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LENERS v. LENERS

Cite as 302 Neb. 904

Sharon B. Leners, appella

Stacy M. Leners, app

___ N.W.2d ___

Filed April 19, 2019. No. S-18-072.

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

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

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

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

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

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

attorney fees.

2. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

3. Divorce: Property Division: Pensions. In dissolution proceedings, the 

trial court has broad discretion in valuing and dividing pension rights 

between the parties.

4. Child Custody. While the wishes of a child are not controlling in 

the determination of custody, if a child is of sufficient age and has 

expressed an intelligent preference, the child’s preference is entitled 

to consideration.

5. 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.

6. 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.

7. Courts: Attorney Fees. Courts have the inherent power to award attorney fees in certain unusual circumstances amounting to conduct during 

the course of litigation which is vexatious, unfounded, and dilatory, such 

that it amounts to bad faith.

Nebraska Supreme Court Online Library

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

06/28/2019 09:07 AM CDT
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Cite as 302 Neb. 904

Appeal from the District Court for Gage County: Ricky 

Schreiner, Judge. Affirm

Philip B. Katz and Steven J. Riekes, of Marks, Clare & 

Richards, L.L.C., for appellant.

Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellee.

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

Papik, and Freudenberg, J

Cassel, J

INTRODUCTION

Sharon B. Leners appeals from a decree dissolving her marriage to Stacy M. Leners. Although the district court may have 

overstated Sharon’s entitlement to a divorced spouse annuity 

in connection with Stacy’s railroad pension, it did not abuse 

its discretion in awarding Stacy his entire pension in equitably dividing the marital estate. Having reviewed the record de 

novo, we cannot say that the court’s determinations regarding 

custody, parenting time, child expenses, and attorney fees were 

untenable. We affirm the decree.

BACKGROUND

The parties married in 1997. In 2016, Sharon filed a complaint to dissolve the marriage. At that time, the parties had 

two minor children, one born in 1998 and the other in 2002.

On July 31, 2017, the court entered a temporary order 

awarding the parties joint custody of the children. Because 

Stacy’s employment takes him to different locations around the 

country from the 1st through the 8th day of the month and then 

the 16th to the 23d day of each month, the court provided him 

parenting time every month on the 9th to the 15th day and on 

the 24th to the last day of the month.

Three weeks later, the court conducted a trial. We summarize only the evidence relevant to the issues on appeal.
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Custody

The custody issue focused on the 15-year-old child, because 

the other child soon would be turning 19 years old (and did 

shortly before entry of the decree). The 15-year-old child testified in camera, and the court sealed her testimony. We consider 

this testimony in our de novo review, but decline to summarize it.

Both parties described a positive relationship with the child. 

Stacy requested shared legal and physical custody of the child, 

but Sharon asked for sole custody. According to Sharon, the 

temporary custody and parenting time arrangement was not in 

the child’s best interests, because it caused the child to cry and 

to be irritable and argumentative. Sharon did not believe that 

joint physical custody would work on a permanent basis. She 

anticipated having difficulty obtaining the child’s compliance 

and did not “feel [she] should have to force a 15[-]year-old” to 

comply with the parenting plan. Stacy testified to a willingness 

to put aside personal differences and work with Sharon even 

though he had been unable to do so in the past.

The parties offered different parenting time plans for the 

court’s consideration. Sharon proposed that Stacy have parenting time every other weekend from after school on Friday until 

10 a.m. on Sunday and on Thursdays each week from after 

school until 8 p.m. But Stacy testified that such a plan would 

leave him little one-on-one time with the child due to the 

child’s activities and Stacy’s work schedule. Stacy essentially 

asked for an extension of the temporary plan.

Pensi

Sharon is a registered nurse, and her proposed child support 

worksheets show her monthly income to be $3,693. Through 

her employer, she has a 401K account and a pension. She also 

has a Nebraska Public Employees Retirement Systems account. 

In Sharon’s proposed property division, she included the latter account and the 401K under her column at a total value of 

$38,301.28. Stacy’s proposed property division additionally 
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included Sharon’s pension from her employer at a value of 

$250 per month.

Stacy has worked for Union Pacific Railroad for nearly 12 

years. He is a “system semi driver,” and his proposed child support worksheet showed his monthly income to be $5,208. Stacy 

did not have a thorough understanding of his railroad pension, 

but he believed that the tier I component was not divisible, 

while the tier II component was. According to Stacy, Sharon 

was eligible to receive a payment from his railroad pension and 

she would receive some of his pension after they were divorced 

even without any order from the court. Stacy’s proposed property division suggested that Sharon receive a divorced spouse 

benefit of unknown value and that he would receive his 401K 

valued at $49,290. Sharon’s proposed property division showed 

that the “Railroad Retirement Board Creditable Compensation” 

of unknown value should be divided by a qualified domestic 

relations order.

The court received a “Statement of Railroad Employee’s 

Actual or Estimated Railroad Retirement Benefits” dated 

January 19, 2017, which was furnished for use in connection 

with a divorce. The statement reflected an estimate of Stacy’s 

current monthly benefit based upon employment with the railroad through December 1, 2015, assuming that he were now 

retired and entitled to payment of benefits. It showed the following monthly railroad benefit amounts:

Tier I railroad retirement benefit component . . . $956.00

Divisible railroad retirement benefit components

(Tier II, supplemental annuity, dual benefits) . . . $253.50

Total  monthly  railroad  retirement  benefits . . .  $1,209.50

Caution: The Tier I benefit component is not subject 

to division, and the Railroad Retirement Board will not 

recognize any property division made with respect to it.

The statement contained a section addressing the “Railroad 

Retirement Divorced Spouse Benefit Estimate.” That section 

provided: “Assuming current entitlement under the Railroad 

Retirement Act, the divorced spouse benefit for the spouse 
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of this railroad employee would be an estimated $441.00 per 

month, effective May 1, 2037, minus any social security benefits for the same month.”

Attorney Fe

Sharon informed Stacy that she was “not going to deal with 

him” and that any communications had to go through their 

attorneys. According to Sharon, the parties cannot “get along” 

and the police had been called five or six times to “keep the 

peace.” Stacy testified that he had incurred significant attorney 

fees to obtain parenting time and to obtain access to personal 

property. He testified he incurred attorney fees unnecessarily, 

and an exhibit showed his fees to be $14,982.50 prior to trial. 

Sharon’s attorney fees amounted to $13,867.75.

Decr

The court dissolved the parties’ marriage. It specifically 

found Stacy’s testimony to be more credible than the testimony 

of Sharon. The court characterized the matter as “extremely 

contentious,” explaining:

The parties have involved law enforcement multiple 

times, they have each requested temporary relief from the 

court including motions for temporary custody, parenting 

time, access to the marital home, possession of personal 

property, payment of expenses and support issues. They 

have each said and done things not becoming including 

but not being limited to name calling. The parties have 

made it very clear to one another, and to the Court, that 

they are not able to get along.

The court awarded the parties shared legal and physical 

custody of the children. It adopted the parenting time schedule proposed by Stacy, which awarded Stacy regular parenting time on the same days set forth in the temporary order. 

The court ordered each party to be responsible for one-half 

of the reasonable and necessary medical expenses of the 

child and of any mutually agreed-upon expenses for the 

child’s activities.
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The court awarded Sharon as her sole and separate property 

her 401K and pension and her Nebraska Public Employees 

Retirement Systems account. It awarded Stacy as his sole and 

separate property his Union Pacific Railroad pension and his 

401K. The court entered judgment in favor of Sharon in the 

amount of $50,019 and ordered that Sharon pay Stacy $9,000 

for his attorney fees.

Following the court’s denial of Sharon’s timely motion for 

new trial and motion to alter or amend, she brought this timely 

appeal. We moved the case to our docket.1

ASSIGNMENTS OF ERROR

Sharon assigns that the court erred in (1) interpreting federal 

law regarding retirement benefits that may be available for 

equitable distribution, (2) awarding joint custody and equal 

parenting time, (3) failing to allocate child expenses, and (4) 

awarding attorney fees to Stacy.

STANDARD OF REVIEW

[1] In a marital dissolution action, an appellate court reviews 

the case de novo on the record to determine whether there has 

been an abuse of discretion by the trial judge. This standard 

of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and 

attorney fees.2

[2] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court.3

ANALYSIS

Retirement Ben

Retirement pensions for railroad employees are governed 

by federal law. The Railroad Retirement Act of 19744 provides 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 582 (2018).

3 Gerber v. P & L Finance Co., 301 Neb. 463, 919 N.W.2d 116 (2018).

4 45 U.S.C. § 231 et seq. (2012).
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two tiers of benefits.5 Tier I benefits correspond to those an 

employee would receive if covered by the Social Security 

Act.6 Tier II benefits are like a private pension, and the benefits are tied to earnings and career service.7

 “In the past, 

courts were prohibited from awarding one spouse an interest 

in benefits to which the other spouse became entitled under 

the Railroad Retirement Act.”8 But Congress amended the act, 

and the Railroad Retirement Board must “honor a decree of 

divorce characterizing tier II benefits as property subject to 

distribution.”9 Tier I benefits remain excluded from consideration as divisible marital property.10

[3] In dissolution proceedings, the trial court has broad 

discretion in valuing and dividing pension rights between the 

parties.11 Here, the court awarded each party his or her own 

401K and pension as that party’s sole and separate property. 

Sharon argues that the court erred in interpreting federal 

law regarding retirement benefits available for equitable distribution and that the court should have equitably divided 

Stacy’s tier II pension benefits. But it appears that the court’s 

awarding each party his or her own pension was an effort to 

equitably divide the entire marital estate: an effort unaided 

by any evidence as to a present dollar value for either pension. The record does reflect that Sharon’s pension would 

amount to approximately $250 per month, while the tier II 

component of Stacy’s pension would be $253.50 per month 

for “reduced age” or $360 per month for “full age and service annuity.” The record does not show whether Sharon’s 

5 See Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1 

(1979).

6 See id.

7 See id.

8 Shearer v. Shearer, 270 Neb. 178, 181, 700 N.W.2d 580, 584 (2005).

9 Id., citing 45 U.S.C. § 231m(b)(2) (2000), and 20 C.F.R. § 295.1 (2005).

10 See McGraw v. McGraw, 186 W. Va. 113, 411 S.E.2d 256 (1991).

11 Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
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monthly pension amount is “reduced age.” Either way, we 

find no abuse of discretion by the court in awarding Stacy 

his railroad pension.

Sharon also contends that the court erroneously assumed 

she would receive a divorced spouse annuity. In connection 

with awarding each party his or her own pension, the court 

explained:

In so ordering, the Court notes that as it currently stands, 

[Sharon] shall receive a substantial sum from Union 

Pacific as a divorced spouse pension. [Stacy’s] pension 

(employee annuity) amount shall be his and his alone. To 

allow [Sharon] to receive her entire share of the divorced 

spouse pension (ranging between $441 and $679), plus 

half of his pension ($1209 divided by 2 = $604.50 or 

$17[1]9 divided by 2 = $859.50) would result in her pension payout being nearly 2/3s of the total. Such a result 

is inequitable. In reaching this conclusion, the Court has 

taken into account that [Sharon] shall receive all of her 

$250 monthly pension from [her employer].

We agree with Sharon that there is no guarantee she will 

receive “a substantial sum from Union Pacific as a divorced 

spouse pension.” To be eligible, a divorced wife must not 

be married12 and must not be entitled to Social Security benefits greater than the divorced spouse annuity.13 This error 

favored Stacy. But, on the other hand, the court’s calculation 

of the divisible portion of Stacy’s pension erroneously favored 

Sharon. Because federal law precludes marital division of tier I 

benefits, the correct numbers for Stacy’s tier II pension would 

have been between $253.50 and $360 instead of $1,209 and 

$1,719. Thus, even assuming that Sharon would be entitled to 

no divorced spouse annuity, we find no abuse of discretion in 

the court’s equitable division of the marital estate.

12 See 45 U.S.C. § 231a(c)(4)(ii).

13 See, 45 U.S.C. § 231a(f)(2); 20 C.F.R. § 226.30(f) (2018).
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Custody and Parenting

The court awarded the parties shared legal and physical custody and equal parenting time. Sharon argues that the arrangement is not in the younger child’s best interests and that the 

court should have awarded her primary custody and parenting time.

[4] Nebraska law explicitly provides that a court shall consider “[t]he desires and wishes of the minor child, if of an age 

of comprehension but regardless of chronological age, when 

such desires and wishes are based on sound reasoning.”14 We 

have held that while the wishes of a child are not controlling in 

the determination of custody, if a child is of sufficient age and 

has expressed an intelligent preference, the child’s preference 

is entitled to consideration.15 In our de novo review, we have 

considered the child’s age, her preference, and her reasoning. 

Her testimony concerning her relationship with each parent and 

custody preference did not contradict the parties’ testimony 

that they each had a good relationship with the child.

[5,6] 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.16 In a marital dissolution action, we conduct such a 

review to determine whether the trial judge abused its discretion.17 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.18

Here, both parties are fit and proper parents. The court 

attempted to fashion a parenting time schedule that would 

14 Neb. Rev. Stat. § 43-2923(6)(b) (Reissue 2016).

15 See Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).

16 Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).

17 See id.

18 Id.
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accommodate Stacy’s rather unusual work schedule, minimize 

the communication and coordination between the parties, and 

still serve the child’s best interests. The court observed that 

Sharon’s parenting plan—which would allow Stacy parenting 

time on four overnights twice a month but would vary on days 

of the week and days of the calendar—would require the parties to frequently communicate and cooperate in order to avoid 

conflict. The court reasoned:

It is in the best interest of the minor children that they 

have a good, strong, positive relationship with each parent. To have the same, it is necessary for each parent to 

have significant periods of time with the minor children. 

The best way to ensure the fewest exchanges for the 

minor child and minimize the contact between the parties 

is to set a schedule based on the known factors including 

[Stacy’s] work schedule. By doing so, it is established 

exactly what the parenting time schedule is and eliminates 

the strong possibility of further conflict or disagreement 

between the parties.

Although the court referred to “children,” from the context, 

it is clear that the court’s decree addressed only the younger 

child.

Here, the court decreed “shared” rather than “joint” custody. But, at least here, that seems to be a matter of semantics. 

And we recognize that we have said joint physical custody 

must be reserved for those cases where, in the judgment 

of the trial court, the parents are of such maturity that the 

arrangement will not operate to allow the child to manipulate the parents or confuse the child’s sense of direction, 

and will provide a stable atmosphere for the child to adjust, 

rather than perpetuating turmoil or custodial wars.19 While 

generally sensible, this is not a hard-and-fast rule. A statute 

specifically provides that a court may order joint custody “if 

19 See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
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the court specifically finds, after a hearing in open court, that 

joint physical custody or joint legal custody, or both, is in the 

best interests of the minor child regardless of any parental 

agreement or consent.”20 And we have affirmed a trial court’s 

decision not to modify an award of joint legal custody even 

though the evidence showed that the parties continued to have 

difficulty communicating and cooperating with one another.21

In light of Stacy’s unusual work schedule, the court’s favorable contrast of his credibility and reasonableness to Sharon’s, 

and the child’s relationship with both parents, we cannot say 

that the court’s award of shared custody and parenting time 

is untenable.

Allocation of 

Because we are affirming the award of shared custody, we 

consider Sharon’s claim that the court erred in failing to allocate expenses. Sharon argues that except for medical expenses 

provided in the decree, the court did not require that “all reasonable and necessary expenses of the child, including but not 

limited to clothing and extracurricular activities, be equally 

divided and not require any mutual agreement.”22

A statute requires a decree to address the parties’ responsibility for certain child expenses. “A decree of dissolution 

. . . shall incorporate financial arrangements for each party’s 

responsibility for reasonable and necessary medical, dental, 

and eye care, medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the 

child and calculation of child support obligations.”23 And Neb. 

Ct. R. § 4-212 (rev. 2011) provides that when child support 

20 See Neb. Rev. Stat. § 42-364(3)(b) (Cum. Supp. 2018).

21 See State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 

230 (2015).

22 Brief for appellant at 23 (emphasis in original).

23 Neb. Rev. Stat. § 42-364.17 (Reissue 2016).
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is to be calculated using worksheet 3, “all reasonable and 

necessary direct expenditures made solely for the [child] such 

as clothing and extracurricular activities shall be allocated 

between the parents.”

The decree, together with attachments, allocated the necessary expenses. As Sharon observes, the decree ordered the 

parties to each be responsible for one-half of the reasonable 

and necessary medical expenses. The parenting plan additionally required the parties to each “be responsible for the clothing, personal property, food and entertainment of the children 

during their own parenting time” and to “pay one-half of any 

mutually agreed upon expenses for activities of the minor 

children so long as the same is clearly stated and agreed to in 

writing prior to such expense being incurred.”

Although Sharon’s brief was not entirely clear, she confirmed that she was arguing that the district court should not 

have made any of the expenses for extracurricular activities 

subject to mutual agreement. Or, stated another way, that the 

decree should have required one parent to pay one-half of the 

child’s expenses for extracurricular activities authorized solely 

by the other parent. We do not agree that § 4-212 requires a 

trial judge to grant one parent carte blanche to compel the other 

parent to pay (either wholly or partially) for every conceivable 

extracurricular activity for a child. Certainly, the parties may 

agree to divide extracurricular activities in that way.24 But here, 

they did not agree.

Section 4-212 contemplates allocation between the parents 

of “all reasonable and necessary direct expenditures made 

solely for the [child] such as . . . extracurricular activities.” 

The record here does not establish that all of the child’s potential expenses for extracurricular activities met that standard. 

And given the acrimonious dispute on virtually every issue 

and the court’s assessment of Sharon’s credibility regarding an 

24 See Moore v. Moore, ante p. 588, 924 N.W.2d 314 (2019).
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extracurricular activity, the court could reasonably anticipate 

that the reasonableness and necessity of such expenses would 

be another source of contention—particularly if the court permitted Sharon to unilaterally dictate which activities would be 

permitted. Although Sharon filed a motion to alter or amend 

the decree, her motion did not specify any particular expenses 

to be so allocated. The tenor of the court’s decree shows that it 

trusted Stacy, but not Sharon, to be reasonable. If subsequent 

events show that Stacy responds unreasonably, the court has 

the tools to compel an equitable solution. We conclude that the 

court did not abuse its discretion in allocating reasonable and 

necessary expenses of the child.

Attorney Fe

Sharon contends that the court abused its discretion by ordering her to pay Stacy $9,000 in attorney fees. Stacy requested 

such an award, but the decree did not specifically explain why 

the court imposed these fees. Nonetheless, from the court’s 

specific findings, we discern a legal rationale.

[7] Courts have the inherent power to award attorney fees in 

certain unusual circumstances amounting to conduct during the 

course of litigation which is vexatious, unfounded, and dilatory, such that it amounts to bad faith.25 The decree set forth 

specific findings identifying Sharon’s conduct.

The court found that Sharon “doused in diesel fuel” some 

of Stacy’s clothing and destroyed Stacy’s grandmother’s dishes 

by “intentionally shooting [them] with a gun.” Sharon admitted 

that at the beginning of the proceeding, she told Stacy repeatedly in text messages that because he was the one who left, he 

was going to have to “pay for it.” Clearly, this conduct was, 

and was intended to be, vexatious. There was evidence that 

Stacy incurred attorney fees attempting to obtain parenting 

time and access to personal property and relating to the filing 

of tax returns.

25 Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
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The court’s decree provided a number of examples why 

it found Stacy’s testimony to be more credible, recounting 

numerous instances where Sharon’s testimony was unfounded. 

According to the decree:

[Sharon’s] testimony regarding the creation of the calendars she purported to have been created simultaneously 

with the events proved to be inaccurate in that the calendars were printed in March of 2017 and purported to 

reflect events dating back six months prior[, and] was 

not credible. [Sharon’s] testimony regarding her lack of 

knowledge of the birthdate, approximate age or address 

of the gentleman she had been dating for seven months 

prior was suspect. [Sharon’s] testimony that [the older 

child] lived in the marital home through the date of trial 

was admitted to be false on cross examination when she 

admitted that [the older child] had not stayed overnight 

in the home since May of 2017. [Sharon’s] testimony 

that [the older child] has never stayed overnight with 

[Stacy] since separation was admitted to be false on 

cross-examination. [Sharon’s] testimony that she did all 

of the transporting of [the younger child] during the marriage was also admitted to be false on cross examination 

when she admitted that when [Stacy] was not working, 

he picked [the child] up from school each day. [Sharon’s] 

testimony in her affidavit for temporary custody and her 

matching testimony at trial that [Stacy] promised to pay 

one-half of the current cheer bill of $260 a month was 

also admitted by her on cross examination to be false 

when she admitted that [Stacy] told her he could not 

afford to pay the increased fee of $260 a month (compared to the $110 a month) for [the cheer bill] and further 

she admitted that he had never agreed to pay it.

The record supports Stacy’s testimony that the attorney 

fees he incurred were often unnecessary and resulted from 

Sharon’s vexatious, unfounded, and dilatory conduct. Having 
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reviewed the record along with the parties’ arguments, we cannot say that the court’s award of attorney fees was an abuse 

of discretion.

CONCLUSION

Having reviewed the record de novo, we conclude that the 

court did not abuse its discretion in awarding Stacy his railroad 

pension, ordering shared custody and parenting time, addressing reasonable and necessary child expenses, and awarding 

attorney fees. We therefore affirm the decree.

Affirm