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ONSTOT v. ONSTOT

Cite as 298 Neb. 897

Mark A. Onstot, appella

cross-appellee, v. Maria D. Ons

appellee and cross-appella

___ N.W.2d ___

Filed February 9, 2018. No. S-17-038.

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

Attorney Fees: Appeal and Error. In an action for the dissolution of 

marriage, an appellate court reviews de novo on the record the trial 

court’s determinations of custody, child support, property division, 

alimony, and attorney fees; these determinations, however, are initially 

entrusted to the trial court’s discretion and will normally be affirmed 

absent an abuse of that discretion.

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

appellate court reappraises the evidence as presented by the record and 

reaches its own independent conclusions on the matters at issue. When 

evidence is in conflict, the appellate court considers and may give 

weight to the fact that the trial judge heard and observed the witnesses 

and accepted one version of the facts rather than another.

3. Divorce: Mental Health: Appeal and Error. An appeal involving support for a mentally ill spouse under Neb. Rev. Stat. § 42-362 (Reissue 

2016) is reviewed de novo on the record and affirmed in the absence of 

an abuse of discretion on the part of the trial judge.

4. Property Division. As a general rule, property which one party brings 

into the marriage is excluded from the marital estate.

5. Property Division: Proof. The burden of proof to show that property is 

a nonmarital asset remains with the person making the claim.

6. Affidavits: Records: Appeal and Error. In order to be considered on 

appeal, any affidavit used on a motion before the trial court must have 

been offered in evidence in the trial court and made part of the bill 

of exceptions.

7. Records: Appeal and Error. The party appealing has the responsibility of including within the bill of exceptions matters from the 

Nebraska Supreme Court Online Library

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

05/04/2018 12:10 AM CDT
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record which the party believes are material to the issues presented 

for review.

8. ____: ____. A bill of exceptions is the only vehicle for bringing evidence before the Nebraska Supreme Court. Evidence which is not made 

part of the bill of exceptions may not be considered.

9. Divorce: Mental Health: Alimony. Neb. Rev. Stat. § 42-362 (Reissue 

2016) empowers the court to order the payment of such support and 

maintenance to a mentally ill spouse as it may deem necessary and 

proper, having due regard to the property and income of the parties.

10. ____: ____: ____. Reasonableness is the ultimate criterion to be applied 

in testing whether support and maintenance is to be awarded a mentally 

ill spouse under Neb. Rev. Stat. § 42-362 (Reissue 2016) and, if so, the 

amount and duration thereof.

11. Divorce: Alimony: Public Policy: Legislature. The trial court cannot 

condition the termination of spousal support upon cohabitation with 

another person, because such matters are public policy issues for the 

Legislature, not the courts, to decide.

12. Divorce: Alimony: Modification of Decree. Cohabitation, together 

with a showing that such arrangement improved a former spouse’s 

overall financial condition, might warrant a modification of spousal 

support.

Appeal from the District Court for Sarpy County: William

B. Zastera, Judge. Affirmed in part as modified, and in

part vacated.

Thomas J. Anderson, P.C., L.L.O., for appellant.

Robin L. Binning, of Binning & Plambeck, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, K

Funke, JJ

Kelch, 

I. INTRODUCTION

Mark A. Onstot appeals, and Maria D. Onstot crossappeals, from the decree of dissolution entered by the district 

court for Sarpy County, which dissolved the parties’ marriage, divided their assets and debts, and awarded spousal 

support for Maria. For the reasons set forth below, we affirm 
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the district court’s decree in part, as modified herein, and in 

part vacate.

II. BACKGROUND

Mark and Maria were married in October 1999. Mark filed 

a complaint for dissolution of marriage in July 2013, and the 

matter proceeded to a bench trial in March and June 2016. 

The contested issues at trial, as relevant to this appeal, were 

(1) the equitable division of the house Mark owned prior to 

the marriage and (2) the determination of appropriate spousal 

support for Maria under Neb. Rev. Stat. § 42-362 (Reissue 

2016).

1. Mark’s Hou

Prior to the marriage, Mark owned a house located on 

Platte River Drive in Bellevue, Nebraska. Mark testified that 

he purchased the house in 1990 for $58,800, and he believed 

that the mortgage at the time of purchase was $48,000. He 

made some improvements to the house over the following 

years, including installing new siding, constructing a new 

garage, and installing new windows and new flooring, all of 

which was paid for with his own money prior to the marriage. 

Mark testified that he believed the house was worth approximately $100,000 at the time of the parties’ marriage in 1999, 

but there was no evidence presented regarding the balance on 

the mortgage at that time. There was also no documentation 

to confirm Mark’s testimony regarding the date of purchase, 

the purchase price, the amount mortgaged, or the value of the 

house at the time of the parties’ marriage. At the time of trial, 

the house was appraised at $200,000 and had a loan balance 

of $32,538.

Following a bench trial, the district court awarded the house 

to Mark, subject to the remaining mortgage balance of approximately $32,500, for which Mark was ordered to be solely 

responsible. It determined that the property was valued at 

$200,000 and had equity in the amount of $167,500, which it 
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ordered to be divided equally between the parties. It further 

ordered Mark to refinance, sell, or otherwise remove Maria’s 

financial responsibility for the mortgage, and to pay Maria 

$83,746 for her share of the net equity in the property, within 

60 days from the entry of the decree.

2. Spousal Suppo

After Mark filed his complaint for dissolution, Maria filed 

a motion for the appointment of a guardian ad litem on the 

basis of mental illness, pursuant to § 42-362. In support of the 

motion, she submitted an affidavit from her psychologist, Dr. 

Glenda L. Cottam, who stated that Maria exhibited anxiety 

and mental illness to such a degree that her ability to think 

clearly and engage in appropriate reality testing was compromised and that she would not be able to act in her own best 

interests, make appropriate decisions, or assist her lawyer in 

preparing her case. The district court granted the motion and 

appointed a guardian ad litem to represent Maria throughout 

these proceedings.

Shortly thereafter, Maria filed a motion requesting temporary support in the amount of $3,000 per month, again 

pursuant to § 42-362. The motion itself did not include any 

supporting documentation as to her income or expenses, and 

the record on appeal does not contain a bill of exceptions 

from the hearing. Mark filed an affidavit in resistance to the 

motion for support, stating that Maria did not need $3,000 per 

month and that he could not afford to pay that amount. The 

district court awarded temporary spousal support of $1,500 

per month, beginning on March 1, 2014. Because of the lack 

of record on appeal, it is unclear what evidence the court considered in making this determination.

In August 2015, Mark filed an application to modify spousal 

support, because he had just retired from his employment with 

the railroad and his income had been reduced to only $3,034 

per month in retirement benefits. The court denied his application to modify.
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The evidence at trial showed that Maria had been diagnosed 

with a mood disorder with some transient psychotic features, 

paranoia, depression, anxiety, and post-traumatic stress disorder. Regarding Maria’s symptoms, Dr. Cottam testified that 

Maria becomes very agitated, has hallucinations, and dissociates from reality. Dr. Cottam further explained that Maria 

was very paranoid at times—she talked about conspiracies, 

“stink bombs” being set off at her place of employment, 

people that were out to get her, a particular woman that was 

always following her, and lights being shone into her apartment. She has been hospitalized on a number of occasions 

because her anxiety and paranoia cause her blood pressure to 

increase to a level that is medically dangerous. Her anxiety 

causes other physical symptoms as well, including swelling of her tongue, tingling in her fingers, heaviness in her 

body, loss of her voice, ringing in her ears, changes in her 

vision, and loss of coordination. Dr. Cottam opined that due 

to Maria’s mental health issues, she was not competent to testify and was in need of a legal guardian. Because Maria was 

unable to testify, her guardian ad litem testified in her place 

at trial.

At the time of trial, the evidence showed that Maria’s 

monthly income was $3,453, which included Social Security 

disability benefits, spousal benefits from the railroad, and the 

$1,500 temporary support payment from Mark. Her monthly 

expenses were $3,721, and therefore exceeded her monthly 

income even with Mark’s temporary support payment.

Mark’s monthly income at the time of trial included $3,602 

in railroad retirement benefits, but he testified that he actually received only $3,100 per month after taxes. Mark also 

received $750 per month in rental income, but he testified that 

it was offset by mortgage payments and expenses for the rental 

property. Mark’s monthly expenses were $3,954, although 

he acknowledged that his food expense of $700 per month 

and his gas expense of $400 per month were high due to his 
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preferences for eating out frequently and driving his truck 

rather than his more gas-efficient car.

In its decree, the district court found that Maria was mentally 

ill and entitled to protection under § 42-362. It awarded her 

continuing spousal support in the amount of $700 per month, 

beginning July 1, 2016, and continuing so long as she is mentally ill or until she remarries, the death of either party, or further order of the court. Following the entry of the decree, Mark 

filed a motion to alter or amend the decree, requesting that 

his obligation to pay spousal support would cease in the event 

Maria was cohabiting. The district court amended the decree to 

reflect that Maria’s spousal support shall continue until Maria 

is no longer mentally ill, the death of either party, or Maria’s 

remarriage or cohabitation with a significant other.

III. ASSIGNMENTS OF ERROR

On appeal, Mark assigns the district court erred (1) in 

awarding any equity in his house to Maria or, alternatively, in 

failing to grant him credit for the home’s value as of the date of 

marriage, and in requiring him to sell the property if he did not 

refinance or otherwise remove Maria’s financial responsibility 

for the mortgage within 60 days and (2) in awarding excessive 

temporary and permanent spousal support to Maria.

On cross-appeal, Maria assigns that the district court abused 

its discretion in ordering that her spousal support would cease 

upon her cohabitation with a significant other.

IV. STANDARD OF REVIEW

[1] In an action for the dissolution of marriage, an appellate 

court reviews de novo on the record the trial court’s determinations of custody, child support, property division, alimony, 

and attorney fees; these determinations, however, are initially 

entrusted to the trial court’s discretion and will normally be 

affirmed absent an abuse of that discretion.1

1 Marshall v. Marshall, ante p. 1, 902 N.W.2d 223 (2017).
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[2] In a review de novo on the record, an appellate court 

reappraises the evidence as presented by the record and reaches 

its own independent conclusions on the matters at issue.2

However, when evidence is in conflict, the appellate court 

considers and may give weight to the fact that the trial judge 

heard and observed the witnesses and accepted one version of 

the facts rather than another.3

[3] An appeal involving support for a mentally ill spouse 

under § 42-362 is reviewed de novo on the record and affirmed 

in the absence of an abuse of discretion on the part of the 

trial judge.4

V. ANALYSIS

1. Mark’s Hou

Mark claims the trial court erred in awarding any equity 

in his house to Maria or, alternatively, in failing to grant him 

credit for its value as of the date of marriage, and in requiring 

him to sell the property if he does not refinance or otherwise 

remove Maria’s financial responsibility for the mortgage within 

60 days.

Mark purchased the residence located on Platte River Drive 

in 1990, approximately 9 years prior to the marriage. He testified he paid $58,800 for the property and took out a mortgage 

for the purchase in the amount of $48,000. He opined that 

the residence had a value of $100,000 at the time of the marriage in 1999. The district court found the entire equity in the 

residence to be marital property and ordered that it be divided 

equally between the parties.

[4,5] Because he purchased the residence prior to the marriage, Mark claims that it is entirely premarital or, alternatively, 

that the equity he had prior to the marriage is premarital. As a 

2 Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017).

3 Id.

4 See Black v. Black, 223 Neb. 203, 388 N.W.2d 815 (1986).
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general rule, property which one party brings into the marriage 

is excluded from the marital estate.5 However, the burden of 

proof to show that property is a nonmarital asset remains with 

the person making the claim.6

We agree that the equity in the residence at the time of the 

parties’ marriage in 1999 was a nonmarital asset which, if 

established, should be set aside as Mark’s separate property.7

However, assuming Mark’s testimony established the value 

of the residence at $100,000 at the time of the marriage, he 

did not testify or supply any documentation as to whether the 

residence was either encumbered or unencumbered at that time 

and, if encumbered, to what extent. Because Mark has failed to 

establish that there was any equity in the house at the time of 

the parties’ marriage, he has failed to meet his burden of proving that the property is a nonmarital asset. We therefore conclude that the district court did not err in including the entirety 

of the equity in the residence in the marital estate.

Mark further assigns that the district court erred in ordering him to refinance the residence and pay off Maria within 

60 days of the decree. We acknowledge that the trial court has 

discretion in the amount of time allowed to refinance property. But, here, Mark’s ability to refinance promptly has been 

impaired by his obligation to pay $700 per month in spousal 

support, especially as a retiree with a monthly net income of 

only $3,100. Therefore, we find that under these particular 

circumstances, the district court’s requirement that Mark refinance the mortgage within 60 days constituted an abuse of 

discretion. We modify the decree to extend the time period for 

Mark to refinance the residence and pay off Maria to 6 months 

from the filing of the mandate in the district court.

5 See Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).

6 Id.

7 See Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001). See, also, 

Heald v. Heald, supra note 5.
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2. Spousal Suppo

(a) Temporary Support

[6] Mark claims the trial court erred in awarding temporary 

spousal support in the amount of $1,500 per month under 

§ 42-362. However, the record on appeal does not contain 

any bill of exceptions in regard to the hearing for temporary 

spousal support. The transcript does contain a document entitled “Affidavit in Support of Application to Re-Set Support” 

that was filed with the court. We have long held that an affidavit must be offered as an exhibit and must be made part of 

the bill of exceptions in order to be considered on appeal.8 In 

Peterson v. George,

9

 we stated:

The fact that an affidavit used as evidence in the district 

court was filed in the office of the clerk of the district 

court and made a part of the transcript is not important to 

a consideration and decision of an appeal in the cause to 

this court. If such an affidavit is not preserved in a bill of 

exceptions, its existence or contents cannot be known by 

this court.

Here, we have no record that the “Affidavit in Support of 

Application to Re-Set Support” was received at any pretrial 

hearing. Whether the district court reviewed the affidavit or 

any evidence for purposes of Mark’s pretrial application to 

reset spousal support is unknown.

[7,8] The party appealing has the responsibility of including 

within the bill of exceptions matters from the record which the 

party believes are material to the issues presented for review.10

A bill of exceptions is the only vehicle for bringing evidence 

8 See, Altaffer v. Majestic Roofing, 263 Neb. 518, 641 N.W.2d 34 (2002); 

Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959).

9 Peterson v. George, supra note 8, 168 Neb. at 577, 96 N.W.2d at 631.

10 See, Neb. Rev. Stat. § 25-1140 (Reissue 2016); State v. Dunster, 262 

Neb. 329, 631 N.W.2d 879 (2001); State v. Biernacki, 237 Neb. 215, 465 

N.W.2d 732 (1991); State v. Schaneman, 235 Neb. 655, 456 N.W.2d 764 

(1990); State v. Isikoff, 223 Neb. 679, 392 N.W.2d 783 (1986).
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before the Nebraska Supreme Court. Evidence which is not 

made part of the bill of exceptions may not be considered.11

Without the benefit of a proper record, we will not consider 

this alleged error.

(b) Continuing Support

Next, Mark claims the trial court erred in awarding continuing spousal support in the amount of $700 per month until 

either party dies, Maria remarries or cohabits with a significant other, or she is no longer mentally ill.

An appeal involving support for a mentally ill spouse under 

§ 42-362 is reviewed de novo on the record and affirmed in 

the absence of an abuse of discretion on the part of the trial 

judge.12 A judicial abuse of discretion exists when 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.13

Mark does not contest whether Maria suffers from a mental 

illness. And the district court awarded spousal support pursuant 

to § 42-362, which in relevant part provides:

When a marriage is dissolved and the evidence indicates 

that either spouse is mentally ill, the court may, at the 

time of dissolving the marriage or at any time thereafter, make such order for the support and maintenance of 

such mentally ill person as it may deem necessary and 

proper, having due regard to the property and income of 

the parties, and the court may require the party ordered 

to provide support and maintenance to file a bond or otherwise give security for such support. . . . The order for 

support may, if necessary, be revised from time to time on 

like application.

11 See, State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983); State v. 

Gingrich, 211 Neb. 786, 320 N.W.2d 445 (1982).

12 See Black v. Black, supra note 4.

13 Marshall v. Marshall, supra note 1.
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[9,10] Section 42-362 empowers the court to order the 

payment of such support and maintenance as it may deem 

necessary and proper, having due regard to the property and 

income of the parties, and, to that extent, parallels the alimony 

contemplated by Neb. Rev. Stat. § 42-365 (Reissue 2016), but 

provides an additional specific ground to be considered—the 

mental illness of a spouse.14 Further, we have held that in dealing with spousal support under the provisions of § 42-362, 

reasonableness is the ultimate criterion to be applied in testing 

whether support and maintenance is to be awarded and, if so, 

the amount and duration thereof.15

The decree does not contain any findings as to why the 

district court chose to award $700 per month in spousal support, which was not an amount requested by either party. 

Mark’s gross retirement income was $3,602, but he testified 

that after taxes, he received approximately $3,100. Although 

Maria points out that Mark is now receiving $750 per month 

in rental income, Mark testified this was offset by mortgage 

payments and expenses for the rental property. Mark’s monthly 

expenses after excluding the temporary spousal support payment and mortgage payments and expenses for the rental property is approximately $2,000. In addition, Mark acknowledged 

his food and gas expenses were high due to his particular 

lifestyle. It appears the district court found Mark’s credible 

monthly expenses to be less than his monthly income. On the 

other hand, Maria had monthly income of $3,453 and monthly 

expenses of $3,721.

Here, the court was faced with a long-term marriage, a mentally ill spouse who has no ability at present to work, and, as 

in Black v. Black,

16 a spouse who has needs above her income 

which exceed the amount of support and maintenance awarded. 

14 Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).

15 Black v. Black, supra note 4.

16 Id.
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Certainly, the $700 spousal support obligation, coupled with 

Mark’s other monthly expenses, may place him at or near his 

net income level. This is concerning and provides no flexibility 

for Mark, but Maria is in an even more difficult financial position. Sadly, when many couples divorce, there is not enough 

money to satisfy the needs of both parties. But in this instance, 

based upon the totality of the circumstances and evidence, 

we cannot find the order of spousal support was an abuse 

of discretion.

(c) Cross-Appeal

The district court initially entered a decree which awarded 

Maria spousal support in the amount of $700 per month commencing July 1, 2016, and continuing so long as Maria is 

mentally ill or until she remarries, the death of either party, or 

further order of the court. Following the entry of the decree, 

the district court partially granted Mark’s motion to alter or 

amend by ordering that the spousal support would further terminate upon Maria’s cohabitating with a significant other. On 

cross-appeal, Maria contends that it was improper to include 

any provision terminating spousal support if she cohabitates 

with another person. And, at oral argument, counsel for Maria 

agreed that Maria’s cohabitation with another person was not 

within the parties’ contemplation at the time of the entry of 

the decree.

[11,12] Maria is correct in that we have previously held that 

the trial court cannot condition the termination of spousal support upon cohabitation with another person, because such matters are public policy issues for the Legislature, not the courts, 

to decide.17 However, cohabitation, together with a showing 

that such arrangement improved a former spouse’s overall 

financial condition, might warrant a modification of spousal 

support.18 Accordingly, that part of the district court’s order 

17 Else v. Else, 219 Neb. 878, 367 N.W.2d 701 (1985).

18 Id. See, also, Stephens v. Stephens, supra note 14.
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adding Maria’s cohabitation with a significant other to the list 

of conditions terminating Mark’s spousal support obligation is 

hereby vacated.

VI. CONCLUSION

We affirm in part the decree entered by the district court, 

as modified to allow Mark 6 months following the date of 

the mandate to refinance the residence and pay off Maria. 

We vacate the portion of the district court’s order stating 

that Mark’s support obligation would terminate upon Maria’s 

cohabitation with a significant other.

 Affirmed in part as modi

and in part vacat

Wright, J., not participating.