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who may be guest passengers. In fact, we read the list provided 

in the statute to be an explanation of the type of relative that is 

within the second degree of relation to the owner or operator 

of the vehicle, whether the relationship be one of consanguinity 

or one of affinity.

Based on our review, we conclude that Faye and Eugene 

were related within the second degree of affinity. As a result 

of Faye’s marriage to Gordon, Eugene’s son, Eugene was 

Faye’s father-in-law and the two were related within the second degree of affinity pursuant to the language of § 25-21,237. 

Because Faye and Eugene were related within the second 

degree of affinity, Faye was a guest passenger and is prohibited 

from recovering any damages resulting from the September 

2009 automobile accident. We affirm the decision of the district court to grant Gordon’s motion for summary judgment and 

to dismiss Faye’s complaint with prejudice.

VI. CONCLUSION

Pursuant to § 25-21,237, Faye was a guest passenger in 

Eugene’s automobile at the time of the accident in September 

2009. As a result, Faye is prohibited from recovering any 

damages arising from that automobile accident. We affirm the 

decision of the district court to dismiss Faye’s complaint with 

prejudice.

Affirme

Brent Bussell, appellant and cross-appellee, 

Sheri Bussell, appellee and cross-appella

___ N.W.2d ___

Filed September 17, 2013. No. A-12-713.

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

Attorney Fees: Appeal and Error. In an action for the dissolution of marriage, 

an appellate court reviews de novo on the record the trial court’s determinations 

of custody, child support, property division, alimony, and attorney fees; these 

determinations, however, are initially entrusted to the trial court’s discretion and 

will normally be affirmed absent an abuse of that discretion.
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2. Judges: Words and Phrases. A judicial abuse of discretion exists when the 

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

a litigant of a substantial right and denying just results in matters submitted 

for disposition.

3. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the 

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

the parties’ property as marital or nonmarital. The second step is to value the 

marital assets and 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.

4. ____: ____. The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of 

each case.

5. ____: ____. Property which one party brings into the marriage is generally 

excluded from the marital estate.

6. ____: ____. The manner in which property is titled or transferred by the parties 

during the marriage does not restrict the trial court’s ability to determine how the 

property should be divided in an action for dissolution of marriage.

7. ____: ____. When awarding property in a dissolution of marriage, property 

acquired by one of the parties through gift or inheritance ordinarily is set off to 

the individual receiving the gift or inheritance and is not considered a part of the 

marital estate. An exception to the rule applies where both of the spouses have 

contributed to the improvement or operation of the property which one of the 

parties owned prior to the marriage or received by way of gift or inheritance, or 

the spouse not owning the property prior to the marriage or not receiving the gift 

or inheritance has significantly cared for the property during the marriage.

8. Divorce: Property: 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.

9. 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.

10. 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.

11. 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.

12. Alimony. Alimony should not be used to equalize the incomes of the parties or to 

punish one of the parties.
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282 21 NEBRASKA APPELLATE REPORTS

13. ____. In determining whether alimony should be awarded, in what amount, and 

over what period of time, the ultimate criterion is one of reasonableness.

14. ____. 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.

15. Divorce: Attorney Fees. In a marital dissolution action, an award of attorney 

fees depends on a variety of factors, including the amount of property and alimony awarded, the earning capacity of the parties, and the general equities of 

the situation.

Appeal from the District Court for Chase County: Davi

Urbom, Judge. Affirmed as modified

James C. Bocott, of Law Office of James C. Bocott, P.C., 

L.L.O., for appellant.

Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier 

& Byrne, P.C., for appellee.

Inbody, Chief Judge, and Irwin and Moore, Jud

Moore, Judge

I. INTRODUCTION

Brent Bussell appeals, and Sheri Bussell cross-appeals, 

from the decree of dissolution entered by the district court 

for Chase County dissolving the parties’ marriage. The parties 

challenge certain aspects of the district court’s determination 

and division of the marital estate. Sheri also assigns error to 

the court’s calculation of child support, failure to order Brent 

to pay health insurance premiums, and awards of alimony 

and attorney fees. For the reasons set forth herein, we affirm 

as modified.

II. BACKGROUND

The parties were married on August 5, 1995. They have 

two minor children, Ashlin Bussell, born in 1996, and Jadin 

Bussell, born in 1998. The parties separated in 2010. Brent 

filed a complaint for dissolution of marriage on July 5, 2010.

Sheri received $1,400 per month in temporary child support. It is not clear from the record on appeal whether the child 

support was voluntary or court ordered or when the payments 

began. On October 3, 2011, the district court ordered Brent to 
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pay Sheri additional temporary spousal support of $1,500 per 

month beginning on October 1.

The dissolution trial was held on January 18 and 19, 2012. 

Prior to trial, the parties entered into a parenting plan concerning custody and parenting time, which plan was received into 

evidence by the district court. The court heard evidence on 

the parties’ assets and debts, child support, alimony, and attorney fees. Specifically, the district court received documentary 

exhibits and heard testimony from witnesses, including the 

parties, Brent’s brother and father, Brent’s accountant, and two 

real estate appraisers. We summarize only the evidence relevant to the contested issues on appeal.

Sheri was employed when the parties married, but she quit 

working outside the home shortly before Ashlin was born. 

Thereafter, Sheri became the primary caregiver and performed 

most of the household chores, while Brent continued to work 

for his father on the family farm and earn the income for the 

parties’ monthly expenses. The parties mutually decided that 

it would be best for Sheri to stay home with the children, and 

they could financially afford for her to do so. Sheri did not 

return to work until 2003 or 2004, after Jadin was enrolled 

in school. Sheri took medical transcription courses online and 

also obtained a certified nursing assistant certificate or degree. 

She began courses for a nursing degree in 2007, but she quit 

because it was difficult for the children to have her gone. 

At the time of trial, Sheri was working at a Chase County 

clinic, earning $10.28 per hour. Her gross wages for 2011 

were $18,194.99.

Sheri testified that she wanted to pursue an advanced directive registered nurse degree, which would take 3 years to 

complete. She testified that it would cost about $11,000 a 

year plus mileage to either Sterling, Colorado, or North Platte, 

Nebraska, to receive such degree. She testified that opportunities for a registered nurse in Chase County are minimal 

compared to other areas, but that there are two nursing homes, 

a hospital, and a clinic in the county. The starting salary for 

a full-time registered nurse in Chase County would be $19 

an hour.
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Sheri testified about the ways she helped out on the farm 

during the marriage. She took lunches to the field so that the 

children could see Brent, made sure he had meals and clean 

clothes, helped move people and vehicles to different fields, 

picked up parts at several stores, delivered utility checks and 

loan payments, made bank deposits, picked up grain checks, 

and rode in the “semi” to deliver grain. In addition, she made 

sure all of the parties’ personal bills were paid and mailed, 

maintained their house and yard, and reminded Brent of the 

children’s activities.

Brent graduated from high school in 1985 and obtained his 

associate’s degree in production agriculture in 1987. Brent 

worked for approximately a year in Colorado before returning to Nebraska in 1988 or 1989 to work for the family 

farming partnership. Brent’s father formed an informal family farming partnership with Brent and Brent’s brother. Brent 

and his brother were each given a 20-percent interest in the 

partnership, and Brent’s parents had the remaining 60-percent 

interest. Brent did not pay anything or provide any particular 

consideration for his interest in the partnership. Brent has had 

no other employment since that time. Brent later received an 

additional 5-percent interest in the partnership, for a total of 25 

percent. The partnership was formalized in February 2010 as 

Bussell Farms.

The partnership owns grain and equipment, including 

machinery, tools, and supplies. Evidence was presented to 

value Brent’s 20-percent interest in the equipment that was 

owned by the partnership prior to his marriage in 1995 and to 

value his 25-percent interest at the time of trial. Specifically, 

the evidence included a farm equipment appraisal prepared by 

an appraisal service. The appraisal identifies the farm equipment owned by the partnership on the date of the marriage 

in 1995 and the equipment owned by the partnership as of 

September 29, 2011. The appraisal valued the premarital farm 

equipment at $955,850. It valued the equipment owned as of 

September 2011 at $1,982,200. The record shows that the partnership regularly buys and sells farm equipment at the end of 

each year.
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The partnership’s sole source of income is from the sale of 

grain. The partners each receive their respective percentage of 

the income from the grain sales, which they deposit into their 

own bank accounts, and the partners each pay their respective 

share of expenses associated with the grain production. At the 

time of trial, all of the 2011 beans and corn had been harvested 

and the wheat planted in 2011 remained in the fields to be harvested in 2012. It appears from the record that all of the 2011 

beans had been sold by the time of trial. Some of the 2011 

corn had been sold, and the remainder was stored in grain bins 

owned by the partnership. Of the stored corn, 95 percent had 

been contracted for sale. Depending on shrinkage that occurs in 

the bins, there may be remaining approximately 10,000 bushels 

of corn that had not yet been contracted or sold at the time 

of trial. Although not clear from the entire record, it appears 

from exhibit 71 that approximately 175,000 bushels of corn 

under contract were set to be delivered in January, February, 

and March 2012, after which the partners would receive their 

respective shares of the gross revenues. However, it appears 

from the record that the partnership had received significant 

income in early January 2012 and it is not clear whether this 

revenue derived from any of the contracted corn shown in 

exhibit 71.

The parties’ tax returns from 2005 to 2010 were received 

in evidence. The 2011 tax return had not yet been prepared 

at the time of trial. According to Brent and his brother, the 

2011 corn crop suffered significant hail damage, which cut 

the yield approximately in half compared to previous years. 

Brent expects that the revenue from the 2011 crops will be 

dramatically reduced because of the hail losses and that the 

impact will be felt for the next 2 years, a consequence that is 

not within his control. In addition, approximately 75 percent of 

the 2011 seed wheat was totally hailed out and the remainder 

was damaged.

At the time of the marriage, Brent owned an undivided onefourth interest in an acreage in Chase County. The acreage 

included a house, garage, and steel building. During the marriage, Brent’s parents gifted him the remaining three-fourths 
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interest in the acreage. In 1997, Brent executed a deed for 

the property to Brent and Sheri as joint tenants with right of 

survivorship. Brent testified that when he executed the deed, 

it was not his intent to make a gift to Sheri of one-half of the 

property; rather, he placed her name on the property because 

Sheri was concerned that she would lose the property if 

Brent died.

The parties lived in the house on the acreage for about 

8 years. Sheri testified that they made and paid for many 

improvements to the home, including a new roof, siding, 

windows, upstairs carpet, downstairs bathroom and bedroom 

carpet, a furnace, and central air conditioning. They also 

tore out and replanted trees, and they poured a concrete floor 

in the steel building on the property, which floor cost over 

$20,000. Sheri testified that they also spent $20,000 on a 

kitchen remodel, which included custom-made oak cabinets, 

new flooring, and new appliances. Finally, they put in a 

sprinkler system that cost about $5,000. The parties sold the 

property in 2003 for $120,000. They used the $120,000 in the 

construction of the marital home, where Sheri was residing at 

the time of trial and which was awarded to her in the division 

of property.

After the parties separated, Brent purchased a house for 

$156,000 and took out two loans for the full purchase amount. 

He purchased a 2010 Chevrolet Avalanche for his personal use. 

The house and vehicle, along with their corresponding debts, 

were included in the marital estate and assigned to Brent. Brent 

also purchased some household goods and furnishings for his 

new home, although it is not clear whether these items were 

listed in the court’s division of property.

We have set forth additional details of the evidence at trial 

as necessary to our resolution of this appeal in the analysis 

section below.

The district court entered a decree of dissolution on May 

18, 2012. The court approved the parties’ parenting plan, and 

pursuant to that plan, it awarded custody of Ashlin to Sheri and 

custody of Jadin to Brent, subject to each party’s rights of visitation with the other child as specified in the parenting plan. 

The court ordered Brent to pay Sheri child support of $816 
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per month, commencing June 1, pursuant to a split custody 

calculation. The court also ordered child support to increase 

to $1,431 when there was only one minor child remaining. 

We note that this portion of the child support award was later 

corrected through the court’s order on the parties’ motions for 

new trial. In calculating child support, the court assigned Sheri 

total monthly income of $1,782, with a net monthly income of 

$1,629.91, and Brent total monthly income of $11,153.93, with 

a net monthly income of $8,737.35. The court ordered Brent 

to pay 84 percent and Sheri to pay 16 percent of any medical, 

orthodontic, ophthalmic, and dental expenses not covered by 

insurance, in excess of $480 per year per child.

The district court gave Brent credit for his 20-percent premarital interest in the partnership equipment, which the court 

valued at $191,170, and for the gift of the additional 5-percent 

interest, which the court valued at $99,110. The court also 

gave Brent credit for the $120,000 from the sale of the Chase 

County acreage. The court awarded Brent two quarter sections 

of pivot-irrigated real property as marital property, which real 

estate was used by the partnership, and valued Brent’s interest 

in those tracts at $135,937.50 and $775,000. The court also 

awarded Brent his farm bank account, valued at $418,413.78 

as of January 11, 2012, as well as other miscellaneous property. In dividing the marital estate, the court assigned property 

and debt to Brent totaling $1,692,246.73 and property and 

debt to Sheri totaling $353,066.57. In order to equalize the 

division of the marital estate, the court ordered Brent to pay 

Sheri $650,000 and set forth provisions for the payment of 

the judgment.

Finally, the district court awarded Sheri alimony and attorney fees. The court ordered Brent to pay Sheri alimony of 

$1,500 per month, beginning July 1, 2012, and continuing for a 

total of 96 months. The court noted Sheri’s request for attorney 

fees in the amount of $70,000. The court also noted the evidence that Sheri withdrew $100,000 from Brent’s farm account 

and $18,264 from the parties’ savings account, and took $1,800 

in cash from the marital home at the time of the separation, 

which sums were used by Sheri for her living expenses during 

the separation. The court awarded attorney fees of $10,000, but 
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inadvertently ordered the payment of these attorney fees from 

Sheri to Brent, instead of from Brent to Sheri.

The parties filed motions for new trial, and on July 10, 2012, 

the district court entered an order amending the decree to order 

Brent to pay Sheri attorney fees of $10,000 and amending its 

child support award to order Sheri to pay Brent child support 

of $267 per month at the time when there is only one minor 

child remaining. Brent subsequently perfected his appeal to 

this court and Sheri her cross-appeal.

III. ASSIGNMENTS OF ERROR

Brent asserts that the district court erred in valuing his interest in the partnership farm equipment at $734,512.50.

On cross-appeal, Sheri asserts that the district court erred in 

(1) calculating the value of certain premarital assets of Brent 

and dividing the marital estate, (2) calculating child support 

and failing to order Brent to pay health insurance for Sheri for 

6 months following the dissolution and for the minor children, 

(3) failing to award alimony for a period of 10 years, and (4) 

awarding Sheri attorney fees of only $10,000.

IV. STANDARD OF REVIEW

[1,2] In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court’s determinations of custody, child support, property division, alimony, 

and attorney fees; these determinations, however, are initially 

entrusted to the trial court’s discretion and will normally be 

affirmed absent an abuse of that discretion. Mamot v. Mamot, 

283 Neb. 659, 813 N.W.2d 440 (2012). A judicial abuse of 

discretion exists when the reasons or rulings of a trial judge 

are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for 

disposition. Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 

N.W.2d 703 (2013).

V. ANALYSIS

We begin our analysis with the parties’ assignments of error 

regarding property division. Both parties challenge certain 

aspects of the valuation of Brent’s interest in the partnership 

farm equipment, and Sheri also challenges the credit given 
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to Brent for the premarital acreage, the failure of the court to 

include partnership grain as a marital asset, Brent’s alleged 

failure to account for certain checks received while the divorce 

was pending, and Brent’s alleged dissipation of assets during 

the pendency of the action.

1. Valuation of Premarital Ass

and Division of Marital Est

[3-5] Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the 

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

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

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

383, 824 N.W.2d 749 (2012). The ultimate test in determining 

the appropriateness of the division of property is fairness and 

reasonableness as determined by the facts of each case. Id. 

Property which one party brings into the marriage is generally 

excluded from the marital estate. Gress v. Gress, 271 Neb. 122, 

710 N.W.2d 318 (2006).

(a) Valuation of Farm Equipment

Both parties assign error to the district court’s valuation of 

Brent’s interest in the partnership farm equipment. We address 

Brent’s argument first and then Sheri’s.

(i) Brent’s Argument

Brent asserts that the district court erred in valuing his interest in the partnership farm equipment at $734,512.50.

In the decree, the district court, using the values from the 

appraiser, found that the premarital partnership equipment 

was worth $955,850, found that Brent’s 20-percent premarital 

interest was $191,170, and excluded this value from its calculation of the marital estate. The court then found that the current value of the partnership equipment was $1,982,200, found 

that Brent’s gifted 5-percent interest was valued at $99,110, 

and excluded that value from the marital estate. Brent does 

not take issue with these valuations and calculations. Rather, 

he asserts that the court erred in calculating his 25-percent 
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interest in the current partnership equipment at $734,512.50, 

as reflected in the court’s recapitulation chart contained in 

the decree. We agree with Brent that based on the court’s 

valuation of the current partnership equipment in the decree 

at $1,982,200, Brent’s 25-percent interest should be $495,550 

($1,982,200 × .25). We have reviewed the record and Brent’s 

arguments and agree that the court erroneously included a different figure in the chart than is supported by the evidence 

and reflected in the valuations contained in the body of the 

decree. Accordingly, we modify the marital asset division chart 

to reflect that Brent’s 25-percent interest in the Bussell Farms 

equipment is $495,550.

(ii) Sheri’s Argument

Sheri does not dispute that Brent should be given credit for 

his premarital interest in the partnership equipment, but she 

argues that he should be given credit only for his interest in the 

premarital equipment still owned by the partnership at the time 

of the dissolution.

In deciding to exclude the value of Brent’s premarital interest in the equipment from the value of the interest in the equipment owned at the time of trial, the district court relied on this 

court’s decision in Shafer v. Shafer, 16 Neb. App. 170, 741 

N.W.2d 173 (2007), a case involving the setoff of premarital 

cattle. In that case, the husband’s practice had been to sell 

cattle and purchase replacement cattle or additional cattle. The 

husband owned cattle at the time of the marriage, and throughout the marriage, the proceeds from the sale of cattle were 

reinvested in replacement cattle, producing the herd owned at 

the time of the divorce. In finding that the setoff should have 

been allowed, we stated:

Given the undisputed evidence concerning the cattle herd 

which we have recounted above, the controlling precedent 

on set-aside of premarital assets, and the fact that this is 

an equitable matter, we can discern no reason not to set 

aside to [the husband] that portion of the value of the 

present cattle herd which is attributable to [his] premarital 

cattle. In doing so, we view the cattle herd as in effect a 

single asset—rather than taking a “cow by cow” approach 
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to the tracing issue. Thus, we believe we have simply 

acknowledged the realities of what happens over time 

in a cattle operation. In short, while an individual cow 

which [the husband] owned in 1991 was long ago turned 

into hamburger, hot dogs, and shoe leather and thus is not 

traceable, the cattle herd itself, which has always been 

part of [his] farming operation, is in fact traceable. To do 

otherwise seems to us to exalt form over substance and 

ignore the equitable nature of a dissolution action.

Id. at 178, 741 N.W.2d at 179.

Although we are dealing with the replacement of farm 

equipment as opposed to cattle, we find no abuse of discretion 

in the district court’s reliance on Shafer under the particular 

facts of this case. The record shows that Brent, his brother, and 

his father would regularly trade and upgrade the partnership 

equipment. The court did not err in setting aside $191,170 and 

giving Brent credit for this amount as his 20-percent premarital 

interest in the equipment.

(b) Proceeds from Sale of Acreage

Sheri argues that Brent should not have been given credit for 

the $120,000 from the sale of the acreage that was then used to 

purchase the marital home.

Prior to the marriage, Brent owned an undivided one-fourth 

interest in an acreage in Chase County, and during the marriage, Brent’s parents gifted him the remaining three-fourths 

interest. Brent thereafter deeded the property to himself and 

Sheri. Brent testified that he did not intend to make a gift of 

the property to Sheri by placing her name on the deed, but only 

wished to make her a joint owner with right of survivorship 

in the event he were to meet an untimely death. Brent’s father 

also testified that he did not intend to make a gift to Sheri at 

the time of the conveyance and that he wanted the property 

to remain in the family. There is no evidence in the record of 

the value of the property at the time it was gifted to Brent; the 

only evidence of value is that the property was sold in 2003 for 

$120,000. There is no dispute that the $120,000 was applied to 

the purchase of the marital home, which Sheri is receiving in 

the property division.
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[6] Sheri argues that Brent’s conveyance of the property to 

the parties jointly showed an intent to turn the property into 

marital property. However, the manner in which property is 

titled or transferred by the parties during the marriage does not 

restrict the trial court’s ability to determine how the property 

should be divided in an action for dissolution of marriage. Plog 

v. Plog, 20 Neb. App. 383, 824 N.W.2d 749 (2012).

[7] Sheri also argues that an exception to the rule concerning the treatment of gifted property should apply in this case. 

When awarding property in a dissolution of marriage, property acquired by one of the parties through gift or inheritance 

ordinarily is set off to the individual receiving the gift or 

inheritance and is not considered a part of the marital estate. 

An exception to the rule applies where both of the spouses 

have contributed to the improvement or operation of the property which one of the parties owned prior to the marriage or 

received by way of gift or inheritance, or the spouse not owning the property prior to the marriage or not receiving the gift 

or inheritance has significantly cared for the property during 

the marriage. Id. When applying this exception, evidence of the 

value of the contributions and evidence that the contributions 

were significant are generally required. See id. See, also, Tyler 

v. Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997).

Although there is evidence in the record that the parties 

made certain improvements to the acreage during the time 

that they lived there and evidence of the cost associated with 

some of those improvements, there is no evidence to show the 

value of these improvements, that these improvements were 

significant, or that they resulted in an increase in the value of 

the property between the time the property was gifted to Brent 

and its sale. We find no error in the district court’s treatment of 

the acreage as Brent’s premarital or gifted property and in the 

credit to Brent of $120,000.

(c) Brent’s Interest in 

Partnership Grain

Sheri argues that the district court erred in not considering 

Brent’s interest in the partnership grain to be a marital asset. 

The evidence at trial showed that all of the 2011 beans and 
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corn had been harvested and that virtually all of the corn had 

been either sold or contracted. Some of the partnership’s contracted corn remained in the bins at the time of trial and was 

scheduled to be delivered to the buyers in the next couple of 

months. At the time of trial, the only growing crop was wheat. 

The evidence also showed that all of the crop insurance payments for 2011, except for one of approximately $6,000, had 

been received and deposited. After reviewing the evidence, the 

court found that the stored crops should not be treated as a 

divisible marital asset.

In Kalkowski v. Kalkowski, 258 Neb. 1035, 1042, 607 

N.W.2d 517, 524 (2000), the Nebraska Supreme Court declined 

“to adopt any bright-line rule as to whether or not crops which 

will eventually generate income may be treated as divisible 

marital property in a dissolution proceeding.” In Kalkowski, 

the Supreme Court found that inclusion of the growing and 

stored crops in the marital estate was not an abuse of discretion, primarily because the husband had valued these assets 

and asked to be awarded them in the division of the marital estate.

In this case, Brent did not value the stored crops as part of 

the marital estate and, in fact, he testified that awarding Sheri 

one-half of his portion of the partnership grain would amount 

to an award of half of his income for the upcoming year, which 

would have a significantly negative impact upon his ability 

to meet his farm expense obligations. The record shows that 

the only thing the partnership does to produce income is sell 

grain and that this is Brent’s only source of income. When the 

remaining 2011 corn is delivered to the buyers in 2012, Brent 

will receive his respective portion of the proceeds, which will 

be included in his 2012 income. In fact, Brent received a portion of the proceeds from the stored grain in January 2012, 

shortly before trial. Brent argues that including the remaining 

stored grain in the marital estate valuation would amount to 

“double-dipping,” because his child support and alimony payments are based upon and paid from his income derived from 

the sale of grain.

It was within the court’s discretion as to whether the stored 

grain in this case would be treated as a divisible marital asset. 
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294 21 NEBRASKA APPELLATE REPORTS

The court declined to do so, and under the circumstances of 

this case, we find no abuse of discretion. Even if we were to 

consider Brent’s portion of the 2011 stored grain as a marital 

asset, it is not clear from this record what the total value of 

the stored grain was at the time of trial, since some of the 

stored grain shown on various exhibits had recently been sold 

and the revenue distributed to the partners. Further, it was 

not clear from the record what Brent’s share of the expenses 

were in connection with the production of this 2011 grain, 

which should be considered in arriving at the net value of the 

stored grain. See Gebhardt v. Gebhardt, 16 Neb. App. 565, 746 

N.W.2d 707 (2008) (rejected inclusion of gross value of corn 

crop while ignoring all costs associated with planting, fertilizing, watering, and harvesting).

We reject Sheri’s argument that the district court abused its 

discretion in its decision to not include the stored grain in the 

division of the marital estate.

(d) Checks Received While 

Divorce Pending

Sheri argues that Brent failed to disclose or account for a 

number of checks he received while the divorce was pending. She first points to a check for $58,699 for hail insurance proceeds that was issued in September 2011, but not 

deposited by Brent until a week before trial. However, this 

$58,699 deposit was included in the bank account awarded to 

Brent in the division of marital assets, as reflected in exhibit 

94. Sheri also notes an insurance check for $38,775 that 

Brent stated he deposited into one of his accounts but which 

deposit he was unable to locate when reviewing copies of his 

statements at trial. Brent testified it was possible that when 

he copied his bank statements, he missed copying information on the back of a page, but in any event, he thought it 

had been deposited.

Other than stating that Brent failed to disclose or account 

for these crop insurance checks, Sheri presents no argument 

in support of this portion of her assignment of error. As noted 

above, the $58,699 check had been deposited and was included 

in the division of assets. We can find nothing in the record to 
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Cite as 21 Neb. App. 280

suggest that the handling of these checks was anything other 

than in the normal course of the farm’s business or that Brent 

was hiding assets. This argument is without merit.

(e) Dissipation of Marital Assets

[8,9] Sheri argues that Brent dissipated some marital assets 

following the parties’ separation. “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). Marital assets 

dissipated by a spouse for purposes unrelated to the marriage should be included in the marital estate in dissolution 

actions. Id.

Sheri points to trips Brent took to Las Vegas, Nevada, and 

Alabama, certain charges he made in Las Vegas, and his purchase of a television and a vehicle. She argues that these and 

any other substantial withdrawals made by Brent from the parties’ joint account following their separation should be taken 

into account in the division of the marital estate.

The record shows that both parties made withdrawals from 

their joint account at or near the time of separation, and we 

find no error in the district court’s failure to consider these 

withdrawals in the division of the marital estate. In this regard, 

we note that the court determined prior to trial to value the 

marital estate as of the date of trial. With regard to Brent’s 

purchase of a vehicle postseparation, this vehicle and the corresponding debt were included in the court’s division of the 

marital estate, as were the home and associated debt purchased 

by Brent after the separation.

Brent testified that he went to Las Vegas once following the 

separation and that he also took a friend to Alabama to look 

at a truck. However, no evidence was presented to indicate 

the cost of these trips, other than a credit card charge at a restaurant and an automated teller machine withdrawal totaling 

$1,600. Brent purchased a television and stand in the process 

of furnishing his new house for approximately $1,800, which 

does not appear to be listed on the court’s property division. 

After considering the overall division of this relatively large 
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296 21 NEBRASKA APPELLATE REPORTS

marital estate, we find no error in the district court’s treatment 

of these items addressed in this assignment of error.

(f) Conclusion Regarding Property 

Valuation and Division

Based on the above analysis and our finding regarding 

the value of Brent’s interest in the partnership equipment, 

we modify the total value of the marital property assigned 

to Brent to $1,641,934.23. Once the debts assigned to Brent 

of $188,650 are subtracted, Brent’s net portion of the marital 

estate becomes $1,453,284.23. When Sheri’s net portion of 

the marital estate ($353,066.57) is subtracted from Brent’s net 

portion, the difference is $1,100,217.66. Half of this amount is 

$550,108.83. We note that in the court’s original calculation of 

the equalization payment, one-half of the difference between 

the parties’ net awards was $669,590, which the court rounded 

down to $650,000 due from Brent to Sheri. Similarly, we determine that the property equalization payment reflected in the 

decree should be reduced from $650,000 to the rounded figure 

of $550,000. We modify the decree to enter judgment against 

Brent in favor of Sheri for that amount. We modify the provision of the decree regarding the payment of the property equalization payment to provide that Brent shall pay to Sheri, on or 

before October 1, 2012, the sum of $50,000 without interest. 

The balance of the judgment of $500,000 shall draw interest 

from the date of the decree and shall be paid in five equal 

annual principal installments of $100,000 each. In addition to 

the annual principal installment, Brent shall pay any accrued 

interest at the judgment rate of 2.142 percent per annum. The 

first annual payment shall be made on or before March 1, 

2013, and a like amount plus accrued interest on the first day 

of each March thereafter until the full amount of the judgment 

plus the accrued interest is paid.

2. Child Support

Health Insuran

Sheri asserts that the district court erred in calculating child 

support and failing to order Brent to pay health insurance 

for Sheri for 6 months following the dissolution and for the 

minor children.
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Cite as 21 Neb. App. 280

(a) Brent’s Income for Child 

Support Purposes

Sheri argues that the district court erred in determining 

Brent’s income for child support purposes. She takes issue with 

the deduction of depreciation expenses from Brent’s income 

and the court’s averaging of Brent’s income. In calculating 

child support, the court assigned Brent total monthly income of 

$11,153.93 and net monthly income of $8,737.35.

(i) Depreciation

With respect to depreciation, the Nebraska Child Support 

Guidelines provide:

Depreciation calculated on the cost of ordinary and 

necessary assets may be allowed as a deduction from 

income of the business or farm to arrive at an annualized total monthly income. After an asset is shown to be 

ordinary and necessary, depreciation, if allowed by the 

trial court, shall be calculated by using the “straight-line” 

method, which allocates cost of an asset equally over its 

useful duration or life. . . . A party claiming depreciation 

shall have the burden of establishing entitlement to its 

allowance as a deduction.

Neb. Ct. R. § 4-204.

Brent’s income tax returns for 2005 to 2010 were admitted 

into evidence. We note that Brent complied with § 4-204 of 

the guidelines, which requires any party claiming an allowance of depreciation as a deduction from income to furnish 

a minimum of 5 years’ tax returns. Brent also offered testimony from his accountant, Jeffrey Olsen. Olsen examined 

Brent’s prior tax documents and testified about how Brent had 

been claiming depreciation on farm and business equipment. 

Olsen testified that in many of the past few years, Brent had 

been using the “fast write off” method for the section 179 

elections to expense a lot of the equipment purchases in the 

year that they were purchased. Olsen opined that this may 

not accurately reflect Brent’s income in recent years. In an 

effort to comply with the above guideline regarding depreciation deduction, Olsen recalculated Brent’s depreciation schedules using a straight-line method from 2005 to 2010, which 
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298 21 NEBRASKA APPELLATE REPORTS

recalculation of depreciation was received in evidence. Olsen 

testified that in order to arrive at an adjusted net farm profit 

for Brent for purposes of determining child support income, 

the claimed depreciation on schedule F should be added back 

to the net profit and then the straight-line depreciation should 

be deducted.

We summarize Brent’s schedule F documents from his tax 

returns for 2006 to 2010 (5 years) and Olsen’s recalculation to 

arrive at the adjusted net farm profit as follows:

	 Net Profit	+	Depreciation	−	Straight-Line	=	Adj. Net

(Sch. F) (Sch. F) (Olsen) Profit

2006 $ 67,394 $ 43,778 $33,810 $ 77,362

2007 80,132 47,384 35,061 92,455

2008 95,758 51,115 39,098 107,775

2009 115,485 131,495 47,505 199,475

2010 127,858 127,306 62,995 192,169

While the district court did not specifically articulate how it 

arrived at its calculation of Brent’s monthly income, it is apparent from our chart above that the court averaged the adjusted 

income from 2006 to 2010 ($669,236 ÷ 5 years = $133,847.20 

÷ 12 months = $11,153.93). We conclude that the district court 

properly allowed and determined the depreciation deduction 

from Brent’s farm income to arrive at his monthly income as 

provided in the guidelines. Sheri’s argument to the contrary is 

without merit.

(ii) Income Averaging

The next question we must address is whether the district 

court properly averaged Brent’s income in calculating child 

support. As shown above, the court apparently utilized a 5-year 

average in determining Brent’s monthly income. Sheri argues 

that because Brent’s income is steadily increasing, the use of 

income averaging was error.

The Nebraska Supreme Court first discussed the propriety 

of using income averaging in determining a parent’s income 

for purposes of setting child support in Peter v. Peter, 262 

Neb. 1017, 637 N.W.2d 865 (2002). The court recognized 

that a footnote to worksheet 1 of the guidelines provided that 

“‘[i]n the event of substantial fluctuations of annual earnings 
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Cite as 21 Neb. App. 280

of either party during the immediate past 3 years, the income 

may be averaged to determine the percent contribution of each 

parent . . . .’” Peter v. Peter, 262 Neb. at 1023-24, 637 N.W.2d 

at 872. The father-obligor in Peter was working on commission 

as a stockbroker and successfully convinced the trial court to 

average his last 3 years of income in modifying his child support obligation. The Supreme Court found the income averaging to be error because the father’s annual earnings showed a 

clear pattern of consistently increasing income. In reaching this 

conclusion, the court noted that there was no evidence in the 

record to suggest the father’s current rate of earnings would 

decrease and that in fact, there was evidence to suggest that 

his income would continue to increase. This court applied the 

same rationale in a situation where the father-obligor’s income 

was steadily declining, finding that income averaging was not 

appropriate. See State on behalf of Hannon v. Rosenberg, 11 

Neb. App. 518, 654 N.W.2d 752 (2002). See, also, Lucero v. 

Lucero, 16 Neb. App. 706, 750 N.W.2d 377 (2008) (income 

averaging not appropriate where father-obligor’s W-2 statements for only 2 years do not show that his income has substantially fluctuated).

On the other hand, several cases have allowed the use 

of income averaging when dealing with farm income. The 

Nebraska Supreme Court addressed the issue of income averaging for a farmer in Gress v. Gress, 274 Neb. 686, 743 N.W.2d 

67 (2007). The husband-obligor had annual income which 

fluctuated the 3 years prior to trial from $51,654 to $61,059 

to $28,400, respectively. The Supreme Court recognized that 

as a self-employed farmer, the husband’s income was prone to 

fluctuations from year to year, which is the type of contingency 

provided for in the guidelines. The court discussed at length 

the number of years that a court should use when averaging 

income pursuant to the guidelines, including an unpublished 

decision from this court that used a 5-year average, and decisions or recommendations from other jurisdictions that support 

the use of 2-, 3-, 4-, 5-, and 10-year averages. The court in 

Gress concluded that a 3-year average tended to be the most 

common approach in cases where a parent’s income fluctuates and that courts appear reluctant to use more than a 5-year 
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300 21 NEBRASKA APPELLATE REPORTS

average. In Gress, the trial court used a 3-year average rather 

than the 8-year average urged by the husband. The Supreme 

Court concluded that even assuming that income averaging 

under the Nebraska guidelines is not limited to a 3-year average, the district court did not abuse its discretion by declining 

to use an 8-year average. We note that the Supreme Court 

recently found no abuse of discretion in averaging a fatherobligor’s income over 4 years where the income was derived 

from investments and included both years of gain and years 

of losses. See Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 

440 (2012).

In Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d 

721 (2004), this court affirmed a trial court’s utilization of 

a 3-year income average in calculating the father-obligor’s 

child support obligation. The father’s income was derived 

from farming, “a profession that is subject to income fluctuations based on a variety of factors.” Id. at 430, 675 N.W.2d at 

727. The father testified about the variety of factors that affect 

his income, including the farm economy, weather conditions 

and crop yields, and government payments. The father’s tax 

returns bore out such fluctuations, showing both increases and 

decreases over a 5-year period. Thus, we rejected the father’s 

argument that his current income should be used as opposed 

to the 3-year average, distinguishing this case from State on 

behalf of Hannon v. Rosenberg, supra, where the father’s 

income was derived from an hourly wage and no evidence 

existed to suggest that his pay decrease was temporary in 

nature. However, we also stated that “[t]his is not to say that 

the principles [income averaging not appropriate where income 

steadily increasing or decreasing] announced in Peter v. Peter

. . . and State on behalf of Hannon v. Rosenberg could never be 

applicable in calculating the child support obligation of someone engaged in the farming profession.” Willcock v. Willcock, 

12 Neb. App. at 430, 675 N.W.2d at 727.

This court again found that income averaging was appropriate in determining a self-employed farmer’s annual income 

in Pohlmann v. Pohlmann, 20 Neb. App. 290, 824 N.W.2d 63 

(2012). A review of the evidence in that case showed that the 

father’s income from farming was prone to fluctuations from 
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Cite as 21 Neb. App. 280

year to year, due in part to his use of the cash basis of accounting. Although the father’s income showed a pattern of decline 

for the 3 years prior to trial, we found merit to his argument 

that the court should have used the average income reported on 

his tax returns for the 3 years preceding trial, and we remanded 

the cause to the district court to recalculate the father’s income 

and resulting child support obligation. See, also, Hughes v. 

Hughes, 14 Neb. App. 229, 706 N.W.2d 569 (2005) (error 

found in failure to include 4-year average of trust income in 

calculating father’s child support obligation).

Applying the foregoing principles to the case at hand, we 

conclude that the district court did not abuse its discretion in 

using a 5-year income average in determining Brent’s income 

and resulting child support obligation. While Brent’s tax 

returns for the past 5 years show that his income has steadily 

increased, there is also evidence in the record to indicate that 

Brent’s farm income is subject to various factors outside of his 

control which can cause fluctuations. The district court did not 

err in setting Brent’s total monthly income at $11,153.93 for 

purposes of calculating his child support obligation.

(b) Health Insurance

The district court made no ruling in the decree for the provision of health insurance for the children, nor did it include 

an adjustment for health insurance premiums for the children 

in its child support calculation. Sheri argues that the district 

court erred in this regard and that Brent should be ordered 

to pay all of the children’s health insurance premiums in the 

future and to pay for her health insurance for 6 months following the dissolution. She also argues that she should be 

given credit for the health insurance premiums she paid during the separation and following trial, including credit for 

her own health insurance premium in the 6 months following 

the dissolution.

Neb. Rev. Stat. § 42-369(2)(a) (Cum. Supp. 2012) provides 

in part:

If the party against whom an order, decree, or judgment for child support is entered or the custodial party 

has health insurance available to him or her through an 
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302 21 NEBRASKA APPELLATE REPORTS

employer, organization, or other health insurance entity 

which may extend to cover any children affected by the 

order, decree, or judgment and the health care coverage is 

accessible to the children and is available to the responsible party at reasonable cost, the court shall require health 

care coverage to be provided.

The Nebraska Child Support Guidelines provide, “As required 

by . . . § 42-369(2), the child support order shall address 

how the parents will provide for the child(ren)’s health care 

needs through health insurance . . . .” Neb. Ct. R. § 4-215 

(rev. 2011).

At trial, Sheri asked the district court to order Brent to pay 

all health insurance premiums for the children and to pay her 

health insurance premium for 6 months following the dissolution. Up through the date of trial, Sheri had been “covered by 

the family plan . . . through Brent.” Sheri paid all of the health 

insurance premiums for the family after the divorce was filed 

in July 2010 to the time of trial. In an affidavit filed after trial 

and dated March 23, 2012, Sheri stated that the premium for 

the whole family is $778.46 per month and that she continued 

to pay the premiums after trial.

We agree that the district court erred in failing to address 

the provision of health insurance for the minor children in 

the decree. We modify the decree so that Brent is ordered to 

provide health insurance for the minor children, so long as 

such coverage is available to him through his health insurance 

policy at a reasonable cost, and is ordered to pay the premium 

for the children commencing on the date of the entry of the 

decree. However, because we do not have evidence of the 

cost to provide health insurance solely for the children, we are 

not able to make any adjustment to the child support calculation as allowed under § 4-215. We decline to require Brent to 

reimburse Sheri for premiums paid for the family during the 

pendency of the dissolution proceeding, because Sheri had 

both temporary support and the use of funds withdrawn from 

the parties’ accounts during this time. Likewise, we decline to 

require Brent to reimburse Sheri for the premium associated 

with her health insurance coverage after the trial. First, we note 
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Cite as 21 Neb. App. 280

from the record before us that Sheri’s request for reimbursement of premiums paid by her after the completion of the trial 

was not addressed by the trial court below, and as such, there 

is no error for us to review. Further, we note that Sheri was 

awarded alimony and a significant property award from which 

to pay for her health insurance.

3. Alimon

Sheri asserts that the district court erred in failing to 

award alimony for a period of 10 years. The court awarded 

Sheri alimony of $1,500 per month for 96 months, which is 

8 years.

[10-14] 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. Jensen v. Jensen, 

20 Neb. App. 167, 820 N.W.2d 309 (2012). 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. Id. Alimony should not be used to equalize the 

incomes of the parties or to punish one of the parties. Smith 

v. Smith, 20 Neb. App. 192, 823 N.W.2d 198 (2012). In determining whether alimony should be awarded, in what amount, 

and over what period of time, the ultimate criterion is one 

of reasonableness. Id. 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. Id.

The parties were married for over 15 years, and during 

the marriage, Sheri contributed by maintaining the parties’ 

household, being the primary caregiver for their children, and 

providing assistance with the farming operation in various 

ways. Sheri quit working outside the home when the parties’ 
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304 21 NEBRASKA APPELLATE REPORTS

first child was born, becoming the primary caregiver and 

performing most of the household chores. This was a mutual 

decision by the parties. Sheri returned to work in 2003 or 

2004. Sheri has taken medical transcription courses online and 

has obtained a certified nursing assistant certificate or degree. 

At the time of trial, Sheri was working at a Chase County 

clinic, earning $10.28 per hour, and her gross wages for 2011 

were $18,194.99. Sheri plans to pursue an advanced directive 

registered nurse degree, which will take 3 years to complete. 

Although she testified that opportunities for a registered nurse 

in Chase County are limited, the starting salary for a fulltime registered nurse would be $19 an hour, which is almost 

double her current wage. Sheri testified that she has monthly 

living expenses of $5,773.27. In addition to alimony and 

child support, Sheri has been awarded marital assets totaling 

$416,746.62. The only marital debt assigned to her is the mortgage on the marital home of $63,680.05, leaving a net marital 

estate of $353,066.57. Sheri is receiving property equalization 

payments of $550,000. Sheri will continue to receive alimony 

for a number of years after she has completed her 3-year nursing program. We find no abuse of discretion in the duration of 

the district court’s alimony award.

4. Attorney Fe

[15] Sheri asserts that the district court erred in awarding her 

attorney fees of only $10,000. Although the court noted in the 

decree that Sheri requested attorney fees of $70,000, her actual 

request at trial was for $50,000 in attorney fees. In a marital 

dissolution action, an award of attorney fees depends on a variety of factors, including the amount of property and alimony 

awarded, the earning capacity of the parties, and the general 

equities of the situation. Molczyk v. Molczyk, 285 Neb. 96, 825 

N.W.2d 435 (2013).

In awarding attorney fees to Sheri, the district court noted 

that at the time of the separation, Sheri took $100,000 from the 

parties’ farm account, $18,264 from their savings account, and 

$1,800 in cash from the family home. Sheri testified at trial 

that she did so to protect herself and the children during the 
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Cite as 21 Neb. App. 280

separation and that she has used the money for living expenses, 

including paying the mortgage on the marital residence and 

health insurance premiums for Brent and the children. At 

the time of trial, she had only $17,984.75 remaining of the 

$100,000. However, Sheri also received temporary child support of $1,400 per month and spousal support of $1,500 per 

month during the pendency of the proceedings. And, she will 

continue to receive $1,500 in monthly alimony for 8 years. 

Finally, Sheri has received a significant award of property and 

equalization payments.

We have reviewed the record and find no abuse of discretion 

in the court’s award of $10,000 in attorney fees to Sheri. Her 

assignment of error is without merit.

VI. CONCLUSION

As discussed above, we modify the marital asset division 

chart to reflect that Brent’s 25-percent interest in the Bussell 

Farms equipment is $495,550. We find no merit to the other 

assignments of error relating to the valuation of premarital 

assets, the credits given to Brent, and the division of the 

marital estate. We have modified the decree with respect to the 

property equalization payment as set forth above.

In determining Brent’s income for child support purposes, 

the district court properly allowed and determined the depreciation deduction and did not abuse its discretion in using a 

5-year income average in determining Brent’s income and 

resulting child support obligation. Accordingly, the court did 

not err in setting Brent’s total monthly income at $11,153.93 

for purposes of calculating child support.

We modify the decree so that Brent is ordered to provide 

health insurance for the minor children, so long as such coverage is available to him through his health insurance policy at 

a reasonable cost, and is ordered to pay the premium for the 

children’s health insurance commencing on the date of the 

entry of the decree. However, because we do not have evidence 

of the cost to provide health insurance solely for the children, 

we are not able to make any adjustment to the child support 

calculation. Further, we decline to require Brent to reimburse 
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306 21 NEBRASKA APPELLATE REPORTS

Sheri for premiums paid during the pendency of the dissolution 

proceeding or after trial.

We find no abuse of discretion in the duration of the district 

court’s alimony award or in its award of $10,000 in attorney 

fees to Sheri.

Affirmed as modif

Sam Grimminger and Kay Grimminger, appella

v. James Mudloff, appelle

___ N.W.2d ___

Filed September 17, 2013. No. A-12-1000.

1. Actions: Restrictive Covenants: Equity. An action to enjoin a breach of restrictive use covenants is equitable in nature.

2. Equity: Appeal and Error. In an appeal of an equitable action, an appellate 

court tries factual questions de novo on the record and reaches a conclusion 

independent of the findings of the trial court, provided, where credible evidence 

is in conflict on a material issue of fact, the appellate court considers and may 

give weight to the fact that the trial judge heard and observed the witnesses and 

accepted one version of the facts rather than another.

3. Restrictive Covenants: Intent. Restrictive covenants are to be construed so 

as to give effect to the intentions of the parties at the time they agreed to 

the covenants.

4. Restrictive Covenants. If the language of a restrictive covenant is unambiguous, 

the covenant shall be enforced according to its plain language, and the covenant 

shall not be subject to rules of interpretation or construction.

5. ____. Restrictive covenants are not favored in the law and, if ambiguous, should 

be construed in a manner which allows the maximum unrestricted use of the 

property.

6. Contracts. An ambiguity exists when the instrument at issue is susceptible of 

two or more reasonable but conflicting interpretations or meanings. Moreover, 

the fact that the parties have suggested opposing meanings of the disputed 

instrument does not necessarily compel the conclusion that the instrument 

is ambiguous.

7. Restrictive Covenants: Words and Phrases. A dwelling is a structure in which 

a person lives or that has been designed for living.

8. ____: ____. The term “residential” prohibits the affected real property from being 

utilized for commercial purposes.

Appeal from the District Court for Howard County: Kari

L. Noakes, Judge. Affirme