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Sonia Becher, appellee and cross-appellant, 

v. Mark A. Becher, appellant

and cross-appellee.

___ N.W.2d ___

Filed March 9, 2018. Nos. S-16-054, S-16-793.

1. Statutes: Appeal and Error. Statutory language is to be given its 

plain and ordinary meaning, and an appellate court will not resort to 

interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous.

2. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

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

the party has invited the court to commit.

4. Verdicts: Evidence: Appeal and Error. The recommended factual 

findings of a special master have the effect of a special verdict, and the 

report upon questions of fact, like the verdict of a jury, will not be set 

aside unless clearly against the weight of the evidence.

5. Trial: Judgments. Neb. Rev. Stat. § 25-1131 (Reissue 2016) does not 

require a district court reviewing a referee’s decision to make specific findings.

6. Statutes. To the extent there is a conflict between two statutes on the 

same subject, the specific statute controls over the general.

7. Child Custody: Visitation: Courts. A trial court has an independent 

responsibility to determine questions of custody and visitation of minor 

children according to their best interests, which responsibility cannot be 

controlled by an agreement or stipulation of the parties.

8. 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 

Nebraska Supreme Court Online Library

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

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

attorney fees.

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

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

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

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

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

version of the facts rather than another.

10. Property Division. With some exceptions, the marital estate does 

not include property acquired by one of the parties through gift or 

inheritance.

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

establishes a joint physical custody arrangement, courts will so construe 

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

the arrangement.

12. Waiver: Appeal and Error. Whether a party waived his or her right to 

appellate review is a question of law.

13. Judgments: Appeal and Error. When reviewing questions of law, 

an appellate court resolves the questions independently of the lower 

court’s conclusions.

14. Estoppel. The doctrine of equitable estoppel is applied to transactions 

in which it is found that it would be unconscionable to permit a person 

to maintain a position inconsistent with one in which he or she has 

acquiesced or of which he or she has accepted any benefit.

15. Divorce: Judgments: Waiver: Appeal and Error. A spouse who 

accepts the benefits of a divorce judgment does not waive the right to 

appellate review under circumstances where the spouse’s right to the 

benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome 

of the appeal could have no effect on the right to those benefits, or the 

benefits accepted are pursuant to a severable award which will not be 

subject to appellate review.

16. Contempt: Appeal and Error. In a civil contempt proceeding where 

a party seeks remedial relief for an alleged violation of a court order, 

an appellate court employs a three-part standard of review in which (1) 

the trial court’s resolution of issues of law is reviewed de novo, (2) the 

trial court’s factual findings are reviewed for clear error, and (3) the trial 

court’s determinations of whether a party is in contempt and of the sanction to be imposed is reviewed for abuse of discretion.

17. Courts: Restitution: Contempt. Through its inherent powers of contempt, a court may order restitution for damages incurred as a result of 

failure to comply with a past order.
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18. Contempt. Civil contempt proceedings are instituted to preserve and 

enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann and Bishop, Judges, on 

appeal thereto from the District Court for Lancaster County, 

Steven D. Burns, Judge. Judgment of Court of Appeals in No. 

S-16-054 affirmed in part, and in part reversed and remanded 

with directions.

Appeal from the District Court for Lancaster County: 

Steven D. Burns, Judge, and Karen Flowers, Judge, Retired. 

Judgment in No. S-16-793 affirmed.

David P. Kyker for appellant in Nos. S-16-054 and S-16-793.

Brad Sipp for appellant in No. S-16-054.

Sally A. Rasmussen, of Mattson Ricketts Law Firm, for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Kelch, and

Funke, JJ.

Cassel, J.

I. INTRODUCTION

These two appeals, which have been consolidated in this 

court, stem from marital dissolution proceedings. One challenged the district court’s decree, and is before us on further 

review of a Nebraska Court of Appeals’ decision.1 Primarily, 

we disagree with the Court of Appeals’ determination that a 

district court must state specific findings in order to set aside 

or modify a referee’s report authorized by chapter 25 of the 

Nebraska Revised Statutes (Chapter 25)2 as clearly against 

the weight of the evidence. In this appeal, we affirm in part, 

1 Becher v. Becher, 24 Neb. App. 726, 897 N.W.2d 866 (2017).

2 See Neb. Rev. Stat. §§ 25-1129 to 25-1137 (Reissue 2016) (authorizing 

trial by referee).
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and in part reverse and remand with directions. The assigned 

errors in the second appeal, flowing from contempt proceedings, lack merit. In that appeal, we affirm.

II. BACKGROUND

1. Appeal No. S-16-054

Mark A. Becher and Sonia Becher were married for 21 

years before Sonia filed a complaint for dissolution of marriage in 2013. Because they could not agree to the valuation 

and division of their vast marital estate or to the award of child 

custody, child support, alimony, and attorney fees and costs, 

they agreed to have these issues tried before a court-appointed 

referee. The consent cited § 25-1129 et seq.

(a) District Court Proceedings

After a 14-day trial, the referee submitted a report describing its findings of fact on uncontested issues and its “analysis and recommendations” which are set forth in more detail 

below. Both parties initially filed exceptions to the report, but 

Mark later withdrew his. Therefore, only Sonia’s exceptions 

and the voluminous record produced at trial were submitted to 

the district court on review of the referee’s report.

The district court entered a final decree in December 2015 

in which it adopted some of the referee’s factual findings and 

recommendations and set forth its own findings and conclusions on other issues. Specific findings and conclusions are 

discussed in our analysis.

(b) Appeal to Court of Appeals

Mark timely appealed and challenged the district court’s 

review and consideration of the referee’s report. He assigned 

error to certain findings of the court regarding the classification, valuation, and division of the parties’ assets and debts; 

custody and parenting time; child support; alimony; and attorney fees. Sonia cross-appealed and assigned error to the court’s 

allocation of holiday parenting time and its failure to classify 

certain property as nonmarital.
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The Court of Appeals found several of Mark’s assigned 

errors had been waived pursuant to the acceptance of benefits 

doctrine and for failure to take exception to the referee’s report. 

After concluding that the majority of the issues were preserved 

for appeal, it addressed the remaining assigned errors concerning the district court’s revisions of the referee’s report.

The Court of Appeals reviewed Nebraska precedents which 

generally provided that a referee’s findings are treated like a special verdict and can be set aside only where it is “‘clearly against 

the weight of the evidence.’”3 However, the court also relied on 

a case from the District Court of Appeal of Florida4 to find that a 

trial court must explicitly determine that a referee’s findings are 

clearly against the weight of the evidence before setting aside or 

modifying a referee’s report. With this new standard, the Court 

of Appeals concluded that the district court failed to apply the 

correct standard of review. The Court of Appeals then vacated 

those portions of the decree where the district court made findings and conclusions that were inconsistent with the referee’s 

report and modified it to incorporate the findings and conclusions of the referee.5

We granted Mark’s and Sonia’s petitions for further review 

to address the correct standard of review owed to the findings 

and recommendations of court-appointed referees.

2. Appeal No. S-16-793

While the first appeal was pending before the Court of 

Appeals, Mark and Sonia each filed cross-motions for orders 

3 Brown v. O’Brien, 4 Neb. 195, 198 (1876). See, also, Mid America Agri 

Products v. Rowlands, 286 Neb. 305, 835 N.W.2d 720 (2013) (reviewing 

recommended findings of special master appointed by Nebraska Supreme 

Court); Larkin v. Ethicon, Inc., 251 Neb. 169, 556 N.W.2d 44 (1996) 

(reviewing recommended findings of special master appointed by Nebraska 

Supreme Court); Hodges v. Graham, 71 Neb. 125, 98 N.W. 418 (1904); 

Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450 (1888).

4 Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. App. 1974).

5 Becher v. Becher, supra note 1.
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to show cause, alleging numerous violations of the district 

court’s decree. Because the parties contest only a few of the 

findings of contempt, only those allegations and findings relevant to this appeal are set forth.

Sonia alleged that Mark entered her residence uninvited, 

caused damage to the residence, and removed personal property that was not awarded to him under the decree. She further alleged that he repeatedly entered one of her commercial 

buildings without authorization, caused damage to the property, and removed property from the building that was not 

awarded to him under the decree.

Mark alleged that Sonia failed to deliver certain personal 

property awarded to him under the decree. At the hearing, 

Sonia admitted to having sold certain items awarded to Mark, 

but maintained that several of the listed items were actually 

awarded to her. She alleged that she did not have any of the 

other items of property.

The district court entered orders of contempt against both 

Mark and Sonia. The court did not make any findings as to 

whether Mark entered Sonia’s home or commercial building 

unauthorized, caused damage to the properties, or otherwise 

removed property from those locations. Rather, it disposed 

of these allegations with a blanket denial of all other relief 

requested. In its order of contempt against Sonia, the court 

found that she willfully and contumaciously failed to comply with the decree requiring she turn over all the property 

listed. Instead of ordering that she turn over the property, the 

court entered a judgment against Sonia and required that she 

pay $2,500 as “compensation for the property she did not 

turn over.”

Mark timely appealed, and Sonia cross-appealed. We 

moved the appeal to our docket6 and consolidated the appeal 

with the appeal in case No. S-16-054 for oral argument and 

disposition.

6 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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III. ASSIGNMENTS OF ERROR

In appeal No. S-16-054, the dissolution proceeding, Mark 

assigns that the Court of Appeals erred in (1) finding that he 

waived his right to appeal the award of three commercial properties to Sonia, because he quitclaimed the deeds to Sonia in 

compliance with the district court’s decree; (2) adopting the 

referee’s determination of custody and parenting time instead 

of remanding the issues to consider new developments in the 

18 months the appeal has been pending; and (3) not remanding 

for further hearing to conduct a complete accounting.

Sonia assigns that the Court of Appeals erred in (1) applying 

its standard of review and (2) concluding that the acceptance of 

benefits doctrine did not bar Mark’s appeal as it relates to the 

division of property.

In appeal No. S-16-793, the civil contempt proceeding, 

Mark assigns that the district court (1) erred in modifying its 

decree of dissolution while the appeal of the decree was pending, (2) abused its discretion in ordering Sonia to pay restitution for selling or retaining personal property awarded to Mark 

in an amount less than the value of the property, and (3) abused 

its discretion and violated Mark’s right to due process in refusing to permit Mark to offer evidence or otherwise rebut Sonia’s 

evidence in support of her motion for contempt.

Sonia cross-appeals and assigns that the district court erred 

in failing to find Mark in contempt for (1) his unauthorized 

entry into Sonia’s home and the damage he caused while at the 

home and (2) his unauthorized entry into Sonia’s commercial 

building and the removal of property not awarded to him in 

the decree.

IV. ANALYSIS

1. Standard of Review of Chapter 25 

Referee’s Report

Sonia argues that the Court of Appeals incorrectly applied 

its standard of review, because it “took issue with the fact that 

the trial judge had not specifically stated the referee’s report 
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(in certain, limited respects) was ‘against the weight of the 

evidence.’”7 We agree. In addressing this assignment of error, 

it is first necessary to clarify the standard of review owed to 

a court-appointed referee’s findings. Because the referee in 

this case additionally made findings and recommendations as 

to child custody, child support, and alimony, it is also necessary to discuss the effect of the child support referee statutes8

and the Parenting Act.9 This requires statutory interpretation. 

Therefore, we begin by recalling basic guiding principles of 

statutory interpretation.

[1,2] Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.10 It is not within the province of the 

courts to read a meaning into a statute that is not there or to 

read anything direct and plain out of a statute.11

(a) District Court’s Standard of Review

(i) Chapter 25 Referee Statutes

[3] Our civil procedure statutes have provided for trial by 

referee since Nebraska became a state.12 But we have been 

unable to find a reported decision where this procedure has 

been used in a divorce case since 1888.13 Prior to the adoption 

of Nebraska’s no-fault divorce statute in 1972,14 our divorce 

statute stated that suits for divorce “shall be conducted in 

the same manner as other suits in courts of equity.”15 But our 

7 Brief for appellee in support of petition for further review at 3.

8 Neb. Rev. Stat. §§ 43-1608 to 43-1613 (Reissue 2016 & Supp. 2017).

9 Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Supp. 2017).

10 Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).

11 In re Guardianship of Kaiser, 295 Neb. 532, 891 N.W.2d 84 (2017).

12 See Rev. Stat. §§ 299 to 306 (1867).

13 See Gibson v. Gibson, supra note 3.

14 See 1972 Neb. Laws, L.B. 820.

15 Neb. Rev. Stat. § 42-307 (Reissue 1968).
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current divorce statutes contain no such language. It is an 

open question whether the Legislature intended the Chapter 25 

referee provisions to apply to a dissolution action. But even if 

doing so was error, it was one invited by the parties. Generally, 

a party cannot complain of error which the party has invited 

the court to commit.16 Thus, we assume that a Chapter 25 referee may be appointed in a dissolution action, and turn to the 

specific issue presented here.

Section 25-1131 provides the relevant standard of review for 

a general court-appointed referee’s findings:

The trial before referees is conducted in the same 

manner as a trial by the court. . . . They must state the 

facts found and the conclusions of law, separately, and 

their decision must be given, and may be excepted to 

and reviewed in like manner. . . . When the reference 

is to report the facts, the report has the effect of a special verdict.

(Emphasis supplied.) By its plain language, a Chapter 25 referee’s factual findings are entitled to some deference. This is 

in line with our historical standard of review for the recommended findings of special masters appointed by this court 

pursuant to § 25-1129.17 But without similar language limiting 

the district court’s review of a referee’s conclusions or recommendations, we decline to read such language into the statute. 

Therefore, we conclude that the district court owed no deference to the referee’s conclusions or recommendations.

[4] Our case law establishes that the recommended factual 

findings of a special master have the effect of a special verdict, 

and the report upon questions of fact, like the verdict of a jury, 

will not be set aside unless clearly against the weight of the 

evidence.18 The recommended factual findings of the referee 

were entitled to the same treatment.

16 Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016).

17 See cases cited supra note 3 and accompanying text.

18 See, e.g., Mid America Agri Products v. Rowlands, supra note 3.
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[5] But the Court of Appeals went further. It reasoned that 

because the district court did not make an explicit determination on the record that the findings were against the clear 

weight of the evidence, it did not give deference to recommended factual findings.19 However, § 25-1131 does not 

require a district court reviewing a referee’s decision to make 

specific findings. Our divorce statutes do not require specific 

findings in the division of property,20 except a finding whether 

a property settlement agreement is or is not unconscionable.21

That is not to say that specific findings are not helpful. In 

some instances, we have stated that they would have been.22

But even where our civil procedure code mandates specific 

findings, it does so only upon a party’s request.23 Our case 

law teaches that unless a statute requires specific findings or 

we mandated them as a matter of case law, explicit findings 

are not required.24 Because nothing in the plain language of 

§ 25-1131 requires such explicit findings, a district court may 

implicitly find that a referee’s findings are against the clear 

weight of the evidence.

(ii) Child Support Referee Statutes

Having determined the correct standard of review for a 

referee’s factual findings, we must now harmonize the apparently conflicting standard espoused in the child support referee statutes.

19 Becher v. Becher, supra note 1.

20 See Neb. Rev. Stat. §§ 42-365 and 42-366 (Reissue 2016).

21 See § 42-366(2) to (4).

22 See, e.g., Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006).

23 See Neb. Rev. Stat. § 25-1127 (Reissue 2016).

24 See, e.g., State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017) (specific 

factual findings not required to justify sentence even where factors are 

enumerated by statute); State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 

777 N.W.2d 565 (2010) (specific finding not required in creating parenting 

plan under Parenting Act); Jacox v. Pegler, 266 Neb. 410, 665 N.W.2d 607 

(2003) (encouraging but not requiring specific findings on record at each 

step of Batson challenge).
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[6] The child support referee statutes allow a trial court 

to refer a case involving the establishment, modification, 

enforcement, and collection of child, spousal, or medical support and protection orders to a court-appointed child support 

referee.25 Like Chapter 25 referees, child support referees 

must submit a written report containing findings of fact and 

recommendations to the trial court, which may be excepted 

to by the parties.26 But, the trial court owes no deference to 

these findings and recommendations and “may accept or reject 

all or any part of the report and enter judgment based on the 

court’s own determination.”27 This necessarily conflicts with 

the Chapter 25 referee statutes. To the extent there is a conflict between two statutes on the same subject, the specific 

statute controls over the general.28 Accordingly, the standard 

of review for the findings and recommendations of child support referees directs the district court’s review of findings and 

recommendations on the issues of child support, including 

payment of reasonable education expenses,29 and spousal support or alimony.

(iii) Parenting Act

[7] The referee’s report also included recommended findings of fact related to child custody and a proposed parenting 

plan. These recommended findings are subject to the standard 

of review in § 25-1131, but the proposed parenting plan is 

subject to the Parenting Act. The Parenting Act provides that a 

court rule may provide for the parenting plan to be developed 

by the parties or their counsel, a court conciliation program, 

an approved mediation center, or a private mediator.30 Though 

25 See § 43-1609(1).

26 § 43-1612(3).

27 § 43-1613 (emphasis supplied).

28 SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).

29 Neb. Rev. Stat. § 42-369(3) (Reissue 2016).

30 § 43-2929(1).
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it does not specifically provide that a court-appointed referee 

may propose a parenting plan, no one has challenged the referee’s authority to propose a parenting plan. But, regardless of 

the referee’s authority, a trial court has an independent responsibility to determine questions of custody and visitation of 

minor children according to their best interests, which responsibility cannot be controlled by an agreement or stipulation of 

the parties.31

A court is required to review a parenting plan and determine 

if it meets the requirements of the Parenting Act and if is in the 

best interests of the minor child or children. If the parenting 

plan lacks any of the elements required by the act or is not in 

the child’s best interests, the court shall modify and approve 

the parenting plan as modified, reject the parenting plan and 

order the parties to develop a new parenting plan, or reject 

the parenting plan and create a parenting plan that meets all 

the required elements and is in the best interests of the child.32

However, if the court rejects a parenting plan, it must provide 

written findings as to why the parenting plan is not in the best 

interests of the child.33

This multiplicity of review standards counsels against using 

Chapter 25 referees routinely in dissolution actions. And it may 

explain why 130 years have passed since the last reported decision documenting its use.

(b) Appellate Court 

Standard of Review

[8] Although the district court’s review of the referee’s 

report was necessarily complicated by the effect of these different statutes, the standard of review on appeal remains the same. 

In a marital dissolution action, an appellate court reviews the 

case de novo on the record to determine whether there has 

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

32 § 43-2935(1).

33 See § 43-2923(4).
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been an abuse of discretion by the trial judge.34 This standard 

of review applies to the trial court’s determinations regarding 

custody, child support, division of property, alimony, and attorney fees.35

[9] In a review de novo on the record, an appellate court 

is required to make independent factual determinations based 

upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue.36 However, 

when evidence is in conflict, the appellate court considers 

and may give weight to the fact that the trial court heard and 

observed the witnesses and accepted one version of the facts 

rather than another.37 In this case, the appellate court would 

give weight to the fact that the court-appointed referee heard 

and observed the witnesses and accepted one version of the 

facts rather than another.

(c) Application of Standard of Review

Because the Court of Appeals did not correctly apply its 

standard of review, we must review the district court’s decree 

for an abuse of discretion, keeping in mind the multifaceted 

standard of review that the district court was to apply to the 

referee’s report.

The Court of Appeals correctly concluded that Mark waived 

any challenge where the district court came to the same conclusion as a referee, because he withdrew his exceptions to 

the referee’s report. Therefore, we limit our review to those 

instances where the Court of Appeals modified the district 

court’s decree to incorporate the referee’s findings and recommendations. Though Mark filed a motion to strike the argument 

in Sonia’s supplemental brief related to this assignment of 

error, we overrule the motion.

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

35 Id.

36 Id.

37 Id.
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(i) Division of Marital Estate

a. Classification of Nonmarital Property

During the parties’ marriage, Sonia’s father gave her monetary gifts totaling over $1.7 million. Both the referee and 

the district court determined that the monetary gifts were not 

traceable to identifiable assets with two exceptions—the gift 

used to purchase the West O Development/Dollar General 

building and the gift used to pay off the mortgage on the marital home.

i. West O Development/

Dollar General Building

The West O Development/Dollar General building was purchased by Sonia and her sister using an $825,000 gift from 

their father. Later, Sonia purchased her sister’s interest in the 

building with a $500,000 loan on the building and $25,000 

from a savings account. Additional money was put into the 

property for repairs and improvements. The referee determined 

the $825,000 gift did not retain its status as a gift, because the 

equity in the building was encumbered by loans in order to pay 

the sister back and money generated during the marriage was 

invested into the building for repairs.

The district court disagreed with the referee’s determination and found that “[t]here is no evidence of any marital 

funds being used for the purchase or continued operation 

of [the property].” Because the rents and gifts from Sonia’s 

father exceeded the costs associated with the property, the 

court concluded that Mark had no claim to it. The court also 

noted an additional monetary gift from Sonia’s father for 

repairs to the building which was not discussed by the referee. Therefore, the court implicitly determined that the referee’s finding as to the gift status of the property was against 

the clear weight of the evidence and set aside the property to 

Sonia as nonmarital property.

The district court reviewed the evidence and concluded 

that no evidence supported a finding that the monetary gifts 
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represented by the West O Development/Dollar General 

building lost their gift status. Accordingly, it did not abuse 

its discretion when it substituted its own findings for that of 

the referee.

ii. Mortgage Payoff

Sonia’s father made another gift to Sonia in the amount of 

$432,948. Of this amount, $220,300 was used to pay off the 

mortgage on the marital home. The remainder was placed in a 

certificate of deposit held in Mark’s name only. Mark spent the 

entirety of the certificate of deposit during a period of separation, and Sonia has not challenged this expenditure.

The referee determined that the monetary gift was a gift to 

the marriage, or at least that it lost its status as a gift when it 

was applied to the marital debt. Nonetheless, it concluded that 

Sonia was entitled to some credit in equity and reduced the fair 

market value of the marital home awarded to Sonia by onehalf of the payoff value ($110,150). The district court noted 

the same evidence, but determined that Sonia was entitled to a 

credit for the entire mortgage payoff ($220,300) in recognition 

of the gift.

[10] With some exceptions, the marital estate does not 

include property acquired by one of the parties through gift 

or inheritance.38 And, there is no exception where an otherwise nonmarital monetary gift is spent on a family expense.39

Therefore, the referee’s finding that the portion of the gift 

spent on the mortgage payoff lost its gift status because it 

was applied to a marital expense was contrary to the law 

and against the weight of the evidence. The district court did 

not err in its determination that the mortgage payoff money 

retained its status as a gift. Even assuming that it did lose its 

status, it was within the district court’s power in equity to give 

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

39 See, e.g., Mathew v. Palmer, 8 Neb. App. 128, 589 N.W.2d 343 (1999).
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credit to Sonia for one-half of the gift where Mark dissipated 

the other half.40

b. Valuation of Business Entities

The district court awarded two businesses to Mark at different values than those recognized by the court-appointed 

referee. The valuation of a business is a question of fact. As 

a result, the findings of the referee on the issue had the effect 

of a special verdict.

i. Sark Tile, Inc.

The referee awarded Sark Tile, Inc., to Mark at a value of 

$491,353 after altering the formula used in one of the expert 

valuations. The district court also awarded the business to 

Mark, but at a value of $570,000. It is apparent from the record 

that the district court reweighed the testimony and the evidence 

and used a different formula than that used by the referee. This 

was an abuse of discretion.

The district court effectively retried the issue, taking on 

the role of the fact finder, and did not engage in any analysis 

of whether the value accepted by the referee was against the 

clear weight of the evidence. Because we find, in our de novo 

review, that it was not against the clear weight of the evidence, 

Sark Tile should have been awarded at the value assigned by 

the referee.

ii. Lamp & Lighting of Lincoln, Inc.

The referee awarded Lamp & Lighting of Lincoln, Inc., to 

Mark at a value of $107,000 after altering the formula used 

in one of the expert valuations similar to that used in Sark 

Tile. The district court also awarded the business to Mark 

40 See Neb. Rev. Stat. § 42-365 (Reissue 2016). See, also, Parde v. Parde, 

258 Neb. 101, 108, 602 N.W.2d 657, 662 (1999) (“[i]n determining 

what assets constitute the marital estate and how the property should be 

divided, . . . Nebraska, by statute, is an equitable property distribution 

jurisdiction”).
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at a net value of $107,000 after applying a $150,000 debt to 

the business. However, the referee appears to have set the 

$150,000 debt over to Mark separate from the business valued 

at $107,000. After a careful review of the record, it is plain that 

this was done in error.

The expert valuation relied upon by the referee included the 

$150,000 debt in its calculation. Therefore, the referee gave 

credit to Mark for the $150,000 debt twice—once in arriving 

at the net value using the expert’s formula and once in setting 

the $150,000 debt over to Mark in its division of the marital 

estate. Because the district court arrived at the same net value 

for Lamp & Lighting of Lincoln as the referee and did not 

carry over the double credit for the debt, there was no error in 

the district court’s valuation of the business.

c. Valuation of Personal Property

The district court adopted the referee’s allocation of personal property, but valued the property awarded to Sonia at 

$27,365 and the property award to Mark at $23,870. The 

referee had awarded the property to Sonia at $13,340 and the 

property to Mark at $21,495. It appears that the court awarded 

the personal property within the marital home to Sonia at the 

value assigned by an appraiser, reduced by the appraised values of the individual items awarded to Mark. However, the 

court awarded these items to Mark at the higher value Mark 

proposed and not the appraised value. This was an abuse 

of discretion.

The valuation of personal property is a question of fact, 

and the referee’s valuations had the effect of a special verdict. 

The district court does not appear to have found either the 

appraised values or Mark’s values for the personal property to 

be against the clear weight of the evidence, because it accepted 

the values assigned by both for different items of property. 

Because the referee’s findings cannot be set aside unless they 

are against the clear weight of the evidence, the district court 

abused its discretion in assigning different values to the personal property awarded.
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d. Separate Valuation of 

Shipping Containers

The district court separately valued the shipping containers 

used by Sark Tile and awarded them to Mark as personal property. However, the shipping containers were already accounted 

for in the referee’s valuation of Sark Tile. Because the referee’s valuation of Sark Tile was not against the clear weight 

of the evidence, the district court erred in separately valuing 

the shipping containers.

e. Summary

We reverse the Court of Appeals’ decision to the extent 

that it is inconsistent with this opinion. Specifically, we find 

that the district court did not err in its award of the West O 

Development/Dollar General building to Sonia as nonmarital property, in its determination that Sonia was entitled to 

a credit of $220,300 against the value of the marital home 

in recognition of the monetary gift from her father, or in its 

valuation of Lamp & Lighting of Lincoln. We agree with 

the Court of Appeals that the district court abused its discretion by substituting its valuations of Sark Tile and the personal property awarded for those of the referee and in separately valuing the shipping containers as personal property. 

Accordingly, we modify the district court’s marital property 

distribution and decrease Sonia’s share of the marital estate 

by $14,025 (the difference between the court’s value for 

the personal property awarded and the referee’s value) and 

decrease Mark’s share by $142,174 (the difference between 

the court’s values for Sark Tile, the shipping containers, and 

the personal property awarded and the referee’s values for 

the same).

(ii) Child Custody

The referee found that joint legal custody of all three of 

the parties’ minor children was in their best interests. It recommended a split physical custody arrangement, with Mark 

having primary physical custody of the parties’ son and Sonia 
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having primary physical custody of the parties’ two daughters. 

Based upon the recommendations of a counselor, the proposed 

parenting plan did not provide a parenting schedule for the 

two oldest children. Parenting time with Mark for the youngest 

child was scheduled on alternating weekends, with one overnight on the alternating weeks.

The district court found that a split and joint custody 

arrangement with modifications to the proposed parenting plan 

designed to reduce potential conflicts was in the best interests 

of the children. In its decree, the court ordered that Sonia have 

permanent legal and physical care, custody, and control of the 

parties’ two daughters, while Mark have permanent legal and 

physical care, custody, and control of the parties’ son with 

each “subject to the rights of parenting time for the noncustodial parent as set forth in the parenting plan.” However, the 

court-ordered parenting plan provided that the parties would 

share joint legal custody of all three children, with Mark having primary physical custody of the parties’ son, Sonia having 

primary physical custody of the parties’ oldest daughter, and 

shared joint physical custody of the parties’ youngest daughter. 

Like the proposed parenting plan, the court-ordered parenting 

plan did not provide a parenting schedule for the two oldest 

children. It did provide a joint physical custody arrangement 

for the youngest child with Mark and Sonia having equal parenting time on alternating weeks.

The district court did not abuse its discretion in modifying 

the proposed parenting plan, because it had an independent 

responsibility to determine custody and parenting time according to the children’s best interests.41 And, it provided written 

findings of why the modifications to reduce potential conflicts were in the children’s best interests. Therefore, only two 

issues remain.

[11] First, the parties agreed on appeal that the decree’s language concerning physical custody of the youngest child was 

41 See supra note 31 and accompanying text.
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inconsistent with that in the parenting plan. In our review, we 

find that at times, the court characterizes the custody arrangement as “split and joint” and at other times, it uses language 

consistent with sole custody arrangements. If trial evidence 

establishes a joint physical custody arrangement, courts will 

so construe it, regardless of how prior decrees or court orders 

have characterized the arrangement.42

Our statutes define joint physical custody as “mutual authority and responsibility of the parents regarding the child’s place 

of residence and the exertion of continuous blocks of parenting 

time by both parents over the child for significant periods of 

time.”43 Here, the parents’ custody was awarded subject to the 

parenting time in the parenting plan. That plan provided that 

the youngest child will have “parenting time with her Father 

and Mother on alternating weeks, commencing on Friday after 

school until the following Friday after school.” Summer parenting time is equally divided, with each parent having parenting time for exactly one half of the summer break. This meets 

the statutory definition of joint physical custody.

Second, Sonia alleged that the district court erred in allocating parenting time over the Christmas holiday. The court 

ordered “[e]very year the parent who does not have parenting 

time on Christmas Day as a result of the weekly rotation . . . 

shall have parenting time beginning on December 24 at noon 

until December 24 at 11:30 p.m.” In light of the specific findings of the animosity between the parents and the difficulties 

of past parenting time exchanges, we do not find that the district court abused its discretion in ordering a default holiday 

schedule that minimizes communication between the parties 

and preserves the child’s typical schedule.

Ultimately, the labels make little difference. The provisions of the decree adequately set forth each party’s rights 

and responsibilities.

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

43 See § 43-2922(12).
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(iii) Child Support, Private School 

Tuition, and Alimony

The district court made findings and conclusions concerning 

child support, payment of the children’s private school tuition, 

and alimony which differed from those in the referee’s report. 

However, because the referee’s findings and recommendations 

on these issues are governed by the child support referee statutes, the district court was free to accept or reject any or all 

of the referee’s findings and recommendations.44 Our review 

is limited to whether the district court abused its discretion in 

the child support, private school tuition, and alimony ordered. 

Finding none, we affirm the district court’s decree as it relates 

to these issues.

2. Acceptance of Benefits

Marks assigns that the Court of Appeals erred in applying 

the acceptance of the benefits doctrine to find that he waived 

his right to appeal the award of three commercial properties 

to Sonia.

(a) Additional Facts

Sonia was awarded three commercial properties in the 

district court’s decree that the referee had recommended be 

awarded to Mark: “Mini Storage,” the West O Development/

Dollar General building, and 901 Sun Valley. Before filing an 

appeal, Mark moved to determine a supersedeas bond. The 

district court entered an order setting the supersedeas bond at 

$600,000 and providing that Mark would not be required to 

transfer any ownership interest he may have in the real estate 

awarded to Sonia during the pendency of any appeal if he filed 

the bond. However, there is nothing in the record before us or 

in the court’s trial docket entry that shows Mark ever filed a 

supersedeas bond.

After filing his appeal, Mark executed quitclaim deeds conveying his interest in three commercial properties to Sonia, 

44 See § 43-1613.
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refinanced loans, utilized the proceeds of rent and receipts 

from businesses awarded to him, and created a new corporation to hold title to properties awarded to him under the decree. 

Sonia then sold one of the commercial properties awarded to 

her in an arm’s-length sale to a third party.

The Court of Appeals found that Mark had waived his 

right to appeal the award of the three commercial properties to Sonia, because his voluntary conveyance of the 

properties evidenced an intent to be bound by the decree. It 

applied the exception to the doctrine outlined in Kassebaum v. 

Kassebaum45 to find that Mark had not waived his right with 

regard to the other issues on appeal.

(b) Standard of Review

[12,13] Whether a party waived his or her right to appellate 

review is a question of law.46 When reviewing questions of 

law, an appellate court resolves the questions independently of 

the lower court’s conclusions.47

(c) Analysis

Mark argues that executing the quitclaim deeds was not an 

acceptance of a benefit, but, rather, was an “involuntary acceptance of a detriment.”48 We agree and conclude that the acceptance of the benefits doctrine did not apply in this instance, 

because Sonia—not Mark—accepted the benefits in that transaction. However, we find that Mark is nonetheless equitably 

estopped from challenging the award of Mini Storage.

45 Kassebaum v. Kassebaum, 178 Neb. 812, 815, 135 N.W.2d 704, 706 

(1965) (“‘[i]f the outcome of the appeal could have no effect on the 

appellant’s right to the benefit accepted, its acceptance does not preclude 

the appeal’”) (quoting 4 Am. Jur. 2d Appeal and Error § 253 (1962)). 

Accord Liming v. Liming, supra note 22.

46 Liming v. Liming, supra note 22.

47 Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356, 900 N.W.2d 

32 (2017).

48 Supplemental brief for appellant on petition for further review at 13.
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(i) Mini Storage

[14] The doctrine of equitable estoppel is applied to transactions in which it is found that it would be unconscionable 

to permit a person to maintain a position inconsistent with 

one in which he or she has acquiesced or of which he or 

she has accepted any benefit.49 Mark had the opportunity to 

supersede the divorce decree and elected not to file a supersedeas bond. He refinanced loans such that the three commercial properties were unencumbered by his debt and executed 

quitclaim deeds on the properties in favor of Sonia. And, at 

least with regard to Mini Storage, Sonia relied on Mark’s 

actions and exercised her ownership right to sell the property 

to a third party. That property cannot now be recovered on 

appeal. Therefore, Mark waived his right to challenge Sonia’s 

ownership of Mini Storage.

(ii) West O Development/

Dollar General Building 

and 901 Sun Valley

Equitable estoppel does not apply to Mark’s assignment of 

error concerning West O Development/Dollar General building and 901 Sun Valley, because Sonia did not detrimentally 

rely on Mark’s actions. But, Mark does not identify how the 

award of those properties to Sonia constituted an abuse of 

discretion—his argument is limited to the court’s “failing to 

review the Referee’s Report.”50 As explained above, the district court owed deference only to the referee’s factual findings and could reach its own determinations on what to order 

in its decree.

Because we find no abuse of discretion in the court’s award 

of the two commercial properties to Sonia, we affirm that part 

of the district court’s decree.

49 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 

178 (2012).

50 Brief for appellant at 30.
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(iii) Other Assignments 

of Error on Appeal

In applying the exception to the acceptance of the benefits doctrine to Mark’s other assignments of error, the Court 

of Appeals reviewed each assignment to determine whether 

the outcome of the appeal could affect his acceptance of the 

related benefits. Without concluding whether this was the 

correct analysis, we find that another exception to the doctrine applied.

[15] A spouse who accepts the benefits of a divorce judgment does not waive the right to appellate review under circumstances where the spouse’s right to the benefits accepted 

is conceded by the other spouse, the spouse was entitled as 

a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those 

benefits, or the benefits accepted are pursuant to a severable 

award which will not be subject to appellate review.51 Sonia 

did not challenge Mark’s right to the benefits he accepted 

either at trial or on appeal. Because Mark accepted only those 

benefits which Sonia conceded his right to, Mark did not 

waive his right to appellate review of his assignments of error 

discussed above.

3. Contempt Orders

(a) Standard of Review

[16] In a civil contempt proceeding where a party seeks 

remedial relief for an alleged violation of a court order, an 

appellate court employs a three-part standard of review in 

which (1) the trial court’s resolution of issues of law is 

reviewed de novo, (2) the trial court’s factual findings are 

reviewed for clear error, and (3) the trial court’s determinations 

of whether a party is in contempt and of the sanction to be 

imposed is reviewed for abuse of discretion.52

51 Liming v. Liming, supra note 22.

52 Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).
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(b) Analysis

(i) Mark’s Appeal

Mark argues that (1) the district court inappropriately modified its decree of dissolution while the appeal of the decree was 

pending when it ordered Sonia to pay restitution for her violation of the decree, (2) the restitution was insufficient, and (3) 

the court abused its discretion when it refused to permit him 

to offer evidence or rebut Sonia’s evidence in her motion for 

contempt. However, Mark did not appeal from the order finding him in contempt and did not make an offer of proof for the 

two rebuttal witnesses he was not allowed to call. Therefore, 

we find that Mark failed to preserve his third argument for 

appeal and we address only his first two.

[17] Through its inherent powers of contempt, a court may 

order restitution for damages incurred as a result of failure to 

comply with a past order.53 In ordering Sonia to compensate 

Mark for the personal property she did not turn over to him, the 

district court did not modify the district court decree. Instead, 

it ordered restitution for the loss of the personal property to 

which Mark was entitled. This was an appropriate remedy for 

a finding of contempt.

Mark further maintains that restitution was inadequate to 

compensate him for his loss and requests that the issue be 

remanded for a recalculation of the items Sonia did not turn 

over. Though the district court did not itemize its accounting, 

it is apparent that it ordered restitution in the amount that the 

missing personal property was initially valued when set over 

to Mark in the decree. The valuation was not challenged then 

and it cannot be challenged now on appeal. Accordingly, we 

find no merit to Mark’s arguments on appeal.

(ii) Sonia’s Cross-Appeal

Sonia cross-appealed from the order finding Mark in contempt and argues that the district court abused its discretion 

53 Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).
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when it failed to find Mark in contempt for his unauthorized 

entry into her residence and commercial building and the 

removal and destruction of property on the premises.

[18] Civil contempt proceedings are instituted to preserve 

and enforce the rights of private parties to a suit when a party 

fails to comply with a court order made for the benefit of the 

opposing party.54 They are not instituted to provide relief for 

other wrongdoings by a private party where other relief is 

available by statute. The district court’s jurisdiction over the 

decree did not preclude Sonia from seeking separate relief in 

tort for trespass and conversion. Therefore, it did not err in 

denying the same relief under the guise of a contempt order.

V. CONCLUSION

For the reasons stated above, we affirm in part, and in part 

reverse and remand case No. S-16-054 with directions that the 

district court is to divide the marital estate in accordance with 

this opinion. We affirm the orders of contempt in case No. 

S-16-793 in all respects.

Judgment in No. S-16-054 affirmed

in part, and in part reversed and

remanded with directions.

Judgment in No. S-16-793 affirmed.

Kelch, J., not participating in the decision.

Wright and Stacy, JJ., not participating.

54 Id.