Wright v. Wright , 29 Neb. Ct. App. 787 ( 2021 )

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WRIGHT v. WRIGHT
Cite as 29 Neb. App. 787Heather Wright, appellee, v.
Lucas Wright, appellant.
___ N.W.2d ___
Filed April 27, 2021. No. A-20-443.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Visitation: Appeal and Error. Parenting time determinations are mat-
ters initially entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion.
4. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
5. Visitation. If a parent has been found to have committed child abuse
or neglect, committed domestic intimate partner abuse, or interfered
persist­ently with the other parent’s access to the child, limits shall be
imposed within the parenting plan that are reasonably calculated to pro-
tect the child or child’s parent from harm.
6. Divorce: Property Division. In a divorce action, the purpose of a
property division is to distribute the marital assets equitably between
the parties.
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Cite as 29 Neb. App. 7877. Property Division. Equitable property division under Neb. Rev. Stat.
§ 42-365 (Reissue 2016) is a three-step process. The first step is to
classify the parties’ property as marital or nonmarital. 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.
8. Divorce: Property Division: Proof. In a marital dissolution proceed-
ing, the burden of proof rests with the party claiming that property
is nonmarital.
9. Divorce: Property Division. 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.
10. Property Division. Marital debt includes only those obligations incurred
during the marriage for the joint benefit of the parties.
11. Divorce: Attorney Fees. In awarding attorney fees in a dissolution
action, a court shall consider the nature of the case, the amount involved
in the controversy, the services actually performed, the results obtained,
the length of time required for preparation and presentation of the case,
the novelty and difficulty of the questions raised, and the customary
charges of the bar for similar services.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Liam K. Meehan, of Wagner, Meehan & Watson, L.L.P., for
appellant.
Justin A. Quinn for appellee.
Moore, Riedmann, and Bishop, Judges.
Bishop, Judge.
INTRODUCTION
Lucas Wright appeals the amended decree entered by the
Douglas County District Court dissolving his marriage to
Heather Wright. He claims errors related to the parenting plan,
premarital personal property, nonmarital gifts, student loans,
and the court’s award of attorney fees to Heather. We affirm.
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WRIGHT v. WRIGHT
Cite as 29 Neb. App. 787BACKGROUND
Heather and Lucas were married on September 15, 2012;
prior to filing for divorce, they had “lived as a family unit”
for “approximately ten years.” They had two sons, one born in
2008 and another in 2009.
Heather filed a complaint for dissolution on April 4, 2018.
Following an incident between herself and Lucas on May 1,
Heather petitioned for and was granted a domestic abuse pro-
tection order on May 2 that gave Heather temporary custody
of the children for 90 days and prohibited contact between
Heather and Lucas. She then motioned the district court to
enter a temporary order granting her sole legal and physical
custody of the children, providing temporary child support,
and directing the allocation of certain property and debts
between herself and Lucas. Heather further filed an amended
complaint on June 21, seeking sole legal and physical custody
of the children.
On August 2, 2018, the district court entered a temporary
order awarding Heather and Lucas joint legal and physical
custody of their children, with a “week on/week off schedule.”
Each party was restrained from making disparaging com-
ments regarding the other party to the minor children or in
their presence, as well as directed to exercise diligence in
preventing third parties from doing the same. The order also
required Lucas to pay $409 per month in child support and
addressed how the parties were to handle certain expenses,
assets, and debts.
Trial began on February 28, 2019, and numerous hearings
were held in the months thereafter, with an initial “Decree
of Dissolution” entered on December 30. Notably, after the
parties each presented their case in chief in trial proceedings
held on April 3 and 11, the district court addressed the parties
on the record at the conclusion of the proceedings on April
11. It noted that there was “no doubt” both parties love their
children, but that Heather knew “how to get under [Lucas’]
skin” and Lucas had “some anger” and was not controlling
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Cite as 29 Neb. App. 787that very well. And while Heather admitted that mistakes hap-
pen and she was not perfect, Lucas, on the other hand, did not
understand that what he was doing was hurting the children.
The court pointed out that Lucas was talking to the children
about Heather and that he was saying things he should not be
saying to them. The court stated:
They do not need to be involved in the protection order
business. They do not need to be involved in what her
allegations are against you. They did not need to take a
Valentine’s Day present [from Lucas to Heather] when
there was a protection order and put it on her pillow
[for Lucas].
The court criticized both parents for videotaping the children
with the other parent; “[t]hat is horrible to do to those chil-
dren.” The court told Lucas how things he was saying to the
children “messes them up” and “makes them feel like they
have to pick sides, and you can imagine what that does to
them.” The court expressed concern that Lucas was not think-
ing of the children first, but was instead focused on his anger
toward Heather. The court stated:
What I would like to do because . . . I entered a pro-
tection order and you ignored it. I — and don’t say you
didn’t. I mean, you didn’t hurt her, but you did stuff, you
ignored it, because you’re upset at her. I get all of that. But
I entered that order and you ignored that. We had some
issues with the temporary order that weren’t followed.
I . . . don’t want to enter a final order today that puts
you behind the eight ball for a long period of time. I
want to give you the opportunity to show that you under-
stand what that is doing to those absolutely wonderful
little guys.
. . . I’m going to modify the temporary [order] and I’m
going to make your visitation less right now for a period
— now, I have the option of doing something quite a
bit more rigorous, but I don’t want to do that right now
because I want you . . . to put this in a situation where
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Cite as 29 Neb. App. 787this can be fixed. You know, some judges would just rule
from the bench that that behavior is alienation. I don’t
want to do that. I want to give you an opportunity to
show me that you get how to fix this.
I also think that that gives you an opportunity to heal
because you need to get over your anger at [Heather].
The district court proceeded to verbally modify the tempo-
rary order to give Lucas parenting time every other weekend
from Friday after school until Monday morning when school
started, as well as after school until 9 p.m. on Wednesdays.
The court also temporarily awarded Heather legal and physi-
cal custody. The court was going to leave the record open for
60 days, and the modified temporary order was to be in effect
during that time. Dr. Glenda Cottam was to be “significantly
involved”; family therapy was ordered. The parties were to
have no contact with one another. The court informed Lucas
that it wanted him “to get a good understanding of what these
behaviors have done to these boys. They should not be mad
at their mom. Do you understand what I’m saying? They
shouldn’t be mad at her for this divorce.”
The district court provided this 60-day period for Lucas
to correct his behaviors, informing him that it was avoiding
entering a final order at that time so the parties could “get to
a point where [they] can parallel-parent” and Lucas could rec-
ognize that “the best way to be a good dad is to encourage his
children . . . to love their mom . . . no matter how he feels.”
The court told Lucas that the children were “not in a healthy
situation because they’re angry at [Heather] and they’re angry
because of the things you have said to them, and you can
deny it if you want, but I have talked to them.” The children
“know you’re hurt,” and “they’re mad at [Heather] because
you’re hurt. What a horrible thing for those kids to feel. They
shouldn’t be mad at their mom because she loves them. They
shouldn’t even know that you’re mad at their mom.” A second
temporary order consistent with the court’s verbal directives
was entered on April 29, 2019.
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Cite as 29 Neb. App. 787Following a contempt hearing on July 3, 2019, the district
court entered a third temporary order on July 11. The court
found that Lucas violated the August 2018 temporary order
by sending a series of text messages to the minor children that
included disparaging comments about their mother, which mes-
sages “were an effort to manipulate the minor children.” The
court also found that Lucas violated the April 2019 temporary
order by failing to return the children in accordance with the
court-ordered parenting schedule. Lucas was sentenced to 5
days in jail, but the sentence was suspended, and Lucas was
given the ability to purge his contempt by “complying with all
parts of the further temporary order regarding parenting time
entered contemporaneously with this Order.” The third tempo-
rary order restricted Lucas’ communication with the children
and suspended his parenting time except for court-ordered
therapeutic parenting time. Lucas was to have no communica-
tion whatsoever with the children outside of his therapeutic
parenting time.
The district court entered a fourth temporary order on
September 16, 2019, increasing Lucas’ temporary child support
obligation to $1,419 per month and dividing certain expendi-
tures between Heather and Lucas.
On December 30, 2019, the district court entered a decree
dissolving the parties’ marriage. The court later entered an
amended decree on May 18, 2020, addressing issues regarding
the child support calculation raised in Lucas’ motion for new
trial. The court found it to be in the children’s best interests
to grant Heather their sole legal and physical custody sub-
ject to Lucas’ therapeutic and supervised parenting time. The
amended decree noted that Lucas had been convicted of three
separate misdemeanor crimes involving Heather as a victim
during the pendency of the case. These included a May 2018
incident when Lucas threatened and choked Heather, resulting
in a disturbing the peace conviction, and various violations
of protection orders in 2018 and 2019. Lucas was sentenced
to 24 months’ probation beginning in October 2019 for his
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Cite as 29 Neb. App. 787convictions for violating a protection order and stalking, and
Lucas was ordered to have no contact with Heather.
The amended decree detailed the district court’s concerns
about Lucas’ manipulation of the children, which included
an instance when Lucas had the children assist him “in the
criminal act of violation of the protection order,” referencing
when Lucas had the children place a Valentine and a “mixed
tape [CD song mix]” on Heather’s bedroom pillow. The court
also mentioned incidents when Lucas followed and stalked
Heather, “ending up at places [Heather] had gone when she
was with other men friends and co-workers.” The court also
pointed out an incident when Lucas showed up at a football
equipment meeting even though Lucas was not supposed to
be there, but Lucas asked his oldest son, “‘I have a right to be
here, don’t I [son]?’” The video of the incident showed that the
oldest son was “extremely uncomfortable and anxious due to
[Lucas’] behaviors.” The amended decree stated, “The record
shows [Lucas] has little regard for court orders, including dis-
covery orders, temporary orders, and the protection order.” The
amended decree further provided:
The Court finds [Lucas] has repeatedly engaged in
behaviors which cause “alienation between the chil-
dren and their mother.” This finding is supported by Dr.
Cottam. [Lucas] denies any manipulation of the chil-
dren or use of the children, particularly [the oldest son],
to maintain control over [Heather]. The Court finds he
appears to have no insight into how his desire to control
or punish [Heather] hurts his children. This pattern of
behavior, according to Dr. Cottam, has a significant effect
on the minor children, causing them confusion, sadness
and anxiety.
The evidence before the Court shows that [Lucas] has
engaged in a pattern of discussing his criminal matters
with the children and placing blame on [Heather], tell-
ing the children their mother was having him arrested,
discussing the protection order issued against him and
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WRIGHT v. WRIGHT
Cite as 29 Neb. App. 787blaming [Heather], referring to her as a liar, and telling
the children to tell their mother what to do and how to
do it, criticizing [Heather] to the children, and directing
the children to [Heather’s] private/dating life by speaking
to them about it or directing them to social media. The
Court interviewed the children, [the oldest son] on two
occasions and [the youngest son] on a single occasion.
Although those interviews are sealed, they corroborate Dr.
Cottam’s opinions and the Court[’]s findings. Dr. Cottam
remains concerned about [Lucas] making “statements that
could arise to the level of emotional abuse or confusion
for the children.”
Dr. Cottam recognized that [Lucas’] attempt to commu-
nicate through the children causes undue stress. [Lucas]
shares his sadness, emotional instability, and desire to
reunite, even to the extent of praying with the children
that the parents will reunite. The Court finds [Lucas] has
placed the children in a position where they assume the
responsibility to mend the relationship or blame one par-
ent for the failure of the marriage. [Lucas] continues to
tell the children that their mother poorly cares for them,
reminds the children of past issues, and shares legal dif-
ficulties in an apparent attempt to ensure their loyalty and
posture against their mother.
[Lucas] both overtly and covertly attempts to pro-
mote anger by the children towards their mother. [Lucas]
directly encouraged [the oldest son] to gather evidence to
use against their mother, telling him to videotape ants in
the home and tell police he is scared. . . .
[Lucas] has used the children by withholding them
from [Heather’s] father, who was to pick up the children
at the end of [Lucas’] parenting time. [Lucas] harassed
and badgered [Heather’s] father, continuing to with-
hold the children over a period of several days in an
attempt to obtain information as to Heather’s location
and return time. These acts were in direct violation of
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Cite as 29 Neb. App. 787the temporary orders. Again, [Lucas] appears to have no
insight and continues to justify these types of behaviors
by attempting to deflect all blame away from himself.
Dr. Cottam testified . . . that the minor children . . .
made a number of statements which appeared to have
been influenced by an adult [and] that the statements, and
wording . . . were not consistent with a child of [the old-
est son’s] age and development. . . .
....
The Court has continued this matter and attempted to
involve experts in the hope that [Lucas] can gain insight
into the effect of these strategies and behaviors. However,
the testimony of Dr. Cottam suggests that [Lucas] has
not yet been able to gain that insight or separate from the
divorce conflict which continues to negatively affect the
minor children.
. . . Dr. Cottam testified that both children love their
parents and the parents love the children. The children
want to spend time with their father and have him in
their lives.
The amended decree pointed out Dr. Cottam’s concerns that
“she has been working with the family for over 100 days” and
that she has “not seen [Lucas] exhibit sufficient improvement”
to recommend unsupervised parenting time with the children.
Dr. Cottam “believes that supervised visitation should continue
for [Lucas].” The district court further stated:
[B]ased upon the evidence before the Court, at this time,
the Court cannot speculate as to when [Lucas] will take
the steps necessary to adjust his behaviors to allow for
unsupervised visitation to be in the children’s best inter-
ests. At this time, any plan with graduated suspension of
supervised visitation is speculative and in reliance upon
[Lucas’] completion of certain milestones that may or
may not affect [Lucas’] behaviors. . . . The Court does
find it to be in the best interests of the minor children to
increase [Lucas’] supervised visitation, per Dr. Cottam’s
suggestion. The children want this contact with [Lucas].
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Cite as 29 Neb. App. 787Accordingly, the parenting plan attached to and incorporated
into the amended decree provided:
[Lucas] shall have therapeutic parenting time with Dr.
. . . Cottam until the children have reached maximum
therapeutic benefit and shall additionally have supervised
parenting time each week. The supervised parenting time
shall be through [C]apstone or such other professional
supervising agency approved by [Heather]. The supervi-
sion shall be every Tuesday evening from 5:30 p.m. to
7:30 p.m. and every other Saturday from 3:00 p.m. to
5:00 p.m. The supervision shall be at [Lucas’] expense.
[Lucas] shall have no communication or contact with
the minor children other than during their Therapeutic
Parenting Time and his Supervised Parenting Time. If
the children have an activity or sporting event during the
pre-arranged Supervised Parenting Time, [Lucas] may
attend while being supervised. However, [Lucas] is still
under order of the Douglas County Court to have no
contact with [Heather], pursuant to his order of proba-
tion and shall have no contact with [Heather] during
these activities.
The parenting plan did not include any specific holiday or
vacation schedule for Lucas’ parenting time, but it did indi-
cate that Lucas “may have supervised Holiday time during
his regular Supervised Parenting Time, if it can be arranged
with the supervising agency.” The parenting plan further pro-
vides that “[t]he terms concerning parenting time and access
to the children may be adjusted or temporarily modified in
length, timing or terms upon reasonable advance notice, com-
munication and agreement between [Heather] and [Lucas].”
Any permanent changes could be made by agreement of the
parties but “must be approved by the Court to be binding and
enforceable.”
The amended decree also required Lucas to pay $960
per month in child support for two children. The district
court divided expenses pertaining to the children and further
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Cite as 29 Neb. App. 787distributed marital and nonmarital property and debts between
Heather and Lucas. The court ordered Heather to pay an equal-
ization payment of $10,957.50 to Lucas and ordered Lucas to
pay $13,000 of Heather’s attorney fees within 365 days of the
entry of the decree.
Lucas timely appealed.
ASSIGNMENTS OF ERROR
Lucas claims the district court erred by (1) ordering super-
vised and therapeutic visitation for an indefinite duration, (2)
failing to order the return of premarital property, (3) excluding
credit for gifts made by Lucas’ family during the marriage, (4)
excluding student loan debt from the marital estate, and (5)
awarding attorney fees.
STANDARD OF REVIEW
[1,2] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. Doerr
v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees. Id. A judicial abuse of discretion exists if the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.ANALYSIS
Therapeutic and Supervised
Parenting Time
The district court ordered the implementation of the par-
enting plan as described above, which restricted Lucas’ par-
enting time to scheduled instances of therapeutic parenting
time and supervised parenting time. Based on the evidence at
trial, the court found the plan to be in the best interests of the
minor children. In making this finding, the court highlighted
two issues that predominated the proceedings. The first was
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Cite as 29 Neb. App. 787the pattern of domestic conflict between Heather and Lucas
occurring prior to and during this case, which was marked by
three misdemeanor crimes committed by Lucas against Heather
after she filed her petition. The second, as the district court
described in the amended decree, was a pattern of “behaviors
which cause[d] ‘alienation between the children and their
mother’” by “overtly and covertly attempt[ing] to promote
anger by the children towards their mother” and by “plac[ing]
the children in a position where they assume the responsibility
to mend the relationship or blame one parent for the failure of
the marriage.”
We understand Lucas’ argument on appeal to primarily
challenge the propriety of the district court’s parenting plan
restricting his parenting time to therapeutic and supervised
instances. Lucas asserts that “[t]he restrictions ordered by
the court were too expansive when applying Neb. Rev. Stat.
­§43-2932 . . . .” Brief for appellant at 21. He claims the court’s
limitations on his parenting time could not be reasonably cal-
culated to protect the children because “[t]he record was clear
that the children were not in physical danger with Lucas . .
. .” Id. at 24. Lucas also argues the district court erred “in not
thoroughly weighing the standard best interest factors” when
setting Lucas’ parenting time. Id. at 25. In support of his argu-
ments, he points to Dr. Cottam’s testimony indicating “the
children were not in physical danger with [him]” or “testing
on a depression or anxiety scale,” and he further highlights
the children’s expressed desire “to see their father.” Id. at 24.
Contrasting his role as the children’s father with Heather’s as
their mother, Lucas emphasizes the complaints raised by the
children about the condition of Heather’s home and that “the
only allegation of actual physical harm occurring to a child
came against [Heather].” Id. at 26.
[3,4] Parenting time determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
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Cite as 29 Neb. App. 787Bornhorst v. Bornhorst, 28 Neb. App. 182, 941 N.W.2d 769(2020). When evidence is in conflict, an appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Donald v. Donald, 296 Neb. 123, 892
N.W.2d 100 (2017).
[5] When a court is required to develop a parenting plan,
Neb. Rev. Stat. § 43-2932(1) (Reissue 2016) permits limita-
tions to parenting time or other access for a parent if the pre-
ponderance of the evidence demonstrates the parent has, among
other things, “committed child abuse or neglect,” committed
“domestic intimate partner abuse,” or “interfered persist­ently
with the other parent’s access to the child.” If a parent is found
to have engaged in such activity, “limits shall be imposed that
are reasonably calculated to protect the child or child’s parent
from harm.” Id. Further, the limitations permitted by § 43-2932
include, but are not limited to, “allocation of sole legal or
physical custody to one parent”; “[s]upervision of the parent-
ing time, visitation, or other access between a parent and the
child”; “[e]xchange of the child between parents through an
intermediary or in a protected setting”; “[r]estraints on the par-
ent from communication with or proximity to the other parent
or the child”; “[d]enial of overnight physical custodial parent-
ing time”; and “[a]ny other constraints or conditions deemed
necessary to provide for the safety of the child, a child’s par-
ent, or any person whose safety immediately affects the child’s
welfare.” See, also, Fine v. Fine, 261 Neb. 836, 626 N.W.2d
526 (2001) (although limits on visitation are extreme meas­
ure, they may be warranted where they are in best interests of
children; supervised visitation for mother required until she
can make satisfactory showing she is able to provide safe and
stable environment for unsupervised visitation with her chil-
dren consistent with their best interests).
Notwithstanding the record’s substantial evidence concern-
ing the incidents of domestic conflict between Heather and
Lucas, Lucas emphasizes the lack of evidence that he posed
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Cite as 29 Neb. App. 787a risk of physical harm to the children as the core of his argu-
ment against the parenting plan. However, physical harm is
not the sole form of harm that may be posed to a child. The
district court described, at significant length and detail, the
nature and extent of Lucas’ involvement of the children in
the conflict between Heather and himself, which we set forth
previously. Lucas engaged in a pattern of discussing his crimi-
nal matters with the children and placing blame on Heather,
telling the children their mother was having him arrested, dis-
cussing the protection order issued against him and blaming
Heather, referring to her as a liar, telling the children to tell
their mother what to do and how to do it, criticizing Heather
to the children, and directing the children to Heather’s private/
dating life by speaking to them about it or directing them to
social media.
The district court further described circumstances where
Lucas interfered with transitions between the parties’ parenting
times or otherwise injected the children directly into incidents
between Heather and himself to harmful effect. Dr. Cottam,
noting the tests for depression and anxiety she administered to
the children were not always reliable, believed Lucas’ behav-
iors have had significant negative effects on the children’s
mental and emotional well-being that manifested in the chil-
dren as anxiety, stress, confusion, and sadness. It is evident
the court believed therapeutic and supervised parenting time to
be in the children’s best interests and necessary to their heal-
ing and development through this contentious period. It is also
plain the court believed this arrangement necessary to better
foster Lucas’ positive role as the children’s father going into
the future. Given the record underlying the district court’s find-
ings, we cannot say limiting Lucas’ interactions with the chil-
dren to therapeutic and supervised parenting time at the time of
the decree constituted an abuse of discretion.
Lucas contends the district court abused its discretion
because it did not provide a “step down” from the ­supervised
parenting time and because “[l]ess restrictive alternatives
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Cite as 29 Neb. App. 787exist[],” such as ordering supervised parenting time for 90
days or less or “until more of the criminal probation order had
been complied with.” Brief for appellant at 24. However, the
district court noted in its May 18, 2020, amended decree that
“any plan with graduated suspension of supervised visitation is
speculative and in reliance upon [Lucas’] completion of certain
milestones that may or may not affect [his] behaviors” and that
it could not “speculate as to when [Lucas] will take the steps
necessary to adjust his behaviors to allow for unsupervised
visitation to be in the children’s best interests.”
Given the lack of progress made by Lucas following the
April 11, 2019, proceeding, it is not surprising the district
court was unwilling to place a speculative deadline on the
therapeutic and supervised parenting time. A year earlier, at
the conclusion of that April 11 hearing, the district court spe-
cifically admonished Lucas about how things he was saying
to the children “messes them up” and “makes them feel like
they have to pick sides,” and the district court stated that some
judges “would just rule from the bench that [this] behavior is
alienation.” That said, the court was willing to delay entering
a final decree in order to give Lucas an opportunity to correct
those behaviors. Despite that opportunity to show improve-
ment, Lucas elected instead to engage in further parental
alienation behaviors which adversely impacted the children. As
noted by the district court in the amended decree, Lucas con-
tinued to have “little regard for court orders.” Unfortunately,
Lucas continued to fail to recognize how his behavior and
improper influence on his children was detrimental to their
emotional well-being. Additionally, when the court was con-
templating whether 90 days would be sufficient for Lucas “to
gain insight,” the court asked Dr. Cottam whether she had
seen Lucas make the progress she “had hoped for” in the past
100 days; Dr. Cottam responded, “No.” Further, even in Dr.
Cottam’s presence as a supervisor over Lucas’ parenting time,
she observed Lucas over those 100 days to continue to make
statements with a “derogatory implication to [Heather].”
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Cite as 29 Neb. App. 787Based upon the evidence in the record before us, we cannot
say the district court abused its discretion by ordering thera-
peutic and supervised parenting time. The ability to transition
to unsupervised parenting time is in Lucas’ control. He simply
needs to demonstrate that he will no longer engage in manipu-
lative or alienating behavior which adversely impacts the chil-
dren’s relationship with their mother. This will require Lucas
to move past his emotional distress, anger, and/or resentment
toward Heather over the deterioration of their relationship, and
it will require Lucas to instead focus on being a good father
to his sons. The evidence reflects Lucas loves his sons and
is fully capable of being such a father. Upon proper evidence
presented to the court, the current parenting plan is subject to
modification. See State on behalf of Maddox S. v. Matthew E.,
23 Neb. App. 500, 873 N.W.2d 208 (2016) (right of parenting
time is subject to continuous review by court, and party may
seek modification of parenting time order on grounds there has
been material change in circumstances; best interests of chil-
dren are primary and paramount considerations in determining
and modifying parenting time).
Premarital Property
Lucas argues the district court abused its discretion in not
awarding him certain property he claimed to be nonmarital.
The court awarded Heather and Lucas “the personal prop-
erty currently in their possession.” The court additionally
awarded Lucas “any tools listed on Exhibit 103 that remain in
[Heather’s] possession[,] . . . his mother’s hutch and china, his
golf clubs, . . . a set of knives belonging to [his] father,” and
“any items noted on Exhibit 114, which were marked with an
‘L’ by [Heather].” Exhibit 103 is a list of specific tools, which
exhibit was offered by Lucas as an aid to the district court.
Exhibit 114 is a spreadsheet offered as an aid setting forth a
division of property between Heather and Lucas. Except for
the gifts of $3,000 made to Heather by each of her parents,
the district court determined that “[n]either [Heather] nor
[Lucas] met their burden as to any other property claimed
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Cite as 29 Neb. App. 787to be non-marital.” The court further ordered Heather to pay
Lucas an equalization payment of $10,957.50.
Lucas asserts the district court abused its discretion in not
awarding him all the property he listed as nonmarital in exhibit
101. Exhibit 101 is an inventory offered by Lucas in which
he designated certain property as marital or nonmarital. Lucas
argues the district court erred by “only provid[ing] a division
of joint marital property and a few limited pieces of family
heirlooms” while “not properly identifying the non-marital
property of Lucas.” Brief for appellant at 28. Lucas also identi-
fies that when responding to the question of whether Heather
and Lucas had “divided [their] personal property as much
as [they were] going to,” Heather testified that if “[t]here
[were] still items that [Lucas] would like to retrieve, he can
have, absolutely.”
[6-8] In a divorce action, the purpose of a property division
is to distribute the marital assets equitably between the parties.
Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
Equitable property division under Neb. Rev. Stat. § 42-365(Reissue 2016) is a three-step process. Stanosheck v. Jeanette,
supra. The first step is to classify the parties’ property as mari-
tal or nonmarital. Id. The second step is to value the marital
assets and marital liabilities of the parties. Id. The third step
is to calculate and divide the net marital estate between the
parties. Id. In a marital dissolution proceeding, the burden of
proof rests with the party claiming that property is nonmarital.
Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
The division of property is a matter entrusted to the discre-
tion of the trial judge, which will be reviewed de novo on
the record and will be affirmed in the absence of an abuse of
discretion. Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d
30 (2003). When evidence is in conflict, an appellate court
considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of
the facts rather than another. Donald v. Donald, 296 Neb. 123,
892 N.W.2d 100 (2017).
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Cite as 29 Neb. App. 787In this circumstance, we give weight to the fact that the
trial judge heard and observed the witnesses on this matter.
The district court took the parties’ exhibits and testimony into
consideration and made determinations as to the credibility
and weight that evidence should be given in its decree. While
we note the record before us could have supported the court’s
award to Lucas of the items listed in exhibit 101, we cannot
say the court abused its discretion in finding that Lucas had not
carried his burden to prove this property to be nonmarital. That
said, to the extent the items alleged by Lucas in exhibit 101
are known by Heather to have belonged to Lucas prior to their
marriage, and there is no disagreement whatsoever as to their
premarital status, it would certainly be reasonable for Heather
to return such items to Lucas given her testimony generally
indicating her willingness for Lucas to “absolutely” have his
personal property.
Payments From Lucas’ Mother
Lucas claims the district court abused its discretion in not
awarding him credit for certain payments received from his
mother during the marriage. Lucas claims two amounts given
by his mother should have been credited to him as nonmarital.
At trial, he testified his “mother transferred $1,000” into the
parties’ joint account for Heather, the children, and himself “to
go to Arizona for a Christmas vacation” in 2014. Also, Lucas’
mother affirmed that she “made contributions to a car payment
for a period of . . . years” that “totaled in excess of $6,000.”
She also agreed that she had helped Heather and Lucas “with
other money during their marriage.” As noted previously, the
district court found that outside of items specifically charac-
terized in its decree as nonmarital, “[n]either [Heather] nor
[Lucas] met their burden as to any other property claimed to
be non-marital.”
[9] The general rule in dissolution actions is that all prop-
erty accumulated and acquired by either spouse during a mar-
riage is part of the marital estate. See Dooling v. Dooling,
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Cite as 29 Neb. App. 787303 Neb. 494, 930 N.W.2d 481 (2019). Exceptions include
property that a spouse acquired before the marriage, or by
gift or inheritance. Id. In a marital dissolution proceeding, the
burden of proof rests with the party claiming that property is
nonmarital. Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d
488 (2019).
We find no abuse of discretion by the district court on this
issue. The record does not establish that the amounts alleged
by Lucas and his mother were ever intended to be nonmarital
gifts to Lucas. Lucas’ mother paid $1,000 into the parties’
joint account for the express purpose of funding the family’s
Christmas vacation to Arizona to visit her; its purpose was to
help facilitate a family gathering beneficial to all involved.
As for the alleged $6,000 paid through an unspecified num-
ber of “contributions to a car payment” at unspecified times
over an unspecified “period of . . . years,” there was simply
no evidence that such payments were intended as nonmarital
gifts to Lucas. Further, Heather affirmed during her testimony
that these car payments were for “a car [Lucas] owned before-
hand” that “has been sold” with the corresponding proceeds
“dissipated.” Notably, Lucas’ mother affirmed that she had
helped “them” with other money during the parties’ marriage,
and she had done so “on a regular basis.” No evidence sup-
ported that any of these payments were made solely for Lucas’
benefit outside the marital estate; rather, it appears from
Lucas’ mother’s testimony that she was generous in helping
the couple when they needed help. Lucas did not carry his
burden of proving these amounts should be credited to him as
nonmarital property.
Student Loan Debt
Lucas returned to school for his master’s degree in 2012
just before the parties’ marriage, and he graduated in 2014.
Lucas testified that he “took an additional $41,000 . . . to cover
expenses” beyond the amount necessary to pay off his “tuition
and schooling.” He testified that the “additional $41,000”
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Cite as 29 Neb. App. 787was “deposited into [the parties’] joint account.” In her depo-
sition testimony, Heather affirmed that these amounts “went
into the joint account where [the parties’] bills were paid.”
Neither party provided evidence of how that money was spent.
According to bank records offered by Lucas, certain deposits
attributed to the “STATE OF NE” were made into the parties’
joint account beginning from August 22, 2012, until January
17, 2014. During that time period, a total of $40,622.80 was
deposited into the joint account. A loan statement in the record
indicated that as of July 9, 2019, the outstanding balance on
Lucas’ student loans was $124,157.14.
In its decree, the district court determined there was insuffi-
cient evidence “to determine an equitable amount to attribute as
marital debt from the loans borrowed by [Lucas] to further his
education.” The court further noted that while it was “possible
that a portion of [Lucas’] student loan debt was utilized for
support of the family,” there was “no evidence as to how much
of the loan deposits . . . were used to pay for tuition, books[,]
or other school expenses or to what extent the student loans
used for support had been repaid with marital money between
the time they were incurred and the time of separation.”
Lucas asserts the district court abused its discretion by
not including his student loans as marital debt, at least as to
“$40,622.80 of non-tuition student loans” deposited into the
parties’ joint account. Brief for appellant at 29. Lucas asserts
the district court erred through “misconstru[ing] how student
loan deposits work and fail[ing] to incorporate facts proven
by admitted exhibits.” Id. at 30. He claims that the deposited
amounts were not used to pay for tuition, as his tuition was
paid through loan proceeds “sent directly to the school.” Id. at
31. He further argues that the court erred in “suggest[ing] that
the loan could have been repaid or paid down [when] Lucas
has an outstanding balance . . . larger than the original princi-
pal amount.” Id.
[10] Marital debt includes only those obligations incurred
during the marriage for the joint benefit of the parties.
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Cite as 29 Neb. App. 787Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
As the parties discuss in their briefs on appeal, this court found
in Walker v. Walker, 9 Neb. App. 694, 618 N.W.2d 465 (2000),
that the district court did not abuse its discretion in finding
student loan debt accrued during the marriage to be nonmarital
where the parties disputed the extent to which the student loans
were used for joint marital interests or the obligor’s education.
The record showed a student loan indebtedness of $63,800,
which was approximately $20,000 in excess of the obligor’s
direct educational expenses. In that case, we noted the obligor
took “with her all of the benefits of her law school education,
and equity requires that she take with her those debts directly
related to obtaining that degree.” Id. at 700, 618 N.W.2d at
471. This holding demonstrates the importance of presenting a
sufficient record that establishes the distribution and utilization
of student loans incurred during the marriage.
Despite Lucas’ assertion on appeal that certain amounts of
his loan were directly paid to the school and that the entirety of
the $40,622.80 was for joint marital benefit, we have before us
neither any sort of itemization of the student loan proceeds nor
records of tuition payments to the school or other educational
costs that would identify whether or not the deposited amounts
were in excess of such costs, thus making them available to
use for joint marital expenses. The record does not contain any
accounting for how the student loan proceeds deposited into
the joint account were utilized during the marriage. Rather,
the record before us shows only that $40,622.80 was deposited
into the parties’ joint account while Lucas was in school and
that there remains an outstanding balance on Lucas’ student
loans. Lucas asserts that these facts, without further context,
compel this court to attribute the $40,622.80 to the marital
estate as a marital debt. In effect, Lucas asks this court to
assume the $40,622.80 went to the joint benefit of the parties
purely through its presence in the joint account. However, the
evidence does not indicate whether the deposited proceeds
went toward Lucas’ education or support for the family while
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Cite as 29 Neb. App. 787he was in school. In the absence of further evidence and con-
text regarding Lucas’ student loans, we cannot say the district
court abused its discretion in not attributing any amount of
Lucas’ student loan debt to the marital estate.
Attorney Fees
The district court ordered Lucas to pay $13,000 in attor-
ney fees to Heather. Lucas claims the district court abused its
discretion in awarding Heather attorney fees given the par-
ties’ similar earning capacities and the balance of equities in
the case.
[11] It has been held that in awarding attorney fees in a dis-
solution action, a court shall consider the nature of the case,
the amount involved in the controversy, the services actually
performed, the results obtained, the length of time required
for preparation and presentation of the case, the novelty and
difficulty of the questions asked, and the customary charges
of the bar for similar services. Garza v. Garza, 288 Neb. 213,
846 N.W.2d 626 (2014). The award of attorney fees is discre-
tionary with the trial court, is reviewed de novo on the record,
and will be affirmed in the absence of an abuse of discretion.
See id.According to an affidavit for attorney fees received into
evidence at the hearing held on October 16, 2019, Heather’s
attorney charged her at a rate of $210 per hour. Prior to the
conclusion of trial, the affidavit indicated that Heather had
incurred $25,483.97 in attorney fees and expenses. We have
reviewed the record, and we conclude the district court did
not abuse its discretion in ordering Lucas to pay $13,000 in
attorney fees.
CONCLUSION
For the reasons set forth above, we affirm the district court’s
amended decree in all respects.
Affirmed.