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Kristina Michelle Dooling, appel

cross-appellant, v. Shawn Allen D

appellant and cross-appell

___ N.W.2d ___

Filed July 5, 2019. No. S-18-191.

1. Divorce: Child Custody: Child Support: Property Division: Alimony: 

Attorney Fees: Appeal and Error. In a marital dissolution action, an 

appellate court reviews the case de novo on the record to determine 

whether there has been an abuse of discretion by the trial judge. This 

standard of review applies to the trial court’s determinations regarding 

custody, child support, division of property, alimony, and attorney fees.

2. Evidence: Appeal and Error. In a review de novo on the record, an 

appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. When evidence is in 

conflict, the appellate court considers and may give weight to the fact 

that the trial court heard and observed the witnesses and accepted one 

version of the facts rather than another.

3. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

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

submitted for disposition.

4. Child Support: Rules of the Supreme Court. In general, child support payments should be set according to the Nebraska Child Support 

Guidelines.

5. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 

2016), the equitable division of property is a three-step process. The 

first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property 

to the marriage. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the 

net marital estate between the parties in accordance with the principles 

contained in § 42-365.

Nebraska Supreme Court Online Library

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

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6. ____: ____. The ultimate test in determining the appropriateness of the 

division of property is fairness and reasonableness as determined by the 

facts of each case.

7. Property Division: Proof. The burden of proof rests with the party 

claiming that property is nonmarital.

8. Property Division: Appeal and Error. As a general principle, the date 

upon which a marital estate is valued should be rationally related to the 

property composing the marital estate. The date of valuation is reviewed 

for an abuse of the trial court’s discretion.

9. Property Division. The marital estate includes property accumulated 

and acquired during the marriage through the joint efforts of the parties.

10. Property Division: Wages: Equity. To the extent that employment 

benefits such as unused sick time, vacation time, and compensatory 

time have been earned during the marriage, they constitute deferred 

compensation benefits under Neb. Rev. Stat. § 42-366(8) (Reissue 

2016) and are considered part of the marital estate subject to equitable division.

11. Property Division. As a general rule, a spouse should be awarded onethird to one-half of the marital estate, the polestar being fairness and 

reasonableness as determined by the facts of each case.

12. Divorce: Property Division: Alimony. In dividing property and considering alimony upon a dissolution of marriage, a court should consider 

four factors: (1) the circumstances of the parties, (2) the duration of the 

marriage, (3) the history of contributions to the marriage, and (4) the 

ability of the supported party to engage in gainful employment without 

interfering with the interests of any minor children in the custody of 

each party.

13. Divorce: Property Division. In addition to the specific criteria listed 

in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the 

income and earning capacity of each party and the general equities of 

the situation.

14. Alimony. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic 

circumstances make it appropriate.

15. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same 

amount of alimony as did the trial court, but whether the trial court’s 

award is untenable such as to deprive a party of a substantial right or 

just result. The ultimate criterion is one of reasonableness.

16. Modification of Decree: Divorce: Child Custody. If trial evidence 

establishes a joint physical custody arrangement, courts will so construe 

it, regardless of how prior decrees or court orders have characterized 

the arrangement.
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17. Child Custody: Appeal and Error. Child custody determinations are 

matters initially entrusted to the discretion of the trial court, and 

although reviewed de novo on the record, the trial court’s determination 

will normally be affirmed absent an abuse of discretion.

18. ____: ____. In child custody cases, where the credible evidence is in 

conflict on a material issue of fact, the appellate court considers, and 

may give weight to, the fact that the trial judge heard and observed the 

witnesses and accepted one version of the facts rather than another.

Appeal from the District Court for Sarpy County: Stefan

A. Martinez, Judge. Affirmed in part, affirmed in part 

modified, and in part reversed and remanded with directions.

Christopher Perrone, of Perrone Law, for appellant.

Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Funke, 

Shawn Allen Dooling appeals from a decree of dissolution, 

assigning errors related to the issues of child support, division 

of the marital estate, and alimony. Kristina Michelle Dooling 

filed a cross-appeal which concerns the issues of child support, 

division of the marital estate, and the award of joint physical 

custody. We find error in the court’s child support calculation 

and its division of certain marital assets and determine the parties’ remaining arguments to be without merit. Therefore, we 

affirm in part, affirm in part as modified, and in part reverse 

and remand with directions.

I. BACKGROUND

Shawn and Kristina were married in May 2001 and divorced 

in January 2018. Three children were born of the marriage. 

During the marriage, Shawn was employed as a police officer 

for the city of La Vista, Nebraska; Kristina worked part time 

as a paraprofessional at a children’s school. When the parties 
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separated in July 2014, Shawn moved out of the family residence on South River Rock Drive in Papillion, Nebraska. The 

parties maintained a joint checking account and paid for family 

expenses from the account. Throughout their separation, the 

parties followed a shared parenting time schedule.

In July 2015, Kristina filed a complaint for dissolution of 

marriage in the district court for Sarpy County which requested 

“the temporary and permanent care, physical custody and 

control of the minor [children].” Shawn filed an answer and 

counterclaim which requested joint legal and physical custody. 

Pursuant to temporary orders entered in August 2015, the parties were awarded joint legal custody and Kristina was awarded 

“primary possession” of the children. Shawn was awarded parenting time every Wednesday and every other weekend from 

Friday through Monday. Shawn was ordered to pay monthly 

child support in the amount of $1,412, maintain all parties on 

health insurance, pay 72 percent of daycare if daycare was 

needed, and make the minimum monthly payment of $300 on 

the parties’ Visa credit card. Kristina was awarded exclusive 

possession of the home and was ordered to pay the mortgage, 

taxes, and costs on the home, which totaled $1,642 per month. 

Kristina was ordered to pay the first $480 per year of uninsured 

health costs for the children. The court did not award temporary alimony.

The family home was sold in May 2016, and the court 

ordered that the $20,857.44 in proceeds be held in trust pending trial. Trial was held on December 8, 2016, and June 21 and 

23, 2017. The issues tried included custody and parenting time, 

child support, alimony, and division of the parties’ assets and 

debts. The court heard testimony from two La Vista employees, 

Kristina, and Shawn.

1. Tria

(a) Evidence of Shawn’s 

Employment Benefits

The city clerk of La Vista testified regarding Shawn’s 

employment contract and benefits. According to this witness, 
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upon leaving employment, a city employee who has attained 

10 years of service is paid for unused sick leave for the amount 

that exceeds 660 accumulated hours up to the maximum of 

880 hours. The clerk testified that upon leaving employment, 

an employee is awarded 100 percent of compensatory (comp) 

time. The court also heard from La Vista’s human resources 

manager, who stated that comp time is paid out at the end of 

every fiscal year on September 30, up to a maximum of 75 

hours. She also testified that the city matches the police officers’ mandatory 7-percent contribution to their pensions. Both 

witnesses testified that city employees are paid for their unused 

vacation time upon leaving employment, up to a maximum of 

220 hours.

(b) Kristina’s Testimony

Kristina testified that during the marriage, she worked part 

time when school was in session and earned about $10 or $11 

an hour. In August 2015, Kristina obtained her first full-time 

job where she earns $13.50 an hour. She worked 40 hours a 

week with no 401K and no pension. She testified the parties’ 

balance on their Visa credit card account was $17,737.82 as of 

October 2015.

Before the parties purchased their house on South River 

Rock Drive, they owned a house on South 79th Street in 

La Vista. Kristina asked to be compensated for paying $6,880 

to replace the air conditioner in the South 79th Street house 

in 2010. She claimed she paid for the air conditioner using 

premarital funds kept in a Canadian bank account. Kristina 

testified the account originally held approximately $30,000 in 

Canadian dollars received from a personal injury settlement 

when she was 16 years old. She claimed she transferred $8,000 

out of the Canadian bank account to pay for the air conditioner. She produced a bank statement from February 2001 

showing a Canadian bank account held by Kristina and her 

father contained $29,580.95 in Canadian dollars and another 

statement from 2015 showing these funds had been depleted. 

On cross-examination, Kristina admitted that Shawn purchased 
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a new air conditioner for the South River Rock Drive residence 

after the parties had separated.

Kristina acknowledged the parties received a check for 

$20,857.44 in proceeds from the sale of the home on South 

River Rock Drive. The parties received an additional check 

in the amount of $2,848.93 from escrow for excess real estate 

taxes, which they agreed to divide equally. When the home 

was sold, the parties originally agreed to pay their marital 

debt from the sale proceeds, but Kristina later claimed that 

she should receive the majority of the sale proceeds, reasoning 

she was responsible for making house payments, cleaning the 

home, painting interior walls, and selling the home “without a 

realtor.” In particular, she noted that to prepare the house for 

closing, she spent $810 to mudjack the front porch.

Kristina testified that despite the temporary order giving Shawn parenting time every Wednesday and every other 

weekend, Friday through Monday, she allowed Shawn additional parenting time. At that time, Shawn was working as a 

detective and as a sniper on the SWAT team and held irregular hours. From approximately January to May 2016, Shawn’s 

parenting time ranged between 5 and 11 overnight visits per 

month. In lieu of daycare, Shawn picked up the children and 

took them to school and saw them after school almost every 

day. Kristina requested the court award joint legal custody 

and a parenting plan schedule consistent with the temporary order.

(c) Shawn’s Testimony

Shawn testified that at the time of trial, he had transferred 

to a road patrol position and that his hourly wage decreased 

from $36.04 to $34.54. He asked that the parenting schedule 

under the temporary order be adjusted to fit his new work 

schedule. He testified he now works 7 days in a 14-day period, 

consisting of workdays on Monday, Tuesday, Friday, Saturday, 

and Sunday during 1 week and Wednesday and Thursday the 

following week. He asked to be awarded parenting time for 

the 7 out of 14 days that he is not working.
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Shawn testified that during the marriage, Kristina did not 

express a desire to be repaid for premarital money spent for 

family purposes. Shawn stated that he knew Kristina sometimes received money from her father and that he did not 

know when or how much money was spent from the Canadian 

account. Shawn pointed out that Kristina purchased the air 

conditioner for the prior home in 2010. He asked that the 

court give him credit for making certain postseparation payments, including $7,792 on the Visa credit card and about 

$4,000 to pay off a loan for the new air conditioner in the most 

recent home.

An exhibit introduced into evidence showed that Shawn 

received monthly Veterans Affairs disability payments in the 

amount of $763.36.

2. Decr

The court issued tentative written findings in August 2017 

and asked Kristina’s counsel to prepare a decree in conformity 

therewith, after which both parties filed motions for reconsideration. The court then issued supplemental findings which 

modified the previous findings in several respects. The trial 

judge retired from the bench shortly thereafter, and the case 

was reassigned. Kristina’s trial counsel withdrew, filed an 

attorney lien, and was replaced with new counsel.

The new judge entered a decree of dissolution on January 8, 

2018. The decree incorporated the prior judge’s tentative and 

supplemental findings and ordered the following:

• The parties were awarded joint legal custody. Kristina was 

awarded “primary possession” of the children, subject to 

Shawn’s parenting time.

• The parenting plan awarded Shawn 6 of every 14 days and 4 

additional weeks of summer parenting time for a total of 172 

days of custody of the children.

• Kristina was not awarded any summer parenting time other 

than her regular parenting time.

• Shawn was ordered to maintain health insurance for the 

children; the parties were to equally share the costs of the 
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children’s uninsured health expenses; Shawn was ordered to 

maintain Kristina’s health insurance for 6 months.

• Shawn was ordered to pay $882 in monthly child support.

• Shawn was ordered to pay monthly alimony of $500 for a 

period of 60 months.

• The court valued the marital assets as of August 1, 2015. The 

decree sometimes referred to this date as the date of separation, even though the parties separated in July 2014.

• The court awarded Kristina $7,690.80 of the house proceeds 

“for monies expended to make the house marketable” and 

evenly divided the balance of the proceeds.

• The court equally divided Shawn’s retirement, valued at 

$108,468.41, pursuant to a qualified domestic relations order.

• The court equally divided Shawn’s vacation and comp time 

and ordered Shawn to pay Kristina $5,754.69 within 90 days. 

The court did not award Kristina any of Shawn’s sick time.

• The court ordered Shawn to pay the balance on the parties’ 

Visa credit card and ordered Kristina to pay a $637.73 medical debt.

• Shawn received a tax exemption for two minor children; 

Kristina received a tax exemption for one minor child.

On January 17, 2018, Kristina filed a motion to alter or 

amend the decree in several respects. The court overruled the 

motion on January 30. Shawn timely appealed, and Kristina 

cross-appealed. We moved the appeal to our docket pursuant to 

our statutory authority to regulate the caseloads of the appellate 

courts of this State.

II. ASSIGNMENTS OF ERROR

Shawn assigns, summarized and restated, that the court erred 

in (1) calculating Shawn’s child support obligation by (a) miscalculating Shawn’s income, (b) failing to include insurance 

premium costs, (c) not awarding Shawn credit for retirement 

contributions, and (d) not crediting Shawn for the correct 

number of days he was awarded visitation with the children; 

(2) awarding Kristina a larger share of the house proceeds and 

using the house proceeds to pay for the lien filed by Kristina’s 
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attorney; (3) calculating and splitting Shawn’s vacation time 

and comp time and giving Shawn only 90 days to pay Kristina 

her share of these assets; (4) calculating and dividing the parties’ debts; and (5) awarding alimony.

On cross-appeal, Kristina assigns, restated, that the court 

erred in (1) ordering joint physical custody, (2) failing to award 

Kristina summer parenting time, (3) failing to include Shawn’s 

disability benefits in the child support calculation, (4) failing to 

allocate the children’s direct expenses and childcare costs, and 

(5) excluding Shawn’s sick time from the marital estate.

III. STANDARD OF REVIEW

[1-3] In a marital dissolution action, an appellate court 

reviews the case de novo on the record to determine whether 

there has been an abuse of discretion by the trial judge. This 

standard of review applies to the trial court’s determinations 

regarding custody, child support, division of property, alimony, 

and attorney fees.1 In a review de novo on the record, an 

appellate court is required to make independent factual determinations based upon the record, and the court reaches its own 

independent conclusions with respect to the matters at issue.2

However, when evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard 

and observed the witnesses and accepted one version of the 

facts rather than another.3 A judicial abuse of discretion exists 

if the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying 

just results in matters submitted for disposition.4

IV. ANALYSIS

In this matter, we discuss the issues of child support, division of the marital estate, alimony, and joint physical custody, 

1 Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).

2 Id.

3 Id.

4 Id.
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as well as a number of related concerns raised by the parties. 

For purposes of efficiency, we will address assignments of error 

raised in Shawn’s appeal and Kristina’s cross-appeal together 

where their arguments pertain to the same predominant issue. 

In consideration of both the appeal and cross-appeal, we find it 

appropriate to modify the court’s child support calculation and 

the division of certain marital assets and debts, and we determine the remaining arguments to be without merit.

1. Child Suppor

Shawn argues that the court abused its discretion in its 

determination of child support. Shawn asserts that the court did 

not accurately determine his gross taxable income, the health 

insurance premium he pays for the children and himself, and 

his retirement contributions, and did not accurately state the 

number of days that the court awarded him custody of the children. We find no merit to Shawn’s claim regarding his gross 

taxable income, but determine his other arguments regarding 

child support do have merit. We also find merit to Kristina’s 

objections to the court’s findings regarding Shawn’s nontaxable 

income and its allocation of tax dependency exemptions and 

childcare expenses.

(a) Gross Taxable Income

[4] In general, child support payments should be set according to the Nebraska Child Support Guidelines.5

 In the child 

support worksheets adopted by the court, Shawn’s gross 

monthly taxable income was set at $6,637. Shawn argues this 

figure is not correct, because it reflects his wages at $36.04 per 

hour and he testified that in his new position, he makes $34.54 

per hour. As a result, Shawn argues that his monthly income 

should have been set at $5,987, which he calculated by multiplying $34.54 per hour by 40 hours per week for 52 weeks 

per year. Kristina argues that by annualizing Shawn’s income 

based on evidence in the record of a 5-month sample of his 

5 Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
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paychecks in 2017, Shawn’s monthly income should have been 

set at $6,643.33.

Under the child support guidelines, all income should be 

annualized and divided by 12.6 Kristina’s figure differs from 

the amount set by the court by less than 1 percent, which 

was calculated based on evidence in the record consisting of 

a 9-month sample of Shawn’s paychecks in 2016. We find no 

abuse of discretion by the district court in utilizing this evidence to calculate Shawn’s gross taxable income.

(b) Tax-Exempt Income

We agree with the parties that the $763.36 that Shawn 

receives in disability benefits each month should have been 

included as nontaxable income for purposes of the child support calculation. Under § 4-204, total monthly income for 

purposes of child support is income of both parties derived 

from all sources. Income for the purpose of child support is not 

necessarily synonymous with taxable income.7

(c) Health Insurance Premium

Shawn also argues that the court did not use the correct 

amounts for the health insurance premium that he pays for 

himself and the children. The child support guidelines provide 

that the increased cost to the parent for health insurance for 

the children shall be prorated between the parents. The parent 

paying the premium receives a credit against his or her share 

of the monthly support, provided that the parent requesting 

the credit submits proof of the cost of health insurance coverage for the children.8

 If not otherwise specified in the support 

order, “health insurance” includes coverage for medical, dental, 

orthodontic, optometric, substance abuse, and mental health 

treatment.9 The court set the health insurance premium Shawn 

6 Neb. Ct. R. § 4-204 (rev. 2016).

7 Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).

8 See Neb. Ct. R. § 4-215(A) (rev. 2011).

9 Id.
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pays for himself at $0 and the amount he pays for the children 

at $63.80. Shawn submitted evidence that his monthly premium for his own medical insurance is $63.80 and that he pays 

an additional $8.98 for his dental and vision insurance. Thus, 

the court erred in setting Shawn’s health insurance costs for 

himself at $0 rather than at the figure supported by the record 

of $72.78. We also agree with Shawn that the court erred by 

failing to set the amount that he pays for the children’s health 

insurance coverage at $177.80.

(d) Retirement

Next, Shawn contends that the court erred by incorrectly 

determining his monthly retirement contribution. The court set 

Shawn’s retirement contribution at $265.48. The undisputed 

evidence shows that Shawn pays 7 percent in mandatory retirement contributions each month. Having found that the court 

correctly set Shawn’s gross taxable income at $6,637, based 

on wages he earns working as a police officer, we find that the 

court erred by failing to set Shawn’s monthly retirement contribution at $464.59.

(e) Days of Child Custody

Shawn’s final argument on the issue of child support is that 

the court erred in setting the number of his annual days as a 

custodial parent at 151. The parenting plan incorporated into the 

decree awarded Shawn six overnight visits for every 14 days 

and 4 weeks of summer parenting time. As a result, Shawn has 

28 days of child custody when he is utilizing summer parenting 

time and 144 days during the other 48 weeks of the year, not 

counting holidays, which are evenly divided. Therefore, as the 

parties agree, the court should have set Shawn’s annual days as 

a custodial parent at 172 and Kristina’s at 193.

(f) Tax Exemptions

The decree awarded Shawn tax dependency exemptions for 

two of the children and Kristina a tax dependency exemption 

for one child. However, the child support calculation worksheet 
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awards each party equal dependency exemptions. We agree 

with the parties that the child support calculation worksheets 

should be modified to conform to the decree.

(g) Allocation of Expenses

In her cross-appeal, Kristina argues that because the court 

calculated child support using worksheet 3, the court erred in 

failing to account for the children’s direct expenses. Neb. Ct. 

R. § 4-212 (rev. 2011) provides that when child support is to 

be calculated using worksheet 3, “all reasonable and necessary direct expenditures made solely for the child(ren) such 

as clothing and extracurricular activities shall be allocated 

between the parents.” We note that Neb. Rev. Stat. § 42-364.17 

(Reissue 2016) also requires that a decree of dissolution “shall 

incorporate financial arrangements for each party’s responsibility for reasonable and necessary medical, dental, and eye care, 

medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child.”

We recently held that it is sufficient if the decree and attachments made the necessary allocations on each of the required 

items.10 Here, however, the record does not show that the court 

allocated the parties’ responsibilities with respect to all of these 

expenses. We therefore remand the cause to the district court 

with directions to specifically address each party’s responsibility for each of these statutorily required obligations based on 

the record.

To summarize our conclusions regarding child support, we 

find the district court erred in setting the amount of Shawn’s 

nontaxable income, health insurance costs for himself and 

the children, retirement contributions, and days as a custodial 

parent, and in its allocation of tax dependency exemptions. 

We further find the court erred in not addressing each party’s 

responsibility for the reasonable and necessary expenses of 

the children based on the record and the expenses set forth in 

10 Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
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§ 42-364.17. We reverse the award of child support and remand 

the cause to the district court for a proper calculation of child 

support, utilizing $763.36 for Shawn’s nontaxable income, 

$72.78 for Shawn’s health insurance, $177.80 for Shawn’s payment of the children’s health insurance, $464.59 for Shawn’s 

retirement contribution, 172 for Shawn’s days as a custodial 

parent and 193 days for Kristina, and two dependency exemptions for Shawn and one for Kristina. We also direct the court 

to address the parties’ responsibility for the expenses listed in 

§ 42-364.17 and rule § 4-212.

2. Division of Mari

Assets and De

(a) House Sale Proceeds

Shawn asserts that the court erred in its division of the 

proceeds from the parties’ sale of their home. The evidence 

showed that in May 2016, the parties sold their home on South 

River Rock Drive and obtained net proceeds in the amount of 

$20,857.44. Kristina claimed at trial that she should receive the 

greater share of the proceeds and provided documents showing 

that she paid $810 to mudjack the front porch in preparation 

for closing and $6,880 to replace the air conditioner in the 

parties’ previous house on South 79th Street. In its decree, the 

court awarded Kristina $7,690.80 from the $20,857.44 “for 

monies expended to make the house marketable” and evenly 

divided the balance. Based on the record, the court’s award of 

$7,690.80 represents compensation for $810 spent on mudjacking, $6,880 spent on an air conditioner, and an additional 80 

cents. Shawn does not object to reimbursing Kristina for the 

mudjacking costs, but objects to the remaining $6,880.80 of 

the $7,690.80.

[5-7] In a dissolution of marriage proceeding, “[i]f the parties fail to agree upon a property settlement . . . the court shall 

order an equitable division of the marital estate.”11 Under Neb. 

11 Neb. Rev. Stat. § 42-366(8) (Reissue 2016).
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Rev. Stat. § 42-365 (Reissue 2016), the equitable division of 

property is a three-step process.12 The first step is to classify 

the parties’ property as marital or nonmarital, setting aside the 

nonmarital property to the party who brought that property to 

the marriage. The second step is to value the marital assets 

and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in 

accordance with the principles contained in § 42-365.13 The 

ultimate test in determining the appropriateness of the division 

of property is fairness and reasonableness as determined by 

the facts of each case.14 Generally, all property accumulated 

and acquired by either spouse during a marriage is part of 

the marital estate.15 Exceptions include property that a spouse 

acquired before the marriage, or by gift or inheritance.16 The 

burden of proof rests with the party claiming that property 

is nonmarital.17

Kristina’s position at trial was that she was entitled to reimbursement for an air conditioner bought for the South 79th 

Street home, because she made the purchase using premarital 

or nonmarital funds. Based on the court’s award to Kristina, 

the court implicitly granted Kristina’s requested relief. Yet, the 

decree specifically stated the award was “for monies expended 

to make the house marketable,” and Shawn persuasively argues 

on appeal that Kristina’s purchase of the air conditioner for the 

South 79th Street home did not make the home on South Rock 

River Drive marketable. Shawn argues the award to Kristina 

was improper, because the court did not conduct an analysis 

of whether Kristina was entitled to reimbursement for any 

12 Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018); Osantowski, 

supra note 1.

13 Id.

14 Id.

15 Osantowski, supra note 1.

16 Id.

17 Fetherkile, supra note 12; Osantowski, supra note 1.
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premarital assets. Kristina appears to agree with this point. 

In her brief and at oral argument before this court, Kristina 

abandoned her position that she should be reimbursed for her 

purchase of the air conditioner, and instead attempts to justify 

the award using an alternate, post hoc rationalization. Kristina 

now argues that she is entitled to the greater share of the proceeds based on the equity that she built during the 9-month 

period in which she was in sole possession of the home. We 

are not persuaded that this result is justified based on the 

record. Kristina made this same argument to the district court, 

and the court did not accept that argument. Kristina’s argument 

is partially based on reimbursement for real estate taxes paid 

during the operation of the temporary order, yet she already 

voluntarily split the refund for some of these payments with 

Shawn. The temporary order required Kristina to make equity 

contributions because she was awarded sole possession of the 

home. Kristina’s compliance with the temporary order does not 

entitle her to the benefit of an additional $6,880.80 from the 

house proceeds.

Based on our de novo review of the record, we conclude 

that the court erred in its equitable division of the house 

proceeds and find that a fair and reasonable evaluation of 

the facts of this case requires that the division of the house 

proceeds be modified so that Kristina receives $11,238.72 and 

Shawn receives $9,618.72. We affirm this portion of the decree 

as modified.

Shawn also argues that the court erred by authorizing a lien 

in the amount of $5,176.28 filed by Kristina’s trial counsel to 

be paid from the family home proceeds. Because the record 

shows that Kristina paid the lien from her share of the proceeds, we find this argument to be without merit.

(b) Employment Benefits

(i) Valuation Date Reasonable

Shawn argues that the court erred in ordering him to pay 

Kristina $5,754.69 from his employment benefits for two 
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reasons. First, he claims the court erred by awarding Kristina 

$4,592.40 in unused vacation time and $1,162.29 in comp 

time, because these figures reflected the value of Shawn’s 

benefits as of September 15, 2015. Shawn argues that the 

court stated it valued his benefits “at the time of separation” 

and that the parties separated in July 2014. Therefore, Shawn 

contends that the court abused its discretion in awarding 

Kristina any funds from vacation time or comp time, because 

there was no evidence regarding the value of these benefits as 

of July 2014.

Second, Shawn argues that the court abused its discretion 

in ordering him to pay Kristina the $5,754.69 within 90 days. 

He argues that his employment benefits are not liquid assets 

and that because he is already obligated to pay child support, 

alimony, and other debts, he will be unable to comply with 

the court’s decree. Kristina argues in her cross-appeal that 

the court erred by failing to award her an equal portion of the 

value of Shawn’s unused sick time.

[8] As a general principle, the date upon which a marital 

estate is valued should be rationally related to the property composing the marital estate.18 The date of valuation is 

reviewed for an abuse of the trial court’s discretion.19

As discussed in the background section, the court valued 

the marital assets as of August 1, 2015, but the decree at times 

referred to the valuation date as the date of separation, which 

occurred in July 2014. Even so, the record indicates the court 

chose August 1, 2015, as the valuation date, which reflects the 

month in which the court entered temporary orders.

We agree with Kristina that the evidence supports using 

August 1, 2015, as the valuation date, because even though 

the parties physically separated in July 2014, they maintained 

their financial lives as a married couple by using a joint 

checking account to pay for family expenses and did not 

18 Osantowski, supra note 1.

19 Id.
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separate financially until the court entered temporary orders. 

Based on the record, the valuation date applied by the district 

court was rationally related to the property composing the 

marital estate.

The city human resources manager testified regarding the 

value of Shawn’s employment benefits and stated that the supporting documents were calculated on a quarterly basis. The 

court used the third quarter report as evidence of the value 

of the assets on August 1, 2015. Shawn argues that the court 

could have reached a more accurate figure by using the second 

quarter report, but that report was not offered into evidence, 

and there was no similar evidence offered to prove the value 

of the employment benefits as of July 2014. Even Shawn 

stated in his testimony that the valuation date should be July 

2015, the month Kristina filed for divorce. We find no abuse 

of discretion in the court’s use of August 1, 2015, as the valuation date.

(ii) Deferred Compensation Benefits

[9] We have not previously addressed whether employee 

benefits such as accrued sick leave, vacation time, and comp 

time are considered marital property subject to equitable distribution in a dissolution action. We have long held that the 

marital estate includes property accumulated and acquired 

during the marriage through the joint efforts of the parties.20

Section 42-366(8) states that for purposes of the division 

of property in a dissolution of marriage action, “[t]he court 

shall include as part of the marital estate . . . any pension 

plans, retirement plans, annuities, and other deferred compensation benefits owned by either party, whether vested 

or not vested.”21 (Emphasis supplied.) Generally, deferred 

20 Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002).

21 See, Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004); Longo 

v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003); Tyma, supra note 

20; Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981) (cases 

discussing deferred compensation benefits).
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compensation is defined as compensation which is earned in 

exchange for services rendered.22 We have held that unvested 

employee stock options and stock retention shares qualify 

as “deferred compensation benefits” within the meaning of 

§ 42-366(8).23 Conversely, we have found that health insurance is not deferred compensation, because insurance is based 

upon the payment of premiums rather than the rendering 

of services.24

In Wiech v. Wiech,

25 the Nebraska Court of Appeals determined that unused sick, vacation, and comp time could be considered part of the marital estate subject to equitable distribution as long as the benefits were acquired during the marriage. 

Other jurisdictions have similarly held that employment benefits such as these earned during the marriage are considered 

marital property.26

[10] As a result, we hold that to the extent employment benefits such as unused sick time, vacation time, and comp time 

have been earned during the marriage, they constitute deferred 

compensation benefits under § 42-366(8) and are considered 

part of the marital estate subject to equitable division.

(iii) Payment Within 90 Days

We turn to Shawn’s argument that the court erred by ordering him to pay Kristina her share of the employment benefits 

within 90 days. The decree valued Kristina’s share of the 

22 Livingston v. Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475 

(2005). See Halpin v. Nebraska State Patrolmen’s Retirement System, 211 

Neb. 892, 320 N.W.2d 910 (1982).

23 Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).

24 Christiansen v. County of Douglas, 288 Neb. 564, 849 N.W.2d 493 (2014).

25 Wiech v. Wiech, 23 Neb. App. 370, 871 N.W.2d 570 (2015).

26 Mann v. Mann, 778 P.2d 590 (Alaska 1989); In re Marriage of Moore, 226 

Cal. App. 4th 92, 171 Cal. Rptr. 3d 762 (2014); In re Marriage of Cardona 

and Castro, 316 P.3d 626 (Colo. 2014); Grund v. Grund, 151 Misc. 2d 

852, 573 N.Y.S.2d 840 (1991); Marriage of Williams, 84 Wash. App. 263, 

927 P.2d 679 (1996).
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vacation time at $4,592.40 and her share of the comp time at 

$1,162.29, for a total of $5,754.69. Shawn argues that he has 

access to his employment benefits only upon retirement and 

presently lacks the funds to be able comply with the courtordered payment.

According to the collective bargaining agreement governing Shawn’s employment, Shawn is correct that he will not 

receive payment for accrued vacation time until he leaves 

his employment. As for comp time, the city human resources 

manager testified, and the agreement confirms, that comp 

time is paid out at the end of every fiscal year, September 

30. However, the agreement contains an additional provision 

which permits an employee to request to be paid for accrued 

comp time at any time, and payment will be made by the 

next payday. The record therefore indicates that Shawn will 

have available to him $9,618.72 from the house proceeds and 

$1,162.29 from his share of the comp time to pay Kristina 

$5,754.69 within 90 days. We find no abuse of discretion by 

the district court.

(iv) Sick Time

Kristina argues that the court erred by failing to award her 

half of the value of Shawn’s accrued sick time. As discussed, 

the standard governing the division of marital property is fairness and reasonableness as determined by the facts of each 

case. Based on the evidence relied upon by the district court, 

Shawn had accrued 25.97 hours of compensable sick time, 

and based on this fact, the court could have awarded Kristina 

$467.98 for sick time.

[11] As a general rule, a spouse should be awarded onethird to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each 

case.27 As we will next show in our analysis of the court’s 

division of the total marital estate, the $467.98 that Kristina 

27 Osantowski, supra note 1.
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is requesting represents a small portion of the marital estate 

and declining to award Kristina this amount does not alter the 

fairness or reasonableness of the division of the total marital 

estate. We cannot conclude that the court abused its discretion 

in declining to award Kristina her share of Shawn’s unused 

sick time.

(v) Division of Total Marital Estate

Shawn objects to the court’s division of the parties’ debts 

and assets. Under the decree, Shawn was ordered to pay 

the parties’ credit card debt of $17,737.82 and Kristina was 

ordered to pay $637.73 for the children’s unpaid medical 

costs. Shawn argues that the court failed to list as a debt in 

the decree a credit union loan. We agree that Shawn produced 

evidence that he took out this loan to purchase an air conditioner for the home on South River Rock Drive and that this 

loan should have been listed as a marital debt. The evidence 

indicates that as of August 1, 2015, the balance of the loan was 

$3,545.37. We find that Shawn is responsible for paying this 

amount. Having included this loan as part of the marital estate, 

the following table represents the division of the parties’ total 

marital estate.

Assets Amount Shawn Kristina

House Proceeds $ 20,857.44 $ 9,618.72 $11,238.72

Shawn’s Retirement 108,468.41 54,234.21 54,234.20

Shawn’s Vacation/

Comp Time 11,509.37 5,754.69 5,754.69

TOTAL $140,835.22 $69,607.62 $71,227.61

Debts

Credit Card $ 17,737.82 $17,737.82 $ 0.00

Medical Bills 637.73 0.00 637.73

Loan 3,545.37 3,545.37 0.00

TOTAL $ 21,920.92 $21,283.19 $ 637.73

Marital Estate $118,914.30 $48,324.43 $70,589.88

As noted, a district court generally has discretion to award 

each spouse between one-third and one-half of the marital 

estate. Having factored in our modifications to the district 
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court’s division of the marital estate, the calculations above 

show that Shawn has been awarded approximately 41 percent 

of the marital estate. Following our de novo review of the 

record, we find no abuse of discretion in the district court’s 

division of the marital estate and affirm this portion of the 

decree as modified.

3. Alimo

[12,13] Shawn objects to the alimony award of $500 per 

month for 60 months that he was ordered to pay Kristina. In 

dividing property and considering alimony upon a dissolution 

of marriage, a court should consider four factors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) 

the history of contributions to the marriage, and (4) the ability 

of the supported party to engage in gainful employment without interfering with the interests of any minor children in the 

custody of each party.28 In addition, a court should consider 

the income and earning capacity of each party and the general 

equities of the situation.29 Alimony is not a tool to equalize the 

parties’ income, but a disparity of income or potential income 

might partially justify an alimony award.30

The parties were married in May 2001, and Kristina filed 

for divorce in July 2015. The evidence indicates a significant 

disparity in the earning capacity of the parties. Kristina testified that she has no formal educational or work background. 

During the marriage, Kristina was a stay-at-home mother and 

she began working part time once the children entered elementary school. She obtained her first full-time job in August 2015 

and earned $13.50 an hour, with no opportunities for overtime 

and no 401K or pension. By comparison, Shawn is a career 

police officer who has earned approximately $80,000 per year, 

with a pension and retirement benefits and opportunities to 

28 Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 582 (2018); § 42-365.

29 Wiedel, supra note 28.

30 Id.
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be compensated for unused sick, vacation, and comp time. 

Additionally, the record indicates that without alimony, Kristina 

is unable to pay her monthly expenses.

[14,15] The purpose of alimony is to provide for the continued maintenance or support of one party by the other when 

the relative economic circumstances make it appropriate.31 In 

reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award 

is untenable such as to deprive a party of a substantial right or 

just result.32 The ultimate criterion is one of reasonableness.33

An appellate court is not inclined to disturb the trial court’s 

award of alimony unless it is patently unfair on the record.34 As 

to the award of alimony here, our de novo review shows that 

the district court did not abuse its discretion.

4. Custody

Kristina claims that the district court abused its discretion 

by awarding “de facto joint physical custody” based on her 

assertions that neither party requested joint physical custody, 

that the district court failed to specifically find that joint physical custody is in the best interests of the minor children, and 

that she was denied due process when the court awarded joint 

physical custody following trial.35

In an action for dissolution of marriage involving the 

custody of minor children, the court is required to make 

a determination of legal and physical custody based upon 

the children’s best interests.36 Such determinations shall be 

made by incorporation into the decree of a parenting plan, 

31 Id.

32 Id.

33 Id.

34 Id.

35 See Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).

36 Neb. Rev. Stat. § 42-364(1)(b) (Cum. Supp. 2018).
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developed either by the parties as approved by the court or 

by the court after an evidentiary hearing.37 The minor children 

may be placed with both parents on a joint physical custody 

basis where (1) both parents agree or (2) the court specifically 

finds that joint physical custody is in the best interests of the 

minor children.38

Nebraska’s Parenting Act39 defines joint physical custody as 

“mutual authority and responsibility of the parents regarding 

the child’s place of residence and the exertion of continuous 

blocks of parenting time by both parents over the child for 

significant periods of time.”40 Here, the court awarded Kristina 

“primary possession” of the children and set forth the parenting 

time in a parenting plan. While “primary possession” is not a 

statutorily defined term, we have indicated in our opinions that 

the label that a court uses is not controlling and that the classification of a custody arrangement is ultimately dictated by 

parenting time.41

[16] The parenting plan here awarded Shawn parenting time 

with the children every Tuesday and Thursday, every other 

Friday and Saturday, equally divided holidays, and 4 weeks 

of summer parenting time consisting of two 2-week periods. 

Under this parenting schedule, Kristina has custody of the 

children 193 days and Shawn has custody of the children 172 

days. We find that this custody arrangement falls within the 

statutory definition of joint physical custody, as distinguished 

from sole physical custody with liberal parenting time.42 If 

37 See id.

38 § 42-364(3).

39 Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016).

40 § 43-2922(12).

41 See, e.g., Leners, supra note 10; Becher v. Becher, 299 Neb. 206, 908 

N.W.2d 12 (2018).

42 See, Heesacker v. Heesacker, 262 Neb. 179, 629 N.W.2d 558 (2001); 

Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999); Hill v. Hill, 20 

Neb. App. 528, 827 N.W.2d 304 (2013).
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trial evidence establishes a joint physical custody arrangement, 

courts will so construe it, regardless of how prior decrees or 

court orders have characterized the arrangement.43

We also determine that Kristina is incorrect in stating that 

neither party requested joint physical custody and that the court 

did not find that the court-developed custody arrangement was 

in the best interests of the children. Shawn filed an answer and 

counterclaim which requested joint physical custody, and both 

Shawn and Kristina were questioned at trial regarding Shawn’s 

request for a “50/50” schedule. Because Kristina had notice 

that Shawn was seeking joint physical custody, and because 

she had an opportunity to present evidence in opposition to 

Shawn’s proposed custody arrangement, we conclude Kristina 

was afforded procedural due process.

We further note arguments that Kristina made before the trial 

court which undermine her contention that she was denied due 

process. Kristina’s motion for reconsideration of the court’s 

tentative findings requested that the court use the joint physical custody worksheet when calculating child support. In her 

motion for reconsideration following the entry of the decree 

of dissolution, Kristina did not object to the use of the joint 

physical custody worksheet, but, rather, requested additional 

clothing and extracurricular activity expenses premised on the 

court’s use of the joint physical custody worksheet.

The record also indicates that the court made the necessary 

statutory findings for an award of joint physical custody under 

§ 42-364(3). The court awarded “primary possession” of the 

children to Kristina, subject to the parenting time as set forth 

in the parenting plan incorporated into the decree, which the 

court found was in the best interests of the minor children. In 

addition, the decree incorporated the prior judge’s tentative 

and supplemental findings, which found that it is in the best 

interests of the minor children that “primary possession” be 

awarded to Kristina, subject to the parenting plan.

43 Becher, supra note 41; Elsome, supra note 42.
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Kristina’s cross-appeal includes objections to the parenting 

time within the parenting plan. Kristina argues the award of 

joint physical custody is contrary to the court’s determination that she be granted “primary possession” of the children. 

Kristina assigned error to the court’s award of 4 weeks of 

summer parenting time to Shawn and argues the parenting 

plan should have remained consistent with the temporary order 

which in effect would have awarded Kristina sole physical custody with liberal parenting time to Shawn of 130 days.

[17,18] Child custody determinations are matters initially 

entrusted to the discretion of the trial court, and although 

reviewed de novo on the record, the trial court’s determination 

will normally be affirmed absent an abuse of discretion.44 In 

child custody cases, where the credible evidence is in conflict 

on a material issue of fact, the appellate court considers, and 

may give weight to, the fact that the trial judge heard and 

observed the witnesses and accepted one version of the facts 

rather than another.45

The record supports the court’s determination that the award 

of joint physical custody pursuant to the court-developed parenting plan was in the children’s best interests. It was undisputed that each parent was fit and proper and that the best 

interests of the children would be served with the ongoing 

involvement of both Shawn and Kristina. There was no evidence of significant communication difficulties between the 

parties, and there was evidence that the parties have been 

able to effectively communicate regarding matters affecting 

the children. Kristina argues that Shawn had never had the 

children 50 percent of the time since the parties separated in 

July 2014. However, the evidence showed that in 2016, the 

parties agreed that Shawn could exercise more parenting time 

than allowed under the temporary order. There was evidence 

that Shawn’s house is located near the children’s school, that 

44 Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).

45 Id.
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Kristina drops the children off at Shawn’s house, and that 

Shawn takes the children to school and sees them after school 

almost every day during the school year. This included days in 

which Kristina had the children.

The court awarded Kristina the majority of the parenting 

time in the form of eight overnight visits for every 14 days, 

and it balanced the children’s opportunity to spend time with 

Shawn by awarding Shawn two extended periods of parenting 

time over the summer. Kristina argues that the parties should 

have been awarded the same amount of extended parenting 

time and that absent extended parenting time, the most that 

she will be able to travel with the children to visit her family 

in Canada is 4 days. We conclude it was within the district 

court’s discretion to conclude that declining to award Kristina 

extended parenting time would not greatly impact the best 

interests of the children. We find no abuse of discretion in the 

district court’s determination that joint physical custody and 

the parenting plan incorporated into the decree are in the best 

interests of the children.

V. CONCLUSION

The district court did not err in its award of alimony and 

joint physical custody and in developing a parenting plan 

based upon the best interests of the children. However, the 

court erred in its calculation of child support and in its division of the marital estate. We therefore affirm in part, affirm 

the court’s division of the marital estate as modified, and in 

part reverse and remand with directions to recalculate the child 

support as discussed above.

 Affirmed in part, affirmed in 

as modified, and in part revers

and remanded with directi