduced about the containers in which the tile sold by
Sark Tile was delivered. The referee did not separately value
the containers. Sonia filed an exception to the failure to include
the containers in the division of property. The district court
awarded to Mark, as personal property, 74 containers used by
Sark Tile that existed as of the end of 2013 and all containers
acquired since that date. In its division worksheet, the district
court valued the 74 containers at $61,152. Mark argues on
appeal that it was error to treat the containers as personal assets
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Cite as 24 Neb. App. 726because they were a corporate asset of Sark Tile. The district
court did not determine that the referee’s failure to separately
value the containers owned by Sark Tile was clearly against the
weight of the evidence.
In reviewing the district court’s valuation of Sark Tile, it
is evident that the court focused exclusively on the value of
inventory as opposed to the overall value of the business;
whereas the referee incorporated the inventory value into the
overall value of the business. We conclude that there was suf-
ficient evidence to support the referee’s valuation of the Sark
Tile business without separately valuing the containers owned
by the business and that this valuation was not clearly against
the weight of the evidence. The district court erred in including
a separate value for the Sark Tile containers in its division of
marital assets.
(f) Marital Debt
Mark asserts that the district court erred in determining
marital debt. The referee assigned to Mark all of the marital
debt, with the exception of the accrued real estate taxes on
the family home after December 31, 2013, which it treated as
a postseparation debt assigned to Sonia. The referee valued
the total liabilities assigned to Mark at $2,856,658.30. The
district court, as mentioned previously, assigned $610,000 of
debt on the West O Development property to Sonia. In addi-
tion, it assigned a debt of $12,347 to Sonia associated with an
unimproved parcel of real estate awarded to her. The district
court’s recapitulation shows total debt assigned to Mark as
$2,236,544.18. The difference from the referee’s value of debt
assigned to Mark very closely relates to these two debts.
Mark challenges the failure to include certain debts in
the marital estate. He first challenges the failure to include
“$150,000.00 in loans made to Mark from Craig Smith.”
Brief for appellant at 67. However, the referee did not
include these loans in the marital estate, noting that they
were “Post-separation.” The district court made the same
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Cite as 24 Neb. App. 726determination. Although we earlier determined that Mark did
not waive his challenge to the classification of these debts,
because Mark withdrew any exceptions he had to the referee’s
findings regarding these loans and the district court did not
modify the referee’s report in this regard, he is not allowed to
challenge this now on appeal.
Mark also argues that the district court failed to include two
other specific loans from “Security First” to Sark Tile totaling
$250,000. Because the referee and the district court listed the
debts in different ways, it is difficult to determine whether
the district court’s assignment of debts to Mark differed
from the referee’s determination of debts. However, as noted
above, the difference in the assignment of debts is essentially
explained by the assignment to Sonia of the indebtedness
related to West O Development and the debt regarding the
unimproved lot. Because Mark withdrew his exception to the
referee’s division of debts, we conclude that he is precluded
from assigning error to the district court’s determination of
marital debt. However, as determined above, Mark was not
precluded from assigning error to the district court’s treat-
ment of West O Development as nonmarital property, with the
corresponding assignment of $610,000 of associated debt to
Sonia, which we addressed above.
(g) Conclusion
The district court awarded Sonia marital property totaling
$1,843,409 and marital debt totaling $12,347. The court also
set aside $1,263,950 to Sonia as her nonmarital interest in
West O Development, with the corresponding debt of $610,000,
and further set aside $220,300 as her nonmarital portion of the
family home. The court awarded Mark marital property total-
ing $4,906,406 and marital debt totaling $2,086,544.18. As set
forth above, we have found certain errors in the district court’s
classification, valuation, and division of the marital estate, and
we vacate and set aside those portions of the decree and modify
the distribution of the marital estate in the decree accordingly
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Cite as 24 Neb. App. 726to incorporate the findings of the referee as to those issues. The
following is a summary of our conclusions:
• The district court erred in its determination that the West O
Development/Dollar General building should be treated as a
nonmarital asset. Accordingly, Sonia’s award of marital prop-
erty increases by $1,263,950, and the amount of marital debt
awarded to her increases by $610,000.
• The district court erred in its determination that Sonia is enti-
tled to a credit of $220,300 against the value of the marital
home as a gift as opposed to the $110,150 credit given by the
referee. Accordingly, the marital property awarded to Sonia
increases by $110,150.
• The district court erred in substituting its determination of
Sark Tile’s value for that of the referee. Accordingly, the
value of the marital property awarded to Mark decreases by
$78,647 (difference between court’s value of $570,000 and
referee’s value of $491,353).
• The district court erred in substituting its own determina-
tion of Lamp & Lighting’s value for that of the referee.
Accordingly, the value of the marital property awarded to
Mark decreases by $150,000 (difference between court’s
value of $257,000 and referee’s value of $107,000).
• The district court erred in substituting its own valuation
and division of personal property for that of the referee.
Accordingly, the value of the marital property awarded to
Mark decreases by $2,375 (difference between court’s value
of $23,870 and referee’s value of $21,495) and the value of
the marital property awarded to Sonia decreases by $14,025
(difference between court’s value of $27,365 and referee’s
value of $13,340).
• The district court erred in including a separate value for the
Sark Tile shipping containers in its division of marital assets.
Accordingly, Mark’s award of marital property decreases
by $61,152.
• Finally, as discussed further below, we determine that the
district court erred in modifying the amount of credit to be
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Cite as 24 Neb. App. 726given to Mark for his child support payments. Accordingly,
he is to receive a credit on his child support payment of
$30,184 as determined by the referee (instead of the credit of
$13,512 given by the court).
The following table represents our modifications to the dis-
trict court’s distribution:
MARITAL PROPERTY DISTRIBUTION
Sonia Mark
District court’s net marital
distribution $1,831,062.00 $2,819,861.82
West O Development 1,263,950.00
First Security Bank loan on
West O Development (610,000.00)
Increase due to error in amount
of gift credit on marital home 110,150.00
Decrease in value of Sark Tile (78,647.00)
Decrease in value of Lamp
& Lighting (150,000.00)
Decrease in value of personal
property (14,025.00) (2,375.00)
Decrease due to error in valuing
shipping containers                         (61,152.00)
Modified Net Marital
Distribution $2,581,137.00 $2,527,687.82
Equalization Payment Due
Difference in net marital distribution credit
to Mark (one-half of $53,449.18) $26,724.59
Ski trip credit to Mark 2,000.00
Child support payment credit to Mark  30,184.00
Balance to be paid from Sonia to Mark $58,908.59
We therefore modify the decree to require Sonia to pay Mark
as equalization the sum of $58,908.59, payable within 90 days
of the entry of the mandate in the district court.
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Cite as 24 Neb. App. 7264. Errors R elating to
Parties’ Children
(a) Custody
Mark asserts that the district court erred in setting forth
conflicting custodial arrangements for the parties’ youngest
child, Susana.
The referee found that joint legal custody of all three chil-
dren was in their best interests, with Mark having primary
physical custody of Daniel and Sonia having primary physical
custody of Cristina and Susana. Based upon the recommenda-
tions of a counselor, no set parenting time was established
for Daniel and Cristina. The referee set parenting time for
Mark with Susana on alternating weekends from Thursday
after school to Monday at 8 a.m., together with overnights on
Wednesdays on alternating weeks. Sonia filed exceptions with
regard to the referee’s parenting plan.
The district court determined that “some modifications to
the Referee’s proposed Parenting Plan designed to reduce
potential sources of conflict is in the best interest of the chil-
dren.” The district court then set forth conflicting custody
arrangements. In the body of the decree, the court stated that
Sonia was awarded legal and physical custody of Cristina and
Susana and that Mark was awarded legal and physical cus-
tody of Daniel. However, in the parenting plan attached to the
decree, the court stated that the parties would share joint legal
custody of all the children, with Mark having primary physical
custody of Daniel and Sonia having primary physical custody
of Cristina. The court stated that the parties would share joint
physical custody of Susana. The parenting schedule set by
the court did not provide for parenting time for Daniel and
Cristina but gave the parties parenting time with Susana on
alternating weeks.
The district court made these “modifications” to the ref-
eree’s parenting plan with regard to custody and parenting time
without determining that the referee’s findings were clearly
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Cite as 24 Neb. App. 726against the weight of the evidence. We conclude that the evi-
dence supported the referee’s determination of custody and
parenting time and that the district court erred in modifying
these findings. We therefore modify the decree to clarify that
the parties shall share joint legal custody of all three children,
with Sonia to have physical custody of Cristina and Susana
and Mark to have physical custody of Daniel. The parenting
plan is modified to incorporate the plan attached to the ref-
eree’s report.
(b) Christmas Holiday
Parenting Time
On cross-appeal, Sonia asserts that the district court erred in
allocating parenting time over the Christmas holiday.
The referee’s parenting plan divided the Christmas break
into two periods. The first half of Christmas break is to com-
mence at 6 p.m. on the day the child (only pertaining to Susana
at this time) is excused for the Christmas holiday break and
concludes at noon the day that constitutes the midpoint of the
Christmas holiday break. The second half of Christmas break
is to commence at noon the day constituting the midpoint from
when the child is released from school for the Christmas holi-
day break and concludes at 7 p.m. on the day before school is
to resume. The parties were awarded these times in alternat-
ing years.
The district court in its parenting plan modified the visita-
tion for Susana to alternating weeks with each parent, from
Friday to Friday. With respect to Christmas, the court’s par-
enting plan provided that every year the parent who does not
have parenting time on Christmas Day as a result of the weekly
rotation shall have parenting time on December 24 beginning
at noon and ending at 11:30 p.m.
Sonia’s complaint with respect to the Christmas holiday
parenting time is that the district court’s schedule precludes
her from taking Susana to Spain to visit extended family.
Sonia requested that she have the entire Christmas break
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Cite as 24 Neb. App. 726every other year so she could take the children to visit fam-
ily and that on the years Mark has the children for the entire
holiday, she can spend the entire break in Spain with her
family. This is the same argument Sonia made to the referee
which was rejected. We find no error by either the referee or
the district court in failing to alternate the entire Christmas
break between the parties. As we determined above, the par-
enting plan devised by the referee was not clearly against the
weight of the evidence and should be incorporated into the
court’s decree.
(c) Parties’ Income
Mark asserts that the district court erred in determining the
parties’ incomes for purposes of child support.
[16-20] The paramount concern in child support cases,
whether in the original proceeding or subsequent modifica-
tion, remains the best interests of the child. Incontro v. Jacobs,
277 Neb. 275, 761 N.W.2d 551 (2009). In general, child sup-
port payments should be set according to the Nebraska Child
Support Guidelines. Johnson v. Johnson, 290 Neb. 838, 862
N.W.2d 740 (2015). Use of earning capacity to calculate child
support is useful when it appears that the parent is capable
of earning more income than is presently being earned. Id.Generally, earning capacity should be used to determine a
child support obligation only when there is evidence that the
parent can realize that capacity through reasonable efforts. Id.In calculating child support, the court must consider the total
monthly income, defined as income of both parties derived
from all sources. Neb. Ct. R. § 4-204 (rev. 2015); Burcham v.
Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016). Section
4-204 states: “If applicable, earning capacity may be con-
sidered in lieu of a parent’s actual, present income and may
include factors such as work history, education, occupational
skills, and job opportunities. Earning capacity is not limited
to wage-earning capacity, but includes moneys available from
all sources.”
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Cite as 24 Neb. App. 726(i) Mark’s Income
At the time of trial, Mark was 46. He has a bachelor’s
degree in economics and a “M.B.A.” degree.
Sark Tile pays Mark an annual salary of $20,000, although
he “forewent [his] salary” and only received $15,000 in 2012.
As recognized by the referee, determining Mark’s income from
the tax returns was “all but impossible” because there were
significant personal and family expenses that were being paid
through one or more of the parties’ businesses or commercial
properties. Both parties utilized expert witnesses to provide
an analysis of Mark’s annual income. Looking at tax returns
and other information, Mark’s expert determined that Mark’s
“Total Personal Cash Flow (Four Year Weighted Average)” was
$58,753. Both parties’ experts observed that in 2013, Mark’s
income based on the tax returns was significantly lower than it
had been the 3 previous years. Sonia’s expert provided analysis
of Mark’s annual income by looking at personal monthly credit
card purchases and payments and determined that the credit
card expenses, which were paid every month, routinely ran
$15,000 per month over the 2 previous years.
The referee detailed his analysis in calculating Mark’s earn-
ing capacity as well as actual earnings, utilizing Mark’s expert’s
cashflow analysis together with Mark’s monthly salary. The
referee utilized total monthly income for Mark of $15,148.17
in its child support worksheet. Sonia filed exceptions to the
determination of Mark’s income.
In contrast to the referee, the district court considered
entirely different information in determining Mark’s monthly
income, including credit card payments for Mark’s personal
expenses paid by one of the family businesses and depreciation
taken on real estate. The district court determined that Mark’s
gross monthly income is at least $33,481. However, it utilized
total monthly income for Mark of $20,000 on the child support
worksheet attached to the decree. The district court did not
determine that the referee’s findings regarding Mark’s income
were clearly against the weight of the evidence.
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Cite as 24 Neb. App. 726We conclude that there was sufficient evidence to support
the referee’s determination of Mark’s income and that it was
not clearly against the weight of the evidence. The district
court erred in modifying Mark’s income and in its corre-
sponding calculation of child support. We modify the decree
to incorporate the referee’s determination of Mark’s income
of $15,148.17.
(ii) Sonia’s Income
At the time of trial, Sonia was 44. She was born in Mexico
and first came to the United States from Spain at age 16 as an
exchange student. After finishing her last year of high school
and first year of college in Spain, she returned to the United
States at age 18 or 19 and has continued to reside here since.
Sonia had not worked outside the home since January 2000
when she was pregnant with the parties’ son. Sonia does have
a college degree, and she had limited experience in the jewelry
business after the parties were married, earning approximately
$25,000 per year.
The referee found that Sonia has some earning capacity not
to exceed an annual gross income of $25,000 per year. On
the child support worksheet, the referee utilized total monthly
income for Sonia of $2,083.33. No exception to this finding
was filed by Sonia, and Mark withdrew his exception. The
district court made a finding consistent with the referee’s—that
Sonia’s earning capacity does not exceed $25,000 per year.
On the child support worksheet, the district court used total
monthly income for Sonia of $2,100 (rounding up the referee’s
figure). Because Mark withdrew his exception to the referee’s
findings, he is precluded from asserting error in the district
court’s determination of Sonia’s income.
(d) Worksheet 3
Mark asserts that the district court erred in failing to pre-
pare worksheet 3 of the Nebraska Child Support Guidelines in
calculating child support. The referee used worksheets 1 and
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Cite as 24 Neb. App. 7262 of the child support guidelines in calculating child support,
consistent with the split custody award. No exception was filed
by Sonia, and Mark withdrew his exceptions. The district court
also used worksheets 1 and 2 in calculating child support on
a split custody basis. Mark is precluded from asserting error
in the district court’s utilization of worksheets 1 and 2. Based
upon our foregoing conclusions, we modify the decree to
incorporate the referee’s child support worksheets in place of
the district court’s worksheets.
(e) Credit for Overpayment
of Temporary Support
Mark asserts that the district court erred in improperly cred-
iting Mark for overpayment of temporary child support. The
record shows that Mark was paying temporary child support
predicated on Sonia’s having custody of all three children.
Daniel began living with Mark in May 2013, and Mark’s
request to modify temporary support was deferred until the
time of trial. Based upon the findings of the referee concern-
ing Mark’s income and the referee’s split custody calculation,
the referee found that Mark should have a credit of $1,372 per
month for each month that he overpaid child support. Through
September 2015, the referee recommended that Mark receive
a credit of $30,184 against the money judgment owed rather
than being subtracted from his child support obligation going
forward. Sonia filed an exception to this finding.
The district court gave Mark credit for only 12 months of
overpayments, and based upon its determination of child sup-
port owed by Mark under the split custody calculation, it deter-
mined the credit should be $13,512. The district court made no
finding that the referee’s determination of the amount of credit
was clearly against the weight of the evidence.
We conclude that the evidence was sufficient to support the
referee’s determination of child support credit and that it was
not clearly against the weight of the evidence. The district
court erred in modifying the amount of credit to be given to
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Cite as 24 Neb. App. 726Mark. We therefore modify the decree to provide that Mark
receive a credit of $30,184.
(f) Private School Tuition
Mark asserts that the district court erred in requiring him
to pay private school tuition. The referee recommended that
Mark pay all tuition for the children in conformity with
the parties’ temporary stipulation through completion of the
2014-15 school year. The referee specifically declined to order
Mark to continue to pay school tuition going forward. While
the referee found (citing an unpublished case of this court) that
a court could include education expenses in a support order if
the court found such expenses were “‘reasonable and neces-
sary,’” including such expenses would constitute a deviation.
The referee, in declining to order Mark to mandatorily pay
these expenses, noted that it utilized the “optional extrapola-
tion methodology” set forth in Neb. Ct. R. § 4-203(C) (rev.
2011) of the child support guidelines to the fullest extent pos-
sible in determining appropriate child support and included the
regular and ongoing payment of personal credit card expenses
through the businesses as income attributable to Mark. Sonia
filed an exception to this decision.
The district court found that Mark should be required to
pay the “school tuition and matriculation fees” for the children
to attend any primary or secondary private school in Lincoln,
Nebraska, for the next 5 years. Thereafter, the court ordered
that each party shall be responsible for 50 percent of these
costs for all children. The district court made no determina-
tion that the findings of the referee on this issue were clearly
against the weight of the evidence.
We conclude that there was sufficient evidence to support
the referee’s findings regarding payment of school tuition,
particularly given the amount of child support and alimony
to be paid by Mark to Sonia, along with the substantial prop-
erty awarded to Sonia. The referee’s finding was not clearly
against the weight of the evidence. The district court erred in
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BECHER v. BECHER
Cite as 24 Neb. App. 726requiring Mark to pay for private school tuition and fees for
the next 5 years and for the parties to thereafter split the cost.
We modify the decree to incorporate the referee’s findings
regarding payment of school tuition.
(g) Conclusion
As set forth above, we have found certain errors in the dis-
trict court’s findings relating to the parties’ children, and we
vacate and set aside those portions of the decree and modify
the decree accordingly to incorporate the findings of the ref-
eree as to those issues.
5. A limony
Mark asserts that the district court erred in awarding alimony.
[21,22] In considering alimony, a court should weigh four
factors: (1) the circumstances of the parties, (2) the duration
of the marriage, (3) the history of contributions to the mar-
riage, and (4) the ability of the party seeking support to engage
in gainful employment without interfering with the interests
of any minor children in the custody of each party. Brozek v.
Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). In addition to
the specific criteria listed in § 42-365, a court should consider
the income and earning capacity of each party and the general
equities before deciding whether to award alimony. Brozek v.
Brozek, supra.[23-26] The statutory criteria for dividing property and
awarding alimony overlap, but the two serve different purposes
and courts should consider them separately. Id. The purpose of
a property division is to distribute the marital assets equitably
between the parties. Id. The purpose of alimony is to provide
for the continued maintenance or support of one party by the
other when the relative economic circumstances and the other
criteria enumerated in § 42-365 make it appropriate. Brozek
v. Brozek, supra. In weighing a request for alimony, the court
may take into account all of the property owned by the parties
when entering the decree, whether accumulated by their joint
efforts or acquired by inheritance. Id.- 771 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
BECHER v. BECHER
Cite as 24 Neb. App. 726The referee discussed the pertinent statutory factors set forth
in § 42-365 in its consideration of alimony. The referee also
considered the significant child support obligation that Mark
is required to pay, the ages of the children, Sonia’s limited
employability, and the significant money judgment that will
need to be paid over the next 10 years. The referee also rec-
ognized that Mark had already paid significant alimony since
May 1, 2013. The referee found that commencing October 1,
2015, Mark should pay to Sonia the sum of $4,500 per month
through April 30, 2019, for a total of 43 months. Thereafter,
Mark should pay $4,000 per month for an additional 48
months, commencing May 1, 2019, and concluding after pay-
ment of the April 2023 payment. Sonia filed an exception to
this decision.
The district court, while noting consideration of the same
factors as the referee, determined that commencing December
1, 2015, Mark should pay Sonia $4,500 per month each month
through November 30, 2025. The district court did not deter-
mine that the referee’s findings were clearly against the weight
of the evidence.
We recognize that as a result of our findings regarding
the property division, Mark is no longer required to pay a
money judgment to Sonia; rather, Sonia is now required to
pay a money judgment to Mark, albeit of a far lesser amount.
Nevertheless, the remaining factors cited by the referee in
support of its alimony award lead us to conclude that the
referee’s award was not clearly against the weight of the evi-
dence. The district court erred in substituting its own deter-
mination of alimony for that of the referee. Accordingly, we
vacate and set aside that portion of the decree and modify the
decree accordingly to incorporate the findings of the referee
as to alimony.
6. Award of Fees
[27,28] Mark asserts that the district court erred in award-
ing attorney fees. In a marital dissolution action, an award of
- 772 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
BECHER v. BECHER
Cite as 24 Neb. App. 726attorney fees depends on a variety of factors, including the
amount of property and alimony awarded, the earning capacity
of the parties, and the general equities of the situation. Molczyk
v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013). A dissolu-
tion court deciding whether to award attorney fees should con-
sider the nature of the case, the amount involved in the con-
troversy, the services actually performed, the results obtained,
the length of time required for preparation and presentation of
the case, the novelty and difficulty of the questions raised, and
the customary charges of the bar for similar services. Brozek v.
Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
The referee recommended that Mark pay Sonia’s attorney
fees in the amount of $20,000 and costs of $20,000. Sonia filed
an exception to this decision. The district court also ordered
Mark to pay Sonia’s attorney fees in the sum of $20,000 and
costs of $20,000. Because Mark withdrew his exceptions to the
referee’s report, he is precluded from challenging the award of
attorney fees on appeal.
V. CONCLUSION
As set forth above, Mark has waived his right to appeal cer-
tain issues by accepting certain benefits of the judgment. He is
precluded from challenging certain other portions of the decree
because he withdrew his exceptions to the referee’s report.
We hold that a trial court may only set aside or modify
the report of a referee upon a determination that the referee’s
findings were clearly against the weight of the evidence. The
district court made certain errors in setting aside or modifying
findings of the referee which were supported by the evidence
and not clearly against the weight of the evidence. As set forth
above, we have vacated and set aside those findings and have
modified the decree to incorporate the referee’s findings as to
those issues. We affirm the decree as modified.
A ffirmed as modified.