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ANDERSON v. ANDERSON

Cite as 27 Neb. App. 547

Brandi J. Anderson, appellee and cross-appellant, 

v. Donald J. Anderson, appellant

and cross-appellee.

___ N.W.2d ___

Filed September 3, 2019. No. A-18-754.

1. Divorce: 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.

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

appellate court is required to make independent factual determinations 

based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue.

4. ____: ____. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and 

observed the witnesses and accepted one version of the facts rather than 

another.

5. Divorce: Attorney Fees: Appeal and Error. In an action involving 

a marital dissolution decree, 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.

6. Divorce: Property Division. 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, 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.

Nebraska Supreme Court Online Library

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

09/10/2019 12:05 AM CDT
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7. ____: ____. The ultimate test in determining the appropriateness of the 

division of property is fairness and reasonableness as determined by the 

facts of each case.

8. ____: ____. As a general rule, all property accumulated and acquired 

by either party during the marriage is part of the marital estate, unless it 

falls within an exception to the general rule.

9. ____: ____. Exceptions to the rule that all property accumulated and 

acquired during the marriage is marital property include property accumulated and acquired through gift or inheritance.

10. Divorce: Property Division: Proof. The burden of proof to show that 

property is nonmarital remains with the person making the claim.

11. Divorce: Property Division. As a general rule, a spouse should be 

awarded one-third to one-half of the marital estate, the polestar being 

fairness and reasonableness as determined by the facts of each case.

12. Divorce: Property Division: Words and Phrases. “Dissipation of 

marital assets” is defined as one spouse’s use of marital property for a 

selfish purpose unrelated to the marriage at the time when the marriage 

is undergoing an irretrievable breakdown.

13. Divorce: Property Division. Marital assets dissipated by a spouse for 

purposes unrelated to the marriage should be included in the marital 

estate in dissolution actions.

14. ____: ____. Debts, like property, ought to also be considered in dividing 

marital property upon dissolution.

15. ____: ____. When one party’s nonmarital debt is repaid with marital 

funds, the value of the debt repayments ought to reduce that party’s 

property award upon dissolution.

16. Child Support: Evidence. Generally, earning capacity should be used 

to determine a child support obligation only when there is evidence that 

the parent can realize that capacity through reasonable efforts.

17. 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.

18. ____: ____: ____. In addition to the specific criteria listed in Neb. Rev. 

Stat. § 42-365 (Reissue 2016), in dividing property and considering 

alimony upon a dissolution of marriage, a court should consider the 

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

the situation.
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19. 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.

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

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

21. Visitation. The trial court has discretion to set a reasonable parenting 

time schedule.

22. ____. A reasonable visitation schedule is one that provides a satisfactory 

basis for preserving and fostering a child’s relationship with the noncustodial parent, and the determination of reasonableness is to be made on 

a case-by-case basis.

23. ____. Parenting time relates to continuing and fostering the normal 

parental relationship of the noncustodial parent.

24. ____. The best interests of the children are the primary and paramount 

considerations in determining and modifying visitation rights.

25. Attorney Fees. Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

26. Divorce: Attorney Fees. A uniform course of procedure exists in 

Nebraska for the award of attorney fees in dissolution cases.

27. ____: ____. Attorney fees and costs are often awarded to prevailing parties in dissolution cases as a matter of custom.

28. ____: ____. In awarding attorney fees in a dissolution action, a court 

shall consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of 

time required for preparation and presentation of the case, the novelty 

and difficulty of the questions raised, and the customary charges of the 

bar for similar services.

29. Attorney Fees: Affidavits: Evidence. Where a party seeks to recover 

attorney fees, the best practice will always be to provide an affidavit 

or other evidence such as testimony or exhibits. Litigants who do not 

file such an affidavit or present other evidence risk the loss of attorney 

fees because of the difficulty of discerning such information from the 

record alone.

Appeal from the District Court for Hall County: Mark J. 

Young, Judge. Affirmed as modified.

Mark Porto, of Porto Law Office, for appellant.
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ANDERSON v. ANDERSON

Cite as 27 Neb. App. 547

Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O., 

for appellee.

Riedmann, Arterburn, and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Donald J. Anderson appeals from the decree of dissolution 

entered in the district court for Hall County, which dissolved 

his marriage to Brandi J. Anderson. On appeal, Donald challenges the court’s property distribution and the calculations of 

his child support and alimony obligations. On cross-appeal, 

Brandi challenges the court’s visitation schedule, alimony 

award, and attorney fees determination. For the reasons that 

follow, we affirm the decision of the district court as to child 

support, alimony, the visitation schedule, and attorney fees. 

We modify in part the district court’s decision as to property division.

II. BACKGROUND

Donald and Brandi were married on September 25, 1999, 

and had three children together: a son, S.A., born in 2006; a 

daughter born in 2008; and a son born in 2015. After nearly 

17 years of marriage, the parties separated in July 2016, and 

Brandi filed an amended complaint for dissolution of marriage 

on August 15.

After a hearing on October 14, 2016, the court entered temporary orders that found the children’s need for a “significant 

amount of stability in their lives” made it inappropriate for 

the court to order joint custody with weekly transitions. Thus, 

the court gave Brandi temporary legal and physical custody of 

the children and allowed Donald to have parenting time every 

other weekend from Friday at 5 p.m. until Sunday at 7 p.m. 

During the weeks when Donald did not have weekend parenting time, he had 2 hours of parenting time with S.A. and his 

sister, individually, on one weeknight each. The parties subsequently agreed that Donald’s weekend parenting time would 
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begin on Thursdays instead of Fridays. They also agreed that 

Donald would have parenting time with all the children on 

Thursday evenings during weeks when he did not have weekend parenting time. The court also ordered Donald to pay 

temporary child support of $1,251 per month and temporary 

spousal support of $1,100 per month.

Trial was held on February 1 and 13, 2018. At trial, Brandi 

testified that she had obtained a student loan prior to the marriage, a portion of which was repaid during the marriage. In 

November 2017, the principal balance was $21,785, while 

interest payments totaled over $31,897 during the loan’s lifetime, which began in 1990. The loan financed Brandi’s education, which enabled her to become a licensed teacher. Brandi 

worked as a schoolteacher from the time the parties married in 

1999 until 2006, when S.A. was born. When S.A. was born, 

Brandi quit teaching and began caring for him full time. She 

testified that no daycare would accept him, because he rarely 

slept as an infant and cried, screamed, and needed to be rocked 

nearly constantly for several years. S.A. was later diagnosed 

with Asperger’s syndrome (Asperger’s).

S.A. developed violent tendencies and was prone to outbursts if unexpected or unplanned events occurred. Brandi testified that inconsistency in rules and consequences oftentimes 

led to S.A.’s bad behavior. Jealousy and seeing his siblings 

receive attention also led to S.A.’s outbursts. S.A. experienced 

suicidal thoughts, and in April 2017, he began talking about 

suicide in more detail and began acting out a plan to commit 

suicide. Brandi admitted S.A. to a hospital at that time.

Brandi offered testimony from a licensed independent mental health practitioner, Joan Schwan, who counseled S.A. 

from October 2016 through January 2018. Schwan also met 

the other children briefly. Schwan testified that because S.A. 

has Asperger’s, he needs a calm, structured living environment. She worked with him to process his feelings and 

handle anger. Schwan said that S.A. needs consistency across 

both parents’ homes and that it was detrimental for him to 
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view visitations with Donald as more fun because it was just 

the two of them. After a 5-day visit with Donald, S.A. told 

Schwan that he had not taken his medications and showered 

only once during that time. She knew that S.A. had “blowups” and “meltdowns” during which he would scream, kick, 

and hit others, particularly after spending one-on-one visitations with Donald.

Schwan opined that one-on-one visitations were not appropriate for S.A., because he viewed the individual attention as 

indicating that he was more special than his siblings. Schwan 

described that S.A. demands increasing amounts of his parents’ 

attention, especially once they respond by giving him attention. 

Schwan said that because of that attention-seeking cycle, oneon-one visitations may be appropriate for other children but 

were not appropriate for S.A., because “he plays it” and sees 

the additional attention as indicating that he is special, which 

leads to him demanding more time. She testified that it was 

important for S.A. to see Donald giving time to S.A.’s siblings 

and to “actually witness that [his sister] is just as important as 

he is.” She testified that her understanding was that S.A. would 

return from one-on-one visitations with Donald and brag and 

bully his sister about it. Schwan said that S.A.’s attitude similarly affects his schoolwork and recalled an instance of S.A.’s 

calling a classmate “a jerk because he wasn’t getting his way 

immediately.” Brandi also testified that S.A. returned from 

visitations with Donald and taunted his siblings but that S.A.’s 

behavior was much better when he returns from visitations that 

all the children attend.

Brandi described S.A.’s need for consistent routines and 

said that he “holds it all together during the school day” but 

can become volatile for a few hours after school until he gets 

into a routine again. However, she testified that S.A. does 

very well in school and had not had any disciplinary problems 

in school for the past 2 years. Her opposition to individual 

parenting time with Donald was based on her concern for 

the number of transfers and disruptions to their routine that 
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it caused. Brandi testified that she did not want to keep the 

children from Donald. Donald similarly testified that S.A. does 

“great in school” and had no more behavioral problems than 

any other student. Donald said that individual parenting time 

with S.A. was important to him in order to enjoy quality time 

together and described that the youngest child requires most of 

his attention when all the children are together.

Beginning in 2006, when S.A. was born, Donald was the 

family’s sole income earner. Donald worked as a business 

development manager at a construction company from sometime before the parties were married through 2003. He then 

worked briefly as a personal banker before beginning to work 

at Credit Management Services, Inc. (Credit Management), in 

2005. Donald left Credit Management in 2013 after having 

difficulties with his boss and because he was traveling for 7 

to 10 nights each month. When he left Credit Management 

in 2013, he was making an estimated $112,000 per year. 

From October 2013 through June 2014, Donald worked for 

an insurance company, earning commission only. He testified 

that the job required extensive travel and staying in hotels a 

minimum of three nights per week. Donald began working for 

Axis Capital, Inc., in 2014, earning a base salary of $45,000 

plus commission. When he was promoted in 2015, his base 

salary was raised to $70,000 plus commission. Tax documents 

show that the couple earned $132,200 in wages during 2015, 

the vast majority of which came from Donald’s work at Axis 

Capital. In 2016, after disclosing an affair with a colleague, 

Donald was demoted and his pay was reduced by $2,000 

per month. Donald then left his job with Axis Capital at the 

end of July, having earned $98,000 from January through 

July 2016.

Donald then worked for another construction company for 

2 months, where his annualized salary was approximately 

$81,000 before commission. In October 2016, he began working 

for Providence Capital, which paid him approximately $6,000 

per month plus commission during a 120-day probationary 
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period. He resigned from Providence Capital in February 2017 

and returned to Credit Management from March through May 

2017. At that time, Credit Management paid Donald an annual 

salary of $50,000 plus commission, which he said “wasn’t 

significant.” His territory included western Nebraska and eastern Kansas, which he said was not conducive to visitations 

with his children, because the divorce proceedings had begun 

by that time. When he left Credit Management in May 2017, 

he started his own firm, while also “actively seeking” other 

employment. He testified that he made approximately $4,400 

through that venture.

In September 2017, Donald began working for Hamilton 

Telecommunications and remained employed there at the time 

of trial. Hamilton Telecommunications paid Donald an initial 

base salary of $55,000 per year plus commission. His base salary would decrease by $5,000 per year as commissions built 

up, eventually bottoming out at a $35,000 minimum. His salary 

was projected to grow significantly year to year if he met his 

sales goals.

In 2007, Donald and Brandi purchased a home together in 

Grand Island, Nebraska, for $145,000. They added a bedroom 

and remodeled the master bathroom. Brandi testified that at 

the time of trial, the home’s roof was in “horrible shape” and 

needed repairs because the area around the chimney leaked 

when it rained. She said that roof repairs were estimated to 

cost $12,500. Brandi also testified that the windows were caving in, needed to be propped up, and let cold air blow inside. 

Brandi offered testimony from a real estate appraiser, who 

valued the home at $150,000. He testified that his appraisal 

accounted for the renovations and additions to the home. He 

also testified that, traditionally, a county assessor’s appraisal is 

supposed to be within 3 to 5 percent of a home’s full value and 

that county assessors do not individually appraise homes and 

do not make physical inspections of every home.

When the parties refinanced their home mortgage in 

2012, an appraisal was required, which valued the home at 
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$160,000. In 2017, the Hall County assessor valued the home 

for tax purposes at $171,449. At trial, Donald testified that he 

believed an accurate valuation of their home was $185,000, 

which he calculated by assuming that the tax-assessed value 

was 92 percent of the home’s actual value. Donald took issue 

with the valuation offered by Brandi’s expert, because he 

believed that the expert’s appraisal did not accurately reflect 

the home’s square footage, number of rooms, or age and that 

the homes used for comparison’s sake were substantially different. The appraiser, when asked about his report’s inaccuracies, said that the errors did not affect his valuation, because 

his ultimate opinion was based on his physical inspection of 

the property.

Donald testified that he and Brandi withdrew $20,000 

from his Credit Management retirement account in 2008 or 

2009 and used some of the funds to repay their home loan. 

They repaid the withdrawal before Donald’s employment 

with Credit Management ended. He said that the funds were 

used for home renovations and household items, while also 

acknowledging that some of the withdrawn funds were used to 

pay down gambling debts he incurred, but he did not estimate 

the amount.

In 2014, the parties withdrew approximately $60,000 from 

retirement accounts to offset decreased income, and Donald 

acknowledged that “a few thousand dollars” went toward gambling debt. Brandi stated that $2,000 of a $12,000 withdrawal 

in 2014 was never accounted for and that she assumed it was 

for gambling, because “[t]hat’s his pattern.” Donald acknowledged that he spent $570 on gambling in February 2017 and 

$1,762 on gambling in April 2017 after the parties’ separation. Brandi testified that Donald’s gambling was an issue 

throughout their marriage, because they had lost “thousands.” 

She acknowledged that Donald sought help for gambling and 

secured a church friend to act as his “accountability partner,” 

who met with Donald and went with him “to [his] bookie to 

cut ties” with him.
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Donald also described withdrawing $12,000 from retirement 

accounts during the summer of 2017 pursuant to an agreement 

with Brandi. He used the money to catch up on child support, 

spousal support, and health care payments.

During the marriage, Brandi’s grandmother made a number 

of gifts by checks that were made out to both Donald and her 

and some made to her alone. Brandi calculated the total of the 

checks made out to Donald and her jointly as $3,750, while 

the checks to her alone totaled $20,900. Brandi also acknowledged that Donald’s parents gave them approximately $5,000 

when they bought their first home.

Brandi testified that her grandmother died “about a week 

after [Donald] moved out of the house” and that she inherited $7,000 from her grandmother. Shortly thereafter, Brandi’s 

father, who was the personal representative of her grandmother’s estate, made gifts to a number of the heirs, including 

Brandi. Brandi said that the total amount she received was 

“[r]oughly lower 30’s, 30 some thousand.”

On July 6, 2018, the court entered a decree dissolving the 

marriage between Donald and Brandi. The court awarded legal 

and physical custody of the children to Brandi based on “the 

difficulties the parties have in communicating and the need 

for stability of the children (particularly [S.A.]).” The court 

awarded Donald parenting time every other weekend from 

5:30 p.m. on Thursdays until 7 p.m. on Sundays. Additionally, 

on the weeks when Donald did not have weekend parenting 

time, the court awarded him parenting time with the younger 

son for 11⁄2 hours on Mondays, with S.A. for 11⁄2 hours on 

Tuesdays, and with the daughter for 11⁄2 hours on Wednesdays. 

In awarding Donald one-on-one visitations with each of the 

children, the court cited the “lack of any evidence from the 

schools that the visitations were causing [S.A.] increased 

behavioral problems or any evidence concerning behavioral 

problems from a party other than [Brandi].” The court found 

that Schwan’s testimony was “unpersuasive” when she opined 

that one-on-one visitation was not best for S.A.
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The court found that the circumstances required using 

Donald’s earning capacity, not actual income, in computing his 

child support obligation. The court noted that while Donald’s 

changes to lower earning occupations may have been made in 

good faith, he nonetheless could earn more than he currently 

was. Additionally, the court held that the children would be 

seriously impaired as a result of Donald’s voluntarily diminished earnings. The court ordered Donald to pay support of 

$1,503 for three children, $1,302 for two children, and $883 

for one child. The court also ordered Donald to pay spousal 

support of $500 per month for 24 months.

In dividing the parties’ property, the court first found that 

Brandi’s expert offered “the most accurate valuation” of the 

marital home and, thus, valued it at $150,000. The court further found that a $20,000 loan from Donald’s IRA account 

was used to pay gambling debts and, as a matter of equity, 

“ultimately deprived the marital estate of $20,000 (by virtue 

of having to be repaid from the marital estate).” Therefore, the 

court considered that as a $20,000 asset belonging to Donald. 

Despite a difference of approximately $27,000 in the parties’ 

resulting property division, the court held that no equalization payment from Brandi to Donald was required, because 

Donald’s financial circumstances had resulted in a lower alimony award.

Donald now appeals from the district court’s order, and 

Brandi cross-appeals.

III. ASSIGNMENTS OF ERROR

Donald alleges that the court erred with respect to its property division in undervaluing the marital home, awarding a 

$20,000 retirement withdrawal to him as an asset, not accounting for Brandi’s student loan payments, and not ordering 

Brandi to make a property equalization payment. Donald also 

alleges that the court erred in calculating his child support obligation based on imputed income, not his actual income, and in 

ordering him to pay spousal support to Brandi.
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Brandi alleges on cross-appeal that the court erred in allowing Donald to have one-on-one parenting time with the children, not extending spousal support for longer than 24 months, 

and not awarding her attorney fees.

IV. STANDARD OF REVIEW

[1,2] 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. 

Westwood v. Darnell, 299 Neb. 612, 909 N.W.2d 645 (2018). 

This standard of review applies to the trial court’s determinations regarding both division of property and alimony. See id. 

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. Brozek v. Brozek, 292 Neb. 681, 874 

N.W.2d 17 (2016).

[3,4] In a review de novo on the record, an appellate court 

is required to make independent factual determinations based 

upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. Osantowski v. 

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

when evidence is in conflict, the appellate court considers 

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

observed the witnesses and accepted one version of the facts 

rather than another. Id.

[5] In an action involving a marital dissolution decree, 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. Moore v. Moore, 302 Neb. 

588, 924 N.W.2d 314 (2019).

V. ANALYSIS

1. Property Division

[6,7] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the 

equitable division of property is a three-step process. The 
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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. Despain v. Despain, 

290 Neb. 32, 858 N.W.2d 566 (2015). The second step is to 

value the marital assets and marital liabilities of the parties. 

Id. The third step is to calculate and divide the net marital 

estate between the parties in accordance with the principles 

contained in § 42-365. Despain v. Despain, 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. Lorenzen v. Lorenzen, 294 Neb. 204, 883 

N.W.2d 292 (2016).

[8-11] As a general rule, all property accumulated and 

acquired by either party during the marriage is part of the 

marital estate, unless it falls within an exception to the general 

rule. Westwood v. Darnell, supra. Such exceptions include 

property accumulated and acquired through gift or inheritance. 

Id. The burden of proof to show that property is nonmarital 

remains with the person making the claim. Id. As a general 

rule, a spouse should be awarded one-third to one-half of 

the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Osantowski v. 

Osantowski, supra.

(a) Home Valuation

With respect to the parties’ property division, Donald 

first argues that the district court erred in accepting Brandi’s 

$150,000 valuation of the marital home over his proposed 

$185,000 valuation. Brandi argues that the district court did not 

err in accepting her certified appraiser’s valuation of the home 

after observing his testimony. We find no abuse of discretion 

by the district court and, thus, affirm its valuation of the parties’ marital home.

The appraiser testified that the parties’ home was worth 

$150,000 based on his physical inspection. He acknowledged that his valuation was lower than the county assessor’s 
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valuation and explained that county assessors do not make 

physical inspections of individual homes. The appraiser also 

testified that the assessor’s valuations are usually not 100 percent of a home’s value but are within 3 to 5 percent of the full 

value. Brandi testified that the home’s roof was in “horrible 

shape” and described issues with the windows and chimney 

as well, all of which were also observed by her appraiser. 

Meanwhile, Donald based his opinion on the county assessor’s 

valuation of the home at $171,449, coupled with his belief that 

the assessor’s valuation was only 92 percent of the home’s 

actual value. Based on that assumption, Donald valued the 

home at $185,000. Donald also noted that the home had been 

appraised at $160,000 in 2012.

While we recognize that the district court accepted the 

home’s lowest valuation, we cannot find that its decision was 

an abuse of discretion. The district court benefited from observing testimony from Donald, Brandi, and Brandi’s appraiser 

and then determined that the valuation offered by Brandi’s 

appraiser was the most accurate, particularly given the testimony regarding the home’s condition. We give weight to the 

district court’s observations and acceptance of the $150,000 

valuation and, thus, affirm the property division with respect 

to the valuation of the marital home.

(b) IRA Depletion

In dividing the parties’ property, the district court allocated 

an “IRA Loan” valued at $20,000 to Donald, finding that the 

loan had been used to pay Donald’s gambling debts and that 

its repayment ultimately deprived the marital estate of that 

value. Donald’s arguments on appeal are twofold. First, he 

argues his gambling expenses were not incurred when the 

end of the marriage was inevitable and, thus, did not constitute dissipation of marital assets. Second, he argues that the 

evidence does not show that his gambling losses amounted 

to $20,000. Brandi argues in reply that Donald’s gambling 

expenses were not incurred for the benefit of the marriage and 
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that they totaled at least $20,000. We conclude that the district court erred in its property division regarding retirement 

withdrawals.

[12,13] We begin by reiterating the general rules that all 

property accumulated and acquired by either party during the 

marriage is part of the marital estate, unless it falls within an 

exception to the general rule, and that the burden of proof 

to show that property is nonmarital remains with the person making the claim. Westwood v. Darnell, 299 Neb. 612, 

909 N.W.2d 645 (2018). “Dissipation of marital assets” is 

defined as one spouse’s use of marital property for a selfish 

purpose unrelated to the marriage at the time when the marriage is undergoing an irretrievable breakdown. Reed v. Reed, 

277 Neb. 391, 763 N.W.2d 686 (2009). As a remedy, marital 

assets dissipated by a spouse for purposes unrelated to the 

marriage should be included in the marital estate in dissolution actions. Id. The court held in Reed v. Reed that disputed 

bank transfers took place when the marriage was undergoing an irretrievable breakdown, because the transfers were 

made “specifically because [the husband] intended to file 

for divorce.” 277 Neb. at 402, 763 N.W.2d at 695 (emphasis 

in original).

However, in the present case, there was little evidence that 

Donald’s gambling occurred while the marriage was undergoing an irretrievable breakdown. Although Donald’s gambling 

may have been an issue throughout the marriage, the parties 

did not separate until 2016, following Donald’s affair. Donald 

testified that a $20,000 loan from his IRA account occurred in 

2008 or 2009, 7 or 8 years before the marriage’s breakdown. 

While Donald acknowledged that some of the loan may have 

been used to pay gambling losses, the evidence indicates that 

the majority of the proceeds were used for other legitimate 

purposes. The district court assumed that the $20,000 loan 

was used to pay Donald’s gambling debts and thus assigned 

it as an asset belonging to him. However, there is little specific evidence that establishes Donald’s total gambling debts 
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during the entirety of the marriage to be $20,000. Even if we 

were to accept the district court’s finding as correct, there is 

no evidence that the loan or its repayment occurred during a 

time period in which the marriage was undergoing an irretrievable breakdown.

During questioning from the court, Donald acknowledged 

that he spent $570 on gambling in February 2017 and $1,762 

in April 2017. He also acknowledged that he spent “a few 

thousand dollars” on gambling in 2014. Similarly, Brandi testified that $2,000 from a withdrawal in 2014 was unaccounted 

for, which she believed indicated Donald spent the sum on 

gambling. Therefore, taken together, the record reflects that 

Donald may have expended approximately $4,300 on gambling. While it may be true that Donald gambled throughout 

the parties’ marriage, leading, in part, to its eventual demise, 

our record does not reflect that Donald dissipated $20,000 of 

marital property when the marriage was undergoing an irretrievable breakdown. As such, we find that the district court 

erred in classifying the $20,000 IRA loan as an asset belonging 

to Donald.

(c) Student Loan Payments

In dividing the marital estate, the district court held that 

Brandi’s inheritance and the use of marital funds to repay 

Brandi’s student loan debt “cancel each other” and therefore 

did not include either in the property division. Donald argues 

on appeal that the district court erred in not accounting for 

Brandi’s premarital student loan debt that was repaid, in part, 

with marital funds during the marriage. Brandi argues that the 

marriage benefited from the debt incurred, because the debt 

enabled her to obtain a teaching license and employment as 

a teacher from 1999 through 2006. She also argues that the 

amount of loan repayments was not sufficiently proved and 

that the gifts and inheritance that she received during the marriage offset the debt repayments, as the district court found. 

Although our reasoning varies from that of the district court, 
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we find no abuse of discretion in its ultimate conclusion and, 

thus, affirm.

[14,15] In dividing marital property, 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. Despain v. Despain, 290 Neb. 32, 858 N.W.2d 

566 (2015). Debts, like property, ought to also be considered 

in dividing marital property upon dissolution. See Black v. 

Black, 221 Neb. 533, 378 N.W.2d 849 (1985). When one 

party’s nonmarital debt is repaid with marital funds, the value 

of the debt repayments ought to reduce that party’s property 

award upon dissolution. See Gangwish v. Gangwish, 267 Neb. 

901, 678 N.W.2d 503 (2004).

In Wiech v. Wiech, 23 Neb. App. 370, 871 N.W.2d 570 

(2015), the trial court’s property division upon dissolution 

did not account for either spouse’s premarital debts that were 

reduced during the course of the marriage using the parties’ wages. The wife had a premarital bankruptcy debt that 

totaled $56,400, while the husband had an unspecified debt of 

$3,549.95, which he brought to the marriage. On appeal, the 

wife contended that she paid her debt using only her wages 

and that the debt was therefore paid without marital funds. We 

reiterated the general principle that any income accumulated 

during a marriage is a marital asset. See Harris v. Harris, 261 

Neb. 75, 621 N.W.2d 491 (2001). Because the trial court did 

not account for the parties’ premarital debts that were paid 

with marital funds, we remanded the matter with instructions 

to offset the wife’s portion of the marital estate by $56,400 

and to offset the husband’s portion of the marital estate by 

$3,549.95. Wiech v. Wiech, supra.

Brandi acknowledges that she brought student loan debt to 

the marriage. This student loan debt enabled Brandi to work 

as a schoolteacher, both from 1999 to 2006 at the beginning 

of the parties’ marriage and again upon the parties’ separation. 

Any repayments made after the parties’ marriage and prior to 

separation were made with marital funds. The value of those 
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repayments should therefore reduce Brandi’s share of the 

property division. See Gangwish v. Gangwish, supra. We note, 

however, that the value of Brandi’s premarital debt that was 

repaid using marital funds was not established during trial. 

The burden of proving the amount of the reduction of Brandi’s 

nonmarital debt during the marriage was on Donald.

Donald opined that $33,000 of Brandi’s premarital debt 

was repaid during the marriage, based on multiplying what 

he believed the monthly payment to be, $294, by 120 months, 

notwithstanding the fact that the parties’ marriage lasted for 

longer than 120 months. In her brief on appeal, Brandi accurately points out there was no evidence that the monthly 

payment was consistent throughout the loan’s life, that payments were made every month, or that the loan was never in 

deferment. A monthly student loan statement dated October 

30, 2017, reveals that a total of $35,643 had been paid in 

interest and $9,494 had been paid toward the principal of the 

consolidated loan since its inception in 1990. As of October 

30, the remaining balance on the loan was $24,105. However, 

the evidence at trial did not show what portion had been paid 

during the course of the marriage. Donald did not introduce 

any documentation that demonstrated what payments were 

made during the 9 years the loan existed prior to the marriage 

or what payments were made during the marriage. We find 

the evidence adduced by Donald to be insufficient to prove 

his claim.

The facts of this case are analogous to cases in which a 

party has attempted to claim a nonmarital asset, but could not 

do so since they were unable to definitively establish the value 

of that asset. In Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 

17 (2016), the trial court found that crops in storage and the 

balance of the husband’s bank accounts that held the proceeds 

of past crop sales as of the date of marriage should not be 

awarded to him as nonmarital property. The Nebraska Supreme 

Court affirmed the trial court judgment, finding that the husband had not definitively identified the values of his premarital 
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assets. As a result, since one cannot trace an unknown value 

of assets, the court found it to be unreasonable to set off a 

value of assets that is not proved. See, also, Osantowski v. 

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

In Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018), 

the husband testified that he purchased the family home 9 

years prior to the marriage. He testified to the purchase price 

and what he believed to be the amount of the original mortgage. He then testified to what he believed to be the value of 

the home on the date of marriage but provided no evidence 

regarding the balance of the mortgage at that time. No documentation was provided to confirm his testimony regarding 

the date of purchase, the purchase price, the amount of the 

mortgage, or the value of the house at the time of the marriage. 

The Supreme Court found that the equity in the residence at 

the time of the parties’ marriage would be a nonmarital asset, 

which, if established, should be set aside to the husband. 

However, given the lack of documentation that any equity 

existed at the time of the parties’ marriage, the Supreme Court 

found that the husband failed to meet his burden of proving 

that the property was a nonmarital asset.

Most recently, in Burgardt v. Burgardt, 27 Neb. App. 57, 

926 N.W.2d 452 (2019), the evidence demonstrated that the 

husband possessed a 401K at the time the parties were married. While the husband testified that the 401K was worth 

$130,000 at the time the parties were married, he provided no 

documentation to support his claim. The testimonial evidence 

raised further questions as to the accuracy of the husband’s 

valuation. Since an initial value could not be determined, it 

was impossible to determine what, if any, of the 401K was 

traceable to the time of the divorce. We concluded that since 

the husband had not proved the initial value of his claimed 

asset, he had failed to meet his burden of proving that a nonmarital asset still existed.

Here, while we can ascertain that Brandi’s student loan 

is nonmarital, the record before us provides us no way of 
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knowing how much of the principal and interest paid on the 

loan was paid during the marriage. Therefore, it is impossible 

to set off any specific value to Brandi based on marital funds 

that were used to pay off her student loan debt. We note that 

Donald’s testimony does not match the length of the marriage 

or the amount of the payment noted on the October 30, 2017, 

statement. Since we have no evidence which discloses the 

amount of money paid on the student loan during the marriage, we must find that Donald has failed to meet his burden 

of proof. As such, though for a different reason than stated by 

the district court, we find that no amount of payments made 

on the student loan can be attributed to Brandi as a marital asset.

(d) Equalization Payment

Donald assigns that the district court erred in not ordering 

Brandi to make an equalization payment based on his contentions addressed above and on the disparate shares of the 

marital estate that were awarded. We, like Donald, acknowledge that the district court’s division of the marital estate does 

narrowly fall within the general rule that a spouse be awarded 

one-third to one-half of the parties’ assets, because the court 

awarded approximately 361⁄2 percent of the marital estate to 

Donald. Our finding above that the district court should not 

have attributed the $20,000 loan from Donald’s retirement 

account as an asset to Donald requires us to first recalculate 

the value of the marital estate and then determine what, if any, 

equalization payment is required to be paid by Brandi.

In the decree, Brandi was awarded net assets of $64,936.67. 

Donald was awarded net assets of $37,402.57, which, due to 

our finding above, is reduced to $17,402.57 if no equalization 

payment is made. Without equalization, Donald’s portion of 

the net marital estate would only constitute approximately 21 

percent of the total. We find that amount to be untenable and 

in need of adjustment. However, we also find that the district 

court’s decision to award Brandi the majority of the marital 
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estate is supported by the evidence. The major portion of the 

marital estate granted to Brandi is the marital home, a finding not contested by Donald. Brandi has few liquid assets 

from which she can pay an equalization payment, particularly 

given Donald’s history of being in arrears on his payment of 

alimony, child support, and other expenses for the children he 

was obligated to pay under the temporary order. Brandi will 

continue to need the marital home for the children’s benefit. 

Thus, we modify the district court’s order and direct Brandi 

to make an equalization payment in the amount of $10,000 in 

order to bring Donald’s share of the marital estate back up to 

an approximately 33-percent share, thus conforming with the 

general rule that a spouse should be awarded one-third to onehalf of the marital estate.

2. Child Support Obligation

Donald argues on appeal that the district court erred in 

calculating his child support obligation based on his earning capacity instead of his actual income at the time of trial. 

Brandi argues in reply that imputing a higher income to 

Donald was appropriate because he voluntarily left more lucrative employment, during which his average annual salary over 

the past 5 years exceeded $100,000. We agree with the district 

court and find that imputing a higher income to Donald based 

on his earning capacity was not an abuse of discretion and, 

thus, affirm.

[16] The Nebraska Child Support Guidelines state that 

“[i]f applicable, earning capacity may be considered in lieu 

of a parent’s actual, present income and may include factors 

such as work history, education, occupational skills, and job 

opportunities.” Neb. Ct. R. § 4-204 (rev. 2016). Use of earning 

capacity to calculate child support is useful “‘“when it appears 

that the parent is capable of earning more income than is presently being earned.”’” Johnson v. Johnson, 290 Neb. 838, 

848, 862 N.W.2d 740, 749 (2015). Generally, earning capacity 

should be used to determine a child support obligation only 
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when there is evidence that the parent can realize that capacity 

through reasonable efforts. Id.

In the present case, Donald’s work history shows that he 

worked a number of jobs in which he earned more than $100,000 

per year. In 2013, when Donald left Credit Management, he 

was earning $112,000 per year. Donald earned a base salary 

of $70,000 plus commission in 2015 when he worked for Axis 

Capital, and records showed the couple’s income from wages 

was $132,200 that year, the vast majority of which came from 

Donald. When he disclosed an affair with a colleague in 2016, 

his salary was reduced by $2,000 per month. Nevertheless, 

when Donald voluntarily left Axis Capital, he had earned 

$98,000 from January through July 2016. Thereafter, Donald 

worked for a construction company, which paid a base salary 

of $81,000 per year plus commission, and then he worked for 

Providence Capital, which paid a base salary of $6,000 per 

month plus commission. At the time of trial, however, Donald 

was employed by Hamilton Telecommunications, which paid a 

base salary of $55,000 per year plus commission. He obtained 

that job after a brief return to Credit Management, which paid 

him $50,000 per year plus commission, and a brief stint of 

self-employment, during which he earned $4,400.

Donald indicated that he left more lucrative employment 

because he tired of traveling and being away from his children. 

The evidence does not show the extent of Donald’s efforts to 

obtain more lucrative employment. However, the evidence 

shows that when Donald maintains a job for more than a year, 

his income increases substantially by virtue of increased commissions. Much like his past work, Donald’s employment with 

Hamilton Telecommunications at the time of trial was projected to become significantly more lucrative during each subsequent year of employment if he met his sales goals. Based 

on the historical data contained in the offer letter, Donald has 

the potential to again have an income exceeding $100,000 

per year by his fourth year of employment if he performs 

according to expectations. We agree with the district court 
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that Donald’s financial position diminished due to his own 

conduct and decisions to leave more lucrative employment. 

Given Donald’s track record in past sales positions, the selfinflicted nature of his losses of income, and his demonstrated 

potential to increase his income in his current position, we 

find no reason to believe that Donald’s earning capacity has 

diminished. We further find that reducing child support would 

seriously impair the needs of his three children. Accordingly, 

we find that the district court did not abuse its discretion in 

relying on Donald’s earning capacity in calculating his child 

support obligation.

3. Spousal Support Obligation

Donald argues on appeal that the district court erred in ordering him to pay alimony to Brandi, because they earned similar 

salaries at the time of trial, he had paid temporary spousal support while the dissolution was pending, and his child support 

obligation was based on a greater-than-realized income. Brandi 

argued in reply that alimony was warranted because she had 

lost out on annual salary increases for the 10 years between 

S.A.’s birth and their separation that the parties had agreed 

she would not teach. On cross-appeal, Brandi assigns that the 

court erred in not ordering Donald to pay her alimony for more 

than 24 months. We find that the district court did not abuse its 

discretion in ordering Donald to pay Brandi alimony of $500 

for 24 months.

[17,18] “The purpose of alimony is to provide for the continued maintenance or support of one party by the other when 

the relative economic circumstances and the other criteria 

enumerated in this section make it appropriate.” § 42-365. 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 
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custody of each party. Anderson v. Anderson, 290 Neb. 530, 

861 N.W.2d 113 (2015). In addition to the specific criteria 

listed in § 42-365, in dividing property and considering alimony upon a dissolution of marriage, a court should consider 

the income and earning capacity of each party and the general 

equities of the situation. Anderson v. Anderson, supra.

[19,20] 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. Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 

582 (2018). An appellate court is not inclined to disturb the 

trial court’s award of alimony unless it is patently unfair on the 

record. Id.

Here, the district court awarded Brandi alimony of $500 per 

month for 24 months, effective August 1, 2018, after entry of 

the decree of dissolution. We do not find the amount awarded 

to be excessive, as assigned by Donald, nor do we find it to be 

insufficient, as assigned by Brandi. At the time of trial, Brandi 

had secured employment as a teacher earning $56,474.50 per 

year. We recognize that through the parties’ joint decision to 

have Brandi care for the children full time after they were 

born, she did lose the benefit of annual step salary increases 

that she would have received had she remained employed as a 

teacher. However, we also note that by the time the decree was 

entered, Brandi had already been awarded alimony at the rate 

of $1,100 per month for 22 months. Based on the duration of 

the marriage, Brandi’s employment, and other economic considerations, we find no abuse of discretion by the district court. 

The award of $500 per month for an additional 24 months 

properly balances the countervailing interests of the parties.

4. Parenting Time

On cross-appeal, Brandi assigns that the district court erred 

in finding that it was in the children’s best interests to have 
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individual visitations with Donald. She specifically argues 

that one-on-one visitations with Donald were inappropriate for 

S.A. because of his Asperger’s. We find that the district court 

did not abuse its discretion in allowing Donald to have individual parenting time with each of the children.

[21-24] The trial court has discretion to set a reasonable 

parenting time schedule. Schmeidler v. Schmeidler, 25 Neb. 

App. 802, 912 N.W.2d 278 (2018). A reasonable visitation 

schedule is one that provides a satisfactory basis for preserving and fostering a child’s relationship with the noncustodial 

parent, and the determination of reasonableness is to be 

made on a case-by-case basis. State ex rel. Pathammavong 

v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). 

Parenting time relates to continuing and fostering the normal 

parental relationship of the noncustodial parent. Thompson 

v. Thompson, 24 Neb. App. 349, 887 N.W.2d 52 (2016). 

The best interests of the children are the primary and paramount considerations in determining and modifying visitation 

rights. Id.

In the present case, Brandi argues that Donald’s individual 

parenting time with S.A. is detrimental because it exacerbates 

symptoms of S.A.’s Asperger’s. During trial, Brandi presented 

evidence that one-on-one visitations with Donald oftentimes 

preceded S.A.’s outbursts. She also offered testimony from a 

counselor, who treated S.A. and opined that individual visitations were not in S.A.’s best interests. Donald argued that 

individual parenting time was important because S.A. required 

more attention than the other children, thus shortchanging the 

other children of his attention during visitations with all the 

children. We note that Brandi did not contend that individual 

visitations for the two younger children with Donald had been 

or would be detrimental to the children, nor was there any evidence to support such a contention.

Under our standard of review, we do not supplant the trial 

court’s determinations with our own. We are mindful that the 

district court had the benefit of observing the counselor testify 
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in the present case before determining that her testimony was 

“unpersuasive.” The decree, which allows Donald to have 

individual parenting time with each child, is reasonable and 

preserves the children’s relationships with Donald. We further 

note that there was no evidence presented that S.A.’s one-onone visits with Donald resulted in misbehavior or diminished 

performance at school. Much of the counselor’s information 

regarding repercussions of the visits at home appears to be 

based on the report of Brandi. Therefore, we must give deference to the finding of the district court which gave little weight 

to the counselor’s testimony. We find no abuse of discretion by 

the district court in ordering Donald to have individual parenting time with each child and, thus, affirm the court’s determinations regarding parenting time.

5. Attorney Fees

On cross-appeal, Brandi assigns that the district court erred 

in denying her request for an award of attorney fees but goes 

on to argue that the court erred only if the division of the marital estate is modified pursuant to Donald’s appeal.

[25-28] Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and 

accepted uniform course of procedure has been to allow recovery of attorney fees. Moore v. Moore, 302 Neb. 588, 924 

N.W.2d 314 (2019). A uniform course of procedure exists in 

Nebraska for the award of attorney fees in dissolution cases. 

Id. Additionally, attorney fees and costs are often awarded to 

prevailing parties in dissolution cases as a matter of custom. 

See id. See, e.g., Garza v. Garza, 288 Neb. 213, 846 N.W.2d 

626 (2014). In awarding attorney fees in a dissolution action, a 

court shall consider the nature of the case, the amount involved 

in the controversy, the services actually performed, the results 

obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar 

services. Id.
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[29] Where a party seeks to recover attorney fees, the best 

practice will always be to provide an affidavit or other evidence such as testimony or exhibits. Id. The filing of an affidavit is not absolutely required, however. Id. Litigants who do 

not file such an affidavit or present other evidence risk the loss 

of attorney fees because of the difficulty of discerning such 

information from the record alone. Id.

The district court declined to award attorney fees to either 

party in the present case, noting that an award in favor of 

Brandi would be inappropriate “given the current relative 

financial situation of the parties.” We conclude that the district 

court did not err in not awarding attorney fees. Accordingly, 

we affirm the denial of an award of attorney fees to Brandi.

VI. CONCLUSION

Based on the foregoing, we affirm the district court’s property division with respect to its valuation of the marital home. 

We further find that Donald failed to prove the amount of 

money paid from marital funds on Brandi’s premarital student 

loan so as to attribute the amount of any payments made to 

Brandi as a marital asset. We also affirm the decree with respect 

to its calculation of Donald’s child support and spousal support 

obligations, parenting time, and attorney fees. However, we 

find the district court erred in its property division with respect 

to attributing the 2008 loan taken against Donald’s retirement 

account as an asset to Donald and therefore order Brandi to 

pay $10,000 to Donald in order to bring the division of the 

marital estate to a two-thirds to one-third split.

 Affirmed as modified.