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300 Nebraska Report

WIEDEL v. WIEDEL

Cite as 300 Neb. 13

Jeanne E. Wiedel, appellee, 

Mark E. Wiedel, appella

___ N.W.2d ___

Filed May 18, 2018. No. S-17-349.

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. 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. In addition, a court should consider the income and earning 

capacity of each party and the general equities of the situation.

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

circumstances make it appropriate.

4. 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.

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

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

6. Alimony: Child Support. A party’s alimony obligation is to be set 

according to the income he or she has available after his or her child 

support obligations, if any, have been accounted for.

Nebraska Supreme Court Online Library

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

07/26/2018 01:08 AM CDT
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WIEDEL v. WIEDEL

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7. Alimony: Rules of the Supreme Court: Presumptions. An alimony 

award which drives the obligor’s net monthly income below the basic 

subsistence limitation set forth in the Nebraska Child Support Guidelines 

is presumptively an abuse of discretion unless the court specifically 

finds that conformity with the basic subsistence limitation would work 

an unjust or inappropriate result in that case.

8. Child Support. When determining whether the payment of certain 

childcare expenses will reduce the obligor’s net income below the basic 

subsistence limitation, a court is not to consider costs that are entirely 

speculative.

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

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

10. ____. The primary purpose of alimony is to assist an ex-spouse for a 

period of time necessary for that individual to secure his or her own 

means of support. Above all else, the duration of an alimony award must 

be reasonable.

Appeal from the District Court for Thayer County: Vicky 

Johnson, Judge. Affirme

Joseph H. Murray, P.C., L.L.O., of Germer, Murray & 

Johnson, for appellant.

Sheri Burkholder, of McHenry, Haszard, Roth, Hupp, 

Burkholder & Blomenberg, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, and Stac

and Moore, Chief Judge, and Arterburn, Judge, and Doy

District Judge.

Stacy, 

Mark E. Wiedel appeals from a decree of dissolution, assigning error to the amount and duration of the alimony award. 

Finding no abuse of discretion, we affirm.

I. BACKGROUND

Mark and Jeanne E. Wiedel were married in April 2000 and 

divorced in March 2017. They have three children, triplets, 
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WIEDEL v. WIEDEL

Cite as 300 Neb. 13

born in 2004. When the parties separated in October 2014, 

Mark, who farms land in Nebraska and Kansas, remained in 

the marital home in Hubbell, Nebraska. Jeanne, who works 

at a health clinic in nearby Hebron, Nebraska, moved to an 

apartment in Hebron. Throughout their separation, the parties 

voluntarily followed a shared parenting time schedule.

In August 2015, Jeanne filed a complaint for dissolution 

of marriage in the Thayer County District Court. Pursuant to 

temporary orders, Mark and Jeanne shared temporary joint 

legal and physical custody of their children, and followed a 

“week-on-week-off” parenting schedule. Mark was ordered to 

pay temporary child support of $768 per month and temporary 

alimony of $2,500 per month.

Shortly before trial, the parties executed a property settlement agreement (PSA) that addressed the division of their 

assets and debts. They also executed a custody agreement 

and parenting plan providing for joint legal and physical 

custody of the children, with a week-on-week-off parenting 

time schedule.

The parties could not reach agreement on the issues of child 

support, allocation of child tax credits, or alimony. In January 

2017, trial was held on these contested issues. Mark and 

Jeanne were the only witnesses.

1. Tria

At the outset of trial, the parties offered into evidence the 

PSA and the parenting plan. Both parties testified the parenting plan was in the best interests of the children and asked the 

court to approve it. Similarly, both parties testified the PSA 

was fair and reasonable, and they asked the court to approve 

it and incorporate it into the decree. Summarized, the PSA 

provided that each party should be awarded all bank accounts, 

stocks, bonds, and retirement accounts in his or her name. 

Additionally, Mark was to be awarded:

• The marital residence;

• All farmland owned by the parties in Nebraska and Kansas;
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WIEDEL v. WIEDEL

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• All rights, title, and interest in the farming operations 

of Wiedel Brothers, LLC, and another limited liability 

company;

• All grain, growing crops, machinery, equipment, and property 

related to the farming operation; and

• Three vehicles—a 2015 GMC Sierra pickup, a 2001 Grand 

Prix, and a 1988 Kawasaki motorcycle.

In addition, Mark agreed to pay all debts in his name and all 

debts incurred by the parties during the course of the marriage, except Jeanne’s student loan and her Discover credit 

card debt.

Under the PSA, Jeanne was to be awarded:

• A 2015 GMC Acadia;

• Two lots in Hubbell;

• All rights, title, and interest to a business known as Rose 

Creek Investment Group, LLC; and

• A judgment in the amount of $265,000, to be paid by Mark 

no later than March 10, 2017 (described in the PSA as an 

“equity adjustment”).

The PSA did not provide values for any of the identified 

personal or real property, nor did it indicate the balance of 

any of the accounts awarded or the debts assumed. Instead, 

the PSA simply recited the parties were “familiar with the 

extent of all property owned by the parties . . . , either separately or jointly, and accumulated since their marriage, and 

both are satisfied that they know the present value of that 

property.”

(a) Jeanne’s Testimony

Jeanne testified she did not work outside the home for several years after the triplets were born. She eventually returned 

to the workforce and, at the time of trial, was employed full 

time at a medical clinic in Hebron, earning $13.80 per hour. 

Her annual income in 2016 was about $30,000. She has a small 

retirement account of less than $6,000. Before trial, she tried 

to purchase a home but was denied a mortgage due to her low 
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WIEDEL v. WIEDEL

Cite as 300 Neb. 13

income. Jeanne testified that assuming the trial court approved 

the PSA, she planned to use the $265,000 judgment to purchase a home.

Jeanne acknowledged that under the PSA, Mark was getting 

“significantly more net assets” than she, but Jeanne asked the 

court to approve the PSA and testified she believed it was fair 

and reasonable. Jeanne explained that the only real estate she 

was receiving under the PSA was “the sewing shop,” which 

she described as a “small building in Hubbell.” No further evidence was adduced regarding the sewing shop.

Jeanne has rheumatoid arthritis. To manage her pain and 

symptoms, she takes several prescription medications, one of 

which costs $4,500 per month. And even after reaching her 

annual insurance deductible limit, Jeanne pays $120 per month 

in copays for prescription medication.

Jeanne offered two proposed joint custody child support 

calculations. Both worksheets listed Jeanne’s total monthly 

income as $2,283. Mark’s total monthly income was listed as 

$16,067 on one worksheet and as $12,456 on the other. Under 

Jeanne’s worksheets, Mark would owe monthly child support 

of either $1,685 or $1,362, respectively.

Jeanne asked the court to award each party one child tax 

exemption and to alternate the third exemption between the 

parties in even and odd years. Regarding alimony, Jeanne estimated her monthly expenses totaled $5,364 and her monthly 

income was $2,283. She asked the court to order Mark to pay 

alimony of $3,500 per month for a period of 15 years.

(b) Mark’s Testimony

Mark testified he derives income from three sources: (1) 

Wiedel Brothers, LLC; (2) farm rent paid to Mark by Wiedel 

Brothers; and (3) a hay farm he operates by himself. Mark testified that he and his brother formed Wiedel Brothers in 2011 

to operate their farming business. They each own 50 percent of 

the business and share equally in the profits and losses.
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WIEDEL v. WIEDEL

Cite as 300 Neb. 13

The court received into evidence the parties’ joint tax 

returns from 2013 through 2015, as well as the tax returns for 

Wiedel Brothers for the same years. The gross income reported 

by Wiedel Brothers was $1,782,789 in 2013, $1,390,680 in 

2014, and $1,477,322 in 2015. The parties’ joint tax returns 

show Wiedel Brothers income of $220,639 in 2013, $113,990 

in 2014, and $36,280 in 2015 (the year the divorce action was 

filed). Mark attributed this income fluctuation to declining 

grain prices. But he also testified that regardless of Wiedel 

Brothers’ income in a particular year, he always draws $6,000 

per month (or $72,000 per year) from the business.

Mark also testified that in late 2014 or early 2015, he inherited an additional 576 acres of farmland from his uncle. He 

estimated the inherited land had a value of about $1.5 million. Mark testified, over objection, that the total value of the 

real estate he was receiving under the PSA was approximately 

$2.5 million. There was no testimony regarding the value of 

any of the other assets or debts addressed in the PSA.

Mark testified that once the decree was entered, he planned 

to sell some of the farm property he was awarded and use 

the proceeds to (1) pay the $265,000 judgment to Jeanne, 

(2) pay off the debts he agreed to assume in the PSA, and 

(3) pay off the mortgage on the marital home he was to 

receive under the PSA. Mark estimated that selling some of 

the property would reduce his farm rental income by about 

$20,000 annually but would allow him to become basically 

“debt free.”

Mark testified that as part of his farming operation, Wiedel 

Brothers sometimes prepays for chemicals, seed, or fuel in 

order to take a tax deduction. In 2015, Wiedel Brothers’ 

tax returns showed it deducted $100,000 more in chemicals than in either of the prior 2 years. Mark also testified 

that the business stores grain, but no evidence was adduced 

regarding the estimated amount or value of such grain. Mark 

admitted that storing grain allows him to control when he 

receives income.
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WIEDEL v. WIEDEL

Cite as 300 Neb. 13

At trial, Mark offered his own joint custody child support calculation. His proposed worksheet listed Jeanne’s total 

monthly income as $2,500 and his total monthly income as 

$6,786.56. In calculating his income, Mark used a 3-year 

average of his farm income that included a straight-line depreciation deduction. Using that approach, Mark estimated his 

income was $209,165 in 2013, $25,865 in 2014, and $9,286 

in 2015, resulting in a 3-year average income of $81,438.67. 

Using that average income figure, Mark’s joint custody worksheet showed he would owe monthly child support of $876. 

Mark asked the court to award him two child tax exemptions 

and award Jeanne one.

Mark estimated that his monthly expenses (including his 

temporary child support and alimony payments) totaled $7,111. 

On cross-examination, Mark admitted that his plan to sell 

farmland and pay off his debts would reduce his monthly 

expenses. Mark also admitted that an award of alimony would 

be appropriate, but asked that it be set at $500 per month for a 

period of 5 years.

2. Decr

The court entered a decree of dissolution that approved 

the parties’ joint parenting plan, finding it was in the best 

interests of the children. The decree also approved the PSA, 

finding it was fair, reasonable, and not unconscionable, and 

the court incorporated the PSA into the decree.

Regarding child support, the court accepted Mark’s income 

estimates, adopted his proposed child support calculation, and 

ordered him to pay monthly child support of $876. The decree 

also ordered Mark to pay 70 percent, and Jeanne to pay 30 

percent, of the children’s uninsured medical expenses and their 

expenses related to clothing, schooling, and extracurricular 

activities. Mark was ordered to pay Jeanne alimony of $2,500 

per month for 10 years.

Mark moved for a new trial or, alternatively, to alter or 

amend the judgment, challenging only the alimony award. 
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WIEDEL v. WIEDEL

Cite as 300 Neb. 13

The court overruled Mark’s motion, and he timely appealed. 

We moved the case to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the 

appellate courts of this state.1

II. ASSIGNMENT OF ERROR

Mark assigns the district court abused its discretion by 

awarding Jeanne alimony of $2,500 per month for 10 years.

III. 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.2 This standard 

of review applies to the trial court’s determinations regarding 

custody, child support, division of property, alimony, and attorney fees.3

IV. ANALYSIS

[2] 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.4 In addition, a court 

should consider the income and earning capacity of each party 

and the general equities of the situation.5

[3-5] The purpose of alimony is to provide for the continued maintenance or support of one party by the other when 

1 Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

2 Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).

3 Id.

4 Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015). See, also, 

Neb. Rev. Stat. § 42-365 (Reissue 2016).

5 Anderson v. Anderson, supra note 4.
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WIEDEL v. WIEDEL

Cite as 300 Neb. 13

the relative economic circumstances make it appropriate.6

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.7 The ultimate criterion is one of reasonableness.8

 An appellate court is not inclined to disturb the 

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

the record.9

In this appeal, Mark does not claim Jeanne failed to show a 

need for alimony, nor does he suggest this is an inappropriate 

case for alimony. Instead, he argues the amount of the alimony 

award was unreasonably high and the duration of the award 

unreasonably long. We find no merit in either argument.

1. Alimony Amou

Not Unreasona

In challenging the amount of the award, Mark relies heavily on the fact the trial court adopted his child support worksheet, which calculated his total monthly income at $6,786.56. 

Using that monthly income figure, Mark argues he will not 

be able to meet his regular monthly expenses after paying 

$2,500 in alimony, $876 in child support, and 70 percent of 

other child-related expenses. He argues the trial court abused 

its discretion in setting the alimony amount, and he suggests it 

will force him to live at or below the poverty line.

[6,7] A party’s alimony obligation is to be set according 

to the income he or she has available after his or her child 

6 Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006); Hosack v. 

Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004); Marcovitz v. Rogers, 267 

Neb. 456, 675 N.W.2d 132 (2004); § 42-365.

7 Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004); Kalkowski v. 

Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000).

8 Id.

9 Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002).
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support obligations, if any, have been accounted for.10 And an 

alimony award which drives the obligor’s net monthly income 

below the basic subsistence limitation set forth in the Nebraska 

Child Support Guidelines11 is presumptively an abuse of discretion unless the court specifically finds that conformity with 

the basic subsistence limitation would work an “‘unjust or 

inappropriate’” result in that case.12

Currently, the basic subsistence limitation under the 

Nebraska Child Support Guidelines is $1,012 net monthly 

income.13 Mark contends that the combination of his child support obligations and his alimony obligation will reduce his net 

monthly income below this amount. Our de novo review of the 

record does not support this contention.

Using the income calculations from the child support worksheet adopted by the court, which no party challenges, Mark’s 

total monthly income is $6,786.56; after taxes, his net monthly 

income is $5,056.56. After accounting for his monthly child 

support obligation of $876 and his monthly alimony payment 

of $2,500, Mark is left with net monthly income of $1,680.56, 

an amount above the basic subsistence limitation.14

[8] Mark points out that he was also ordered, under the 

decree, to pay 70 percent of the children’s unreimbursed medical expenses, as well as expenses related to the children’s 

clothing, schooling, and extracurricular activities. His point is 

well taken, but there was no evidence offered at trial regarding 

the estimated amount of such expenses, and in the absence of 

such evidence, Mark’s share of these expenses is entirely speculative.15 When determining whether the payment of certain 

10 Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).

11 See Neb. Ct. R. § 4-218 (rev. 2018). Accord Gress v. Gress, supra note 10.

12 See Gress v. Gress, supra note 10, 274 Neb. at 702, 743 N.W.2d at 81.

13 See § 4-218.

14 Id.

15 See Gress v. Gress, supra note 10.
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childcare expenses will reduce the obligor’s net income below 

the basic subsistence limitation, a court is not to consider costs 

that are entirely speculative.16 Consequently, the record does 

not support Mark’s claim that the combination of his child 

support and alimony obligations will reduce his net monthly 

income below the basic subsistence limitation.

Moreover, other evidence in the record supports the reasonable conclusion that Mark has the financial ability to 

pay the child support, child-related expenses, and alimony 

ordered in the decree and still meet his other regular monthly 

expenses. We note the monthly amount of alimony ordered in 

the decree is the same amount Mark paid in temporary alimony throughout the pendency of the dissolution action. And 

there was no evidence at trial suggesting any sort of financial 

strain on his monthly budget as a result of his temporary support payments.

Additionally, under the PSA approved by the court, Mark 

received the marital home and income-producing farmland 

valued at approximately $2.5 million. Some of this farmland 

was inherited, but in weighing a request for alimony, the court 

may take into account all of the property owned by the parties 

when entering the decree, whether accumulated by their joint 

efforts or acquired by inheritance.17 The fact that Mark has 

been awarded income-producing farmland valued in excess of 

$2 million is not irrelevant to the alimony determination.18 Nor 

is it irrelevant that he plans to sell some of the farmland to 

become “debt free.”

[9] Finally, we cannot overlook evidence that Mark’s income 

as a self-employed farmer, and his earning potential, is significantly higher than Jeanne’s. Alimony is not a tool to equalize 

the parties’ income, but a disparity of income or potential 

16 Id.

17 Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).

18 See Binder v. Binder, 291 Neb. 255, 864 N.W.2d 689 (2015).
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income might partially justify an alimony award.19 Jeanne’s 

monthly income was deemed to be $2,500, and there was no 

evidence suggesting her earning potential was higher.

Mark, on the other hand, is a self-employed farmer. 

According to the tax returns, Mark’s share of the income from 

Wiedel Brothers varied from about $220,000 the year before 

the parties separated to about $36,000 the year the divorce 

was filed. But even in less profitable years, Mark always 

drew $72,000 annually from the business. Mark testified that 

Wiedel Brothers was storing grain at the time of trial, and he 

admitted that allows him to control when he receives income. 

He also admitted that his farming operation sometimes prepays for chemicals, seed, or fuel to take a tax deduction. And 

in the year the divorce action was filed, Wiedel Brothers’ tax 

returns showed that the deduction for chemicals was about 

$100,000 higher than in prior years. We do not highlight this 

evidence to suggest that Mark has intentionally underreported 

or manipulated his income, but, rather, to point out that the 

district court had ample evidence from which to conclude that 

Mark’s farming income, and his earning potential, was sufficient to support a monthly alimony award of $2,500.

2. Duration of Alimo

Not Unreasona

[10] Mark argues the district court abused its discretion in 

ordering alimony for a period of 10 years. Regarding the duration of an alimony award, we have recognized that the primary 

purpose of alimony is to assist an ex-spouse for a period of 

time necessary for that individual to secure his or her own 

means of support.20 Above all else, the duration of an alimony 

award must be reasonable.21

19 Anderson v. Anderson, supra note 4.

20 Id.

21 See id.
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Mark and Jeanne were married for 14 years before they 

separated. They share joint custody of three minor children, 

all of whom still reside at home. Given the length of the parties’ marriage, the ages of their minor children, and Jeanne’s 

chronic medical condition and high medication costs, we cannot say the trial court abused its discretion in ordering alimony 

for a period of 10 years.

V. CONCLUSION

On this record, we find no abuse of discretion in either the 

amount or duration of the alimony award. We affirm the district court’s decree.

Affirmed

Wright and Funke, JJ., not participatin