- 572 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

Lynne D. Lisec, appella

James A. Lisec, appell

___ N.W.2d ___

Filed March 7, 2017. No. A-15-634.

1. Motions to Vacate: Time: Appeal and Error. The decision to vacate 

an order any time during the term in which the judgment is rendered is 

within the discretion of the court; such a decision will be reversed only 

if it is shown that the district court abused its discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when 

the trial court’s decision is based upon reasons that are untenable or 

unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.

3. 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.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

5. Courts: Jurisdiction. In civil cases, a court of general jurisdiction has 

inherent power to vacate or modify its own judgment at any time during 

the term in which the court issued it.

6. Courts: Jurisdiction: Motions to Vacate: Dismissal and Nonsuit. A 

court normally has jurisdiction over a motion to vacate an order of dismissal and reinstate a case.

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

Attorney Fees: Appeal and Error. In actions for dissolution of marriage, an appellate court reviews the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney 

fees de novo on the record to determine whether there has been an abuse 

of discretion.

8. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 

2016), the equitable division of property is a three-step process. The 

Nebraska Supreme Court Online Library

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

03/07/2017 09:09 AM CST
- 573 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

first step is to classify the parties’ property as marital or nonmarital. 

The second step is to value the marital assets and 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.

9. Divorce: Attorney Fees: Appeal and Error. In an action for dissolution 

of marriage, the award of attorney fees is discretionary with the trial 

court, is reviewed de novo on the record, and will be affirmed in the 

absence of an abuse of discretion.

10. 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 Lancaster County: Jodi

Nelson, Judge. Affirmed

Tad D. Eickman for appellant.

Adam R. Little, of Ballew, Covalt & Hazen, P.C., L.L.O., 

for appellee.

Inbody and Pirtle, Judges, and McCormack, Retired Ju

Pirtle, Judge

INTRODUCTION

Lynne D. Lisec appeals from a decree entered by the district 

court for Lancaster County dissolving her marriage to James 

A. Lisec. Lynne takes issue with the court’s reinstating the 

case after it had been dismissed, as well as the court’s classification and distribution of various assets, its award of attorney 

fees to James, and its failure to require James to pay discovery 

costs. Based on the reasons that follow, we affirm.

BACKGROUND

Lynne and James were married in May 2006. This was not 

a first marriage for either party, and no children were born of 

this marriage, nor were any minor children affected by these 
- 574 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

proceedings. In December 2006, the parties executed a postnuptial agreement, which provided that property each party 

maintained in his or her own name remained the property 

of such party and provided that property the parties placed 

in both of their names as joint tenants became joint marital property.

Lynne filed a complaint for dissolution of marriage on June 

6, 2011. James filed an answer on July 6, which sought dissolution of the parties’ marriage, division of the parties’ assets 

and debts, and attorney fees and costs.

On September 10, 2012, Lynne filed a voluntary dismissal 

of her complaint. The trial court ordered the case dismissed 

on September 13. On that same day, James filed a motion to 

reinstate the case or to reconsider the dismissal on the ground 

that his answer included a counterclaim that could not be dismissed by Lynne.

Following a hearing on James’ motion, the court found that 

James’ answer included a counterclaim that should not have 

been dismissed with Lynne’s complaint. The court entered an 

order on September 19, 2012, within the same term, reinstating 

the case. Specifically, it stated that its prior order of September 

13 should be amended “insofar as the dismissal shall only 

relate to the claims brought by [Lynne]. [James’] claims for 

dissolution, division of marital assets and debts, attorney fees 

and costs remain pending.”

Trial on James’ counterclaim was held on 3 days between 

September 2014 and March 2015. Both parties, represented 

by counsel, testified that they believed the postnuptial agreement was a fair and reasonable agreement that was valid and 

enforceable, and they asked the court to divide the marital 

estate in accordance with the agreement. We note that the 

Nebraska Supreme Court recently held in Devney v. Devney, 

295 Neb. 15, 886 N.W.2d 61 (2016), that historically, postnuptial property settlement agreements were invalid in Nebraska 

on the ground of public policy, and that Nebraska statutes 

do not abrogate the public policy against such postnuptial 
- 575 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

agreements unless such agreements are concurrent with a 

separation or divorce. Thus, the Devney court found that the 

parties’ postnuptial agreement was void to the extent it settled 

the parties’ property rights. The Devney case was released after 

the court entered its decree in the present case and after Lynne 

and James filed their briefs on appeal.

In the present case, both parties agree that the postnuptial 

agreement is fair and reasonable and agree that it should be 

enforced. Further, by enforcing the agreement, the trial court 

implicitly found that it was fair and reasonable. As a result, 

the agreement was ratified at the time of trial and we choose 

to treat it as a settlement agreement rather than a postnuptial 

agreement. Accordingly, the agreement will be referred to as 

such throughout the opinion.

The evidence at trial showed that in 2007, Lynne received 

monetary gifts in various forms from her mother. The total 

amount of the gifts was $393,006.66. None of the monetary 

gifts were given to James, and Lynne maintained all of the gifts 

in her own name.

In 2009, Lynne and James purchased a house in Hickman, 

Nebraska, for $220,000. Prior to the closing on the purchase 

of the house, Lynne cashed two certificates of deposit that had 

been gifted to her by her mother and deposited the proceeds 

totaling $40,018.90 into a joint bank account of the parties. 

The account had been solely Lynne’s account prior to the marriage, but James’ name had been added to the account after the 

marriage. A few weeks after depositing the proceeds into the 

account, Lynne withdrew $47,696.23 from the same account 

in the form of a cashier’s check payable to a title company. 

The money was used for a downpayment on the house. The 

house was placed in joint tenancy and both parties were obligated on the deed of trust. The house was sold during the 

pendency of the divorce proceedings, and the proceeds of the 

sale totaled $28,678.

Lynne submitted a list of personal property items that she 

alleged James had in his possession and which she valued at 
- 576 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

$10,000. When further questioned about the personal property, 

Lynne testified that she wanted a money judgment of $10,000 

to compensate her for the property. She stated that she was 

not willing to take all the items back and give James a credit 

for $10,000.

Lynne also testified that in January 2011, about 5 months 

before filing for divorce, she withdrew $8,000 from the parties’ joint checking account, leaving a balance of $568. Lynne 

acknowledged that the account was joint and admitted to either 

still having that money or having spent it. She testified that 

she withdrew the money because she was concerned about 

her marriage falling apart and that she was “fleeing” from 

her home.

James testified that he had several individual retirement 

accounts that were opened long before the parties married 

and that he was no longer contributing to them at the time the 

parties were married. Lynne’s name was never put on any of 

the accounts. In 2011, James used funds from the accounts 

to create a limited liability company called FUBAR Property 

Management (FUBAR). James is the sole owner and manager 

of FUBAR. FUBAR purchased a duplex in Lincoln, Nebraska, 

with funds from James’ accounts. At the time of trial, James 

was living in one half of the duplex and the other half was a 

rental unit, managed by FUBAR.

The evidence also showed that prior to the parties’ marriage, 

James owned two vehicles, a 1998 Chevrolet S10 pickup and 

a 2005 Volkswagen Beetle. After the parties were married, 

both vehicles were retitled in the name of both parties as joint 

tenants. The pickup was subsequently sold for $2,500, and the 

proceeds were being held in a trust account. The parties still 

owned the Volkswagen.

At the end of trial, the court addressed a motion to allocate discovery costs filed by James, to which Lynne filed an 

objection, regarding a bill he received from Heige Thanheiser, 

a private investigator. Lynne had hired Thanheiser to investigate James between 2012 and 2014 concerning a loss of 
- 577 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

consortium lawsuit that arose out of a car accident Lynne 

had in January 2011. However, James believed the investigation was geared toward attacking his credibility and reputation. James issued a subpoena on Thanheiser on February 

19, 2014, requesting production of certain documents and 

surveillance video. Thanheiser refused to comply with the 

subpoena, and James filed a motion for an order to compel 

production. The motion was granted, and Thanheiser produced 

and supplied the information as required to James, as well 

as separately supplying information to the court. Thanheiser 

subsequently sent a bill to James for $2,318.85, which he 

claimed was the reasonable and necessary cost of producing 

the information.

Thanheiser testified that he never communicated with James’ 

counsel about the charges before producing the requested documents, never discussed charging $75 per hour for 17 hours of 

work or the costs of video editing or copying costs, and never 

conditioned the release of the materials on receiving payment. 

A portion of the expenses were the result of Thanheiser’s 

producing an additional copy of the information for the court, 

which he was not asked to do.

Following trial, the court entered a decree of dissolution 

dividing the marital estate, ordering Lynne to pay $8,000 

toward James’ attorney fees, and denying Lynne’s request that 

James be ordered to pay the fees and costs of Thanheiser.

ASSIGNMENTS OF ERROR

Lynne assigns that the trial court erred in (1) reinstating 

the case, or amending the dismissal of the same, as James had 

failed to file a counterclaim or setoff; (2) failing to award her 

the full value of the house sale proceeds and failing to consider 

James’ vehicles subject to the parties’ settlement agreement; 

(3) failing to award her the full value of the real estate taxes 

required to be paid by James; (4) failing to order James to 

return Lynne’s personal property, or the value of the same; (5) 

awarding James all of the money Lynne had withdrawn from 
- 578 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

a joint bank account of the parties 5 months before the action 

was filed; (6) failing to award Lynne any of the assets of 

James’ limited liability company, (7) ordering Lynne to pay a 

portion of James’ attorney fees; and (8) failing to require James 

to pay certain discovery costs.

STANDARD OF REVIEW

[1,2] The decision to vacate an order any time during the 

term in which the judgment is rendered is within the discretion of the court; such a decision will be reversed only if it 

is shown that the district court abused its discretion. Kibler 

v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014). An abuse 

of discretion occurs when the trial court’s decision is based 

upon reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and 

evidence. Id.

[3,4] 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. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015). 

A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a 

litigant of a substantial right and denying just results in matters submitted for disposition. Id.

ANALYSIS

Reinstating Case.

Lynne first assigns that the trial court erred in reinstating 

or amending the dismissal of the case. Lynne had filed a voluntary dismissal of her complaint, and the trial court ordered 

the case dismissed. Pursuant to Neb. Rev. Stat. § 25-602 

(Reissue 2016), a plaintiff can dismiss his or her action when 

no counterclaim or setoff has been filed by the opposite party. 

The court subsequently reinstated the case, finding that James’ 

answer contained a counterclaim that should not have been 

dismissed with Lynne’s complaint. Lynne argues that James 
- 579 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

did not file a separate counterclaim or setoff and that his 

answer should not be treated as a counterclaim.

[5,6] Although not argued by Lynne, we first note that the 

trial court had the authority to reinstate the case with respect 

to James’ counterclaim. In civil cases, a court of general jurisdiction has inherent power to vacate or modify its own judgment at any time during the term in which the court issued 

it. Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013). 

A court normally has jurisdiction over a motion to vacate an 

order of dismissal and reinstate a case. Id. The court’s order 

reinstating the case was within the same term that the case 

was dismissed.

We now turn to whether the trial court properly found that 

James’ answer included a counterclaim. There is nothing in the 

Nebraska Court Rules of Pleading in Civil Cases that required 

James to specifically caption his pleading as a “counterclaim.” 

In fact, there is no actual designation for a “counterclaim”; 

rather, the appropriate designation is an “answer” within which 

a party can plead a counterclaim. Neb. Ct. R. Pldg. § 6-1107(a) 

sets forth the pleadings allowed and states as follows:

There shall be a complaint and an answer; a reply to a 

counterclaim denominated as such, if the answer contains a counterclaim; an answer to a cross-claim, if the 

answer contains a cross-claim; a third-party complaint, 

if a person who was not an original party is summoned 

as a third-party defendant; and a third-party answer, if a 

third party complaint is served. No other pleading shall 

be allowed, except that the court may order a reply to an 

answer or a third-party answer.

(Emphasis supplied.)

Neb. Ct. R. Pldg. § 6-1108 provides the general rules of 

pleading and states in part:

(a) Claims for Relief. A pleading which sets forth a 

claim for relief, whether an original claim, counterclaim, 

cross-claim, or third-party claim, shall contain (1) a caption, (2) a short and plain statement of the claim showing 
- 580 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

that the pleader is entitled to relief, and (3) a demand for 

judgment for the relief the pleader seeks. . . .

. . . .

(e) Pleadings to Be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or 

motions are required.

Further, Neb. Ct. R. Pldg. § 6-1110(a) provides that every 

pleading shall contain a caption setting forth the name of the 

court, the title of the action, the file number, and a designation 

as in § 6-1107(a).

Finally, Neb. Ct. R. Pldg. § 6-1113(a) provides that “[a] 

pleading may state as a counterclaim any claim which at the 

time of serving the pleading, the pleader has against an opposing party.”

Most importantly, the character of a pleading is determined 

by its content, not by its caption. Kerr v. Board of Regents, 15 

Neb. App. 907, 739 N.W.2d 224 (2007).

James’ answer has a caption setting forth the name of the 

court (the “District Court [for] Lancaster County”), the title 

of the action (“LYNNE D. LISEC, Plaintiff, vs. JAMES A. 

LISEC, Defendant”), the file number (“Case No. CI 11-2309”), 

and a designation as per § 6-1107(a) (“ANSWER”). James’ 

answer, therefore, meets the requirements of a “caption” under 

the rules. James’ answer also contains short and plain statements alleging who the parties are, where they live, when and 

where they were married, and that the marriage is irretrievably 

broken. Finally, the answer contains a demand for judgment for 

the relief sought, namely a dissolution of the parties’ marriage, 

equitable division of the assets and debts, attorney fees and 

costs, and any further relief as granted by the court.

We conclude that James’ answer meets the requirements of 

a counterclaim as set forth in Nebraska’s pleading rules and 

should not have been dismissed by Lynne’s voluntary dismissal of her petition. Thus, the court did not err in vacating 

the dismissal and reinstating James’ counterclaim.
- 581 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

Division of Property.

[7] Lynne’s second through sixth assignments of error relate 

to the court’s division of property. In actions for dissolution of 

marriage, an appellate court reviews the trial court’s determinations regarding custody, child support, division of property, 

alimony, and attorney fees de novo on the record to determine whether there has been an abuse of discretion. Coufal v. 

Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).

[8] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the 

equitable division of property is a three-step process. The first 

step is to classify the parties’ property as marital or nonmarital. 

The second step is to value the marital assets and 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. Pohlmann v. Pohlmann, 20 Neb. 

App. 290, 824 N.W.2d 63 (2012).

Lynne first argues that the trial court erred in failing to 

award her all of the proceeds from the sale of the house and 

to consider James’ vehicles, the pickup and the Volkswagen, to 

be marital property based on the parties’ settlement agreement.

In regard to the sale of the house, Lynne argues that she 

should have been awarded the entire $28,678 in proceeds 

because she provided the downpayment for the house from 

nonmarital funds obtained as a gift from her mother. Lynne 

cashed two certificates of deposit gifted to her by her mother 

and deposited that money into the parties’ joint bank account. 

Lynne contends that those same funds were thereafter used to 

make the downpayment on the house and should retain their 

identity as gifted funds. Thus, Lynne argues that those funds 

are nonmarital property and that she should have been awarded 

all of the proceeds from the sale of the house as nonmarital 

property to reimburse her for those funds.

Lynne testified that she deposited the funds from the certificates of deposit into a joint bank account and that the 

downpayment for the purchase of the house came out of that 

joint bank account. Lynne also testified that the house was 
- 582 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

placed in joint tenancy and that both of their names were on 

the mortgage. The parties’ settlement agreement provided that 

property placed in both parties’ names became joint marital 

property. Therefore, when Lynne deposited the funds from 

the cashed certificates of deposit into the parties’ joint bank 

account, it became joint property based on the terms of the 

settlement agreement. Where the money in the account originated from is of no consequence; once the money was placed 

in a joint bank account, it became marital property subject 

to division by the court in the divorce proceeding. Thus, 

the court properly treated the proceeds from the sale of the 

house as a marital asset in accordance with the parties’ settlement agreement.

In regard to the pickup and the Volkswagen, Lynne argues 

that because the two vehicles were put in joint tenancy after 

the marriage, she should have received one-half of the total 

value of the vehicles. The two vehicles together were valued 

at $11,500, allegedly entitling her to $5,750. The trial court 

awarded the full amount of the vehicles to James.

However, in its order, the trial court specifically found that 

the pickup and the Volkswagen were placed in joint tenancy 

during the marriage. Therefore, the trial court determined that 

the vehicles were marital property, but simply chose to award 

the value of the two vehicles to James in distributing the entire 

marital estate.

Lynne’s assignment in regard to the distribution of the proceeds from the sale of the house and the value of the pickup 

and the Volkswagen is without merit.

Lynne next assigns that the trial court erred in failing to 

award her the entire amount of real estate taxes that James 

owed. The trial court found that James owed Lynne for half 

of the real estate taxes on the Hickman house. Lynne contends 

that the real estate taxes, “for the entire year, were $2,255.65.” 

Brief for appellant at 10. She states that half of $2,255.65 is 

$1,127.83, but that the court’s “‘Balance Sheet,’” wherein it 

distributed the property, included an amount of “$563.92.” 
- 583 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

Brief for appellant at 10. Lynne asserts that this amount is 

incorrect and that “she should be allowed an additional sum of 

$563.91.” Id.

In a January 2012 temporary order, the trial court noted that 

the marital home was listed for sale and ordered that for as 

long as neither party resided in the home, each of them shall 

pay 50 percent of all ongoing costs, including real estate taxes. 

The only evidence of real estate taxes is from 2011. Exhibit 19 

contains a receipt for a payment in the amount of $2,255.65 

for real estate taxes and interest for the first half of 2011, 

which does not coincide with Lynne’s argument that the taxes 

for the entire year were $2,255.65.

Further, James was specifically asked who paid the real 

estate taxes reflected in exhibit 19, and he said they were paid 

out of a joint checking account, so he and Lynne both paid 

them. At that point, exhibit 19 was offered into evidence, with 

no objection by Lynne. Later at trial, James acknowledged 

that he was required to pay half of the real estate taxes after 

January 2012 and that he “possibly forgot” or did not remember if he paid his half. There is no evidence as to the amount 

of real estate taxes for 2012.

We conclude that Lynne’s assignment of error regarding 

real estate taxes is not supported by the record, and we find 

no merit to her assignment of error.

Lynne also assigns that the trial court erred in failing to 

order James to return certain personal property or to award 

her the value of the same. Lynne testified that when she left 

the marital home, she took little personal property with her. 

She testified that she wanted either to have certain personal 

items returned to her or to be awarded the sum of $10,000, 

her estimate of the value of the items. Upon further questioning, Lynne indicated that she preferred to be compensated for 

the items, rather than having the items returned to her. That is 

exactly what the court did. The trial court determined that the 

items of personal property in James’ possession had a value 

of $8,500, and it attributed that value as an asset awarded to 
- 584 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

James in dividing the marital estate. There was no error by the 

trial court.

Lynne next assigns that the trial court erred in awarding 

James the $8,500 Lynne had withdrawn from a joint bank 

account prior to filing for divorce. Lynne contends that “at 

least one-half of the amount . . . withdrawn should be considered Lynne’s funds. Nonetheless, the Court credited to Lynne 

the entire amount of $8,500 when, at best, that amount should 

have been only $4,250.00.” Brief for appellant at 11.

Lynne admitted to withdrawing $8,000 from the parties’ 

joint bank account in anticipation of her marriage ending. 

She also admitted to either still having the money or having 

spent it. The trial court found that Lynne withdrew $8,500 

from the parties’ joint bank account prior to filing the divorce 

action and that the money was joint property and should be 

accounted for in the distribution of marital assets. The court 

attributed the $8,500 to Lynne as an asset awarded to Lynne 

in dividing the marital estate. There was no error by the court 

in doing so.

Lynne’s last assignment of error related to the court’s distribution of the marital estate is that the court erred in failing 

to award her any of the assets of FUBAR. As the trial court 

found, the evidence showed that James used funds from his 

individual retirement accounts to establish FUBAR, which 

subsequently purchased a duplex. None of these funds were 

acquired during the marriage or contributed to during the 

marriage. They were James’ sole property at the time of the 

marriage and were never put into joint tenancy with Lynne. 

The trial court found that based on the settlement agreement, 

none of the funds used to create and capitalize FUBAR were 

marital property. It further found, therefore, that the property 

owned by FUBAR is nonmarital and not subject to distribution in the marital estate. Based on the evidence in the record, 

we agree, and the trial court did not err in failing to award 

Lynne any of the assets of FUBAR.
- 585 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

Attorney Fees.

[9,10] Lynne next assigns that the trial court erred in finding 

that she should pay a portion of James’ attorney fees. The trial 

court ordered Lynne to pay $8,000 toward James’ attorney fees. 

In an action for dissolution of marriage, the award of attorney 

fees is discretionary with the trial court, is reviewed de novo 

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

of discretion. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 

(2006). 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. Id.

In determining that Lynne should pay a portion of James’ 

attorney fees, the trial court found that the original complaint 

for divorce was filed in June 2011 and that Lynne’s actions 

since then had caused prolonged litigation. Lynne’s actions, as 

noted by the court, included her lack of cooperation relating 

to the sale of the marital home, which resulted in the court’s 

appointing a receiver, and what the appointed receiver characterized as “vindictive behavior” once a prospective buyer was 

identified; her efforts to dismiss and refile the same case in 

another jurisdiction and, when unsuccessful, filing an appeal; 

her hiring of a private investigator; the issuance of subpoenas 

to numerous witnesses who were never called to testify; and 

her failing to disclose assets in discovery. Evidence showed 

that James had incurred over $40,000 in attorney fees, much of 

which was incurred as a result of Lynne’s actions listed above. 

We conclude that the trial court did not abuse its discretion 

in ordering Lynne to pay $8,000 toward James’ attorney fees. 

This assignment of error is without merit.

Discovery Costs.

Lynne’s final assignment of error is that the trial court 

erred in failing to require James to pay certain discovery 
- 586 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

costs, specifically Thanheiser’s bill to James for the costs in 

producing information pursuant to the order to compel production. She contends that it was error to require her to pay 

Thanheiser’s bill when it was James who requested the materials. She makes no further argument, and the only authority referenced in her brief to support her position is a “See” citation 

to Neb. Ct. R. Disc. § 6-334, which deals with the production 

of documents by parties. Brief for appellant at 13.

The trial court relied on a different discovery rule, Neb. Ct. 

R. Disc. § 6-334(A)(c)(1), which provides, in part: “A party 

or an attorney who obtains discovery pursuant to this rule 

shall take reasonable steps to avoid imposing undue burden or 

expense on a person subject to that subpoena.” The court also 

noted § 6-334(A)(c)(2)(B), which provides, in part, that when 

an order of production is issued on a motion to compel, a nonparty is to be protected “from significant expense.”

There is no evidence of any steps taken by James to avoid 

imposing undue burden or expense on Thanheiser. However, 

there was also no evidence presented as to how Thanheiser 

arrived at the amount he was requesting or to show that the 

amount was reasonable and necessary to comply with the 

court’s order. The bill from Thanheiser, although in the transcript, was not offered into evidence. There was evidence to 

indicate that a portion of Thanheiser’s expenses in complying 

with the motion to compel were a result of Thanheiser’s making separate copies of everything for the court, which was not 

requested and was inappropriate. There is no way to tell how 

much of the bill was attributed to the extra copies produced. 

Further, Thanheiser testified that he had no discussions or 

other communication with James’ counsel about the costs of 

producing the information prior to compiling the information, 

making extra copies, and delivering the information. Based 

on the evidence before us, we conclude that the trial court did 

not err in finding that James was not required to pay the bill 

from Thanheiser for the information produced pursuant to the 

motion to compel.
- 587 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

LISEC v. LISEC

Cite as 24 Neb. App. 572

CONCLUSION

We conclude that the court did not err in reinstating the 

case upon determining that James’ answer included a counterclaim. We further conclude that the court equitably divided 

the marital estate in accordance with the terms of the parties’ 

settlement agreement, and did not err in awarding attorney 

fees to James or in failing to require James to pay discovery costs. Accordingly, the trial court’s decree of dissolution 

is affirmed.

Affirmed