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NELSON v. RICHARDSON-NELSON

Cite as 30 Neb. App. 15

Darryl Nelson, appellant, v. Elizabeth 

Richardson-Nelson, appellee.

___ N.W.2d ___

Filed June 29, 2021. No. A-20-716.

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

Alimony: Attorney Fees: Appeal and Error. In a marital dissolution 

action, an appellate court reviews the case de novo on the record to 

determine whether there has been an abuse of discretion by the trial 

judge. This standard of review applies to the trial court’s determinations 

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

attorney fees.

2. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

3. 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 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 judge heard and observed the witnesses 

and accepted one version of the facts rather than another.

4. Marriage: Proof. In Nebraska, a couple cannot create a common-law 

marriage by agreement or cohabitation and reputation.

5. Divorce: Property Division: Alimony. In dividing property and considering alimony upon a dissolution of marriage, a court should consider 

four factors: (1) the circumstances of the parties, (2) the duration of the 

marriage, (3) the history of contributions to the marriage, and (4) the 

ability of the supported party to engage in gainful employment without 

interfering with the interests of any minor children in the custody of 

each party.

6. Divorce: Property Division. In addition to the specific criteria listed 

in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the 

Nebraska Supreme Court Online Library

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

07/06/2021 08:09 AM CDT
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Cite as 30 Neb. App. 15

income and earning capacity of each party and the general equities of 

the situation.

7. Alimony. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic 

circumstances make it appropriate.

8. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same 

amount of alimony as did the trial court, but whether the trial court’s 

award is untenable such as to deprive a party of a substantial right or 

just result. The ultimate criterion is one of reasonableness.

9. ____: ____. An appellate court is not inclined to disturb the trial court’s 

award of alimony unless it is patently unfair on the record.

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

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

11. ____. Above all else, the duration of an alimony award must be 

reasonable.

Appeal from the District Court for Dawson County: James 

E. Doyle IV, Judge. Affirmed.

Brian W. Copley, of Heldt, McKeone & Copley, for appellant.

Mark R. McKeone, P.C., L.L.O., for appellee.

Pirtle, Chief Judge, and Moore and Bishop, Judges.

Moore, Judge.

INTRODUCTION

Darryl Nelson (Darryl) appeals from the order of the district 

court for Dawson County dissolving his marriage to Elizabeth 

Richardson-Nelson (Elizabeth). The court found that the parties established a common-law marriage in Colorado in 1997 

and awarded alimony to Elizabeth. Darryl contends that the 

parties were not married until 2011 in Nebraska. He also challenges the amount and duration of the court’s alimony award. 

For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

On June 6, 2019, Darryl filed a complaint in the district 

court, seeking dissolution of his marriage to Elizabeth. He 
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Cite as 30 Neb. App. 15

alleged that the parties were married in Nebraska in “July, 

2013 [sic].” In her answer and “Counter Complaint,” Elizabeth 

denied this allegation and alleged that the parties were married 

in Colorado in July 1997. Both parties sought dissolution of 

the marriage and an equitable division of the marital estate. 

Additionally, Elizabeth sought awards of temporary and permanent alimony.

On April 8, 2020, the district court entered an order concerning temporary spousal support. The court awarded Elizabeth 

sole and exclusive possession of the marital residence for the 

duration of the pendency of the case and, as part of the award 

of temporary spousal support, ordered Darryl to pay the mortgage, tax, and insurance payments on the marital residence; to 

pay the insurance premiums for Elizabeth’s automobile; and 

to maintain in full force and effect and pay the premiums for 

any health or life insurance which insured the health or life of 

Elizabeth as of June 6, 2019. Additionally, the court ordered 

Darryl to pay temporary spousal support in the amount of $300 

per month commencing January 1, 2020, until further order of 

the court.

Trial was held before the district court on July 1, 2020. In 

addition to receiving various documentary exhibits, the court 

heard testimony from Darryl, Elizabeth, and Darryl’s uncle.

The parties presented conflicting evidence regarding whether 

they established a common-law marriage in Colorado or were 

not married until after they moved to Nebraska. They were living in Colorado when they began dating in 1996, and at some 

point later that year, Darryl moved in with Elizabeth. The 

parties lived together without interruption until they separated 

in February 2019. On June 17, 1997, the parties obtained a 

marriage license in Colorado. They did not have a marriage 

ceremony at that time, and the license was never filed with 

a county clerk’s office in Colorado (nor does a copy appear 

in the record on appeal). The parties moved to Nebraska in 

September 1998. They obtained a marriage license and had 

a wedding ceremony in Nebraska in 2011. Their Nebraska 
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Cite as 30 Neb. App. 15

license and certificate of marriage was admitted into evidence; 

reflects a marriage date of July 17, 2011; and was filed with 

the county clerk’s office in Dawson County on July 18. At the 

time of trial, Darryl, age 42, resided in Kearney, Nebraska, and 

Elizabeth, age 48, resided in Lexington, Nebraska.

Darryl was asked about why the parties did not have a 

“follow-up ceremony” after obtaining the marriage license 

in Colorado. Darryl responded, “I just . . . drug my feet, I 

guess.” When asked if it was his intention at that time to 

“officially” marry Elizabeth, he stated, “Intention, yes, but just 

never finished it.” Darryl testified further, “There was never a 

real push for us to have a full-blown marriage — wedding.” 

When questioned further about what kept him from filing the 

marriage license while the parties were in Colorado, Darryl 

testified that this was due to “[m]aybe cold feet a little bit . . . 

because [he] was so young” (19 years old). He also testified 

that there “wasn’t a big pressure to do it because [Elizaeth and 

he] were already together like that. It already felt like that was 

the case.” Darryl admitted that he began calling Elizabeth his 

wife and that he held her out as his wife to other people after 

they obtained the Colorado marriage license. Darryl testified 

that he purchased Elizabeth a “promise ring” in 1997 before 

the parties moved to Nebraska, indicating that he bought “the 

actual first wedding ring” after the move to Nebraska although 

he did not recall in what year it was purchased. Darryl testified that the parties were “officially married” at the time of 

the 2011 ceremony in Nebraska. When asked why he decided 

to “go through with a formal marriage” at that point, Darryl 

responded that the parties had been “going through some problems,” that Elizabeth “had always wanted a ceremony,” and 

that he thought the ceremony would help to “make the relationship stronger.”

The parties did not jointly own any property and had 

no joint accounts while they lived in Colorado. According 

to Elizabeth, Darryl did not have any bank accounts at the 

time and her account was only maintained for purposes of 
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receiving her daughter’s disability payments. She testified that 

the parties paid their bills in Colorado using cash. Darryl testified that the parties did not have a specific agreement about 

how bills would be paid or expenses divided, indicating that 

Elizabeth usually paid the rent while he “helped out with” 

other bills. Darryl testified that he did not carry Elizabeth on 

his medical insurance while they lived in Colorado. According 

to Elizabeth, Darryl did not have medical insurance during 

that period; Elizabeth was on Medicaid, which also covered 

her children; and Darryl’s daughter was covered through her 

mother’s insurance. Darryl did not recall filing a joint tax 

return with Elizabeth prior to moving to Nebraska, but he testified that they “[p]ossibly” did so in 1998 and that “it was for 

sure” for the tax years 1999 and 2000. Elizabeth estimated that 

the parties first filed a joint tax return in 2000 for the 1999 tax 

year. Transcripts from the Internal Revenue Service of Darryl’s 

income taxes from 2008 through 2018 were received into 

evidence, and all show a “Married Filing Joint” filing status. 

Elizabeth did not have any older income tax documents and 

was able to obtain only the 10 years of transcripts that were 

received into evidence.

Elizabeth testified that she believed the parties were married 

after they obtained the license in Colorado. She acknowledged 

there was no wedding ceremony in 1997, but she believed the 

marriage license itself created the marriage. She described the 

ring Darryl gave her in 1997 as an “engagement ring,” testifying, “That’s when he asked me to marry him.” Elizabeth confirmed Darryl’s testimony that in Colorado, Darryl introduced 

her as his “wife” on several occasions after the commencement of their cohabitation. Elizabeth did not adopt Darryl’s 

surname while the parties lived in Colorado; she did not 

legally change her surname to Richardson-Nelson until after 

2011, when her driver’s license expired. Elizabeth offered in 

evidence a cross-stitch wall plaque made by Darryl’s grandmother and given to the parties. The wall plaque depicts a 

man and woman, bears the names “Elizabeth” and “Darryl,” 
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and includes the words “United in Love” and “July 17, 1997.” 

The woman depicted is wearing a wedding gown and veil and 

is holding a bouquet of flowers. The man depicted is formally 

dressed. The record does not indicate exactly when this gift 

was given to the parties. Elizabeth testified that “[Darryl’s] 

mom and grandmother [were] upset because they felt like 

[Darryl and Elizabeth] robbed them of them being there for 

[the] wedding” and that the grandmother “made the plaque 

with the date that [Darryl and Elizabeth] got married.” Darryl 

testified that the plaque had been displayed in their residence 

at some point but “ha[d]n’t been around for a long time.” 

Elizabeth characterized the July 2011 wedding ceremony as “a 

renewal of the vows for the family to come and [her] to wear 

a wedding dress.”

Darryl’s uncle testified that he met Elizabeth in 1998 when 

the parties visited prior to moving to Nebraska. According to 

the uncle, they acted like a married couple and Darryl introduced Elizabeth as his wife at that time.

The parties did not have any children together; however, as 

noted above, Darryl had a daughter from a prior relationship, 

and Elizabeth had five children from a prior relationship. The 

children lived with the parties during their Colorado cohabitation and after they moved to Nebraska. Darryl testified that 

he raised Elizabeth’s children as his own and that Elizabeth 

treated his daughter as her own. The parties’ children from 

prior relationships were no longer minors at the time these 

divorce proceedings were initiated.

There was evidence about the parties’ work history and 

living expenses. Darryl has a high school education and had 

started taking postsecondary education classes within the year 

preceding trial. While living in Colorado, Darryl “did a lot 

of odd jobs” and worked “mainly” for his grandfather. Once 

the parties moved to Nebraska, Darryl did “odd jobs” and 

“handyman, small construction” jobs until 2009, when the 

parties moved to Lexington and he obtained employment at a 

discount store. Darryl could not remember exactly how much 
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Cite as 30 Neb. App. 15

he earned while working at the store, estimating “[m]aybe 12 

tops.” In 2011, while still employed at the store, Darryl started 

working at Baldwin Filter, Inc. (now known as Parker) in a 

“temp” position earning $10 an hour. Darryl was still employed 

at Parker at the time of trial as an assistant supervisor in 

the distribution center. Darryl testified that he changed jobs 

within the company in May 2019 and that in 2019, he earned 

approximately $86,000, which included overtime pay. Darryl 

testified that he would earn substantially less in 2020 than in 

2019, partly due to the COVID-19 pandemic. He testified that 

Parker planned to reevaluate allowing overtime at the end of 

July 2020, but that “there is no guarantee that [Parker] would 

even go back to the rate that [its employees] were getting 

before.” Darryl’s W-2 forms for 2017 and 2018 were received 

into evidence and show “[w]ages, tips, other compensation” of 

$59,821.79 and $77,200.95, respectively. Darryl testified generally as to his living expenses but did not provide a specific 

description of his financial condition. Although a “Statement of 

Monthly Expenses” for Darryl is listed in the index to the bill 

of exceptions before us, this exhibit was not made a part of the 

record on appeal.

Elizabeth has a diploma through the GED program, and 

at the time of trial, she had both a cosmetology license and 

a lapsed certified nursing assistant (CNA) license. When the 

parties moved to Nebraska, Elizabeth obtained work cleaning 

a recreation center; she also worked at retail stores. Darryl 

estimated that the parties’ combined annual income at the 

time of the move to Nebraska was “[p]robably, high 20s.” 

At some point after the parties moved to Nebraska, Elizabeth 

received training and worked as a CNA, earning more than 

Darryl. The parties agree that Elizabeth’s earnings were their 

primary income for a number of years from some point after 

their move to Nebraska until Darryl began receiving promotions at Parker. While working as a CNA, Elizabeth obtained 

a cosmetology degree. She then worked as a hairdresser in a 

beauty salon during the latter parts of the parties’ marriage, 
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but, due to the COVID-19 pandemic, had stopped that work. 

Just a few weeks prior to trial, she had started working 10 

hours per week at a gas station convenience store, earning 

$9.50 per hour. She indicated that she had been talking to 

the owner about “trying to pick up hours” at a different store 

location. She also testified that beauty salons had just recently 

reopened after closing due to the pandemic. She had been 

talking to the owner of the salon where she worked prior to 

the pandemic and indicated that the owner wanted Elizabeth 

to pay “back-rent” for the months during which the salon 

had been closed, but that Elizabeth did not have this money 

available. According to Elizabeth, she had been making about 

$400 per month net pay prior to the pandemic. In his testimony, Darryl estimated that Elizabeth had earned “probably 

mid-20s, annually,” while working as a hairdresser. According 

to Elizabeth, she was looking for better-paying employment in 

Lexington. She testified that her CNA license had lapsed and 

that she would have to become recertified, but that she would 

not mind returning to that work because she “miss[ed] it.” 

She also expressed that she still had her cosmetology license 

and “love[d] doing hair,” but that “right now, it’s not a good 

market for it because of the COVID.” During her testimony, 

Elizabeth described her living expenses, and she submitted 

a written statement of her financial condition, showing total 

monthly expenses of $2,478.

On September 3, 2020, the district court entered a decree, 

dissolving the parties’ marriage. The court determined that 

the parties established a common-law marriage in Colorado in 

1997. The court divided the marital estate and ordered Darryl 

to pay Elizabeth a judgment of $5,500 in four equal annual 

payments of $1,375. We note that in the property division, 

Darryl was awarded the only retirement asset of the parties, 

Elizabeth was awarded the marital residence and ordered to 

pay the mortgage on it, and Darryl was ordered to pay marital 

debts other than the mortgage. The court ordered Darryl to 
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pay alimony of $1,050 per month, commencing October 1, 

2020, and continuing through October 1, 2030. It also entered 

a judgment of $2,725.51 against Darryl for unpaid temporary 

alimony and interest which had accrued as of September 1, 

2020. Finally, the court entered a judgment against Darryl in 

favor of Elizabeth for attorney fees in the amount of $750. We 

have set forth details of the court’s discussion of the commonlaw marriage and alimony issues in our analysis below.

Darryl subsequently perfected his appeal to this court.

ASSIGNMENTS OF ERROR

Darryl asserts that the district court abused its discretion in 

(1) finding that the parties established a common-law marriage 

in Colorado in 1997 and (2) calculating the amount and duration of the alimony award to Elizabeth.

STANDARD OF REVIEW

[1] 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. Dycus v. 

Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020). This standard 

of review applies to the trial court’s determinations regarding 

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

[2] A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a 

litigant of a substantial right and denying just results in matters 

submitted for disposition. Id.

[3] 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 with respect to the matters 

at issue. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 

(2021). 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. Id.
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ANALYSIS

Common-Law Marriage.

Darryl asserts that the district court abused its discretion in 

finding that the parties established a common-law marriage in 

Colorado in 1997. He argues that the evidence was insufficient 

to establish the existence of a common-law marriage between 

the parties prior to when they moved to Nebraska.

[4] In Nebraska, a couple cannot create a common-law marriage by agreement or cohabitation and reputation. Spitz v. T.O. 

Haas Tire Co., 283 Neb. 811, 815 N.W.2d 524 (2012) (discussing requirements for establishing common-law marriage in 

Colorado and upholding trial court’s ruling finding evidence 

did not establish common-law marriage). However, Neb. Rev. 

Stat. § 42-117 (Reissue 2016) provides that “[a]ll marriages 

contracted without this state, which would be valid by the laws 

of the country in which the same were contracted, shall be 

valid in all courts and places in this state.” See, also, Bogardi 

v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996) (general 

rule is that validity of marriage is determined by law of place 

where it was contracted; if valid there, it will be held valid 

everywhere, and conversely, if invalid by lex loci contractus, 

it will be invalid wherever question may arise). Accordingly, 

for Elizabeth’s asserted marriage date to be correct, she had to 

show that she and Darryl had a valid common-law marriage 

under Colorado law before September 1998, when they moved 

to Nebraska.

In finding the evidence showed that the parties established a common-law marriage in Colorado prior to moving 

to Nebraska, the district court relied on People v. Lucero, 747 

P.2d 660 (Colo. 1987). Since entry of the decree in this case, 

the prevailing test for establishing a common-law marriage in 

Colorado set forth in Lucero has been refined by the Colorado 

Supreme Court in Hogsett v. Neale, 478 P.3d 713 (Colo. 2021). 

Although the Hogsett opinion was not available to the district 

court at the time of the decree in this case, for the sake of 

completeness, we discuss both cases before proceeding to the 
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district court’s analysis of whether a common-law marriage 

was established in this case.

People v. Lucero, supra, was a criminal case in which the 

defendant objected to testimony from his alleged commonlaw wife on the grounds that it violated Colorado’s marital 

testimonial privilege. The defendant made an offer of proof 

during which the putative wife testified that she considered 

herself married to the defendant, testified that they held themselves out to friends as being married, and affirmed that the 

defendant agreed they were married. She also repeated earlier 

testimony about the length of their marriage (5 years) and that 

they had one child together. The trial court found the proffered testimony insufficient to prove the common-law marriage 

and overruled the defendant’s objection. The Colorado Court 

of Appeals reversed, finding the existence of a common-law 

marriage as a matter of law. On review, the Colorado Supreme 

Court reversed that conclusion and remanded the matter for 

reconsideration by the trial court under the standards set forth 

in its opinion.

In Lucero, the Colorado Supreme Court held that a commonlaw marriage is established by “the mutual consent or agreement of the parties to be husband and wife, followed by a 

mutual and open assumption of a marital relationship.” 747 

P.2d at 663. The court acknowledged that in many cases, 

because of the nature of common-law marriage, express agreements will not exist, and it held that “if the agreement is denied 

or cannot be shown, its existence may be inferred from evidence of cohabitation and general repute.” Id. at 664. The court 

emphasized that “determination of whether a common-law 

marriage exists turns on issues of fact and credibility, which 

are properly within the trial court’s discretion.” Id. at 665. The 

court went on to provide the following examples of evidence 

that could establish a mutual understanding of the parties that 

they had a marital relationship:

The two factors that most clearly show an intention to 

be married are cohabitation and a general understanding 
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or reputation among persons in the community in which 

the couple lives that the parties hold themselves out as 

husband and wife. Specific behavior that may be considered includes maintenance of joint banking and credit 

accounts; purchase and joint ownership of property; the 

use of the man’s surname by the woman; the use of 

the man’s surname by children born to the parties; and the 

filing of joint tax returns. . . . However, there is no single 

form that any such evidence must take. Rather, any form 

of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will 

provide the requisite proof from which the existence of 

their mutual understanding can be inferred.

Id. Since it was not clear by what criteria the trial court in 

Lucero evaluated the existence of a common-law marriage, the 

Colorado Supreme Court remanded the matter for reconsideration under the clarified standard set forth in its opinion.

The decree in the present case was entered on September 3, 

2020. In an opinion released on January 11, 2021, the Colorado 

Supreme Court further refined the test from Lucero in its opinion in Hogsett v. Neale, 478 P.3d 713 (Colo. 2021). Hogsett

was a case involving a disputed common-law marriage in a 

dissolution of marriage case filed by one partner in a samesex relationship. In Hogsett, the court discussed the legal and 

social developments with respect to marriage in the years since 

its decision in People v. Lucero, 747 P.2d 660 (Colo. 1987). 

The Colorado Supreme Court then refined the Lucero test 

as follows:

Given these significant social and legal developments 

since our decision in Lucero, the test and its factors 

require refinement. We therefore hold that a common law 

marriage may be established by the mutual consent or 

agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that 

mutual agreement. The key question is whether the parties 

mutually intended to enter a marital relationship—that 
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is, to share a life together as spouses in a committed, 

intimate relationship of mutual support and mutual obligation. In assessing whether a common law marriage has 

been established, courts should give weight to evidence 

reflecting a couple’s express agreement to marry. In the 

absence of such evidence, the parties’ agreement to enter 

a marital relationship may be inferred from their conduct. 

When examining the parties’ conduct, the factors identified in Lucero can still be relevant to the inquiry, but they 

must be assessed in context; the inferences to be drawn 

from the parties’ conduct may vary depending on the 

circumstances. Finally, the manifestation of the parties’ 

agreement to marry need not take a particular form.

Hogsett, 478 P.3d at 723-24.

In the present case, the district court noted the parties’ 

respective testimonies about the history of their relationship, 

their intent with respect to and understanding of the effect of 

the Colorado marriage license they obtained but did not file 

in July 1997, the rings purchased by Darryl for Elizabeth at 

various points, how the parties handled their mutual finances, 

how they represented themselves to family and friends, and the 

parties’ testimony about the purpose and effect of the wedding 

ceremony in Nebraska in 2011. The court then observed that 

pursuant to the standard set forth in Lucero, the determination 

of whether there is a common-law marriage turns on issues 

of fact and credibility, the evidence must manifest the parties’ 

intent to have a marital relationship, the relationship does not 

have to be of any certain duration, and it does not require any 

specific words or acts to manifest the parties’ mutual consent 

or agreement to be married. The court then stated:

After consideration of the evidence described above 

and particularly the credibility of the parties, the court 

finds the parties established, in Colorado, a common-law 

marriage in July 1997 during their cohabitation. While 

in the state of cohabitation in Colorado, Darryl referred 

to Elizabeth as his wife to Elizabeth and to others. They 
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shared the household duties commonly required of a husband and a wife, and, the status as of 1997, of husband 

and wife was recognized as such by Darryl’s uncle and 

grandmother. The conflicts in the evidence over the effect 

of the Colorado marriage license and the purpose of the 

2011 wedding ceremony are resolved in Elizabeth’s favor. 

In making this determination the demeanor evidence was 

significant and weighed heavily in Elizabeth’s favor.

The court concluded that the parties’ Colorado common-law 

marriage commenced in late July 1997 and resolved other 

issues in the case based on such finding.

Our review supports the district court’s conclusion. The 

parties began cohabitating in Colorado in 1996 and obtained 

a marriage license in Colorado in July 1997, although they 

never filed it and did not hold a wedding ceremony at that 

time. The evidence shows that Darryl referred to Elizabeth as 

his wife and that they held themselves out to friends and family as being married at that time. There was evidence that both 

Darryl’s uncle and his grandmother believed the parties were 

married in Colorado in 1997. The parties continued to live 

together and maintain a common household until their separation in February 2019 after moving to Nebraska in September 

1998. Although they did not have joint bank accounts or 

jointly own any property while living in Colorado, the evidence shows that they rented their residence, that Darryl did 

not have a bank account, that Elizabeth maintained a bank 

account only for purposes of receiving her daughter’s disability payments, and that the parties mainly conducted their business by cash while living in Colorado. Elizabeth did not use 

any portion of Darryl’s surname as her own until at some point 

after the parties’ Nebraska wedding ceremony in 2011, but as 

pointed out by the Colorado Supreme Court in its recent decision, “there may be any number of reasons, including cultural 

ones, that spouses and children do not take one partner’s name 

at marriage,” and this does not appear to be a factor weighed 

heavily by the district court in the present case. Hogsett v. 
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Neale, 478 P.3d 713, 723 (Colo. 2021). The parties did not 

have any children but raised one another’s children from previous relationships as their own. The record is unclear as to 

whether the parties filed any income tax returns while living in 

Colorado, but testimony from both Darryl and Elizabeth establishes that they began filing joint tax returns soon after moving 

to Nebraska. The documentary evidence shows that they filed 

joint tax returns at least as early as 2008, which is 3 years prior 

to the Nebraska wedding ceremony. Finally, the evidence as to 

the parties’ understanding and intent with respect to the 1997 

Colorado marriage license, the 2011 Nebraska wedding ceremony, and the rings purchased by Darryl for Elizabeth at various points was conflicting. The district court clearly resolved 

that conflict in Elizabeth’s favor.

The district court did not err in determining that the evidence 

showed the parties established a common-law marriage in 

Colorado in 1997 before moving to Nebraska in 1998. As noted 

above, this determination turns on issues of fact and credibility, which are within the trial court’s discretion. See People v. 

Lucero, 747 P.2d 660 (Colo. 1987), abrogated, Hogsett, supra. 

The court did not abuse its discretion in finding a common-law 

marriage established in 1997. This assignment of error fails.

Alimony.

Darryl asserts that the district court abused its discretion 

in calculating the amount and duration of the alimony award 

to Elizabeth. In the decree, the court ordered Darryl to pay 

alimony of $1,050 per month beginning October 1, 2020, and 

continuing through October 1, 2030. Darryl argues that the 

award was patently unfair; in doing so, he relies on his assertion that the court erred in determining the length of the parties’ marriage. He also argues that the court failed to consider 

Elizabeth’s contributions to the marriage, especially during 

the period when she earned more than Darryl; her potential 

to renew her CNA license and earn more than she was earning at the time of trial; the reduction in Darryl’s income at the 
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30 Nebraska Appellate Reports

NELSON v. RICHARDSON-NELSON

Cite as 30 Neb. App. 15

time of trial; and the fact that there were no minor children in 

the home.

[5,6] In dividing property and considering alimony upon 

a dissolution of marriage, a court should consider four factors: (1) the circumstances of the parties, (2) the duration of 

the marriage, (3) the history of contributions to the marriage, 

and (4) the ability of the supported party to engage in gainful 

employment without interfering with the interests of any minor 

children in the custody of each party. Dooling v. Dooling, 303 

Neb. 494, 930 N.W.2d 481 (2019). In addition to the specific 

criteria listed in Neb. Rev. Stat. § 42-365 (Reissue 2016), 

a court should consider the income and earning capacity of 

each party and the general equities of the situation. Dooling v. 

Dooling, supra.

[7-11] The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the 

relative economic circumstances make it appropriate. Id. In 

reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award 

is untenable such as to deprive a party of a substantial right or 

just result. Id. The ultimate criterion is one of reasonableness. 

Id. An appellate court is not inclined to disturb the trial court’s 

award of alimony unless it is patently unfair on the record. Id.

Alimony is not a tool to equalize the parties’ income, but a disparity of income or potential income might partially justify an 

alimony award. Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 

650 (2020). Above all else, the duration of an alimony award 

must be reasonable. Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 

582 (2018).

In awarding alimony, the district court found that the parties had been married for 21 years 10 months as of the date 

of their separation and 23 years as of the date of trial and that 

the length of the marriage supported an award of alimony. 

It noted the parties’ ages and observed that they were both 

in good health. The court noted the parties’ current financial 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

NELSON v. RICHARDSON-NELSON

Cite as 30 Neb. App. 15

circumstances, including the impact of the COVID-19 pandemic on their respective employments. The court found that 

Elizabeth had an earning capacity of at least $1,560 per month. 

It also noted evidence relating to the parties’ living expenses 

and the equal division of the marital estate. The court concluded that the evidence relating to the parties’ financial 

circumstances weighed in favor of alimony. Next, the court 

observed that the parties made equal contributions to the marriage in terms of the care they provided their children from 

other relationships and the operation of the household. The 

court also noted that Elizabeth contributed more to the parties’ 

financial well-being early in the marriage, while in the last few 

years, Darryl began earning substantially more than Elizabeth. 

The court concluded that an analysis of the parties’ contributions to the marriage weighed in favor of an award of alimony. 

In sum, the court concluded that consideration of the evidence 

with respect to the factors relevant to an award of alimony all 

supported an award of alimony to Elizabeth.

Our de novo review of the record supports the district 

court’s award of alimony. As determined above, this was a 

lengthy marriage. Both parties made contributions to the marriage in helping raise the parties’ children from other relationships. Elizabeth’s financial contributions were greater at the 

beginning of the marriage; Darryl’s were greater at the end 

of the marriage. The economic circumstances of both parties 

suffered in the months preceding trial due to the COVID-19 

pandemic, but there was still a considerable disparity in their 

relative economic circumstances at the time of trial. Elizabeth 

testified that she was unable to pay the “back-rent” required 

to resume work as a hairdresser and that returning to work 

as a CNA will require her to renew her license. Darryl’s testimony reflects the possibility of overtime work’s becoming 

available again through his employment. While the alimony is 

not a tool to equalize the parties’ income, under the circumstances presented here, we cannot say that the court’s award 

of alimony was unreasonable or patently unfair. See, Grothen 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

NELSON v. RICHARDSON-NELSON

Cite as 30 Neb. App. 15

v. Grothen, supra; Dooling v. Dooling, 303 Neb. 494, 930 

N.W.2d 481 (2019). The court considered the appropriate factors, and we find no abuse of discretion either in the amount or 

in the duration of the alimony award.

CONCLUSION

The district court did not abuse its discretion in finding that 

the parties established a common-law marriage in Colorado in 

1997 or in calculating the amount and duration of the alimony 

awarded to Elizabeth.

Affirmed.