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KELLY v. KELLY

Cite as 29 Neb. App. 198

Kirsten W. Kelly, appellee, v. 

Gary B. Kelly, appellant.

___ N.W.2d ___

Filed November 24, 2020. No. A-20-084.

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. Placing in a psychologist the authority to effectively determine visitation, and to control the extent and time of such visitation, 

is not the intent of the law and is an unlawful delegation of the trial 

court’s duty.

4. Child Custody: Visitation: Stipulations. It is the responsibility of the 

trial court to determine questions related to custody and parenting time 

according to the best interests of the minor children. This is an independent responsibility and cannot be controlled by the agreement or stipulation of the parties themselves or by third parties.

5. 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.

6. 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.

Nebraska Supreme Court Online Library

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

11/24/2020 08:07 AM CST
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7. Child Support: Rules of the Supreme Court. The Nebraska Child 

Support Guidelines recognize other incidents of support that are wholly 

or partly outside of the monthly installment, including the expenses 

specified in Neb. Rev. Stat. § 42-364.17 (Reissue 2016).

8. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

9. Child Support: Taxation: Presumptions. In general, the custodial parent is presumptively entitled to the federal tax exemption for a dependent child.

10. Child Support: Taxation: Waiver. A court may exercise its equitable 

powers and order the custodial parent to execute a waiver of his or her 

right to claim the tax exemption for a dependent child if the situation of 

the parties so requires.

11. 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. In addition, a court should consider the income and earning 

capacity of each party and the general equities of the situation.

12. 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.

13. Alimony. Alimony is not a tool to equalize the parties’ income, but a 

disparity of income or potential income might partially justify an alimony award.

14. 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 Saunders County: 

Christina M. Marroquin, Judge. Affirmed in part as modified, and in part vacated.
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KELLY v. KELLY

Cite as 29 Neb. App. 198

Mark A. Steele, of Steele Law Office, for appellant.

John H. Sohl for appellee.

Moore, Bishop, and Welch, Judges.

Bishop, Judge.

I. INTRODUCTION

Gary B. Kelly appeals from the decree entered by the 

Saunders County District Court dissolving his marriage to 

Kirsten W. Kelly, awarding legal and physical custody of the 

parties’ three children to Kirsten, and ordering Gary to pay 

child support and alimony. Gary challenges decisions made 

related to the parenting plan, private school tuition, extracurricular and other expenses, tax exemptions, equalization of the 

marital estate, alimony, and attorney fees. We affirm in part as 

modified, and in part vacate.

II. BACKGROUND

Gary and Kirsten married in September 2007, and three 

children were born during the marriage: the first in 2008, the 

second in 2009, and the third in 2010. Kirsten separated from 

Gary in November 2018 and moved with the minor children 

out of the marital home. Kirsten then sought and obtained a 

protection order against Gary based on allegations of domestic abuse by Gary against her and the children for which he 

received a criminal citation and was sentenced to probation.

Kirsten filed for divorce shortly after the separation in 

November 2018. On January 14, 2019, the district court granted 

Kirsten’s motion for temporary legal and physical custody. The 

court restricted Gary from contacting the children until the 

children met with a mental health professional and that professional gave a report and recommendation to the court. The 

temporary order required Gary to pay $2,109 per month in 

child support. The temporary order also required Gary to pay 

$3,606 per month in spousal support, to be reduced to $1,708 

per month beginning in February. Gary was also responsible 
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for two-thirds of daycare and health care expenses incurred 

for the children. The court entered a second temporary order 

on February 5 concerning Gary and Kirsten’s agreement to the 

sale of the marital residence. On September 30, the court modified the first temporary order to allow Gary to have supervised 

therapeutic sessions with the oldest child.

Trial took place on October 24 and 25, 2019. In the analysis section below, we will discuss the trial evidence relevant 

to the errors assigned. A decree dissolving the marriage was 

entered by the district court on November 12. Pursuant to the 

decree and an order nunc pro tunc entered shortly thereafter 

on November 18, and another nunc pro tunc order entered on 

February 3, 2020, the district court awarded Kirsten legal and 

physical custody of the minor children, noting “there [was] 

credible evidence that [Gary] has perpetuated child abuse and 

domestic intimate partner abuse.” The court concluded that 

Kirsten should have sole legal and physical custody, which was 

“in the best interest of the minor children.”

The decree established certain provisions in the parenting 

plan for Gary, which consists of the following four phases:

PHASE 1 - THERAPUTIC VISITS: [Gary] shall have 

family therapy with the minor children twice a month 

(every-other-week). The therapeutic session shall be conducted by a licensed mental health practitioner designated 

as the therapist for the child. Family therapy sessions shall 

commence immediately between [the oldest child] and 

[Gary]. Family therapy sessions between [Gary] and the 

other two minor children shall commence upon the recommendation of the minor children’s therapist. [Kirsten] 

shall sign all necessary releases to ensure that [Gary] can 

communicate with the children’s therapist(s).

PHASE 2 - SUPERVISED VISITS: At the recommendation of each child’s treating therapist, visitation shall move to supervised visits. These shall occur 

every Wednesday evening from 3:30 (after school) until 

7:00 p.m. and every-other Saturday from 1:00 p.m. until 
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5:00 p.m. Visits shall be supervised by [one of Gary’s 

adult children from a prior marriage], or another third 

party as agreed upon by the parties, or a professional 

agency at the expense of [Gary]. [Gary] shall not consume alcohol immediately prior to or during the visitation. [Gary] shall not physically discipline the minor 

children. Provided there are no safety concerns, visitation 

shall move to Phase 3 after six months.

PHASE 3 - UNSUPERVISED VISITS: At the recommendation of each child’s treating therapist, visitation shall move to unsupervised visits. These shall occur 

every Wednesday evening from 3:30 (after school) until 

7:00 p.m. and every-other Saturday from 1:00 p.m. until 

5:00 p.m. [Gary] shall not consume alcohol immediately 

prior to or during the visitation. [Gary] shall not physically discipline the minor children. Provided there are 

no safety concerns, visitation shall move to Phase 4 after 

six months.

PHASE 4 - ONGOING PARENTING PLAN: At the 

recommendation of each child’s treating therapist, visitation shall occur as follows:

[Gary] shall a [sic] have parenting time every 

Wednesday evening from 3:30 p.m. until 7:30 p.m. [Gary] 

shall have every other weekend from Friday at 3:30 p.m. 

until Sunday at 5:00 p.m.

Phase 4 of the parenting plan also included a holiday parenting 

time schedule.

Relevant to this appeal, the decree also required Gary to 

pay $1,980 per month in child support for three children. 

The district court divided expenses such that Gary would be 

responsible for 70 percent of childcare and extracurricular 

expenses incurred on behalf of the children and 50 percent of 

the cost of tuition for the children to continue attending private school. Gary was also ordered to pay other miscellaneous 

expenses related to the children. The decree gave Kirsten the 

sole right to claim the children for state and federal income 
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tax purposes. As part of the division of marital property, the 

court ordered Gary to pay Kirsten an equalization payment 

of $15,841. The decree additionally required Gary to pay 

Kirsten $500 per month in alimony for 5 years and awarded 

Kirsten $8,000 in attorney fees.

Following the entry of the decree, Gary filed a motion for 

new trial and/or reconsideration. The district court denied his 

motion on January 9, 2020. Gary then timely filed this appeal.

III. ASSIGNMENTS OF ERROR

Gary claims the district court erred by (1) formulating an 

unreasonably restrictive phased parenting plan, (2) requiring 

Gary to pay 50 percent of private school tuition for the children, (3) requiring Gary to pay 70 percent of the costs for 

the children’s extracurricular activities, (4) allocating solely 

to Kirsten the right to claim the children for state and federal 

income tax purposes, (5) ordering Gary to pay Kirsten a property equalization payment of $15,841, (6) ordering Gary to pay 

Kirsten alimony of $500 per month for 5 years, and (7) ordering 

Gary to pay Kirsten $8,000 for attorney fees.

IV. 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.

V. ANALYSIS

1. Parenting Plan

The district court ordered the implementation of the phased 

parenting plan described above. Based on the evidence 
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presented at trial, the district court found the phased parenting plan to be in the best interests of the minor children. In its 

decree, the court stated that it found “by a preponderance of 

evidence that there is credible evidence that [Gary] perpetuated 

child abuse and domestic intimate partner abuse” and “limitation on parenting time between [Gary] and the minor children 

must be implemented to provide for their safety and wellbeing.” Notably, Neb. Rev. Stat. § 43-2932(1) (Reissue 2016) 

provides that when there is evidence of child abuse or domestic 

intimate partner abuse, limitations on parenting time may be 

imposed that are “reasonably calculated to protect the child 

or child’s parent from harm.” There is considerable evidence 

in the record related to the inappropriate, harmful behaviors in 

which Gary engaged with either the children and/or Kirsten. It 

is unnecessary to detail those instances here given the limited 

nature of Gary’s assigned error.

Gary does not argue that the phased approach to parenting time is by itself problematic. Rather, he contends that the 

“phases required the approval and recommendation for each 

phase by the children’s therapist and last for a period of six 

months between phases” and that this “restrictive parenting 

time . . . was arbitrary and unsupported by the evidence, and 

unjustifiably interferes with his parenting relationship with the 

minor children.” Brief for appellant at 13. He asserts that he 

has “taken the necessary steps to modify his behaviors and 

testified to his ability to interact successfully with the minor 

children.” Id. at 15. He further contends that “the duration of 

any phases should not be for definitive times; but instead monitored and moved forward under direct therapist supervision and 

recommendations.” Id.

We understand Gary’s arguments as challenging the specific 

6-month duration of the parenting phases and not allowing for 

greater flexibility; he suggests a faster progression through 

each phase should be permitted if recommended by the therapist, based upon the parenting plan being “closely monitored 

and supervised for cooperation and progress.” Id. We do not 
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read the parenting plan to be quite as restrictive as Gary suggests, at least as to Phase 2 through Phase 4.

[3,4] We begin our analysis with the understanding that 

while it is not an abuse of discretion for a trial court to order 

counseling, “placing in a psychologist the authority to effectively determine visitation, and to control the extent and time 

of such visitation, is not the intent of the law and is an unlawful delegation of the trial court’s duty.” Deacon v. Deacon, 207 

Neb. 193, 200, 297 N.W.2d 757, 762 (1980), disapproved on 

other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 

898 (2002). It is the responsibility of the trial court to determine questions related to custody and parenting time according to the best interests of the minor children. See id. This is 

an independent responsibility and cannot be controlled by the 

agreement or stipulation of the parties themselves or by third 

parties. Id.

Therefore, in this case, it was necessary for the district court 

to provide a specified duration of time for each parenting phase 

rather than leaving the transition from phase to phase solely 

at the discretion of a therapist. Such a delegation of authority from the district court to each child’s therapist would have 

constituted error whether reviewed for plain error or an abuse 

of discretion. See, Hajenga v. Hajenga, 257 Neb. 841, 601 

N.W.2d 528 (1999) (order that father’s parenting time would 

be increased at discretion of family therapist was wrongful 

abdication of trial court’s duty and constituted plain error; 

plain error affects substantial right and is of such nature that 

to leave it uncorrected would cause miscarriage of justice or 

result in damage to integrity, reputation, and fairness of judicial process); Deacon v. Deacon, supra (not abuse of discretion 

to order counseling, but portion of order effectively placing 

authority in psychologist to determine visitation and control 

extent and time of such visitation was unlawful delegation of 

trial court’s duty). But see In re Guardianship of K.R., 26 Neb. 

App. 713, 923 N.W.2d 435 (2018) (trial court did not improperly delegate decisions regarding visitation, family therapy, 
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and guardianship to child’s therapist where trial court expressly 

reserved authority to make those decisions if and when child’s 

therapist stated child was ready for such steps).

Accordingly, as for Phase 2 through Phase 4, the district 

court did not abuse its discretion in ordering fixed durations 

before parenting time had to transition to the next phase, in 

the absence of safety concerns. It was necessary for the court 

to impose limits on each phase so that the transitions were not 

left completely at the discretion of a therapist. Further, as to 

Gary’s argument about flexibility to allow for faster progression through each phase if recommended by the therapist, 

we read the parenting plan to provide that flexibility. Gary’s 

supervised parenting time could transition to unsupervised 

parenting time at the recommendation of each child’s therapist, 

which could occur before 6 months on such a recommendation. But unless there were safety concerns, the supervised 

parenting time had to transition to unsupervised parenting 

time after 6 months. The same applies to the transition from 

unsupervised parenting time to the ongoing parenting plan. 

Implicit in the plan is that if a child’s therapist determined that 

safety concerns still existed at the 6-month mark for the next 

transition, the therapist could elect to not recommend moving 

to the next parenting phase, and if Gary disagreed with that 

decision, the matter would have to return to the district court 

for a determination as to whether an extension of time was 

warranted under the parenting phase at issue. Therefore, Phase 

2 through Phase 4 provided flexibility for faster progression 

upon the recommendation of each child’s therapist, but also 

limited each phase to 6 months, barring safety concerns, so 

that the court, not the therapist, was determining the maximum 

duration of those phases.

However, while not specifically assigned as error by Gary, 

we do find plain error regarding the lack of a specified duration for therapeutic visits in Phase 1, as well as the lack of 

a specified time for when Gary would commence family 

therapy sessions with the two younger children. Unlike the 
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other phases, the court delegated to each child’s therapist the 

discretion to determine when Gary could move from therapeutic visits in Phase 1 to supervised visits in Phase 2. And 

as to the two younger children, the family therapy sessions 

were to commence “upon the recommendation of the minor 

children’s therapist.” As discussed above, this constitutes an 

improper delegation of authority from the district court to each 

child’s therapist. See Hajenga v. Hajenga, supra (order that 

father’s parenting time would be increased at discretion of 

family therapist was wrongful abdication of trial court’s duty 

and constituted plain error). To eliminate this improper delegation of authority to each child’s therapist, and considering the 

district court’s determination that 6-month blocks were appropriate for the other transition phases, we modify the parenting 

plan to provide that transition to “Phase 2 - SUPERVISED 

VISITS” shall take place after 6 months of the therapeutic visits described in Phase 1, provided there are no safety concerns. 

Further, to the extent family therapy has not commenced with 

the two younger children, that should commence immediately, 

unless there are safety concerns. If safety concerns exist, given 

the amount of time that has already lapsed during the pendency 

of this appeal, the matter will need to be scheduled before the 

district court for further consideration of when such family 

therapy shall commence for the two younger children.

[5,6] With regard to the district court’s determination of 

6-month transitional phases rather than phases of shorter duration, we cannot say the court abused its discretion, particularly since the parenting plan did provide the flexibility for 

faster progression than 6 months if recommended by a child’s 

therapist. 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. 

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 
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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).

Gary’s arguments focus largely on efforts he has been making to be a better parent. And while such efforts are to be 

commended, the district court also had to consider what was 

in the best interests of the children. It is evident that the court 

put in place a transitional schedule that will give the children 

sufficient time and space to heal from the past traumatic experiences caused by Gary’s abusive behaviors toward the children 

and Kirsten. As just one example of the need for caution in 

moving forward with parenting time, there was evidence that 

as a result of Gary’s interactions with one child, the child went 

to Kirsten crying and told her “he can’t take it anymore, he just 

wants to kill himself.” Given the nature of the evidence underlying the district court’s findings related to child abuse and 

domestic intimate partner abuse, we cannot say a graduated 

parenting time schedule like the one before us, as modified, 

was an abuse of discretion.

2. Expenses in Addition to 

Monthly Child Support

In calculating its order for child support ($1,980 per month) 

by using a basic net income and support calculation, worksheet 1, the district court determined Gary’s gross monthly 

income to be $12,048.25 and Kirsten’s gross monthly income 

to be $5,000. See Neb. Ct. R. ch. 4, art. 2, worksheet 1 (rev. 

2016). Gary claims the district court abused its discretion in 

ordering Gary to be responsible for 50 percent of the cost of 

private school tuition for the minor children in addition to the 

order to pay $1,980 per month in child support. Gary also contends the district court abused its discretion in ordering him to 

be responsible for 70 percent of all extracurricular expenses 

incurred on behalf of the minor children upon which the parties mutually agree in advance. Gary also takes issue with the 

court’s order requiring the parties to equally share “the cost of 
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school lunches (purchased from the school), required school 

supplies, haircuts, and items of clothing the parties expect the 

children to wear at both residences, i.e., winter coats, hats, mittens, winter boots, backpacks, and tennis shoes.”

(a) Applicable Law

Prior to the existence of the Nebraska Child Support 

Guidelines, Nebraska statutory law addressed various expenses 

to be considered in support orders: “A support order, decree, 

or judgment may include the providing of necessary shelter, 

food, clothing, care, medical support as defined in section 

43-412, medical attention, expenses of confinement, education 

expenses, funeral expenses, and any other expenses the court 

may deem reasonable and necessary.” See Neb. Rev. Stat. 

§ 42-369(3) (Cum. Supp. 2018).

In 1984, Congress required the states to develop guidelines 

for child support awards; noncompliance would result in the 

loss of federal funds for various programs. See Schmitt v. 

Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991). Nebraska complied in 1985 with the passage of 1985 Neb. Laws, L.B. 7, § 18, 

2d Spec. Sess. See Neb. Rev. Stat. § 42-364.16 (Reissue 2016) 

(requires Nebraska Supreme Court to create guidelines that 

serve as rebuttable presumption in setting child support obligations). See, also, Schmitt v. Schmitt, supra. The Nebraska Child 

Support Guidelines subsequently became operative October 1, 

1987. See Schmitt v. Schmitt, supra.

[7] Then, in 2008, the Legislature passed 2008 Neb. Laws, 

L.B. 1014, § 33, codified at Neb. Rev. Stat. § 42-364.17 

(Reissue 2016), which specifically sets forth certain categories 

of expenses that could be considered in determining parents’ 

financial responsibilities related to their children; it provides 

as follows:

A decree of dissolution, legal separation, or order 

establishing paternity shall incorporate financial arrangements for each party’s responsibility for reasonable 

and necessary medical, dental, and eye care, medical 
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reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child and 

calculation of child support obligations.

The Nebraska Supreme Court has clarified that § 42-364.17 

provides categories of expenses incurred by a child which can 

be ordered by a trial court in addition to the monthly child support calculation determined under the guidelines. “The common meaning of ‘support’ clearly includes all of the incidents 

of a child’s needs.” Caniglia v. Caniglia, 285 Neb. 930, 934, 

830 N.W.2d 207, 211 (2013). One incident of support is 

the regular monthly payment established under the Nebraska 

Child Support Guidelines. See Caniglia v. Caniglia, supra. 

“But the guidelines recognize other incidents of ‘support’ 

that are wholly or partly outside of the monthly installment.” 

Caniglia v. Caniglia, 285 Neb. at 934, 830 N.W.2d at 211. 

“The expenses stated in § 42-364.17—including, among others, 

extracurricular, education, and other extraordinary expenses—

merely represent other incidents of ‘support’ to be addressed in 

a dissolution decree.” Caniglia v. Caniglia, 285 Neb. at 934, 

830 N.W.2d at 211. Thus, a district court has the authority to 

order the categories of expenses specified in § 42-364.17 in 

addition to the monthly child support obligation calculated 

under the guidelines.

Notably, as applicable here, § 42-364.17 refers specifically to extracurricular, education, and other “extraordinary” 

expenses that may be considered in addition to the monthly 

child support obligation, while § 42-369(3) refers more generally to “necessary shelter, food, clothing, care,” and education expenses, and “any other expenses the court may deem 

reasonable and necessary.” Under § 42-364.17, any expense 

beyond “reasonable and necessary medical, dental, and eye 

care, medical reimbursements, day care, extracurricular activity, [and] education” would have to qualify as “extraordinary.” 

Whereas, under § 42-369(3), expenses may include necessary food, clothing, and care, as well as any other expenses 

deemed “reasonable and necessary” by the court. The older 
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statute certainly contemplates a very broad range of expenses 

associated with caring for a child, while the newer statute has 

narrowed the types of expenses that may coincide with a calculation of child support obligations.

[8] To reconcile the two statutes, we note that child support 

statutes should be read in conjunction with the Nebraska Child 

Support Guidelines. See Hoover v. Hoover, 2 Neb. App. 239, 

508 N.W.2d 316 (1993). Also, components of a series or collection of statutes pertaining to a certain subject matter are in 

pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. Tyler 

F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020). Because 

the broader, more general terms contained in § 42-369(3) 

preceded the adoption of the guidelines and the passage of 

§ 42-364.17, we construe the guidelines and § 42-364.17 to 

control what categories of expenses can be ordered in addition 

to the monthly child support obligation determined under the 

guidelines. Since there were no mandatory child support guidelines in existence until the passage of the guidelines in 1987, 

the broader language of § 42-369(3) essentially provided for 

types of expenses that could be considered when determining 

support for children, including basic necessities such as shelter, 

food, and clothing. However, the adoption of the guidelines 

necessarily incorporated basic necessities such as shelter, food, 

and clothing, and the passage of § 42-364.17 further delineated 

specific expenses that could be ordered in addition to those 

basic necessities now incorporated into the guidelines. To construe § 42-369(3) to require a parent to pay for basic necessities such as shelter, food, and clothing in addition to a monthly 

child support obligation which has been calculated using the 

basic net income and support calculation, worksheet 1, would 

make inexplicable what the monthly child support was otherwise intended to cover in terms of a child’s needs.

However, an order requiring a parent to contribute to a 

child’s clothing expenses, or other reasonable and necessary 
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direct expenditures, may be appropriate in joint physical custody situations. In those cases, the determination of each parent’s monthly child support obligation is significantly lower 

when using the joint physical custody child support calculation, worksheet 3, due to the more equal sharing of parenting 

time between the parents. See Neb. Ct. R. ch. 4, art. 2, worksheet 3 (rev. 2007). Neb. Ct. R. § 4-212 (rev. 2011), related 

to joint physical custody, provides in relevant part: “If child 

support is determined under this paragraph, all reasonable and 

necessary direct expenditures made solely for the child(ren) 

such as clothing and extracurricular activities shall be allocated 

between the parents, but shall not exceed the proportion of 

the obligor’s parental contributions . . . .” Therefore, in addition to the monthly child support obligation calculated for 

joint physical custody, a trial court may apportion between the 

parents a child’s clothing and other reasonable and necessary 

direct expenditures.

With these legal principles in mind, we now consider the 

expenses Gary was ordered to pay in addition to his monthly 

child support obligation which was calculated using the basic 

net income and support calculation, worksheet 1, rather than 

the joint physical custody child support calculation, worksheet 3.

(b) Private School Tuition

During the course of the marriage, Gary and Kirsten enrolled 

the children in a private school. Kirsten testified that she had 

continued the children’s enrollment in the same private school 

after the parties separated and during the dissolution proceedings. Gary testified that he objected to having the children 

attend private school, but had allowed the children’s attendance 

during the marriage.

Gary suggests the district court had the discretionary 

authority to provide a support order to include educational 

expenses pursuant to § 42-369(3); however, he claims this 

constitutes a deviation from the Nebraska Child Support 
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Guidelines. In response, Kirsten also directs us to § 42-364.17. 

Gary claims that because Kirsten “unilaterally [chose] to continue to enroll the minor children in a private school” and 

“offered [no evidence] regarding the minor children[’s] need 

for such an education, or that it had any beneficial [e]ffect or 

consequences,” then the cost of the children’s tuition should 

be Kirsten’s responsibility alone. Brief for appellant at 18. He 

therefore contends that making him responsible for 50 percent 

of the cost of private school tuition for the children was an 

abuse of discretion.

Education is one of the expenses specifically referenced in 

§ 42-364.17, and it therefore represents a type of support the 

district court may award in addition to the monthly child support obligation. See Caniglia v. Caniglia, 285 Neb. 930, 830 

N.W.2d 207 (2013). Private school education has been recognized as an expense that may be allocated separately from a 

monthly child support award. See Becher v. Becher, 299 Neb. 

206, 908 N.W.2d 12 (2018) (affirming district court’s order 

directing father to pay school tuition for children’s private 

school education).

In light of the evidence that the children have attended the 

same private school throughout the marriage and the dissolution process, we cannot say the district court abused its discretion in ordering Gary to be responsible for 50 percent of the 

children’s private school tuition costs. Although Gary is paying $1,980 per month in child support and $500 per month in 

alimony ($2,480 per month total support), his gross monthly 

income of $12,048.25 is still much greater than Kirsten’s gross 

monthly income of $5,000. Even after adjusting for Gary’s 

outgoing support obligations and Kirsten’s incoming support 

amounts, Gary can afford to contribute equally with Kirsten to 

maintain their children in the education environments which 

were established during the marriage. Maintaining stability 

and continuity in the children’s educational routine is certainly in their best interests. See State on behalf of Kaaden S. 

v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019) (relevant 
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considerations of child’s best interests include stability in 

child’s routine).

(c) Extracurricular Expenses

We likewise cannot say that the district court abused its 

discretion by making Gary responsible for 70 percent of the 

extracurricular expenses incurred on behalf of the children 

that the parties mutually agree upon in advance. As noted previously, extracurricular expenses are specifically referenced 

in § 42-364.17; this is another type of support that may be 

awarded in addition to the monthly payment established by 

the child support guidelines. See Caniglia v. Caniglia, supra. 

Notably, the district court requires the sharing of only those 

extracurricular expenses that the parties have agreed to in 

advance, although the court also noted that consent should not 

be unreasonably withheld. This provision appears to encourage both parents to participate in making decisions about such 

activities for their children. Further, with the contributions of 

both parents to the costs associated with such activities, they 

will likely be more mutually supportive of their children’s 

involvement in those activities. We cannot say that the district 

court abused its discretion in its allocation of these expenses 

between the parties in this manner.

(d) Other Miscellaneous Expenses

With respect to the part of the order requiring Gary to be 

responsible for half of “the cost of school lunches (purchased 

from the school), required school supplies, haircuts, and items 

of clothing the parties expect the children to wear at both 

residences, i.e., winter coats, hats, mittens, winter boots, backpacks, and tennis shoes,” we find the district court abused 

its discretion.

As discussed above, § 42-364.17 sets forth those expenses 

which a parent may be ordered to pay in addition to his or 

her monthly child support obligation. These include “reasonable and necessary medical, dental, and eye care, medical 
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reimbursements, day care, extracurricular activity, education, 

and other extraordinary expenses of the child.” While it is conceivable that school lunches and school supplies might qualify 

as an “education” expense, we conclude that such a broad reading is not warranted in the present matter. With a child support 

award of $1,980 per month, these items can be adequately covered and seem better characterized as basic necessities covered 

by the monthly child support obligation.

As for the order’s remaining items, haircuts and clothing, 

the only category under which they could possibly qualify 

under § 42-364.17 would be “extraordinary expenses.” We 

conclude that such expenses fall within the basic necessities 

intended to be covered by a monthly child support obligation 

calculated using the basic net income and support calculation, worksheet 1, and do not rise to the level of “extraordinary expenses.”

The district court abused its discretion in ordering Gary to 

pay for these expenses, and we therefore vacate this portion of 

the decree.

3. Tax Dependency Exemptions

Gary claims on appeal that the district court abused its discretion in awarding Kirsten the sole right to claim the children 

for state and federal income tax purposes.

For purposes of the district court’s child support calculation, Gary’s gross income was calculated to be $12,048.25 per 

month and Kirsten’s was calculated to be $5,000 per month. 

The district court ordered Gary to pay additional expenses 

described previously in addition to the monthly child support 

sum of $1,980.

Gary asserts that because he “is paying [his] proportionate share of direct living expenses for the care of the minor 

children through his child support obligation[,] [h]e should 

receive some benefit for this obligation in the form of a tax 

exemption.” Brief for appellant at 20-21. He further claims his 

marginal tax rate would be “detrimentally unfair to [Kirsten’s] 
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marginal tax rate, claiming the tax dependency credits for all 

three minor children.” Id. at 21.

[9,10] A tax dependency exemption is an economic benefit nearly identical to an award of child support or alimony. 

Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015). 

In general, the custodial parent is presumptively entitled to the 

federal tax exemption for a dependent child. Id. But a court 

may exercise its equitable powers and order the custodial parent to execute a waiver of his or her right to claim the tax 

exemption for a dependent child if the situation of the parties 

so requires. Id.

Although Gary claims that the district courts “have routinely 

equally divided the tax dependency exemptions between the 

parents,” brief for appellant at 21, we note that a departure 

from this routine does not necessarily equate to an abuse of 

discretion. The considerations of the district court included the 

totality of the facts and circumstances of the parties and were 

not constrained to comparisons of income and allocation of 

expenses. We cannot say the district court abused its discretion 

in granting Kirsten the sole right to claim the minor children 

for state and federal income tax purposes.

4. Equalization Payment

Gary does not disagree with “the identification of marital 

assets and liabilities, nor the valuations determined by the [district court].” Brief for appellant at 22. However, he contends 

the district court abused its discretion in determining he owed 

Kirsten a payment of $15,841 to equalize the marital estate. He 

asserts the property division was not supported by the evidence 

related to the sale of the marital residence, as the division of 

the marital residence and all liens and encumbrances against it 

had been divided prior to trial and were erroneously factored 

into the district court’s calculations. We agree that the evidence 

supports Gary’s argument.

While the dissolution action was pending, Kirsten motioned 

the district court to order the sale of the marital residence. 
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The district court granted this order. The closing on the sale 

occurred on May 2, 2019; trial took place in October. At the 

time of closing, Gary’s support obligations under the January 

14 temporary order were in arrears; he owed $5,066.14 in 

child support and $9,819.09 in spousal support (total owed 

of $14,885.23).

According to the closing statement for the marital home 

received into evidence, the sale price was $196,500. The closing statement reflects that the mortgage and home equity line 

of credit encumbering the marital residence, as well as all 

other fees associated with the closing, were deducted from the 

sale proceeds. Also, as part of the closing costs, the combined 

amount of Gary’s outstanding support obligations ($14,885.23) 

was deducted for distribution to Kirsten. The remaining net 

proceeds of the sale amounted to $14,954.71 and were placed 

into escrow. We note that the net sale proceeds would have 

totaled $29,839.94 but for the payment made to pay off Gary’s 

outstanding support obligations. Ordinarily, such net proceeds 

would have been split in half, resulting in the receipt by each 

party of $14,919.97. However, instead of receiving his share of 

the net profit, Gary’s share was applied to his outstanding support obligations of $14,885.23. Gary contends that the remaining balance of $14,954.71 constituted Kirsten’s one-half share 

and that this amount was distributed to Kirsten. The record is 

unclear as to whether the $14,954.71 was still held in escrow 

at the time of trial or whether those funds had actually been 

distributed to Kirsten as Gary indicates.

The district court’s calculation error appears to stem from 

Kirsten’s assets and liabilities spreadsheet, offered and received 

as exhibit 11. The district court adopted the values, the division, and the equalization amount of $15,841 as set forth on 

that exhibit. However, exhibit 11 reflects both parties receiving 

$22,791.59 in equity from the home, which is not supported 

by the closing statement. Further, exhibit 11 credits Kirsten’s 

equity in the home with the amounts owed by Gary in child 

and spousal support described previously. However, as Gary 
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points out, the real estate closing document shows that these 

outstanding obligations were deducted from his share of the 

house sale proceeds at the time of closing. Kirsten’s only 

response to Gary’s argument is that she divided the house proceeds equally on her spreadsheet and deducted the delinquent 

support “by showing it as a negative figure” to make sure she 

would not be paying for half of Gary’s outstanding support 

obligations. Brief for appellee at 16. She does not explain why 

giving her the delinquent support credits on her spreadsheet 

was appropriate given Gary’s share of the net proceeds from 

the house sale had already satisfied those delinquencies. Nor 

does she otherwise challenge Gary’s explanation regarding the 

application of his share of the home equity to those outstanding 

support obligations.

After considering the evidence in the record, we agree with 

Gary that the remaining net proceeds of $14,954.71 from 

the sale which were placed into escrow represented Kirsten’s 

share of the equity in the marital home and that the amount of 

$14,885.23 paid to Kirsten in satisfaction of his support obligations represented Gary’s share of the equity. These combined 

amounts represent the remaining equity in the home following 

the deduction of all related liens, costs, and fees from the sale 

price of the marital home as evidenced by the closing statement. Gary, instead of receiving his share of the net proceeds, 

had his share paid to Kirsten to satisfy his delinquent support obligations. The amounts of Gary’s satisfied obligations 

should not have been included on the assets and liabilities 

spreadsheet, and the equalization calculation should be modified accordingly.

Before setting forth our modified calculation of the marital 

estate, we note that our modification assumes the net proceeds of $14,954.71 from the sale of the marital home were 

distributed entirely to Kirsten. As noted previously, the record 

is unclear whether those funds were distributed to Kirsten or 

whether they are still in escrow. If the latter, those funds should 

be released entirely to Kirsten.
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Using the asset and liability values set forth on exhibit 11, as 

now modified to reflect each party’s share of the net proceeds 

from the sale of the home, we have calculated the property 

equalization as follows:

Kirsten Gary

Net house sale proceeds $14,954.71 $14,885.23

(Gary’s share used to

pay outstanding support)

Other assets $475.78 $40,304.75

Total assets $15,430.49 $55,189.98

Liabilities [$13,202.01] [$36,234.19]

Net marital estate $ 2,228.48 $18,955.79

Equalization due to Kirsten $ 8,364.00 [$ 8,364.00]

Equalized marital estate $10,592.48 $10,591.79

Accordingly, we modify the district court’s decree to reflect 

that Gary’s property equalization judgment owed to Kirsten is 

$8,364 rather than $15,841.

5. Alimony

Gary argues on appeal that the district court abused its discretion in ordering him to pay $500 per month in alimony to 

Kirsten for 5 years.

As described previously, the district court, in calculating 

child support, determined Gary’s monthly gross income at the 

time of trial to be $12,048.25 and Kirsten’s monthly gross 

income to be $5,000. For the majority of the 12-year marriage 

until July 2016, Kirsten was employed. In July 2016, Kirsten 

and Gary agreed that Kirsten should quit her job to stay home 

with the minor children, forgoing her then-current yearly salary of $89,000. Thereafter, she was not employed again until 

March 2019.

Kirsten’s expenses at the time of trial were approximately 

$4,543 per month; such expenses included $950 for rent, 

$1,084 for groceries, $300 for her car payment, $239 for vehicle gas, $200 for utilities, $945 for daycare for the children, 

and various other expenses including cell phone payments, 
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internet, renter’s and vehicle insurance, and clothing and entertainment expenses for the children.

Gary neither testified as to nor provided a list of his monthly 

expenses. As described previously, he is obligated to pay 

$1,980 in child support to Kirsten as well as certain other 

expenses. He is also required to maintain health insurance 

through his employer for the benefit of the children, and his 

weekly payroll deduction for that insurance is $42.

The district court acknowledged the 12-year duration of the 

parties’ marriage and the parties’ three minor children. The 

court also identified Kirsten’s decreased income compared to 

her previous employment, noting that “she is not in the same 

advanced position she was when her employment ended” and 

that “it will take her several years to obtain the same respective 

position.” Drawing on these facts, the court ordered Gary to 

pay $500 per month in alimony to Kirsten for 5 years.

[11-13] 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. Wiedel v. Wiedel, 300 

Neb. 13, 911 N.W.2d 582 (2018). In addition, a court should 

consider the income and earning capacity of each party and 

the general equities of the situation. Id. 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. 

Id. Alimony is not a tool to equalize the parties’ income, but 

a disparity of income or potential income might partially justify an alimony award. Anderson v. Anderson, 290 Neb. 530, 

861 N.W.2d 113 (2015).

Gary argues that the evidence cannot justify an award of 

alimony to Kirsten, as “she has funds to pay for her[] and the 
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minor children[’s] . . . normal maintenance and expenses.” 

Brief for appellant at 26. He further asserts that an award for 

alimony is not warranted because “[n]o circumstances dictate 

that [Kirsten] economically suffered during the marriage” and 

Kirsten “was not left without assets or significant earning 

capacity.” Id. at 27. Gary also points out that his own income 

is “directly reduce[d]” to the extent that factoring in Kirsten’s 

income and the other amounts Gary is required to pay to her, 

“the net difference in the available earnings [is] not substantially different.” Id. at 27.

In addition to a significant disparity between each party’s 

employment income, Kirsten’s present income amounts to only 

approximately two-thirds of her previous income before she 

ended her employment in July 2016 to take care of the children, and it will take a number of years for Kirsten’s level of 

income to reach that same level again. While she builds up her 

income toward its previous level, she will also be primarily 

responsible for raising three children.

In light of the record before us regarding the parties’ individual circumstances, we cannot say the district court abused 

its discretion in ordering Gary to pay $500 per month in alimony to Kirsten for a period of 5 years.

6. Attorney Fees

Gary claims the district court abused its discretion in ordering him to pay $8,000 in attorney fees to Kirsten.

According to an affidavit for attorney fees received into 

evidence, Kirsten’s attorney charged her at a rate of $300 per 

hour. Prior to the conclusion of trial, the affidavit indicates 

that Kirsten had incurred $16,849.09 in attorney fees and 

expenses. This amount did not take into consideration the fees 

associated with the trial. Kirsten requested that the district 

court order Gary to pay for a portion, if not all, of her attorney fees.

[14] It has been held that in awarding attorney fees in a dissolution action, a court shall consider the nature of the case, 
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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. Garza v. Garza, 288 Neb. 213, 

846 N.W.2d 626 (2014). Additionally, in dissolution cases, 

as a matter of custom, attorney fees and costs are awarded to 

prevailing parties. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 

314 (2019). 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 Dooling 

v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).

The district court ordered Gary to pay $8,000 toward 

Kirsten’s attorney fees “[d]ue to the discrepancy in income 

between the parties . . . .” In light of the record before us with 

respect to the parties’ circumstances as previously described, 

we cannot say the district court abused its discretion by ordering Gary to pay attorney fees to Kirsten.

VI. CONCLUSION

The district court’s decree is modified to reflect the changes 

to the parenting plan and the property equalization judgment 

as discussed above. The portion of the decree ordering Gary to 

pay certain expenses, as discussed above, is vacated. All other 

aspects of the decree are affirmed. Therefore, we affirm in part 

as modified, and in part vacate.

Affirmed in part as modified, 

and in part vacated.