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Cite as 24 Neb. App. 323

David Robert Burcham, appellee,

Linda Jean Burcham, appe

___ N.W.2d ___

Filed September 27, 2016. No. A-15-814.

1. Divorce: Child Custody. When custody of minor children is an issue in 

a proceeding to dissolve the marriage of the children’s parents, custody 

is determined by parental fitness and the children’s best interests.

2. Child Custody. When both parents are found to be fit, the inquiry for 

the court on the issue of custody is the best interests of the children.

3. Parent and Child. The best interests of a child require a parenting arrangement for a child’s safety, emotional growth, health, stability, and physical care and regular and continuous school attendance 

and progress.

4. ____. The best interests of a child also require that the child’s families 

and those serving in parenting roles remain appropriately active and 

involved in parenting with safe, appropriate, continuing quality contact 

between children and their families when they have shown the ability to 

act in the best interests of the child and have shared in the responsibilities of raising the child.

5. Divorce: Child Custody: Public Policy. It is sound public policy to 

keep children together when possible, but considerations of public 

policy do not, in all cases, prevent the splitting of the custody of the 

children when a marriage is dissolved; rather, the ultimate standard is 

the best interests of the children.

6. Child Support. The paramount concern and question in determining 

child support is the best interests of the child.

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

Child Support Guidelines, adopted by the Nebraska Supreme Court, 

which are presumed to be in the best interests of the child.

8. Child Support. In calculating child support, the court must consider the 

total monthly income, defined as income of both parties derived from 

all sources.

Nebraska Supreme Court Online Library

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

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9. Child Support: Presumptions. All income from employment must be 

included in the initial child support calculation, which then becomes a 

rebuttable presumption of appropriate support.

10. Child Support. Copies of at least 2 years’ tax returns, financial statements, and current wage stubs should be furnished to the court for 

purposes of determining the parents’ income in order to calculate 

child support.

11. ____. Income derived from farming is subject to fluctuations. The use of 

income averaging when dealing with farm income has been approved for 

purposes of calculating child support.

12. Divorce: Appeal and Error. In a de novo review of a judgment in 

marriage dissolution proceedings, when the 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.

13. Records: Appeal and Error. It is incumbent upon the appellant to 

present a record supporting the errors assigned; absent such a record, 

an appellate court will affirm the lower court’s decision regarding 

those errors.

14. Appeal and Error. Generally, a party cannot complain of error which 

the party has invited the court to commit.

15. Divorce: Minors: Stipulations. Parties in a proceeding to dissolve a 

marriage cannot control the disposition of matters pertaining to minor 

children by agreement.

16. Parent and Child: Social Security. Social Security benefits paid to 

children as a result of their parents’ employment are not a mere gratuity 

from the federal government but have been earned through the parent’s 

payment of Social Security taxes.

17. Parent and Child: Child Support: Social Security. A request to apply 

Social Security benefits received as a result of a parent’s employment to 

the parent’s child support obligation is merely a request to identify the 

source of payment, and a Social Security benefit can serve as a substitute source of income.

18. ____: ____: ____. Social Security benefits received on behalf of a 

parent’s employment may be used to offset a portion of child support 

costs, but it is not appropriate to offset child support costs where the 

Social Security benefits are received due to the disability of the child 

and therefore intended to mitigate the additional costs accompanying disabilities.

19. ____: ____: ____. Social Security disability benefits paid on behalf of 

a parent’s disability can be considered income to the parent for child 

support purposes, because the benefits are received in lieu of the parent’s income.
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20. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

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

2008), the equitable division of property is a three-step process. The 

first step is to classify the parties’ property as marital or nonmarital. 

The second step is to value the marital assets and marital liabilities 

of the parties. The third step is to calculate and divide the net marital 

estate between the parties in accordance with the principles contained 

in § 42-365.

22. ____: ____. Property which one party brings into the marriage is generally excluded from the marital estate.

23. Divorce: Property Division: Proof. The burden of proof to show that 

property is nonmarital remains with the person making the claim in a 

dissolution proceeding.

24. Divorce: Property Division. An exception to the general rule that 

property owned prior to the marriage is excluded from the marital estate 

exists where both of the spouses have contributed to the improvement 

or operation of the nonmarital property or where the spouse not owning 

the nonmarital property has significantly cared for the property during 

the marriage.

25. ____: ____. When applying the exception to the general rule regarding 

premarital property, evidence of the value of the contributions and evidence that the contributions were significant are generally required.

26. ____: ____. Generally, all property accumulated and acquired by either 

spouse during a marriage is part of the marital estate. Exceptions 

include property that a spouse acquired before the marriage, or by gift 

or inheritance.

27. ____: ____. Setting aside nonmarital property is simple if the spouse 

possesses the original asset, but can be problematic if the original asset 

no longer exists.

28. ____: ____. Separate property becomes marital property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse.

29. ____: ____. If the separate property remains segregated or is traceable 

into its product, commingling does not occur.

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

claiming that property is nonmarital.

31. Property Division. Marital debt is defined as a debt incurred during 

the marriage and before the date of separation, by either spouse or both 

spouses, for the joint benefit of the parties.

32. Divorce: Attorney Fees: Appeal and Error. In a dissolution of marriage case, an award of attorney fees is discretionary, is reviewed de 
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novo on the record, and will be affirmed in the absence of an abuse of 

discretion.

33. Attorney Fees. The award of attorney fees depends on multiple factors 

that include the nature of the case, the services performed and results 

obtained, the earning capacity of the parties, the length of time required 

for preparation and presentation of the case, customary charges of the 

bar, and general equities of the case.

34. Divorce: Attorney Fees. Attorney fees incurred by the parties during 

the pendency of dissolution proceedings do not constitute marital debt.

Appeal from the District Court for Dixon County: Paul J.

Vaughan, Judge. Affirmed in part, and in part reversed an

remanded with directions.

Alice S. Horneber, of Horneber Law Firm, P.C., for 

appellant.

Nancy R. Shannon, of Cordell Law, L.L.P., for appellee.

Inbody, Riedmann, and Bishop, J

Riedmann, Jud

INTRODUCTION

Linda Jean Burcham appeals from the order of the Dixon 

County District Court which dissolved her marriage to David 

Robert Burcham, divided the marital property, awarded custody of the parties’ minor children, and calculated child support. For the reasons explained below, we reverse the child 

support calculation and remand the cause with directions to 

the district court to recalculate child support excluding the 

adoption subsidy the parties receive on behalf of their adopted 

children. We otherwise affirm.

BACKGROUND

Linda and David were married in 2001, and David filed 

for dissolution of the marriage in November 2013. During the 

marriage, the parties adopted three siblings: a daughter, H.B., 

born in 1997; and two sons, A.B., born in 1999, and Z.B., 

born in 2001. Initially during the dissolution proceedings, 
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the parties shared temporary joint legal and physical custody 

of the children, following a “week on, week off” schedule; 

however, in October 2014, the court modified the temporary 

order and placed physical custody of H.B. with Linda and 

physical custody of A.B. and Z.B. with David. Linda received 

parenting time with the boys every other weekend, and David 

received parenting time with H.B. on alternating weekends but 

only upon the agreement of Linda, David, and H.B.

When Linda and David first married, they lived in a house 

David owned prior to the marriage. In 2003, they built the 

marital residence, located in Newcastle, Nebraska, on 45 acres 

of land that David had purchased in 1996. David worked at a 

telephone company throughout the marriage and earned additional income from farming. Linda worked full time during 

the marriage until reducing her schedule to 80 percent after 

the children were adopted. During that time, she was primarily 

responsible for the care of the children. After nearly 8 years, 

she resumed full-time employment.

All three of the children have special needs. H.B.’s mental 

health presented the greatest challenge for Linda and David. 

H.B. was admitted to a mental health facility on two occasions 

in 2012; the first stay was for 2 weeks and the second stay was 

for 6 weeks. She was admitted again in March 2013 after cutting herself with a knife. In September 2014, H.B. attempted 

suicide by overdosing on various pills. Linda took H.B. to the 

emergency room, and she was admitted to the mental health 

facility where she remained for 6 to 8 weeks.

Linda testified at trial that she never had any concerns 

that H.B. would harm A.B. or Z.B., but she acknowledged 

that an admission report from the mental health facility 

dated March 5, 2013, indicated that Linda reported finding 

a graphic drawing H.B. made depicting her assaulting her 

brothers, that Linda expressed concern about the disappearance of two family cats, that Linda and David expressed 

concern about H.B.’s safety upon returning home and the 

safety of other family members, and that Linda reported that 
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H.B. appears to want to hurt the ones who love her the most. 

At trial, David testified that he does have concerns about the 

boys’ safety around H.B.

The evidence also established that the Department of Health 

and Human Services substantiated a report of David’s physically abusing H.B. in October 2013. H.B. was observed with 

a bruise on her face from being “smacked” by David after 

an argument. Although David was allowed visits with H.B. 

during the pendency of the dissolution proceedings, H.B. had 

not spent any nights with David after December 2013, and 

David did not communicate to Linda a desire to spend any 

time with H.B. Throughout the case, H.B. continued to attend 

therapy sessions with a counselor and began seeing a psychiatrist at the end of 2014. According to Linda, H.B. responded 

very well to new medications, and she noticed a significant 

improvement in H.B.’s depression.

A.B., who was 15 years old at the time of trial, has been 

diagnosed with mild mental retardation and has “IEPs at 

school.” He also has a hearing delay. Nevertheless, he participates in football, basketball, and track and is involved in 

4-H activities. David described A.B. as “a very happy-golucky kid” and acknowledged that he will always need some 

kind of assistance and guidance. He also said that A.B. is his 

“right-hand man” and wants to help David with everything. 

A.B. testified that he enjoys living with David because that 

way they get to spend more time together. He would like to 

continue living with David and seeing Linda on the weekends but said that he would like to see H.B. more often. He 

said that he, H.B., and Z.B. get along well and have a good 

time together.

Z.B. was 13 years old at the time of trial. He has been 

diagnosed with “ADHD” and has “IEPs” at school as well. 

Nevertheless, like A.B., he also participates in football, basketball, and track at school and is involved in 4-H activities. He 

testified that he enjoys living with David because he can stay 

in one place instead of moving around so much.
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Because of the children’s special needs, the parties receive 

an adoption subsidy of $1,300 per month from the State of 

Kansas, the state from which the children were adopted. Linda 

requested that the court return to the joint physical custody 

arrangement it initially ordered utilizing the week on, week 

off schedule. She believed it was important for the children 

to remain together because she and David adopted them as a 

sibling group so they should remain a sibling group. David 

testified, however, that he did not believe Linda and he could 

communicate well enough to share joint physical custody. He 

believed that splitting the children up was in their best interests 

because the boys were thriving and comfortable living with 

him and because there are issues with H.B. that place the boys 

at risk. He did not believe sharing custody of the boys worked 

well for them, and now that they have more structure and stability, their grades and behavior have improved.

The district court entered the decree dissolving Linda and 

David’s marriage on August 5, 2015. The court found it was 

in the best interests of the children that David have legal 

custody and primary physical custody of A.B. and Z.B. and 

that Linda have legal custody and primary physical custody 

of H.B. Linda was awarded visitation with the boys every 

other weekend.

Linda was also ordered to pay $379 per month in child 

support for three children, $790 per month for two children, 

and $588 per month for one child. In calculating the parties’ 

incomes for child support purposes, the court utilized the 

parties’ incomes from their employment and added $200 per 

month in farming income for David. The court also assigned 

the adoption subsidy to the parent with custody of the child, 

meaning David received the subsidy for the boys and Linda 

received the subsidy for H.B.

The court valued and divided the parties’ property utilizing 

their joint property statement. Ultimately, Linda was ordered 

to make an equalization payment of $16,829 to David in 

monthly installments of $500. Greater details regarding the 
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court’s classification, valuation, and division of property will 

be provided in the analysis section below as needed to address 

Linda’s arguments on appeal. Each party was ordered to pay 

his or her own attorney fees. Linda has now appealed to 

this court.

ASSIGNMENTS OF ERROR

Linda assigns that the district court erred in (1) its award 

of custody and visitation of A.B. and Z.B.; (2) its award of 

child support and dependency exemptions; (3) its division of 

property, award of the equalization payment, and division of 

responsibility for outstanding obligations; and (4) its allocation 

of attorney fees.

STANDARD OF REVIEW

An appellate court’s review in an action for dissolution of 

marriage is de novo on the record to determine whether there 

has been an abuse of discretion by the trial judge. Pohlmann 

v. Pohlmann, 20 Neb. App. 290, 824 N.W.2d 63 (2012). This 

standard of review applies to the trial court’s determinations 

regarding custody, child support, division of property, and alimony. Id.

In a dissolution of marriage case, an award of attorney fees 

is discretionary, is reviewed de novo on the record, and will be 

affirmed in the absence of an abuse of discretion. Brunges v. 

Brunges, 260 Neb. 660, 619 N.W.2d 456 (2000).

ANALYSIS

Custody and Visitation.

Linda argues that the district court erred in awarding custody of A.B. and Z.B. to David. We find no abuse of discretion in the custody order.

[1,2] When custody of minor children is an issue in a proceeding to dissolve the marriage of the children’s parents, custody is determined by parental fitness and the children’s best 

interests. See, Maska v. Maska, 274 Neb. 629, 742 N.W.2d 

492 (2007); Klimek v. Klimek, 18 Neb. App. 82, 775 N.W.2d 
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444 (2009); Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 2014). 

When both parents are found to be fit, the inquiry for the court 

is the best interests of the children. Maska v. Maska, supra. 

Because the district court found that Linda and David were 

both fit parents, a finding that Linda does not challenge, we 

consider the children’s best interests.

[3,4] The best interests of a child require a parenting 

arrangement “for a child’s safety, emotional growth, health, 

stability, and physical care and regular and continuous school 

attendance and progress.” Neb. Rev. Stat. § 43-2923(1) (Cum. 

Supp. 2014). The best interests of a child also require that

the child’s families and those serving in parenting roles 

remain appropriately active and involved in parenting with safe, appropriate, continuing quality contact 

between children and their families when they have 

shown the ability to act in the best interests of the 

child and have shared in the responsibilities of raising 

the child.

§ 43-2923(3). Section 43-2923(6) further provides:

In determining custody and parenting arrangements, the 

court shall consider the best interests of the minor child, 

which shall include, but not be limited to, consideration 

of the foregoing factors and:

(a) The relationship of the minor child to each parent 

prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if 

of an age of comprehension but regardless of chronological age, when such desires and wishes are based on 

sound reasoning;

(c) The general health, welfare, and social behavior of 

the minor child;

(d) Credible evidence of abuse inflicted on any family 

or household member[;] and

(e) Credible evidence of child abuse or neglect or 

domestic partner abuse.
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[5] Both parties submitted evidence at trial regarding custody of A.B. and Z.B. Custody of H.B. was not at issue; the 

parties agreed that it was in her best interests to reside with 

Linda. Linda claimed that awarding her custody was in the 

boys’ best interests because she had always been their primary 

caregiver and it would allow them to maintain their close relationship with H.B. Although the Supreme Court has acknowledged that it is sound public policy to keep children together 

when possible, considerations of public policy do not, in all 

cases, prevent the splitting of the custody of the children when 

a marriage is dissolved; rather, the ultimate standard is the best 

interests of the children. Ritter v. Ritter, 234 Neb. 203, 450 

N.W.2d 204 (1990).

We understand Linda’s desire to keep all three siblings 

together, particularly her plea at trial that because she and 

David adopted the children as a sibling group, they deserve 

to remain a sibling group. We appreciate the district court’s 

concern regarding the safety of the boys due to concerns about 

H.B.’s mental health but also consider Linda’s testimony that 

H.B.’s medication has resulted in significant improvement in 

her depression symptoms. We also recognize the evidence at 

trial establishing that the children are close to one another and 

“bicker” as normal siblings do, and A.B.’s testimony that seeing H.B. every other weekend was not enough time and that he 

wished he had more contact with his sister.

Although separating the children may not be the ideal 

situation, ultimately the record supports the conclusion that 

it is in the boys’ best interests to be placed with David. Both 

boys testified that they did not like the week on, week off 

joint custody arrangement and liked living with David. They 

indicated they enjoyed living at the marital residence because 

of the animals and the farming activities they did with David. 

David opined that the joint custody arrangement did not work 

for the boys; however, they were thriving and comfortable 

living with him, and their behavior and grades had improved 

as a result of having more structure and stability. Based on 
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the record before us, we cannot find that the district court 

abused its discretion in awarding custody of A.B. and Z.B. 

to David.

In the alternative, Linda argues that the district court 

should have awarded joint legal and physical custody of 

A.B. and Z.B., returning to the alternating weekly schedule. 

As explained above, both boys indicated a desire to primarily reside with David, and David testified that allowing the 

boys to have a primary residence worked better for them and 

has improved their behavior and grades. We therefore find no 

abuse of discretion in the parenting time schedule.

Child Support Calculation.

Linda asserts that the district court erred in its calculation of 

child support in two respects. First, she claims that the court’s 

calculation of David’s income is incorrect because the court 

should have utilized the parties’ 2012 joint tax return to determine the income he earns from farming. In addition, Linda 

argues that the court improperly treated the adoption subsidy 

as income rather than using it to offset any child support obligation owed. We find no abuse of discretion in the calculation 

of David’s farming income. However, although we do not 

agree that the amount of child support owed should be offset 

by the adoption subsidy, we agree with Linda that the court’s 

treatment of the subsidy as income was error.

[6,7] The paramount concern and question in determining 

child support is the best interests of the child. See Incontro 

v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009). In general, child support payments should be set according to the 

Nebraska Child Support Guidelines, adopted by the Nebraska 

Supreme Court, which are presumed to be in the best interests 

of the child. See id.

[8,9] In calculating child support, the court must consider 

the total monthly income, defined as income of both parties 

derived from all sources. Neb. Ct. R. § 4-204 (rev. 2016). 

Thus, all income from employment must be included in the 
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initial calculation, which then becomes a rebuttable presumption of appropriate support. Noonan v. Noonan, 261 Neb. 552, 

624 N.W.2d 314 (2001).

In the present case, the district court calculated David’s 

monthly income by utilizing the income he earns from the telephone company and adding $200 for farming income. Linda 

claims that David’s farming income should have been established using the parties’ 2012 joint tax return, which indicated 

the yearly farming income was $19,388.

[10,11] The Nebraska Child Support Guidelines provide 

that copies of at least 2 years’ tax returns, financial statements, 

and current wage stubs should be furnished to the court for 

purposes of determining the parents’ income in order to calculate child support. § 4-204. Nebraska courts have recognized 

that income derived from farming is subject to fluctuations. 

See, Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007); 

Pohlmann v. Pohlmann, 20 Neb. App. 290, 824 N.W.2d 63 

(2012); Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 

721 (2004). Thus, the use of income averaging when dealing 

with farm income has been approved for purposes of calculating child support. Specifically, the Nebraska Child Support 

Guidelines provide that in the event of substantial fluctuations 

of annual earnings of either party during the immediate past 3 

years, the income may be averaged to determine the percent 

contribution of each parent. See Neb. Ct. R. ch. 4, art. 2, worksheet 1, fn.5 (rev. 2015). In Gress v. Gress, supra, the Supreme 

Court discussed at length the number of years that a court 

should use when averaging income pursuant to the Nebraska 

Child Support Guidelines and concluded that a 3-year average 

tended to be the most common approach in cases where a parent’s income fluctuates.

In the present case, however, the only evidence provided 

to establish David’s farming income was the 2012 tax return. 

Linda testified that their farming income fluctuated and that 

some years it was higher than the earnings in 2012. The district 

court made a factual finding that the income David earned in 
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2012 from farming did not accurately represent a “typical” year 

and, therefore, did not utilize that figure to calculate David’s 

total monthly income.

[12,13] In our de novo review of a judgment in marriage 

dissolution proceedings, when the evidence is in conflict, we 

consider, 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. See Catlett v. Catlett, 23 Neb. 

App. 136, 869 N.W.2d 368 (2015). Thus, we give weight to 

the fact that the district court found the 2012 tax return was 

not an accurate representation of David’s farming income. 

Unfortunately, while there is no dispute that David earns some 

amount of income from farming, the parties failed to elicit any 

testimony which would allow the district court, and this court, 

to determine an appropriate or average income. Moreover, 

Linda did not request all exhibits offered and received at trial 

in her praecipe for the bill of exceptions; therefore, the record 

on appeal does not contain all of the exhibits received into evidence at trial. We are unable to determine whether any exhibits 

offered and received at trial would support Linda’s argument 

that the court should have used a higher farming income. As 

a result of her failure to present a record which would support 

her argument, we can find no abuse of discretion. As a general 

proposition, it is incumbent upon the appellant to present a 

record supporting the errors assigned; absent such a record, an 

appellate court will affirm the lower court’s decision regarding 

those errors. Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 

835 N.W.2d 62 (2013). We therefore cannot find that the district court abused its discretion in setting David’s farm income 

at $200 per month.

[14,15] Linda also asserts that the district court erred in 

considering the adoption subsidy as income for purposes of 

calculating child support. She argues that the subsidy is similar 

in nature to the payment of a Social Security benefit and that 

therefore, it should be considered an offset to any child support 

owed. At the outset, we recognize that although Linda now 
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claims the district court’s inclusion of the adoption subsidy 

as income was error, the proposed child support worksheet 

she submitted to the court at trial also treated the subsidy as 

income. Generally, a party cannot complain of error which the 

party has invited the court to commit. McDonald v. McDonald, 

21 Neb. App. 535, 840 N.W.2d 573 (2013). However, parties 

in a proceeding to dissolve a marriage cannot control the disposition of matters pertaining to minor children by agreement, 

id., because the paramount concern and question in determining child support is the best interests of the child, see id. We 

therefore address this argument in order to determine whether 

the child support ordered is consistent with the best interests of 

the children.

The issue of how adoption subsidies should be treated with 

regard to an award of child support is one of first impression in 

this jurisdiction. Linda relies on Johnson v. Johnson, 290 Neb. 

838, 862 N.W.2d 740 (2015), to support her argument in favor 

of offsetting any child support obligation by the amount of the 

subsidy. Her reliance on Johnson is misplaced, however. The 

children in Johnson received Social Security disability payments as a result of their father’s status as a retired taxpayer, 

and the issue on appeal was whether the father should have 

been given credit against his child support obligation for the 

Social Security benefits which were paid to his children. The 

appeal was taken from a modification action, and the benefits 

had not been disclosed to the court at the time of the divorce 

proceedings. Therefore, the Supreme Court affirmed the trial 

court’s treatment of the Social Security payments as a gratuity and declined to give the father child support credit for the 

benefits paid to his children.

This court has also addressed the treatment of Social Security 

benefits. See Ward v. Ward, 7 Neb. App. 821, 585 N.W.2d 551 

(1998). In Ward, a child began receiving Social Security benefits after her mother passed away. The child’s father remarried, 

and his second wife adopted the child. When the father and his 

second wife divorced, at issue was whether the Social Security 
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payments should offset some of the money each parent owed 

in child support. We held that the benefits should offset child 

support and reduced the amount of each parent’s obligation by 

a proportion of the Social Security payment equal to that parent’s share of the child support needs.

[16,17] In Johnson and Ward, the children were receiving 

Social Security benefits as a result of their parents’ employment. The Supreme Court in Johnson observed that Social 

Security benefits in those instances are not a mere gratuity 

from the federal government but have been earned through the 

parent’s payment of Social Security taxes. The Supreme Court 

reiterated that a request to apply Social Security benefits to 

a child support obligation in those circumstances is merely a 

request to identify the source of payment, and a Social Security 

benefit can serve as a substitute source of income. See Johnson 

v. Johnson, supra.

The Supreme Court reached a different conclusion, however, 

in Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007). There, 

the parties’ youngest child received Social Security benefits 

as a result of having Down syndrome. When calculating the 

father’s child support obligation, the trial court disregarded the 

Social Security benefits, and the father challenged that decision 

on appeal. In support of his argument that his child support 

obligation should be reduced in light of the Social Security 

benefits, the father cited to Ward v. Ward, supra. The Supreme 

Court found Ward distinguishable in part because of the basis 

for the Social Security benefits, stating:

[I]t is well established that children with actual disabilities like Down syndrome have special needs above and 

beyond the needs of most children. All children have support needs, but special-needs children require additional 

financial support to overcome developmental, cognitive, 

or physiological problems. With this in mind, the federal 

government provides Social Security to such children 

with the intent that it will “supplement other income, 

not substitute for it.” In contrast, the money allocated to 
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the youngest child under the [Nebraska Child Support 

Guidelines] is meant to provide for the basic needs all 

children have. To construe one source of money as satisfying both needs would leave either his basic or his 

special needs unfulfilled.

Gress v. Gress, 274 Neb. at 700, 743 N.W.2d at 79.

[18] The Gress court also recognized that unlike a child 

with a disability, a child who loses a parent at a young age 

does not necessarily have special needs that will lead to 

increased support costs, and in that context, Social Security 

benefits are intended to account for the fact that the child has 

lost a source of support for his or her basic needs. The court 

found that using Social Security benefits to offset a portion 

of child support costs is not necessarily a problem under the 

circumstances presented by Ward, but it was not appropriate 

to offset child support costs where, as in Gress, the Social 

Security benefits are intended to mitigate the additional costs 

that accompany disabilities. The Gress court therefore held 

that the district court did not abuse its discretion when it disregarded the Social Security benefits for purposes of calculating 

child support.

Stated another way, Social Security benefits paid to a child 

as a result of the disability or death of a parent are distinguishable from those benefits paid as a result of the child’s disability. Social Security benefits may be used to offset a parent’s 

payment of child support under the Nebraska Child Support 

Guidelines to provide for the child’s basic needs, because the 

benefits are intended to replace the parent’s income source. 

However, Social Security benefits may not be used to offset a 

child support obligation for a child with special needs, because 

the benefits are intended to supplement the parent’s income 

and mitigate the increased costs associated with supporting a 

special needs child.

The question of whether the adoption subsidy in the present 

case should offset Linda’s child support obligation is resolved 

by determining whether the subsidy constitutes a substitute for 
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an income source or whether it is intended as a supplement to 

income. Courts in other jurisdictions have concluded that the 

purpose of an adoption subsidy is to serve as a supplement to 

income, not as a replacement for a parent’s income, and that 

those payments therefore do not offset or otherwise serve as 

a credit against a parent’s child support obligation. See, In 

re Marriage of Thomas, 49 Kan. App. 2d 952, 318 P.3d 672 

(2014); W.R. v. C.R., 75 So. 3d 159 (Ala. Civ. App. 2011); 

Gambill v. Gambill, 137 P.3d 685 (Okla. Civ. App. 2006); In 

re Marriage of Bolding-Roberts, 113 P.3d 1265 (Colo. App. 

2005); Strandberg v. Strandberg, 664 N.W.2d 887 (Minn. App. 

2003); Hamblen v. Hamblen, 203 Ariz. 342, 54 P.3d 371 (Ariz. 

App. 2002).

In the instant case, the children receive the adoption subsidy because of their special needs. Thus, the subsidy is not 

intended to replace a source of income in order to provide 

for the children’s basic needs; rather, it is provided to alleviate the additional costs of the children’s special needs. As the 

Arizona Court of Appeals observed in Hamblen v. Hamblen, 

supra, it would be inappropriate to adjust a child’s entitlement to financial support because the government has elected 

to subsidize the increased financial commitment that a special 

needs child imposes on the parents. The court further observed 

that the subsidy is but an addition to a parent’s obligation of 

financial support and that if it were credited against the parent’s child support obligation, it would, in effect, eliminate the 

supplementary effect of the subsidy. Accordingly, Linda’s child 

support obligation should not be offset by the amount of the 

adoption subsidy.

We recognize, as David argues, that the Nebraska Child 

Support Guidelines provide that in calculating the amount of 

support to be paid, the court must consider the total monthly 

income, defined as the income of both parties derived from all 

sources, except all means-tested public assistance benefits. See 

§ 4-204. However, we do not agree that the adoption subsidy 

is considered income of the parents.
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[19] Social Security disability benefits paid to a mother 

and her child as a result of the mother’s disability have been 

included in the mother’s income calculation because, as recognized above, such Social Security benefits are received in lieu 

of the parent’s income. See Hartman v. Hartman, 261 Neb. 

359, 622 N.W.2d 871 (2001). Other jurisdictions have determined, however, that adoption subsidies should not be included 

in the calculation of the parents’ income for child support purposes because the subsidy is not income to the parent, rather 

it belongs to the child. See, Strandberg v. Strandberg, supra;

Hamblen v. Hamblen, supra; County of Ramsey v. Wilson, 

526 N.W.2d 384 (Minn. App. 1995); A.E. v. J.I.E., 179 Misc. 

2d 663, 686 N.Y.S.2d 613 (N.Y. Sup. 1999). In Hamblen, the 

Arizona Court of Appeals observed that “the United States 

Department of Health and Human Services explicitly states in 

its Child Welfare Policy Manual” that “‘[f]oster and adoptive 

parents are not recipients of Federal foster care and adoption 

assistance payments; rather, foster care and adoption assistance 

payments are made on the child’s behalf to meet his or her 

needs.’” 203 Ariz. at 345, 54 P.3d at 374.

As a result, we find that the district court erred in treating 

the adoption subsidy as income for the purposes of calculating child support. We also reject Linda’s assertion that she is 

entitled to an offset of the child support obligation she owes 

to David, because the adoption subsidies are intended to assist 

Linda and David with the increased costs associated with raising children with special needs above and beyond the amount 

of basic support contemplated by the Nebraska Child Support 

Guidelines. We therefore reverse the child support calculation and remand the cause with directions to the district court 

to recalculate child support excluding the adoption subsidy. 

Based on our affirmance of the custody award, David is entitled to the adoption subsidy for A.B. and Z.B., and Linda is 

entitled to the subsidy for H.B.

[20] Linda also assigns error with respect to the dependency 

exemptions the district court awarded, but she does not argue 
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this error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

error to be considered by an appellate court. Cain v. Custer 

Cty. Bd. of Equal., 291 Neb. 730, 868 N.W.2d 334 (2015). We 

therefore do not address this argument.

Property Division.

Linda assigns error with respect to various aspects of 

the district court’s classification, valuation, and division of 

the parties’ property. We address her arguments individually below.

[21] Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the 

equitable division of property is a three-step process. The first 

step is to classify the parties’ property as marital or nonmarital. 

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

net marital estate between the parties in accordance with the 

principles contained in § 42-365. Plog v. Plog, 20 Neb. App. 

383, 824 N.W.2d 749 (2012).

[22,23] Linda first challenges the division of three retirement accounts she claims were her premarital property. The 

accounts are individually identified on the joint property statement. Property which one party brings into the marriage is 

generally excluded from the marital estate. Gress v. Gress, 

271 Neb. 122, 710 N.W.2d 318 (2006). The burden of proof to 

show that property is nonmarital remains with the person making the claim in a dissolution proceeding. Id.

Linda testified that the accounts were established prior to 

the marriage and contained premarital funds. There was no 

evidence presented, however, as to whether she contributed 

any funds to the accounts during the marriage. Thus, we are 

unable to discern whether the balances of the accounts as of 

the time the parties separated contained only premarital funds 

or a combination of marital and premarital funds. The district 

court apparently faced the same difficulty, stating in the decree 

that because neither party made any clear record regarding 
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the premarital values of the retirement accounts, it divided the 

accounts equally between the parties. Therefore, Linda has not 

met her burden of proving the funds are nonmarital, and we 

find no merit to this argument.

Linda next challenges the district court’s decision to give 

David a credit of $21,000 for proceeds from the sale of his 

premarital home. She claims there was no evidence that he 

used any of those proceeds toward the marital home, and even 

if there were, she contributed to increasing the value of David’s 

premarital home.

The parties lived in David’s premarital home for the first 

few years of their marriage. Linda testified that during that 

time, they made minor repairs to the home such as painting, 

fixing a stairwell, repairing some plaster, and replacing some 

carpet. Linda was asked whether her assistance in improving 

the property had anything to do with the sale price of the home 

when it was sold, and she indicated that it did. The home was 

sold for $37,000 in 2003, and David testified that $21,000 

of the proceeds from the sale went directly into the marital 

residence. Thus, we disagree with Linda’s contention that there 

was no evidence presented to establish that any of the proceeds 

from the sale were put toward the marital residence.

[24] In the alternative, Linda argues that the court should 

have applied the exception to the general principle set out in 

Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 

(1982). The Van Newkirk exception applies where both of the 

spouses have contributed to the improvement or operation of 

nonmarital property or where the spouse not owning the nonmarital property has significantly cared for the property during 

the marriage. See Van Newkirk v. Van Newkirk, supra.

[25] When applying the Van Newkirk exception, evidence 

of the value of the contributions and evidence that the contributions were significant are generally required. Tyler v. 

Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997). In Tyler, the 

wife brought a home from a prior marriage into the marriage. 

The husband and the wife lived in the wife’s house, sold it, 
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and purchased another, and then another, and finally a fourth 

home which became the focus of the appeal. This court, in a 

memorandum opinion, modified the divorce decree to require 

the wife to pay the husband half of the equity in the final home 

owned by the parties, and the Supreme Court reversed. The 

Tyler court said that each time the Van Newkirk exception had 

been applied, the Supreme Court “has required evidence of the 

value of the contributions and evidence that the contributions 

were significant.” 253 Neb. at 213, 570 N.W.2d at 320. The 

court in Tyler then recited an extensive list of items which the 

evidence suggested the husband did to the home to improve 

it, such as building a deck, carpeting and painting the family 

room, replacing kitchen countertops, and installing four ceiling fans. However, the Tyler court observed that the husband 

failed to produce any evidence indicating the value of these 

contributions and that he failed to demonstrate “the significance of the aforementioned contributions.” 253 Neb. at 214, 

570 N.W.2d at 320.

In the present case, based on our de novo review of the 

record, we find that Linda failed to establish the monetary 

value of her contributions to the home and demonstrate that her 

contributions were significant. Even if Linda’s work improved 

the home’s value, she failed to attribute the increase in value to 

substantial contributions she made because she did not do the 

work alone. Accordingly, we conclude that the district court 

did not abuse its discretion in awarding David a $21,000 credit 

for his premarital property.

Linda next asserts that the district court erred in failing to 

classify livestock included on the joint property statement as 

a marital asset. The joint property statement lists eight feeder 

calves and eight pairs of cows and calves; David indicated 

that neither he nor Linda was the owner of the cows, whereas 

Linda assigned a total value to them of $28,800. At trial, 

David’s mother was asked about the cows and calves listed 

on the property statement, and she testified that she and her 

husband owned them as of November 2013. David confirmed 
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his mother’s testimony that his parents owned that particular livestock.

Linda notes that the parties claimed five stock cows on their 

2012 joint tax return; through October 2012, she and David 

insured $14,000 worth of stock cows; and as of June 2013, 

they insured six head of stock cows and six head of stock 

calves. Thus, she argues, they clearly have cattle as marital 

assets, and the court should have entered a value of $28,800 

and assigned the value to David.

We understand Linda’s argument that at least as late as 

June 2013, the parties themselves acknowledged through their 

insurance policy that they owned cattle. However, there was no 

evidence offered at trial that as of the date of separation, the 

cows and calves listed on the property statement belonged to 

Linda and David, particularly when the only testimony at trial 

was from David and his mother that the parties were not the 

owners of the livestock listed on the property statement. We 

therefore cannot find that the district court abused its discretion 

in failing to classify the livestock as a marital asset.

Next, Linda contends that the district court erred in classifying and valuing a savings account held at a credit union. 

The court placed a value of $7,850 on the account, classified 

it as a marital asset, and awarded it to Linda. Linda claims 

the account was her premarital property and had a balance of 

only “$0.07” at the time of separation. Brief for appellant at 

34. She asserts that “David’s own Exhibit 52 confirms that 

the account [should be] valued at $0.07.” Id. However, exhibit 

52 is not contained in our record on appeal, so we are unable 

to verify Linda’s claim. We also note that David testified 

that the first date of business for the account was in January 

2013, testimony which appears to refute Linda’s claim that 

she owned the account prior to the marriage. Further, on 

the parties’ joint property statement David placed a value of 

$7,850 on the savings account, a value which was accepted 

by the district court. Again, we reiterate that it is Linda’s 

burden, as the appellant, to supply a record that supports her 
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assignments of error. See Centurion Stone of Neb. v. Whelan, 

286 Neb. 150, 835 N.W.2d 62 (2013). Because of her decision 

to request only certain exhibits in her praecipe for the bill of 

exceptions, we cannot find on the record before us that the 

district court’s valuation and classification of the account was 

an abuse of discretion.

Finally, Linda asserts two claims with respect to the marital 

residence. She first argues that the court’s valuation of the 

property was erroneous. The district court accepted David’s 

value of $129,980 for the home and found that David was 

entitled to a credit of $21,000 for his premarital contribution; 

thus, the court’s final valuation of the residence was $108,980. 

Linda claims the correct value was $330,000, a sum which 

includes the residence, the 45 acres of land upon which the 

home sits, and the other structures on the land. The court, 

however, determined that the 45 acres of land was David’s 

premarital property because he purchased it prior to the marriage. Thus, the question is whether the district court properly classified the 45 acres of land as premarital property or 

whether the true value of the marital residence should include 

the value of the land as well.

[26-30] Generally, all property accumulated and acquired 

by either spouse during a marriage is part of the marital 

estate. Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). 

Exceptions include property that a spouse acquired before the 

marriage, or by gift or inheritance. Id. Setting aside nonmarital 

property is simple if the spouse possesses the original asset, 

but can be problematic if the original asset no longer exists. Id. 

Separate property becomes marital property by commingling 

if it is inextricably mixed with marital property or with the 

separate property of the other spouse. Id. If the separate property remains segregated or is traceable into its product, commingling does not occur. Id. The burden of proof rests with the 

party claiming that property is nonmarital. Id.

The parties agree that David purchased the land in 1996, 

which was prior to the marriage, and the land retained its 
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original form when the parties separated. David secured a loan 

to fund the purchase and continued to make payments on the 

loan until 2003. David testified that he applied $16,000 of 

proceeds from the sale of his premarital residence to pay off 

the loan on the land. To the contrary, Linda testified that the 

remaining balance on the loan was wrapped into the mortgage 

they secured on the marital residence. The trial court apparently found David’s testimony more credible than Linda’s, 

a finding to which we afford weight in our de novo review. 

See Catlett v. Catlett, 23 Neb. App. 136, 869 N.W.2d 368 

(2015). Thus, David met his burden of proving the property 

was nonmarital.

There is some evidence establishing that David used marital 

funds between 2001 and 2003 to make the loan payments for 

the land. However, there was no evidence as to the amount 

of money used, and therefore, we cannot find that the district 

court abused its discretion in classifying the 45 acres of land 

as David’s premarital property. Accordingly, the proper value 

of the marital residence includes the home only, and not the 

land upon which it sits.

Linda also claims that the court erred in dividing the residence’s unpaid property taxes from 2012 and 2013 equally 

between the parties. She argues that as of December 10, 2013, 

the parties stipulated that David have “exclusive use” of the 

marital residence, and thus, he was obligated to pay the costs 

associated with maintaining the residence. Brief for appellant at 36. Despite Linda’s claim, the temporary stipulation 

signed by the parties provided that Linda receive exclusive 

use of the parties’ residence from December 9, 2013, at 7 

p.m. until April 1, 2014, or such time she notified David otherwise. The evidence reveals, however, that Linda chose not 

to reside there after being granted exclusive possession due to 

safety concerns.

[31] Regardless, the property taxes for 2012 and 2013 

were incurred during the marriage, and Linda resided in the 

house during 2012 and the majority of 2013. Marital debt is 
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defined as a debt incurred during the marriage and before the 

date of separation, by either spouse or both spouses, for the 

joint benefit of the parties. Finley-Swanson v. Swanson, 20 

Neb. App. 316, 823 N.W.2d 697 (2012). The parties remained 

together and lived jointly in the home until separating in the 

fall of 2013. Accordingly, we find no abuse of discretion in 

the court’s treatment of the tax obligation as a marital debt and 

dividing it equally between the parties.

Finally, Linda asks that we order the marital residence 

to be sold and the proceeds split between the parties. We 

decline to do so. The district court properly classified the residence as marital property and awarded it to David. We have 

rejected all of Linda’s arguments as to the court’s division 

of property either because we find the district court’s decision was not an abuse of discretion or because she failed to 

produce a record sufficient for our review to support her arguments. Accordingly, we affirm the classification, valuation, 

and division of property, including the equalization payment, 

in its entirety.

Attorney Fees.

[32,33] Linda argues that the district court erred in failing to award her attorney fees. In a dissolution of marriage 

case, an award of attorney fees is discretionary, is reviewed 

de novo on the record, and will be affirmed in the absence 

of an abuse of discretion. Brunges v. Brunges, 260 Neb. 660, 

619 N.W.2d 456 (2000). The award of attorney fees depends 

on multiple factors that include the nature of the case, the 

services performed and results obtained, the earning capacity 

of the parties, the length of time required for preparation and 

presentation of the case, customary charges of the bar, and 

general equities of the case. Sitz v. Sitz, 275 Neb. 832, 749 

N.W.2d 470 (2008).

[34] Linda requested that her attorney fees of $20,000 be 

considered a marital liability and considered as a reduction 

in the amount of net marital assets awarded to her. As noted 
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above, a marital debt is one incurred during the marriage and 

before the date of separation for the joint benefit of the parties. 

See Finley-Swanson v. Swanson, supra. In Finley-Swanson, we 

held that the attorney fees incurred by the parties during the 

pendency of the dissolution proceedings did not constitute a 

marital debt because they were incurred after the parties were 

estranged and the wife filed the complaint for dissolution of 

marriage and that thus, they were clearly not for the parties’ 

joint benefit.

The same is true in the present case. The attorney fees Linda 

owes were incurred after she and David had separated and 

were not for their joint benefit. Therefore, they were properly 

treated as Linda’s separate obligation.

In our de novo review, we have considered the general 

equities of the case as well as the other relevant factors. This 

case involved multiple contested issues, including custody of 

A.B. and Z.B., child support, alimony, and property division. 

Linda asserts that she incurred additional fees as a direct result 

of David’s actions, but the district court found, and we agree, 

that it appears “both of the parties litigated the issues with a 

high degree of contentiousness.” We therefore find no abuse 

of discretion in denying Linda’s request for attorney fees and 

ordering each party to pay its respective fees.

CONCLUSION

We conclude that the district court erred in treating the 

adoption subsidy as income for the purposes of calculating 

child support. We therefore reverse that portion of the decree 

and remand the cause with directions to the district court to 

recalculate child support without considering the adoption subsidy. The decree is otherwise affirmed.

 Affirmed in part, and in part rev

and remanded with directi