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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

MCNULTY V. MCNULTY

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MAKAYLA N. MCNULTY, APPELLEE,

V.

SEAN T. MCNULTY, APPELLANT.

Filed March 8, 2022. No. A-21-446.

Appeal from the District Court for Dawson County: JAMES E. DOYLE IV, Judge. Affirmed.

Shane M. Cochran, of Cochran Law, P.C., L.L.O., for appellant.

Claire K. Bazata, of Berreckman & Bazata, P.C., L.L.O., for appellee.

PIRTLE, Chief Judge, and RIEDMANN and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Sean T. McNulty appeals the decree entered by the Dawson County District Court 

dissolving his marriage to Makayla N. McNulty. Sean claims the district court erred by denying 

his motion to dismiss for lack of subject matter jurisdiction or, in the alternative, to change venue. 

He also challenges the court’s award of custody and parenting time, and the court’s finding that a 

house in Kimball, Nebraska, was marital property. We affirm.

II. BACKGROUND

1. PROCEDURAL BACKGROUND

Sean and Makayla were married in August 2016 in Gothenburg, Dawson County, 

Nebraska. At the time of their marriage, the parties lived in Colorado, but they moved to Sidney, 

Cheyenne County, Nebraska, that fall. Sean and Makayla have two children: Blake McNulty, born 

in 2015, and Bennett McNulty, born in 2018.
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On September 20, 2019, Makayla filed a complaint for dissolution of marriage in the 

district court for Dawson County. She stated that her address was in Gothenburg, and that she was 

a resident of Dawson County. She stated that Sean’s address was in Sidney. Makayla sought 

temporary and permanent custody of the parties’ children, child support, alimony, an equitable 

distribution of the marital property and debts, court costs, and attorney fees. Makayla also filed 

motions for temporary custody and allowances.

On October 11, 2019, Sean filed a “Motion to Dismiss or in the Alternative to Change 

Venue.” He alleged that Makayla was not a resident of Dawson County at the time she filed the 

complaint, and that the action should have been brought in Cheyenne County. Sean asked the 

district court to dismiss the action for lack of subject matter jurisdiction or, in the alternative, to 

transfer venue to the district court of Cheyenne County because Dawson County would be 

inconvenient for witnesses. The district court “overruled and denied” Sean’s motion.

In December 2019, the district court awarded the parties joint legal custody of the children, 

with temporary physical custody awarded to Makayla. Sean was to have parenting time from 

6:30 p.m. on Thursday to 6 p.m. on Sunday on the first, second, and fourth weekends of each 

month until further order of the court. The parties were to meet in Paxton, Nebraska, for all 

parenting time exchanges. Sean was ordered to pay temporary child support in the amount of 

$1,509 per month for the parties’ two children.

On January 21, 2020, Sean filed an “Answer and Cross Complaint for Dissolution of 

Marriage.” He sought temporary and permanent custody of the parties’ children, temporary and 

permanent child support, an equitable division of the marital property and debts, costs, and 

attorney fees.

On March 23, 2020, the parties filed a stipulation and agreement to modify temporary 

orders, including a recalculated child support worksheet wherein Sean’s temporary child support 

obligation would now be $1,092 per month. The district court approved the stipulation. On April 

1, the court ordered that during the summer of 2020, the parties were to have parenting time with 

the children on a “week-on/week-off rotation.”

2. TRIAL

The 2-day trial was held on March 23 and April 19, 2021. By agreement of the parties, 

several witnesses appeared remotely by video conference. Sean and Makayla appeared in person 

with their respective counsel. Several witnesses testified and numerous exhibits were received into 

evidence. We summarize the evidence relevant to the issues on appeal.

(a) Evidence Regarding Parties’ Relationship and Parenting

Makayla, 27 years old, and Sean, 33 years old, both testified at trial. Makayla was currently 

employed at a law firm in Gothenburg; she worked “[a]bout 40” hours per week, with a daily 

schedule of approximately 8 a.m. to 5 p.m. She was previously employed as a dental assistant in 

Cozad, Nebraska, and, before that, in Sidney. Sean was currently employed by the federal 

government, Department of Energy, as a substation technician; he worked four 10-hour days 

Monday through Thursday each week. He was previously employed as a substation technician for 

a different employer; his regular work schedule was four 10-hour days Monday through Thursday 

each week.
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According to Makayla, she had been the primary caregiver for the children since their 

births. She stated that when the parties were still together, “I did pretty much everything for [the 

children]; diaper changes, bath, fed them, I nursed them, got up with them in the middle of the 

night.” When asked if Sean ever helped with any of the childcare, Makayla responded, “Rarely.”

She said he would play with the children “occasionally” and would help put Blake to bed. Makayla 

did not leave the children home alone with Sean often because “[h]e would always be 

overwhelmed by the time I got home.” Sean, on the other hand, testified that prior to their 

separation the parties “did a pretty good job” of parenting together, and he believed that they were 

equal. He said, “We had different roles, and we took on each role as a team, and we -- we 

understood each others’ [sic] roles in the -- in the parenting.” Sean’s mother watched the children 

during the day when Makayla and Sean worked.

As for discipline, Makayla said that she and Sean both “spank[ed]” the children, but “he 

would spank extremely hard and multiple times to where [she] was uncomfortable with how he 

was disciplining.” If Makayla tried to intervene, “the blame was put on me that I wasn’t allowing 

him to discipline his child like he wanted to.” On cross-examination, Makayla was asked if she 

ever used something called a spanking stick. She responded, “one time,” and then described it as 

“kind of similar to a paper towel roll, but it . . . would hold like chair covers from like my office,”

and was thicker than a normal paper towel roll. Sean testified that “[e]very time that spanking was 

necessary, [Makayla] would use this device,” and it was not just one time like Makayla said. Sean 

used “[a]n open hand, palm,” when he spanked the children.

Makayla said that Sean would frequently not speak to her during their marriage. He would 

“get mad over something, and he would go days without talking to me. He would just like exclude 

himself from anything, wouldn’t help parent, was always in the garage or on his phone[.]” When 

asked if there were times when he would go without talking to Makayla, Sean responded, “That is 

my form of dealing with a stressful situation.” When asked how long he went without speaking to 

her, he responded, “I’d go a day or two. I believe our last argument before the separation I think 

was three days.” Makayla stated that during the times when Sean would not speak to her he would 

speak to the children, but he did not help parent. When asked what she meant by that, Makayla 

stated, Sean “would say things to the boys that made it harder for me to do things I needed to do. 

Like he would . . . go to Blake and say, ‘Mommy’s mean,’ or, ‘Let’s leave Mommy,’ and tell him 

to go get into the pickup and, you know, things like that, like, ‘Mommy’s mean to Daddy.’”

Makayla was asked if there was anything else Sean would do when he was upset with her. She 

responded,

I guess the . . . verbal abuse was probably the worst, that and emotional, called me names 

in front of the kids. He’d call me a [expletive]. He’d called me ungrateful, disgusting, a 

[expletive], worthless. He would kick objects . . . in my general direction, throw things. 

There was one time he punched a wall.

She said this behavior occurred every week and was witnessed by the children. During his 

testimony, Sean denied and “[did not] recall” saying to the boys that Makayla was mean. “I would 

not lead them to -- to think that their mother was mean.” He also denied calling Makayla names in 

front of the children.
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On Thursday, September 19, 2019, Makayla planned to leave with the children and go to 

Gothenburg. She testified,

Sean claimed that . . . I didn’t tell him that I was going to be leaving on Thursday. That 

was always my plan. And . . . he told me it’s a good thing that I didn’t leave right 

away . . . because he wouldn’t have gotten to say goodbye to the kids. And then he said he 

would have called the cops on me and said I was kidnapping them.

He grabbed Blake and tried to put him into his personal pickup, saying that he was 

going to take him and that we could leave when they got back.

Makayla said that Blake cried for her, and that she had to call Sean’s mother. After his mother 

arrived, Sean “calmed down a little bit.” When asked when she quit her job in Sidney, Makayla 

replied, “I called my employer the Friday after I left.” She was asked if that would have been the 

very next day, and she responded, “Correct”; that was the same day that she filed the divorce 

action.

Sean also testified about the parties’ plans the weekend Makayla left with the boys. Sean 

stated that he was going to the motocross track for a weekend of racing and Makayla and the boys 

were going to go to Gothenburg “for a parade, a festival.” Makayla planned to leave Thursday 

night, “and she waited for me . . . to get home so I could say goodbye.” “[A]n argument occurred, 

emotional conversation. . . . [S]he was going to leave and I was not okay with it at that point. So 

at one point, I . . . had picked Blake up and I said, ‘We’re going to ride dirt bikes.’” “[W]e walked 

towards the pickup, and that’s when she had cut us off, and at that point is when Blake started 

throwing a fit and crying.” Sean said, “[S]o Thursday night is when they left, and then Friday 

morning is when I went to the track. I camped there until Sunday evening. That’s when I returned 

home to find out that all of the boys’ clothes were gone, toys were gone, and Makayla’s belongings 

were gone.” Sean was “very shocked” by Makayla filing for divorce.

Makayla currently resides with her parents in their home in Gothenburg. The children have 

friends and extended family in Gothenburg. Makayla’s parents helped her with the children, and 

she sought their help “[m]ainly after school for Blake” because “[m]y mom and Blake get out of 

school at the same time”; Makayla’s mother works at the school Blake attends. Makayla planned 

to move out of her parents’ home, but she had not yet done so “because of this divorce.” She plans 

to stay in the Gothenburg area.

Sean testified that when the children are with him on the weekends, he makes them 

breakfast and they go to the track and ride dirt bikes or play with children in the neighborhood, but 

“the weekends usually are filled with their events from wrestling or races”; both Blake and Sean 

do motocross races. Sean said that he attends all of the children’s activities, but that Makayla does 

not; “she does not attend not even ten percent” of the activities that occur on the weekends that 

Sean has the children. In response, Makayla stated, “I always want to go wherever my kids are. 

It’s hard when their majority [of events] are in Western Nebraska, they’re in Colorado, they’re in 

Wyoming.” She explained that the activities are often on the weekends when the children are with 

Sean, and Makayla had already driven roundtrip to Paxton to do the parenting time exchange at 

the beginning of Sean’s weekend, and she would have to do the same at the end of Sean’s weekend.

Makayla stated that when Blake comes back from a weekend with Sean, Blake “doesn’t 

want to listen.” When he is not returning from a weekend with Sean, Blake is “just in his routine 
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a lot better.” The temporary order gave Sean three weekends per month, so there was only one 

weekend a month that Blake did not have to go anywhere. When asked if she felt that the constant 

changing was difficult for Blake, Makayla responded, “I do.” Makayla believed it was in the 

children’s best interests to remain in her primary custody, and that Sean having parenting time 

every other weekend would be better for the children, but she agreed that Sean could have every 

other week in the summer.

Sean, however, believed he could provide a better environment for the children and that it 

was in the children’s best interests for the district court to grant him physical custody; he thought 

continuing with joint legal custody was “fair.” Sean’s proposed parenting plan was for Makayla to 

have parenting time on the first, second, and fourth weekends of every month; that was the same 

parenting time Sean had under the temporary order. Sean’s mother testified that she would be 

available to provide daycare for the children if Sean received custody.

Troy Franzen (Troy) is Makayla’s father. He testified that Makayla and the boys have lived 

with him and his wife, Heather Franzen (Heather), in Gothenburg since September 2019. He said 

that Makayla takes Bennett to daycare, and Heather takes Blake to school because she works at 

his school. Heather usually picks both boys up because they are done by 4 p.m. and Makayla works 

until 5 p.m. According to Troy, Makayla provides that majority of the care for the children, but 

“[w]e all kind of just chip in, help with pretty much everything.” At their home, Troy makes 

breakfast, Heather makes the evening meal, and Makayla “usually takes care of the noon [sic] and 

everything else; bathing, bedtime.” The boys each have a bed in their own rooms, but Bennett 

“likes to sleep with . . . Blake.” Sean testified that at his house, the boys sleep in bunk beds in the 

same room because “they would not sleep in separate rooms,” “it was a battle to get them to go to 

bed.”

Troy stated that Makayla is “an awesome parent” and that she would do anything for the 

boys, “[t]hey’re always first.” For discipline, Makayla “usually sits down with them and talks to 

them and tells them what -- kind of what they did wrong and lets them know that that is not 

allowed[.]” Troy believed that Makayla and the children had a “[v]ery close” bond and they were 

“always doing something together.”

Prior to September 2019, Troy and Heather tried to visit Makayla and her family “at least 

once a month.” From what Troy observed, “Makayla pretty much had to do everything. Sean 

probably was most the time either out in the garage working on something or doing something 

else.” Since the parties’ separation, when Blake comes back from spending a weekend with Sean, 

Blake is “completely different than when he goes there”; he is “very mouthy” and does things he 

knows he is not supposed to be doing, “he is very hard to discipline,” and “usually it takes a couple 

days for us to kind of get him back into his routine again.”

Michelle Ostergard testified that she was a preschool teacher at a childcare center in 

Gothenburg. Blake attended the childcare center from November 2019 until August 2020, when 

he started kindergarten. While Blake was at the childcare center, Ostergard observed a pattern 

where Blake would push and hit following weekends he spent with Sean; the behavior would last 

2 or 3 days. On cross-examination, Ostergard acknowledged that it was not unusual for a child to 

act out after visiting a noncustodial parent, and that Blake’s behavior was not different from other 

children in similar situations. Bennett still attended the center 5 days each week and Ostergard had 

no concerns about him.
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Jamie Slonecker testified that she is a licensed independent mental health practitioner. 

Slonecker saw Blake four times between February and August 2020 because Makayla had 

concerns about behaviors Blake was displaying, like pushing boundaries and rules; Makayla 

wanted Blake to have someone to talk to about his parents’ separation and to be able to express his 

feelings and learn to communicate better about what he was experiencing. Slonecker stated that 

Makayla contacted her four or five times since August to talk about how Blake was doing and 

asking for “suggestions for structure and routine and . . . being able to communicate and express 

feelings.” Slonecker did not observe anything in counseling that gave her cause for concern 

regarding Makayla’s parenting. Slonecker never met Sean.

Sean called four friends to testify on his behalf. The collective testimony was that Sean 

loves his children, and that no cause for concern was observed regarding his parenting. One of 

Sean’s friends stated that when the parties were still together, the friend observed neither one 

providing more care for the children than the other parent; “it was just different types of parenting.”

“Sean was definitely more on the side of . . . the fun one, you know, played a lot more with them, 

where Makayla was more the maternal parent.”

(b) Evidence Regarding Finances and Kimball House

Makayla testified that she and Sean lived together in Colorado from the summer of 2013 

until 2016; according to her testimony, they filed under Colorado common law marriage for their 

2014 and 2015 tax returns. Sean denied that the parties ever held themselves out to be husband 

and wife while living together in Colorado; they never called each other husband or wife. However, 

Sean “believe[d]” they “filed together for tax purposes.”

Sean testified that while living in Colorado, the parties did not have any joint bank accounts 

and they kept their bills separate. The parties initially rented a place to live, however they 

purchased a house in 2014. Sean said his name was on the mortgage, but he could not recall if 

Makayla’s name was on the mortgage or not. When asked who paid the mortgage, Sean replied, 

“I did.” And when asked if Makayla paid any rent to him for the mortgage, Sean replied, “No.” In 

2016, the parties bought their house in Sidney, Nebraska, after they got married. Sean’s “name is 

on the house,” but Makayla’s name is not; Makayla’s name was not on the loan for the house 

either, because, according to Sean, “It was at [sic] our best interest to only have my name on the 

loan as we got a better interest rate.” Sean did not dispute that the house in Sidney was “marital.”

After the parties were married, Sean’s paycheck went into his own separate account; Makayla did 

not have access to that account. Makayla’s paycheck went into the parties’ joint account.

Both parties also testified about a house in Kimball. Makayla testified that “[a] couple 

months before we got married in 2016,” the house in Kimball was purchased for Sean’s parents. 

Makayla was asked further questions regarding the Kimball house.

Q [by her counsel]. Was there a -- a loan or a mortgage on that property that you’re 

aware of?

A. I assume so, yes.

Q. Do you know what the value of that mortgage was?

A. I don’t.

Q. Do you know whether Mr. McNulty continued to make payments towards that 

home --
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A. Yes.

Q. --while you were married?

A. Yes.

Q. And did his parents or his family provide any rent to you to live in that home?

A. No. If they did, it was very rare.

Q. Okay. Are they still residing in that home, to your knowledge?

A. Yes.

The district court further inquired of Makayla regarding the house in Kimball.

THE COURT: [T]he home in Kimball. When was that purchased?

[Makayla]: I believe it was purchased a few months before our wedding ceremony.

. . . .

THE COURT: All right. How was that paid for?

[Makayla]: I believe by Sean.

THE COURT: Did he pay for it while you were married?

[Makayla]: Yes. I would assume so.

THE COURT: So the payments occurred a month or two before you were married 

and then after you were married.

[Makayla]: Yes.

Sean testified that he purchased the Kimball house for his parents. The house was a 

“foreclosure” and a “fixer-upper,” and he paid $19,500. A “Special Warranty Deed” for the 

Kimball house was received into evidence as exhibit 48. The deed, executed on July 26, 2016, and 

recorded on August 15, states that the bank conveyed the house to Sean for consideration of 

$19,500. Sean testified that he paid cash for the house and “never had a loan or mortgage” on the 

house. When asked if it was all money he had prior to the marriage, Sean replied, “Yes. Correct.”

Sean still owned the house; Sean’s parents were purchasing the house and had a “verbal”

rent-to-own agreement with him, with “very flexible” payments as his parents “are not in a 

financially fit position.”

Sean does not believe that the value of the Kimball house has increased since he purchased 

it because “it is a deep fixer-upper” and “it’s not in great shape at all.” However, on the property 

statement prepared for trial, Makayla valued the house at $50,000, based on the Kimball County 

Assessor’s 2020 value of $49,570; the assessor’s value was received into evidence as exhibit 13.

3. DISTRICT COURT’S DECREE

In its decree entered on April 29, 2021, the district court dissolved the parties’ marriage 

and divided the parties’ marital estate, resulting in a judgment of $45,800 in favor of Makayla and 

against Sean for equalization of the property and debt division; a payment plan was established. 

As relevant to the appeal, the court determined that the Kimball house was marital property.

The district court awarded the legal and physical custody of the children to Makayla. 

Pursuant to the court’s parenting plan, Sean was to have parenting time with the children every 

other weekend from 6 p.m. on Friday until 6 p.m. on Sunday. During the summers, the parties 

were to have parenting time on alternate weeks, with exchanges occurring on Fridays at 6:30 p.m. 
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A holiday parenting time schedule was also established. The parties were to meet in Paxton for all 

parenting time exchanges. Sean was ordered to pay child support in the amount of $1,097 per 

month for the parties’ two children, retroactive to April 1, 2021. The court stated that “[t]he 

retroactive commencement of child support and the unpaid temporary child support establishes an 

arrearage of $2,555.29,” and a judgment for such amount was entered against Sean and in favor of 

Makayla; a payment plan was established. Neither party was awarded alimony. The court entered 

a judgment of $1,000 against Sean and in favor of Makayla as an award of attorney fees.

Sean appeals.

III. ASSIGNMENTS OF ERROR

Sean’s brief does not contain a separate section assigning error to the district court. While 

the brief’s argument section does contain headings purporting to assign error, the Nebraska 

Supreme Court has emphasized that such headings do not satisfy the requirements of our appellate 

rules. See, In re Interest of Mekhi S. et al., 309 Neb. 529, 960 N.W.2d 732 (2021); Neb. Ct. R. 

App. P. § 2-109(D)(1) (rev. 2021). This affects our standard of review. In re Interest of Mekhi S. 

et al., supra.

IV. STANDARD OF REVIEW

Where the assignments of error consist of headings or subparts of arguments and are not 

within a designated assignments or error section, an appellate court may proceed as though the 

party failed to file a brief, providing no review at all, or, alternatively, may examine the 

proceedings for plain error. Id.

Plain error is error plainly evident from the record and of such a nature that to leave it 

uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020).

A jurisdictional question which does not involve a factual dispute is determined by an 

appellate court as a matter of law. In re Interest of Mekhi S. et al., supra. See, also, Camden v. 

Papio-Missouri River NRD, 22 Neb. App. 308, 854 N.W.2d 334 (2014) (question of jurisdiction 

is question of law, which appellate court resolves independently of trial court; however, findings 

as to any underlying factual disputes will be upheld unless clearly erroneous).

V. ANALYSIS

Sean claims the district court erred by denying his motion to dismiss for lack of subject 

matter jurisdiction or, in the alternative, to change venue. He also challenges the court’s award of 

custody and parenting time, and the court’s finding that the house in Kimball was marital property 

rather than his premarital property.

1. SUBJECT MATTER JURISDICTION AND VENUE

We begin, as we must, by determining whether the district court had subject matter 

jurisdiction over the dissolution action.

Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the 

general class or category to which the proceedings in question belong and to deal with the general 

subject matter involved. D.W. v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019).
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Pursuant to Neb. Rev. Stat. § 24-302 (Reissue 2016), district courts have general, original, 

and appellate jurisdiction in all matters, both civil and criminal, except where otherwise provided. 

Dissolution actions “shall be brought in the district court of the county in which one of the parties 

resides.” Neb. Rev. Stat. § 42-348 (Reissue 2016). In Small v. Small, 229 Neb. 344, 347, 427 

N.W.2d 42, 44 (1988), the Nebraska Supreme Court stated, “The district court for a county cannot 

acquire jurisdiction over dissolution proceedings unless one of the parties is a resident of that 

county at the time the original petition is filed.” In Huffman v. Huffman, 232 Neb. 742, 750, 441 

N.W.2d 899, 905 (1989), the Nebraska Supreme Court explained, “[I]f one of the parties to a 

dissolution action has had a Nebraska domicile for the duration prescribed by § 42-349, a party 

may commence a dissolution action under § 42-348 in the county where one of the parties lives 

and is not required to commence the action in the domiciliary county of either party to the 

dissolution action.”

In the present case, both parties had a Nebraska domicile for 1 year prior to the filing of 

the complaint, thus meeting the requirement of Neb. Rev. Stat. § 42-349 (Reissue 2016). Section 

42-349 having been met, the dissolution action could be commenced in the county where one of 

the parties lived. See Huffman v. Huffman, supra. See, also, Neb. Rev. Stat. § 42-352 (Reissue 

2016) (proceeding under §§ 42-347 to 42-381 shall be commenced by filing complaint in district 

court; proceeding may be heard by county court or district court as provided in § 25-2740). In 

proceedings under sections Neb. Rev. Stat. §§ 42-347 to 42-381 (Reissue 2016 & Cum. Supp. 

2020), the court shall have jurisdiction to inquire into such matters, make such investigations, and 

render such judgments and make such orders, both temporary and final, as are appropriate 

concerning the status of the marriage, the custody and support of minor children, the support of 

either party, the settlement of the property rights of the parties, and the award of costs and 

attorney’s fees. § 42-351.

Even though the question of jurisdiction is a question of law, which an appellate court 

resolves independently of the trial court, findings as to any underlying factual disputes will be 

upheld unless clearly erroneous. See Camden v. Papio-Missouri River NRD, supra. We find no 

error in the district court’s finding that Makayla was living in Dawson County at the time her 

complaint was filed. Accordingly, the Dawson County District Court had subject matter 

jurisdiction over the dissolution proceeding.

As to Sean’s request to change venue, Neb. Rev. Stat. § 25-410 (Cum. Supp. 2020) does 

allow the district court to transfer any civil action to the district court of any other county in the 

state for the convenience of the parties or witnesses. We find no plain error in the district court’s 

finding that Dawson County was not an inconvenient forum. Accordingly, we find no plain error 

in the district court’s decision to overrule and deny Sean’s motion to dismiss for lack of subject 

matter jurisdiction or, in the alternative, to change venue.

2. CUSTODY AND PARENTING TIME

Sean contends he should have been awarded custody of the children, or alternatively, he 

should have been awarded an additional weekend of parenting time each month.

When deciding custody issues, the court’s paramount concern is the child’s best interests. 

Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020). Neb. Rev. Stat. § 43-2923(6) (Reissue 

2016) provides that in determining custody and parenting arrangements:
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[T]he court shall consider the best interests of the minor child, which shall include, but not 

be limited to, consideration of . . . :

(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 intimate partner abuse.

Other pertinent factors include the moral fitness of the child’s parents, including sexual conduct; 

respective environments offered by each parent; the age, sex, and health of the child and parents; 

the effect on the child as a result of continuing or disrupting an existing relationship; the attitude 

and stability of each parent’s character; and parental capacity to provide physical care and satisfy 

educational needs of the child. Smith v. King, supra.

The district court thoroughly considered the relevant factors before making its custody and 

parenting time decision. For example, the court found that Makayla “was the primary caregiver 

and nurturer of the children,” and that the children were attached to both parents, “but the 

attachment and the bonds between the children and Makayla are more extensive, complete, and 

potent than those between the children and Sean.” The court expressed concern about Sean’s 

record of engaging in physical confrontations with others, Sean’s failure to regularly pay child 

support, and Sean’s “receipt, retention, and concealment of the COVID-19 stimulus funds he 

received during the pendency of the case.” It noted that Sean did not disclose the funds on the joint 

property statement or in his testimony; it was only revealed during cross-examination. The court 

pointed out that the “stimulus funds of more than $5,000” could have been paid towards Sean’s 

child support arrearage. The court added, “Sean’s explanation for his non-disclosure of the funds 

was incredible and unconvincing.”

The district court also found that “[t]he history of the parents’ care for the children supports 

the conclusion the stability and security offered by Makayla is greater.” “Makayla was focused on 

the children in a more wholistic manner than Sean. Sean provided substantial care for the children, 

but much of such care centered around activities of importance to him, such as the motocross and 

wrestling,” and “there was evidence to support the inference Sean is less flexible and more 

demanding of the children than is appropriate for their age.” The court found that both parents 

have a “satisfactory capacity” to provide for the children’s physical care and emotional needs, but 

Makayla has “more fully realized” her capacity than has Sean. The court indicated it had 

considered a joint custody arrangement, but that

[u]nder the facts of this case, joint decision-making by the parents is not in the children’s 

best interests. The parents are unable to communicate appropriately face-to-face, there’s a 

level of distrust, and it appears there is an issue of a fundamental disagreement over how 

much and to what extent Sean can exercise control over the decision-making of Makayla.
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The court described how it considered the demeanor of witnesses as they testified, such as 

directness of answers, emphasis placed on words, facial expressions, eye movements, “furtive or 

meaning glances, shrugs, yawns, self-possession or embarrassment.” The court concluded that 

“[t]he demeanor evidence weighed strongly in Makayla’s favor.”

Sean largely takes issue with the district court’s view of the evidence. However, when 

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

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

Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017).

Having reviewed the record, we find no plain error in the district court’s decision to award 

legal and physical custody of the parties’ children to Makayla, subject to Sean’s parenting time as 

set forth in the court’s parenting plan. Nor do we find any plain error in the court’s decision to 

award Sean parenting time on alternating weekends.

3. KIMBALL HOUSE

Sean contends the district court improperly characterized the Kimball house as marital 

property.

In a dissolution of marriage proceeding, “‘[i]f the parties fail to agree upon a property 

settlement ... the court shall order an equitable division of the marital estate.’” Dooling v. Dooling, 

303 Neb. 494, 507, 930 N.W.2d 481, 495 (2019). Under Neb. Rev. Stat. § 42-365 (Reissue 2016), 

the equitable division of property is a three-step process. Dooling v. Dooling, supra. The first step 

is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property 

to the party who brought that property to the marriage. The second step is to value the marital 

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

estate between the parties in accordance with the principles contained in § 42-365. Dooling v. 

Dooling, supra. The ultimate test in determining the appropriateness of the division of property is 

fairness and reasonableness as determined by the facts of each case. Id. Generally, all property 

accumulated and acquired by either spouse during a marriage is part of the marital estate. Id.

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

inheritance. Id.

The burden of proof rests with the party claiming that property is nonmarital. Marshall v. 

Marshall, supra. A nonmarital interest in property may be established by credible testimony.

Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). A spouse’s own testimony can 

establish a “‘“tracing link,”’” i.e., tracking an asset to a nonmarital source. Id. at 364, 934 N.W.2d 

at 495. See, also, Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). Of course, triers of fact 

have the right to test the credibility of witnesses by their self-interest and to weigh it against the 

evidence, or the lack thereof. Burgardt v. Burgardt, supra. Evidence not directly contradicted is 

not necessarily binding on the triers of fact, and may be given no weight where it is inherently 

improbable, unreasonable, self-contradictory, or inconsistent with facts or circumstances in 

evidence. Id.

In concluding that the Kimball house was marital property, the district court stated:

The determination of the classification of the Kimball home is determined, in part, by the 

circumstances of the parties at the time the property was purchased. The parties began 

cohabiting in a committed, exclusive, intimate relationship in 2014 while living in 
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Colorado. Both during the cohabitation and after their August 2016 marriage, Sean and 

Makayla maintained separate bank accounts and it appears the earnings of each were 

deposited in such separate accounts. Nevertheless, the parties throughout the committed, 

exclusive, intimate relationship contributed to the living expenses of themselves and their 

first-born child. The deed to the Kimball house was filed 12 days before the parties’

marriage and was purchased while the parties were living in Colorado. The parties 

purchased their Sidney home and moved there in October of 2016. The evidence was clear 

and convincing the Kimball house property was purchased at a time when the parties 

considered themselves bound by their expressed intentions to marry and they actively held 

themselves out as bound to one another under the bonds of marriage. This was evidenced 

by the manner in which they manifested their intention to enter into a marital relationship, 

including their exchange of rings; their sending of invitations to their wedding; and other 

incidents of their cohabitation, including the 2015 birth of their oldest child, and the manner 

in which they supported each other, before the August 2016 wedding. The Kimball house 

was acquired at a time when Sean and Makayla were living together with all the indicia of 

a marital relationship, including an expressed intention to enter into a marital relationship 

and their conduct of mutual support and their commitments to each other in their exclusive, 

intimate relationship. The Kimball house is marital property and is included in the martial 

estate.

We find no plain error in the district court’s inclusion of the property as marital, but for a 

reason different than that contained in its order. See Keith v. Data Enters., 27 Neb. App. 23, 925 

N.W.2d 723 (2019) (if trial court arrives at correct result even though it uses reason different from 

that expressed by this court, its judgment will be upheld).

The district court included the property as a marital asset, in part, due to it being “acquired 

at a time when Sean and Makayla were living together with all the indicia of a marital relationship.”

However, neither party asserted at trial that a marital relationship existed at the time the property 

was acquired; rather, both agreed title was acquired prior to marriage. However, Sean failed to 

meet his burden of proof because the evidence was controverted as to whether a mortgage existed 

that was paid postmarriage and there was no evidence that all the other costs of ownership were 

paid by either Sean’s parents or with premarital funds. Although Sean’s testimony was evidence 

for the district court to consider in determining whether the asset was tracked to a nonmarital 

source, the court nevertheless had the right to test the credibility of witnesses by their self-interest 

and to weigh it against the evidence, or lack thereof. See Burgardt v. Burgardt, supra.

Given the limited and conflicting evidence from the parties on this issue, we cannot say the 

district court’s determination that the Kimball house was marital property constitutes plain error.

VI. CONCLUSION

For the reasons stated above, we affirm the decree in all matters.

AFFIRMED.