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299 Nebraska Report

CONNOLLY v. CONNOLLY

Cite as 299 Neb. 103

Valerie K. Connolly, appellant

Monte D. Connolly, appe

___ N.W.2d ___

Filed February 23, 2018. No. S-16-1174.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law that an appellate court resolves independently of the 

trial court.

2. Divorce: Appeal and Error. In actions for dissolution of marriage, 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.

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

appellate court reappraises the evidence as presented by the record and 

reaches its own independent conclusions with respect to the matters 

at issue.

4. 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.

5. Appeal and Error. Error without prejudice is not a ground for 

reversal.

6. Divorce: Attorney Fees: Appeal and Error. In an action for dissolution of marriage, the award of attorney fees is discretionary, is reviewed 

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

of discretion.

7. Divorce: Attorney Fees. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed 

and results obtained, the earning capacity of the parties, the length of 

time required for preparation and presentation of the case, customary 

charges of the bar, and the general equities of the case.

Appeal from the District Court for Scotts Bluff County: Le

Dobrovolny, Judge. Affirme

Nebraska Supreme Court Online Library

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

04/20/2018 01:09 AM CDT
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299 Nebraska Report

CONNOLLY v. CONNOLLY

Cite as 299 Neb. 103

Paul W. Snyder, of Smith, Snyder, Petitt & Hofmeister, G.P., 

for appellant.

William E. Madelung, of Madelung Law Office, for 

appellee.

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

Funke, JJ

Heavican, C

I. INTRODUCTION

In this dissolution action, Valerie K. Connolly filed a petition for legal separation. Valerie and her husband, Monte D. 

Connolly, then filed a stipulation and agreement, which was 

approved by the district court in its decree of legal separation. 

Monte subsequently filed a motion to amend the complaint 

from legal separation to dissolution of marriage. Following a 

hearing, the district court issued a divorce decree, which differed from the decree of legal separation and included both an 

award of alimony and an award of half of the attorney fees to 

Valerie. Valerie appeals. We affirm.

II. FACTUAL BACKGROUND

Monte and Valerie were married on April 15, 1974. At 

the time of trial, Monte was 64 years old and Valerie was 61 

years old. Valerie worked from approximately 1976 until 2008, 

when, as a result of two automobile accidents, she became 

medically disabled and required continuing medical treatment. 

Valerie collects, as her sole source of income, approximately 

$1,500 per month in long-term disability payments. Prior to the 

divorce decree, Valerie received medical insurance coverage 

through Social Security, Monte’s health insurance policy, and a 

supplemental policy paid for by Monte.

Monte also suffers from medical issues that prevent him from 

working. Monte collects long-term disability payments totaling 

approximately $3,600 per month. Monte placed $78,062.74 

from a lump-sum payment of his retirement program in an 
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CONNOLLY v. CONNOLLY

Cite as 299 Neb. 103

annuity with an insurance company. Together, these form his 

sole sources of income.

During their marriage, the couple purchased a home as 

joint tenants. Monte placed a value of $250,000 on the marital 

home, while Valerie valued the home at $299,950. As of July 

2016, the home had a mortgage of $182,598. According to 

their 2015 joint income tax return, the couple’s adjusted gross 

income was $20,018.

On August 15, 2012, Valerie filed the petition for legal separation against Monte. On December 12, Monte and Valerie 

filed a stipulation and agreement, agreeing that in the event 

the parties’ marriage dissolved, their jointly owned real estate 

property would be sold and the proceeds would be divided 

equally between the parties. The parties agreed that Monte 

would continue to carry Valerie on his health insurance policy 

and be responsible for the premiums on that policy through 

December 31, 2012. Monte further agreed that commencing 

January 1, 2013, he would pay the premiums on Valerie’s 

Medicare supplemental policy. The parties also agreed that 

neither party shall pay or receive alimony. Furthermore, each 

party agreed to be responsible for one-half of the attorney 

fees incurred in the processing of this action for a legal 

separation. Both parties were using the same attorney at 

the time.

The parties waived a hearing on the entry of a final decree 

of legal separation. On December 12, 2012, the district court 

issued a decree of legal separation, approving the parties’ stipulations and granting the parties a decree of legal separation.

On September 9, 2015, Monte filed a motion to amend the 

complaint from legal separation to dissolution of marriage. 

Valerie filed an answer requesting that the real estate owned 

by the parties be sold; that Monte provide health insurance for 

Valerie until Valerie reached the age of 65 or, in the alternative, 

that Monte pay spousal support; and that Monte pay Valerie’s 

attorney fees. Valerie subsequently filed a separate application 

for attorney fees.
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CONNOLLY v. CONNOLLY

Cite as 299 Neb. 103

On November 15, 2016, following a hearing, the district 

court filed a decree of dissolution. The decree divided the 

marital estate as follows:

2. . . . [E]ach party shall pay his or her own debts 

to include his or her own medical bills and credit card 

debts, and hold the other party harmless with respect to 

such debts.

3. . . . [E]ach party shall receive as his or her separate property his or her own clothing and personal 

effects, and all personal property presently in his or her 

own possession.

4. . . . [E]ach party shall receive as his or her separate 

property all bank accounts, retirement accounts, investments, and insurance policies currently held in his or her 

name respectively, and any other property currently in 

the party’s possession.

5. The parties shall list the marital home for sale within 

thirty days. It shall be . . . initially listed for $300,000.00. 

In the event a closing on the property has not occurred 

within 180 days from the listing date, it shall be sold at 

public auction, and the proceeds divided consistent with 

the parties’ legal separation agreement.

6. Monte shall pay alimony to Valerie in the amount 

of $363.00 per month beginning December 1, 2016, and 

continuing monthly thereafter until the death of either 

party or until Valerie remarries. This amount is the estimated Medicare supplement premium ($218.00) and 

the prescription supplement premium ($145.00) from 

exhibit 2. . . .

. . . .

8. Monte shall pay one-half of the attorney’s fees of 

Valerie, in the amount of $1,347.57 within sixty days.

In support of its modification of the legal separation decree, 

specifically as related to alimony, the court found that it was 

not barred from considering an award of alimony, but that 

because it was a modification, it would be necessary for 
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CONNOLLY v. CONNOLLY

Cite as 299 Neb. 103

Valerie to show a change in circumstances, which the court 

found she had not done. Despite this, the district court awarded 

Valerie alimony in an amount that equaled the health insurance 

costs which Monte had been paying under the decree of legal 

separation. Valerie appealed.

III. ASSIGNMENTS OF ERROR

Valerie assigns, restated and consolidated, that the district 

court erred in (1) determining that Valerie needed to show a 

change of circumstances in order to be entitled to an award 

of alimony in the divorce decree and (2) awarding an insufficient amount of attorney fees based on the totality of the 

circumstances.

Monte asserts several assignments of error in his appellee’s 

brief, but did not comply with this court’s rules regarding the 

filing of a cross-appeal. As such, we do not consider any of 

Monte’s assignments of error.1

IV. STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law that an 

appellate court resolves independently of the trial court.2

[2,3] In actions for dissolution of marriage, 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.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.4

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

1 Neb. Ct. R. App. P. § 2-109 (rev. 2014).

2 State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).

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

4 Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000).
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a litigant of a substantial right and denying just results in matters submitted for disposition.5

V. ANALYSIS

1. Award of Ali

(a) Whether Parties Need to Show 

Change in Circumstances

Valerie assigns that the district court erred in requiring that 

she show a change of circumstances in the time between the 

decree of legal separation and the divorce decree in order to 

receive an award of alimony. In the alternative, Valerie argues 

that she has shown a change in circumstances, because her 

costs have increased due to the divorce decree, while Monte’s 

income has increased.

We begin our analysis with the underlying statutes. The 

availability of an award of alimony is addressed in Neb. Rev. 

Stat. § 42-365 (Reissue 2016), which states in pertinent part:

When dissolution of a marriage is decreed, the court 

may order payment of such alimony by one party to 

the other and division of property as may be reasonable, having regard for the circumstances of the parties, 

duration of the marriage, a history of the contributions 

to the marriage by each party, including contributions 

to the care and education of the children, and interruption of personal careers or educational opportunities, 

and the ability of the supported party to engage in gainful employment without interfering with the interests of 

any minor children in the custody of such party. . . . A 

proceeding to modify or revoke an order for alimony for 

good cause shall be commenced by filing a complaint 

to modify. . . . Amounts accrued prior to the date of filing of the complaint to modify may not be modified or 

revoked. A decree may not be modified to award alimony 

5 Stephens v. Stephens, supra note 3.
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if alimony was not allowed in the original decree dissolving a marriage.

Actions involving legal separation are considered separately. Neb. Rev. Stat. § 42-347(7) (Reissue 2016) provides 

that “[l]egal separation means a decree of a court of competent jurisdiction providing that two persons who have been 

legally married shall thereafter live separate and apart and 

providing for any necessary adjustment of property, support, 

and custody rights between the parties but not dissolving 

the marriage.”

Finally, Neb. Rev. Stat. § 42-368 (Reissue 2016) states in 

pertinent part:

When a legal separation is decreed, the court may order 

payment of such support by one party to the other as may 

be reasonable, having regard for the circumstances of the 

parties and the ability of the supported party to engage in 

gainful employment without interfering with the interests 

of any minor children in the custody of such party. Orders 

for support may be modified or revoked for good cause 

shown upon notice and hearing . . . .

This court held in Pendleton v. Pendleton6 that the prohibition against modifying a decree of dissolution to provide 

alimony when none was awarded in the original decree was 

applicable only in cases involving dissolution, and inapplicable in the case of legal separation. We explained that the definition of legal separation set forth in § 42-347(7) contained 

no provisions similar to the language set forth in § 42-365 

dealing with alimony in a dissolution action. We further 

explained that the language in Neb. Rev. Stat. § 42-366(6) 

(Reissue 2016) and § 42-368 specifically stated that the prohibition against modifying a decree did not apply to a decree 

of legal separation. Finally, we noted that res judicata did not 

preclude the district court from awarding alimony in the dissolution decree.

6 Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993).
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As in Pendleton, we find that because § 42-347(7) contains 

no provisions similar to the language set forth in § 42-365, 

we must construe these statutes separately. And because we 

construe the decree of legal separation and the decree of dissolution separately, we find that an award of alimony in a 

decree of dissolution is not equivalent to a modification of an 

award of alimony in a decree of legal separation such that it is 

modifiable only upon a finding of good cause under § 42-365. 

Furthermore, we note that by its terms, § 42-365 is applicable 

only to an alimony award in a decree of dissolution and makes 

no mention of a decree of legal separation.

We hold that Valerie was not required to show a change of 

circumstances for purposes of good cause to modify the award 

of alimony awarded in the decree of legal separation. Instead, 

the district court should have determined a reasonable award of 

alimony based on the criteria set forth in § 42-365.

Valerie’s first assignment of error has merit.

(b) Whether Alimony Award 

Was Reversible Error

[5] Next, we turn to whether the district court error was 

prejudicial. Error without prejudice is not a ground for reversal.7

 Both in dividing property and in 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 such party, the polestar 

being fairness and reasonableness as determined by the facts 

of each case.8

Monte has a monthly income of approximately $3,600, and 

his monthly living expenses total $2,551. Valerie’s monthly 

7 Emery v. Mangiameli, 218 Neb. 740, 359 N.W.2d 83 (1984).

8 See, § 42-365; Meints v. Meints, supra note 4.
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income is approximately $1,500, and her monthly budget 

totals $2,341. In the separation order, the judge approved 

the parties’ agreement that Monte would continue to carry 

Valerie on his health insurance policy and be responsible for 

the premiums on that policy through December 31, 2012. 

Monte agreed that thereafter, commencing January 1, 2013, he 

would be responsible for the premiums on Valerie’s Medicare 

supplemental policy. According to Valerie’s monthly budget, 

these costs totaled $363. This calculation formed the basis of 

the judge’s determination in the divorce decree of $363 as the 

amount of alimony.

Valerie contends that the award of alimony is insufficient, 

because she is now responsible for half of the monthly house 

payments, she pays rent, and she must pay the medical insurance that was previously provided by Monte. Valerie further 

argues that Monte’s finances have improved due to the lumpsum payment of his retirement plan.

The parties agreed in the stipulation that the retirement 

accounts would remain separate, nonmarital property. Therefore, 

we do not find that the district court abused its discretion in 

failing to take the lump sum from Monte’s retirement plan into 

consideration for purposes of alimony. Nor do we find merit 

in Valerie’s contention that because she is now responsible for 

payment of her supplemental medical policy, half the payments 

on the house, and payment of rent where she lives, the amount 

of alimony was an abuse of discretion.

Contrary to Valerie’s contention otherwise, the district court 

explicitly took into account Valerie’s payment of her supplemental medical policy in the calculation of the amount of 

alimony in the decree. And Valerie did not include monthly 

house payments in her proposed monthly budget that she submitted to the court. It was Valerie’s responsibility to furnish 

this information in the record, and she did not do so.9 In addition, as noted above, the decree ordered the parties to sell the 

9 See Pendleton v. Pendleton, supra note 6.
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house within 6 months and split the proceeds equally; thus, 

this monthly cost for house payments was of short duration. 

Furthermore, as the district court noted, Monte testified that he 

refinanced the real estate mortgage to lower the house payment 

after the separation and has paid approximately $75,000 toward 

the value of the real estate. Accordingly, the net value was to 

be divided equally between the parties. It was not an abuse of 

discretion for the court to omit this cost in its calculation of the 

amount of alimony.

We further find that the amount of alimony, when considered alongside Valerie’s monthly income and the proceeds 

from the sale of the couple’s home, was not an abuse of 

discretion. We note that the district court correctly took into 

account the income and earning capacity of each party and 

any disparity in the incomes between the parties. While Monte 

has a higher monthly income, his income is also based solely 

on disability payments. The disparity between the parties’ 

income is not of such a degree that the amount of alimony 

was unfair.

After consideration of all other facts and circumstances 

of the case, we hold that the district court did not abuse its 

discretion in awarding Valerie $363 per month in alimony 

for her lifetime or until she remarries. We therefore hold 

that any error by the court in its analysis was not prejudicial 

to Valerie.

2. Attorney Fe

[6,7] Finally, Valerie assigns that the district court abused 

its discretion in ordering Monte to pay one-half of Valerie’s 

attorney fees. In an action for dissolution of marriage, the 

award of attorney fees is discretionary, is reviewed de novo 

on the record, and will be affirmed in the absence of an abuse 

of discretion.10 The award of attorney fees depends on multiple factors that include the nature of the case, the services 

10 Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
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performed and results obtained, the earning capacity of the 

parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the 

general equities of the case.11

Based on our de novo review of the record and the general 

equities of the case, we find nothing to indicate an abuse of 

discretion on the part of the district court in its decision to 

award Valerie one-half of her attorney fees. Therefore, the 

district court did not err in awarding Valerie one-half of her 

attorney fees. Valerie’s second assignment of error is without merit.

VI. CONCLUSION

We affirm the order of the district court.

Affirm

Wright, J., not participating

11 Bowers v. Lens, 264 Neb. 465, 648 N.W.2d 294 (2002).