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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

WRIGHT v. WRIGHT

Cite as 29 Neb. App. 787

Heather 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 depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

3. Visitation: Appeal and Error. 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 determination will normally be affirmed absent an abuse of discretion.

4. Evidence: Appeal and Error. 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.

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 protect 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/11/2021 09:10 AM CDT
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7. 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 proceeding, 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. 787

BACKGROUND

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 protection 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 comments 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. 787

that very well. And while Heather admitted that mistakes happen 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 children.” 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 thinking 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 protection 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 understand 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. 787

this 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 temporary 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 physical 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 recognize 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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WRIGHT v. WRIGHT

Cite as 29 Neb. App. 787

Following 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 messages “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 temporary order restricted Lucas’ communication with the children 

and suspended his parenting time except for court-ordered 

therapeutic parenting time. Lucas was to have no communication 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 expenditures 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 subject 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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convictions 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 discovery 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 children and their mother.” This finding is supported by Dr. 

Cottam. [Lucas] denies any manipulation of the children 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], telling 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. 787

blaming [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 communicate 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 parent 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 difficulties in an apparent attempt to ensure their loyalty and 

posture against their mother.

[Lucas] both overtly and covertly attempts to promote 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 withhold 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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WRIGHT v. WRIGHT

Cite as 29 Neb. App. 787

the 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 oldest 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 interests. 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. 787

Accordingly, 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 supervision 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 probation 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 indicate 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 provides 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, communication 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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distributed marital and nonmarital property and debts between 

Heather and Lucas. The court ordered Heather to pay an equalization 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 supervised 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 attorney fees. Id. A judicial abuse of discretion exists if the reasons 

or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in 

matters submitted for disposition. Id.

ANALYSIS

Therapeutic and Supervised 

Parenting Time

The district court ordered the implementation of the parenting plan as described above, which restricted Lucas’ parenting 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. 787

the 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 calculated 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 arguments, 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 determination will normally be affirmed absent an abuse of discretion. 
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Bornhorst v. Bornhorst, 28 Neb. App. 182, 941 N.W.2d 769 

(2020). 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).

[5] When a court is required to develop a parenting plan, 

Neb. Rev. Stat. § 43-2932(1) (Reissue 2016) permits limitations to parenting time or other access for a parent if the preponderance 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 parenting 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 parent from communication with or proximity to the other parent 

or the child”; “[d]enial of overnight physical custodial parenting time”; and “[a]ny other constraints or conditions deemed 

necessary to provide for the safety of the child, a child’s parent, 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 children consistent with their best interests).

Notwithstanding the record’s substantial evidence concerning the incidents of domestic conflict between Heather and 

Lucas, Lucas emphasizes the lack of evidence that he posed 
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a risk of physical harm to the children as the core of his argument 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 criminal matters with the children and placing blame on Heather, 

telling the children their mother was having him arrested, discussing 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’ behaviors have had significant negative effects on the children’s 

mental and emotional well-being that manifested in the children 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 healing 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 findings, we cannot say limiting Lucas’ interactions with the children 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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exist[],” 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 specifically 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 improvement, 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 continued 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 contemplating 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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Based upon the evidence in the record before us, we cannot 

say the district court abused its discretion by ordering therapeutic 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 manipulative or alienating behavior which adversely impacts the children’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 children 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 property 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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to 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 identifies 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 marital 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 discretion 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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In 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 characterized 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 property accumulated and acquired by either spouse during a marriage is part of the marital estate. See Dooling v. Dooling, 
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303 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 number 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 beforehand” 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 supported 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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was “deposited into [the parties’] joint account.” In her deposition 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 insufficient 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 principal amount.” Id.

[10] Marital debt includes only those obligations incurred 

during the marriage for the joint benefit of the parties. 
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Fetherkile 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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he was in school. In the absence of further evidence and context 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 attorney fees to Heather. Lucas claims the district court abused its 

discretion in awarding Heather attorney fees given the parties’ similar earning capacities and the balance of equities in 

the case.

[11] It has been held that 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 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 discretionary with the trial court, is reviewed de novo on the record, 

and will be affirmed in the absence of an abuse of discretion. 

See 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.