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Patricia A. Seivert, appellee and 

cross-appellant, v. Tyron A. 

Alli, appellant and 

cross-appellee.

___ N.W.2d ___

Filed May 21, 2021. No. S-20-209.

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

appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. When evidence is in 

conflict, the appellate court considers and may give weight to the fact 

that the trial court heard and observed the witnesses and accepted one 

version of the facts rather than another.

3. 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.

4. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law that an appellate court resolves independently of the trial court.

5. Statutes: Intent. When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, understood 

in context.

6. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

Nebraska Supreme Court Online Library

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

08/13/2021 01:10 AM CDT
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7. Statutes. It is not within the province of the courts to read meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

8. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

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

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

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

aside the nonmarital property to the party who brought that property to 

the marriage. The second step is to value the marital assets and marital 

liabilities of the parties. The third step is to calculate and divide the net 

marital estate between the parties in accordance with the principles contained in § 42-365.

10. ____: ____. The ultimate test in determining the appropriateness of the 

division of property is fairness and reasonableness as determined by the 

facts of each case.

11. Divorce: Property Division: Appeal and Error. As a general principle, 

the date upon which a marital estate is valued should be rationally 

related to the property composing the marital estate. The date of val

uation is reviewed for an abuse of the trial court’s discretion.

12. 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.

13. Divorce: Property Division. In addition to the specific criteria listed 

in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the 

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

the situation.

14. 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.

15. 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 a 

just result. The ultimate criterion is one of reasonableness.
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16. ____: ____. An appellate court is not inclined to disturb the trial court’s 

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

17. Divorce: Attorney Fees. In dissolution proceedings, 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 Douglas County: W. 

Russell Bowie III, Judge. Affirmed.

Kelly T. Shattuck, of Vacanti Shattuck, for appellant.

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, 

Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Tyron A. Alli appeals and Patricia A. Seivert cross-appeals 

the district court’s decree dissolving the parties’ marriage and 

dividing the marital estate. Both parties assign multiple errors. 

For the reasons discussed below, we affirm.

I. BACKGROUND

In December 2013, Seivert filed a complaint against Alli in 

the district court for Douglas County seeking a dissolution of 

their marriage. At the time the complaint was filed, the parties 

had four minor children, born in 1998, 2000, 2003, and 2004. 

Earlier in 2013, Alli had moved out of the home in which he, 

Seivert, and the children had lived.

The parties attempted to resolve disputed issues over the 

next several years. The matter eventually went to trial in July 

2019. The disputed issues included the following: if and when 

the parties were married; if the parties were not married, 

whether they should be treated as putatively married under 

Neb. Rev. Stat. § 42-378 (Reissue 2016); the date on which the 

marital estate should be identified and valued; the valuation of 

Alli’s business interests; and whether Alli should be obligated 
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to pay alimony. Evidence presented at trial relevant to the parties’ assignments of error is detailed later in this opinion.

On January 13, 2020, the district court entered a decree dissolving the marriage. The district court found that the parties 

were married on January 26, 2012, rejecting both Seivert’s 

arguments that the parties were either validly or putatively 

married in 1996, as well as Alli’s argument that the parties 

were never married.

The decree adopted the parties’ existing parenting plan, which 

awarded sole legal and physical custody of the minor children 

to Seivert subject to Alli’s parenting time. By the time of the 

decree, only two of the parties’ children were minors.

The decree ordered Alli to pay Seivert $8,390 per month in 

child support, $5,000 per month for 60 months in alimony, and 

$50,000 for attorney fees. The decree further ordered Alli to 

continue to pay tuition and educational expenses for the minor 

children to attend the private high school in which they were 

enrolled. It also provided, “The children’s 529 accounts or 

other accounts held for the benefit of the children shall be held 

by [Seivert] as a constructive trustee and/or custodian for the 

benefit of the minor children and their educational expenses.” 

In dividing the marital estate, the district court awarded to Alli 

a bank account containing $304,130 that the parties used to pay 

the minor children’s private school tuition.

Using January 26, 2012, as the date of the marriage, the district court divided the marital assets between the parties. The 

court utilized the date of trial as the valuation date for the division of the assets. Accordingly, the district court included in 

the marital estate an investment account and equity in a home 

that Alli purchased in 2014, both of which were funded by Alli 

with postcomplaint and postseparation earnings.

In valuing Alli’s business interests, the district court found 

that “the valuation of [Alli’s] business interests are most accurately determined by relying on [Alli’s] existing business and 

buy/sell agreement terms.” The district court awarded the marital portion of Alli’s business interests to Alli.
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The district court ordered Alli to make an equalization payment to Seivert of over $1.2 million. It also directed Alli to 

assign to Seivert over $800,000 in his retirement accounts to 

equalize the division of assets.

After the district court overruled Alli’s motion for new 

trial and Seivert’s motion to alter or amend, Alli appealed and 

Seivert cross-appealed.

II. ASSIGNMENTS OF ERROR

Alli assigns that the district court erred (1) by including 

in the marital estate property that he obtained after the parties separated and the complaint for dissolution was filed, (2) 

by ordering him to pay alimony, (3) by ordering him to pay 

attorney fees, and (4) by dividing an account intended for the 

minor children’s school tuition while also ordering him to be 

responsible for those costs.

In her cross-appeal, Seivert assigns that the district court 

erred (1) in its determination of the value of Alli’s business 

interests and (2) in its failure to find that the parties were putatively married in June 1996.

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. This standard 

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

attorney fees. Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 

631 (2020).

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

is required to make independent factual determinations based 

upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. Id. However, 

when evidence is in conflict, the appellate court considers 

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

observed the witnesses and accepted one version of the facts 

rather than another. Dooling v. Dooling, 303 Neb. 494, 930 

N.W.2d 481 (2019).
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[3] 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. Id.

[4] Statutory interpretation presents a question of law that 

an appellate court resolves independently of the trial court. 

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

IV. ANALYSIS

1. Seivert’s Cross-Appeal

(a) § 42-378

We begin with Seivert’s argument that the district court 

erred when it declined to treat the parties as putatively married 

in 1996 under § 42-378. Although Seivert provides little in 

the way of specifics, she generally contends that if the district 

court had found the parties were putatively married in 1996, 

the marital estate would have been larger and she would have 

been entitled to a larger equalization payment. Because the 

resolution of this issue could possibly impact the resolution of 

other assigned errors, we address it first.

(i) Additional Background

During the course of the proceedings, both parties took multiple positions as to whether and when they were married. In 

her initial complaint, Seivert alleged that the parties were married in Omaha, Douglas County, Nebraska, on June 16, 1996. 

In Alli’s answer to the initial complaint, he denied that the 

parties were married in Douglas County in 1996 and alleged 

that the parties were married in Douglas County on January 

26, 2012.

In an amended complaint, Seivert changed her allegations 

regarding the date of the marriage. She alleged that “[o]n or 

about” June 18, 1996, she “in good faith participated in a marriage ceremony and accordingly was married to [Alli] in Kauai, 

Hawaii.” She alleged that the parties renewed their vows on 

January 26, 2012, in Douglas County. Alli then changed his 
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allegations regarding the date of the marriage in his answer to 

the amended complaint. He denied Seivert’s allegations and 

alleged that no marriage ceremony took place in either 1996 

or 2012. He asked that the district court declare that the parties 

were never married and dismiss Seivert’s complaint.

Whether and when the parties married remained a disputed 

issue at trial, and both parties testified regarding the subject. 

Seivert testified that she and Alli met in 1994 and became 

engaged to be married in 1995. According to Seivert, she 

and Alli planned a trip to Hawaii in June 1996, where they 

intended to get married and have a honeymoon. Shortly before 

leaving for Hawaii, they obtained a marriage license application from the Douglas County clerk’s office. They partially 

completed the application, but did not sign or file it, and they 

did not participate in a marriage ceremony in Nebraska at that 

time. Seivert testified that in Hawaii, she and Alli signed some 

papers and participated in a marriage ceremony on the beach 

by their hotel. She recalled being given some type of certificate, but did not recall what she or Alli did with it.

Alli agreed that the parties were engaged prior to June 

1996 and that they traveled to Hawaii in that month, but he 

testified that they went there solely for a vacation. He denied 

that they participated in any ceremony in Hawaii and denied 

that they applied for or obtained a Hawaii marriage license. 

Alli acknowledged that after returning from Hawaii, the parties consistently represented themselves as husband and wife. 

According to Alli, he believed the parties were married at the 

time as a result of their obtaining a license in Douglas County 

prior to leaving for Hawaii.

Approximately 16 years later, Seivert was asked to provide 

documentation of her marital status as part of an insurance 

audit. She testified that she was unable to find the marriage 

certificate and that she was told by “Hawaii” that any records 

had been “purged.” Because she was unable to locate documentation and did not have time to search further, Seivert testified that she and Alli agreed to obtain a marriage license in 
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Douglas County and have a ceremony performed. In a handwritten, signed, and dated statement on the marriage license 

application, Seivert and Alli both acknowledged that they were 

married in a ceremony in June 1996, but that the marriage 

certificate paperwork was misplaced and never received by 

the Douglas County clerk’s office. Alli testified he signed the 

acknowledgment of a prior ceremony because Seivert asked 

him to, but it was a lie.

Seivert and Alli again provided conflicting testimony about 

whether a marriage ceremony took place in 2012. Seivert 

asserted that a ceremony was held in the parties’ Omaha home 

on January 26 of that year. Alli disputed that such a ceremony 

took place.

As noted above, the district court found that the parties were 

not validly married in Nebraska or any other state in 1996. It 

concluded that under Nebraska and Hawaii law, a valid marriage required both a duly obtained license and a ceremony performed by a person licensed to solemnize marriage. The district 

court found that the parties did not sign and file a Nebraska 

marriage license in 1996, nor was a ceremony performed in 

Nebraska in that year. In addition, the district court found a 

lack of evidence that the parties obtained a marriage license or 

participated in a marriage ceremony in Hawaii.

The district court also rejected Seivert’s argument that it 

should treat the parties as putatively married in 1996 under 

§ 42-378. The district court concluded that § 42-378 applied 

only if the parties completed the necessary requirements to 

enter into a valid marriage and that marriage was later declared 

a nullity.

The district court rejected Alli’s argument that the parties 

were never married, finding that the parties were validly married in Douglas County in January 2012.

(ii) Analysis

Seivert’s sole argument regarding the date of the parties’ 

marriage is that the district court erred by not treating the 
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parties as putatively married in 1996 under § 42-378. She does 

not assign and argue on appeal that the parties were validly 

married in 1996. Alli likewise does not challenge on appeal 

the district court’s finding that the parties were validly married in 2012. We thus limit our consideration to the question of 

whether the district court erred by declining to treat the parties 

as putatively married in 1996 under § 42-378.

Section 42-378 provides:

When the court finds that a party entered into the contract of marriage in good faith supposing the other to be 

capable of contracting, and the marriage is declared a nullity, such fact shall be entered in the decree and the court 

may order such innocent party compensated as in the case 

of dissolution of marriage, including an award of costs 

and attorney fees.

Section 42-378 “closely parallels” a doctrine adopted in 

many other states, either through case law or by statute, 

referred to as the “putative marriage doctrine.” Hicklin v. 

Hicklin, 244 Neb. 895, 901, 509 N.W.2d 627, 631 (1994). As 

one commentator described the putative marriage doctrine, “it 

is designed to allow all the civil effects—rights, privileges, and 

benefits—which obtain in a legal marriage to flow to parties 

to a null marriage who had a good faith belief that their ‘marriage’ was legal and valid.” See Christopher L. Blakesley, The 

Putative Marriage Doctrine, 60 Tul. L. Rev. 1, 2 (1985).

Seivert argues that the district court should have applied 

§ 42-378, because Seivert and Alli both believed in good faith 

that they were married in 1996 and lived and represented 

themselves as a married couple for years thereafter. As Seivert 

understands § 42-378, it does not matter whether she and Alli 

obtained a license and participated in a marriage ceremony in 

either Nebraska or Hawaii in 1996.

We find that Seivert’s argument is at odds with both our 

precedent and the language of § 42-378. Take first our precedent. In the last case in which we considered the applicability of § 42-378, a woman continued to live with her former 
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husband after their marriage was dissolved under the good 

faith belief that they remained married. See Manker v. Manker, 

263 Neb. 944, 644 N.W.2d 522 (2002). Even so, we held that 

§ 42-378 did not permit the district court to treat the parties 

as putatively married after their marriage was dissolved. We 

focused on the fact that § 42-378 applies only when “the marriage is declared a nullity” and, in reliance on a legal dictionary, concluded that this occurs only when a presumed or supposed marriage is void or voidable. We reasoned that § 42-378 

did not apply under the circumstances, because there was 

never a void or voidable marriage; the marriage was valid during its duration and then it was dissolved. We also contrasted 

§ 42-378 with statutes in other states that allow a party to 

obtain relief as a putative spouse by showing only cohabitation 

with another and a good faith belief that the parties were married. We concluded that § 42-378 did not define the putative 

marriage doctrine in Nebraska in that manner.

Although Manker v. Manker, supra, presented different factual circumstances than this case, we find it instructive here 

for two reasons. First, in Manker, we rejected the argument 

Seivert essentially presents here: that a party can obtain relief 

under § 42-378 merely by showing cohabitation and a good 

faith belief in a valid marriage. Second, we made clear that a 

party can be treated as a putative spouse only if permitted by 

the language of § 42-378.

[5-8] Before turning to the language of § 42-378 in the 

context of this case, we pause briefly to review the familiar 

principles of statutory interpretation applicable to this analysis. 

When interpreting a statute, the starting point and focus of the 

inquiry is the meaning of the statutory language, understood 

in context. In re Guardianship of Eliza W., 304 Neb. 995, 

938 N.W.2d 307 (2020). Our analysis begins with the text, 

because statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous. See id. Neither is it within the 
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province of the courts to read meaning into a statute that is 

not there or to read anything direct and plain out of a statute. 

Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020). When 

legal terms of art are used in statutes, they are to be construed 

and understood according to their term of art meaning. State 

ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 

924 N.W.2d 664 (2019). Components of a series or collection 

of statutes pertaining to a certain subject matter are in pari 

materia and should be conjunctively considered and construed 

to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. In re Interest 

of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).

Applying the foregoing principles, we do not believe that 

the parties to this case can be treated as putatively married 

under § 42-378. To obtain relief under § 42-378, a party must 

“enter[] into the contract of marriage in good faith supposing 

the other to be capable of contracting” only for the “marriage” 

to be “declared a nullity” (emphasis supplied). The statute 

does not apply merely because a party believes that he or she 

is validly married or has a subjective desire to be married. 

Rather, in order for § 42-378 to apply, its language provides 

that the parties must enter into the contract of marriage. We 

believe the district court was correct to conclude that this 

requires parties seeking relief under § 42-378 to show that 

they completed the necessary legal steps to enter into a contract of marriage.

This conclusion is not inconsistent with our opinion in 

Hicklin v. Hicklin, 244 Neb. 895, 509 N.W.2d 627 (1994), 

the primary case upon which Seivert relies. In Hicklin, we 

concluded that § 42-378 should have been applied in a case 

in which a man and woman participated in a marriage ceremony when the man’s prior marriage was not yet dissolved. 

We focused in that case on whether the woman acted in good 

faith and concluded she did, reasoning that she did not know 

that the man’s marriage was not yet dissolved and, under the 

circumstances, had no duty to conduct additional inquiry into 

that question. But there was apparently no dispute in Hicklin
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that the parties completed the necessary legal steps to enter 

into a contract of marriage. Our decision today does not disturb our conclusion in Hicklin that § 42-378 applies when a 

party enters into the contract of marriage with a good faith 

yet mistaken belief that the other party is capable of forming 

a valid marriage contract. See, also, Neb. Rev. Stat. § 42-103 

(Reissue 2016) (setting forth circumstances in which marriages 

are void).

Given that § 42-378 applies only if the parties completed 

the necessary legal steps to enter into a contract of marriage, 

it becomes clear that the district court did not abuse its discretion by concluding the statute did not apply. In 1996, Neb. 

Rev. Stat. § 42-104 (Reissue 2016) defined how a marriage is 

contracted in Nebraska, and still does, providing in relevant 

part that “[n]o marriage hereafter contracted shall be recognized as valid unless such license has been previously obtained 

and used within one year from the date of issuance and unless 

such marriage is solemnized by a person authorized by law 

to solemnize marriages.” Hawaii law also required in 1996, 

as it does now, that parties obtain a license and participate in 

a ceremony to form a marriage contract. See Haw. Rev. Stat. 

§ 572-1(6) and (7) (1993).

There is no dispute that the parties did not complete and 

file a Nebraska marriage license in 1996, nor is it disputed 

that the parties did not participate in a marriage ceremony in 

Nebraska in that year. The parties disagree about whether they 

obtained a license and participated in a ceremony in Hawaii 

in 1996. However, no license was presented at trial, and the 

district court appears to have credited Alli’s testimony that the 

parties did not obtain a license or participate in a ceremony in 

Hawaii. Because the question of whether the parties obtained 

a license and participated in a marriage ceremony in Hawaii 

turned largely on the testimony of Seivert and Alli and the 

district court had the opportunity to observe this testimony, 

we believe deference to its assessment of the issue is warranted. See Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 
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481 (2019) (when evidence is in conflict, appellate court considers and may give weight to fact that trial court heard and 

observed witnesses and accepted one version of facts rather 

than another). The district court did not abuse its discretion 

by declining to find that the parties were putatively married in 

1996 under § 42-378.

In reaching this conclusion, we are not without sympathy 

for Seivert’s position. Alli admits that even he believed he was 

lawfully married in 1996 and represented that was the case 

to everyone from the Internal Revenue Service, lenders, and 

employers to family and friends. Under those circumstances, 

an argument could certainly be made that he should not be able 

to reap financial benefits from a failure to complete the legal 

steps to form a marriage. As we have previously explained, 

however, the matter is governed by statute, and any expansion 

of this State’s putative marriage principles is the province of 

the Legislature rather than this court. See Manker v. Manker, 

263 Neb. 944, 644 N.W.2d 522 (2002).

(b) Valuation of Alli’s Business Interests

Seivert also challenges the district court’s valuation of Alli’s 

business interests. In particular, she contends that it erred by 

relying on a buy-sell agreement contained in a limited liability 

company’s operating agreement to determine the value of Alli’s 

ownership interest in the company.

(i) Additional Background

One of the disputed issues at trial was the marital value of 

Tyron A. Alli, M.D., P.C. (Alli P.C.), a corporation of which 

Alli was the sole shareholder. Alli formed Alli P.C. in 1998. 

Alli worked as a gastroenterologist with what became Midwest 

Gastrointestinal Associates, P.C. (MGI). After forming Alli 

P.C., Alli assigned his employment agreements with MGI to 

Alli P.C. Alli was also a shareholder of MGI.

MGI is the operating branch of Midwest Endoscopy Services, 

L.L.C. (MES). Upon employment with MGI, a physician may 

be invited to become a member of MES. Alli P.C. became 
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a member of MES, and, like all members of MES, it had a 

5.88-percent ownership interest.

The operating agreement of MES included provisions that 

restricted members’ rights to sell their interest in MES. The 

operating agreement generally prohibited a transfer of a member’s interest. Upon a “favorable disassociation” from the 

company, the operating agreement provided that the departing 

member was obligated to sell his or her interest to the company. The parties called this provision a buy-sell agreement. 

The buy-sell agreement set forth a formula to determine the 

price at which MES would purchase the departing member’s 

interest upon a favorable disassociation: twice the previous 12 

months’ net taxable income divided by the number of members, then multiplied by 102 percent.

The parties presented expert testimony on how Alli P.C.’s 

value should be calculated. Seivert’s expert witness was 

Gregory Harr, a certified public accountant and accredited 

business appraiser. Harr testified that he completed a calculation of value of Alli P.C. for both December 31, 2016, and 

December 31, 2018. He testified that he analyzed Alli P.C.’s 

value using an income approach and a market approach.

To analyze value using the income approach, Harr considered the income Alli P.C. generated in 2014 through 2018. 

Harr included both the income Alli P.C. generated as a result 

of Alli P.C.’s employment agreement with MGI and its ownership interest in MES. After calculating Alli P.C.’s average 

net operations income less taxes for 2014 through 2018, Harr 

applied a capitalization rate to determine present value. Using 

this method, Harr determined that the value of Alli P.C. was 

approximately $2.28 million on December 31, 2016, and $3.67 

million on December 31, 2018.

Harr testified that he also used a market approach in which 

he analyzed recent sales of comparable medical practices. He 

testified that he used the market approach as a “sanity check.” 

Harr’s opinion as to the value of Alli P.C. corresponded to his 

determination of value using the income approach.
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On cross-examination, Harr admitted that in his valuation 

of Alli P.C., he did not consider that under the buy-sell agreement, Alli P.C.’s interest in MES could only be sold back to 

MES at the formula provided therein. He also conceded that he 

did not consider the fact that in the last several years, a number of physicians had retired from MGI and their interests in 

MES had been purchased pursuant to the terms of the buy-sell 

agreement. Finally, Harr acknowledged that he did not apply 

discounts for lack of control or lack of marketability in calculating the value of Alli P.C.

Alli presented the expert testimony of William Kenedy, a 

certified public accountant accredited in business valuation. 

Kenedy reviewed Harr’s report and the underlying documents. 

He opined that Harr’s valuation of Alli P.C. was flawed. 

Kenedy testified that by including income Alli P.C. received 

through its employment agreement with MGI in determining 

value under the income approach, Harr improperly placed 

business value on Alli’s employment agreement. Kenedy also 

testified that by failing to apply discounts to reflect Alli P.C.’s 

minority status in MES and the restrictions on the sale of the 

interest, Harr overvalued Alli P.C.’s interest in MES.

In Kenedy’s opinion, the proper valuation method was an 

adjusted asset method, which is based on the net value of 

the business’ assets and debts. Alli P.C.’s assets consisted of 

cash, a vehicle, and the interest in MES. Kenedy testified that 

because the interest in MES lacked marketability, it should be 

valued according to the formula in the buy-sell agreement.

Lori Mueller, who had served as the certified public accountant for Alli’s business enterprises since 1997, also testified. 

Mueller applied the terms of the buy-sell agreement and determined the value of Alli P.C.’s share of MES both as of 

December 31, 2011, and as of June 30, 2019. She also testified as to the value of the other assets of Alli P.C. as of both 

December 31, 2011, and as of June 30, 2019. According to 

Mueller, Alli P.C. had a total value of $869,000 as of December 

31, 2011, and $1,093,000 as of June 30, 2019. The latter 
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number included Alli P.C.’s vehicle, which Mueller’s documentation valued at $29,339 as of July 5, 2019. In his testimony, 

Alli said that he wanted to receive the vehicle in the division 

of the marital estate.

The district court concluded that the valuation of Alli P.C.’s 

interest in MES was “most accurately determined” by relying on the terms of the buy-sell agreement. In the exhibit in 

which it set forth its division of property, it cited to the exhibit 

summarizing Mueller’s calculations of value and awarded Alli 

P.C. and Alli’s other business entities to Alli. The district court 

determined the marital value of Alli P.C. was $194,661. This 

value corresponds to the difference between Mueller’s 2011 

and 2019 valuations, less the value of Alli P.C.’s vehicle, which 

was awarded to Alli.

(ii) Analysis

Seivert contends that the district court abused its discretion 

in valuing Alli P.C.’s interest in MES. Seivert argues that the 

district court erred by treating the terms of the buy-sell agreement, a type of redemption agreement, as “controlling” as to 

the value of Alli P.C.’s interest in MES. Brief for appellee on 

cross-appeal at 28. She relies on Brozek v. Brozek, 292 Neb. 

681, 692, 874 N.W.2d 17, 28 (2016), where we observed that 

“most courts do not treat a redemption agreement as conclusive evidence of a share’s value,” and she cites cases from 

other jurisdictions in which courts held that the terms of a 

redemption agreement are not determinative evidence of value. 

See, e.g., Garcia v. Garcia, 25 So. 3d 687 (Fla. App. 2010); 

Von Hohn v. Von Hohn, 260 S.W.3d 631 (Tex. App. 2008); In re 

Marriage of Morris, 588 S.W.2d 39 (Mo. App. 1979).

We find that Seivert’s argument rests on a flawed premise. 

We do not understand the district court to have treated the 

buy-sell agreement as conclusive as to the value of Alli P.C.’s 

interest in MES. The district court stated that the value of Alli 

P.C.’s interest in MES was “most accurately determined” by 

relying on the terms of the buy-sell agreement. Based on this 

language, we understand the district court to have evaluated 
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the buy-sell agreement as one relevant piece of evidence it 

could consider in determining the value of Alli P.C.’s interest 

in MES.

Even courts that have held that the terms of a redemption 

agreement are not conclusive as to the value of a business 

recognize that such an agreement is relevant to valuation. For 

example, in one of the cases Seivert relies upon, Garcia v. 

Garcia, supra, the court acknowledged that when stock is subject to a restrictive transfer agreement, the agreement impairs 

marketability and affects the value and must be considered 

when the court determines the value of the stock for purposes 

of equitable distribution. See, also, In re Marriage of Nevarez, 

170 P.3d 808 (Colo. App. 2007); In re Marriage of Gillespie, 

89 Wash. App. 390, 948 P.2d 1338 (1997); Amodio v. Amodio, 

70 N.Y.2d 5, 509 N.E.2d 936, 516 N.Y.S.2d 923 (1987). As one 

commentator has explained, even if not treated as conclusive, 

the terms of a redemption agreement are important evidence of 

the value of the owning spouse’s interest:

Where the agreement was signed in good faith and not 

in contemplation of divorce, it reflects an attempt by disinterested parties negotiating at arms’ length to establish 

the fair value of the business. As such, it deserves serious 

consideration, and a higher or lower value should not be 

reached without substantial supporting evidence.

2 Brett R. Turner, Equitable Distribution of Property § 7:19 at 

1133 (4th ed. 2020).

Here, although the district court did not believe it was 

bound to follow the terms of the buy-sell agreement in determining Alli P.C.’s interest in MES, it did ultimately conclude 

that the value was best determined by applying the terms of 

the buy-sell agreement. Under the circumstances, we cannot 

say that was an abuse of discretion. According to Kenedy, 

Harr significantly overvalued Alli P.C.’s interest in MES by 

including Alli P.C.’s income under the employment agreement 

when valuing Alli P.C. using the income approach, by failing to consider the buy-sell agreement, by failing to consider 
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that other recently departed physicians had their interests in 

MES bought out pursuant to the buy-sell agreement, and by 

generally failing to apply discounts for lack of marketability 

and lack of control. The district court was entitled to ascribe 

weight to Kenedy’s testimony and thus conclude that Harr’s 

valuation was flawed. A number of appellate courts have held 

that trial courts do not commit reversible error by following a 

redemption agreement’s determination of value rather than that 

of an expert who fails to consider the agreement in forming 

an opinion as to value. See, e.g., In re Watterworth, 149 N.H. 

442, 821 A.2d 1107 (2003); In re Marriage of Gillespie, supra; 

Amodio v. Amodio, supra. Cf. In re Marriage of Decosse, 282 

Mont. 212, 936 P.2d 821 (1997) (holding that trial court erred 

by accepting expert valuation that failed to take redemption 

agreement into account).

The district court did not abuse its discretion in valuing 

Alli’s business interests.

2. Alli’s Appeal

(a) Valuation Date

Alli’s first assignment of error is that the district court erred 

by using the date of trial to identify and value property composing the marital estate.

(i) Additional Background

As noted above, the parties separated and Seivert filed 

her initial dissolution complaint in 2013, but the matter did 

not proceed to trial until July 2019. Alli testified that in the 

intervening years, he worked additional hours and lived frugally. According to Alli, he used his earnings in those years to 

pay off the marital home, Seivert’s motor vehicle, and other 

expenses incurred by Seivert and the children. Alli testified 

he paid these expenses “to make sure the kids were comfortable and have [Seivert] be in a place that she can take care of 

them.” Alli also testified that he used money he earned during 

the time between the parties’ separation and trial to contribute 
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approximately $1.1 million to an investment account and to 

purchase a residence with a total equity of $481,445.

From the time the parties separated in 2013 through trial 

in 2019, the minor children resided with Seivert in the family 

home. The parties agreed to a parenting plan in July 2014. It 

gave Seivert sole legal and physical custody of the minor children, with Alli’s parenting time at Seivert’s discretion. Seivert 

testified that during the 6 years preceding trial, Alli had not 

requested time with the children and she provided care “24/7.” 

She acknowledged that on one occasion in 2017 or 2018, Alli 

had stayed in the home when she was out of town for work, 

and that on another, one of the minor children had spent one 

night at Alli’s house.

Alli testified that he communicated with the children at least 

once a week. He asserted he had not requested parenting time 

because he wanted the children to be comfortable rather than 

“bouncing back and forth.”

(ii) Analysis

[9,10] In a divorce action, “[t]he purpose of a property 

division is to distribute the marital assets equitably between 

the parties.” Neb. Rev. Stat. § 42-365 (Reissue 2016). Under 

§ 42-365, the equitable division of property is a three-step 

process. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 

(2019). The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property to the 

party who brought that property to the marriage. Id. The second step is to value the marital assets and marital liabilities of 

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

marital estate between the parties in accordance with the principles contained in § 42-365. Dooling v. Dooling, supra. The 

ultimate test in determining the appropriateness of the division 

of property is fairness and reasonableness as determined by the 

facts of each case. Id.

Alli contends that the district court erred by identifying and 

valuing the property composing the marital estate as of the 

date of trial. Because the district court used the date of trial to 
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identify and value the marital estate, amounts Alli earned and 

invested after Seivert filed for divorce were included and subject to equitable division. This, Alli contends, is unfair under 

the circumstances.

[11] As a general principle, the date upon which a marital 

estate is valued should be rationally related to the property 

composing the marital estate. Rohde v. Rohde, 303 Neb. 85, 

927 N.W.2d 37 (2019). The date of valuation is reviewed for 

an abuse of the trial court’s discretion. Id.

Alli earned and invested substantial sums during the period 

between the parties’ separation and trial. During this time, 

however, the evidence shows that Seivert was providing almost 

exclusive care for the parties’ minor children and, thus, to at 

least some extent, made Alli’s earnings possible. The valuation 

date applied by the district court was rationally related to the 

property composing the marital estate, and we thus find no 

abuse of discretion.

(b) Alimony

Alli next argues that the district court erred by ordering him 

to pay $5,000 per month in alimony for 60 months.

(i) Additional Background

At the time of trial, Seivert was working part time as a 

pediatrician, earning $87,768 per year. By contrast, according 

to Alli’s suggested child support calculation, in 2016, 2017, 

and 2018, his total income averaged $131,991 per month. Alli’s 

2018 tax return showed the compensation Alli received that 

year from his corporate interests: From Alli P.C., he received 

$490,441 for officer compensation, $271,565 for pension, and 

$964,838 for ordinary business income; and from other medical corporations in which he had an interest, he received a total 

of nearly $100,000 in ordinary business income.

According to Seivert, the parties’ children were always 

her main focus and she gave them and Alli’s career priority 

over her own career. Seivert practiced full time as a pediatrician until the year after the parties’ first child was born, when 
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she began working part time. Alli practiced gastroenterology 

on a full-time basis during all relevant times. Seivert testified 

that Alli helped with the children when he was available, but 

his focus was on his career.

Alli testified that Seivert could have been earning more. He 

testified that pediatricians who start full time in private practice 

earn $180,000 to $190,000 per year. Seivert testified that she 

has focused on treating children who have no insurance or are 

on Medicaid and that her practice is therefore less lucrative.

(ii) Analysis

Alli argues that the district court’s award of alimony was 

an abuse of discretion. He primarily asserts that the award of 

alimony was unwarranted because Seivert did not need it. He 

contends that she could earn more money and that she overstated her expenses.

[12-14] 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. Dooling v. Dooling, 303 

Neb. 494, 930 N.W.2d 481 (2019). In addition, a court should 

consider the income and earning capacity of each party and 

the general equities of the situation. Id. Alimony is not a tool 

to equalize the parties’ income, but a disparity of income or 

potential income might partially justify an alimony award. 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.

[15,16] 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 a just result. Id. The ultimate criterion is 

one of reasonableness. Id. An appellate court is not inclined to 
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disturb the trial court’s award of alimony unless it is patently 

unfair on the record. Id.

Having reviewed the record de novo, we do not believe this 

alimony award is untenable or patently unfair on the record. 

The evidence in the record shows that Alli earns substantially 

more income than Seivert. It also shows that Seivert sacrificed 

personal career advancement to care for the parties’ children. 

Further, even assuming that Seivert is capable of earning additional income, there is a wide disparity of earning capacity 

between the parties. The district court’s award of alimony was 

not an abuse of discretion.

(c) Attorney Fees

Alli also argues that the district court erred by ordering him 

to pay $50,000 of Seivert’s attorney fees.

(i) Additional Background

Prior to trial, the district court entered a temporary order 

directing Alli to deposit $15,000 for expert fees and $10,000 

for attorney fees in the trust account of Seivert’s attorneys. In 

the decree, the district court ordered Alli to pay the clerk of the 

court $50,000 for the use and benefit of Seivert’s attorneys.

(ii) Analysis

Alli’s argument regarding the district court’s award of attorney fees borders on conclusory. He asserts that the district 

court should not have ordered him to pay Seivert’s attorney 

fees because she is a physician capable of earning a significant income and could pay her own attorney fees. Alli does 

not specifically challenge the amount he was ordered to pay in 

attorney fees.

[17] We have said that in dissolution proceedings, 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. 

Schaefer v. Schaefer, 263 Neb. 785, 642 N.W.2d 792 (2002). 

In dissolution cases, attorney fees may also be awarded to 
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prevailing parties. See, e.g., Moore v. Moore, 302 Neb. 588, 

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

The district court did not explain its reasoning for its attorney fees order in the decree. However, we cannot say that it 

was untenable. As noted above, there was a significant gap 

between Alli’s earning capacity and Seivert’s earning capacity. Further, although Seivert did not prevail in every argument 

she presented at trial, she was successful in overcoming Alli’s 

argument that the parties were never married and that the district court should therefore dismiss the action entirely. Under 

these circumstances, we find that the district court did not 

abuse its discretion in awarding Seivert attorney fees.

(d) Educational Support Obligation

Finally, Alli argues that the district court erred by requiring 

him to continue to pay the educational expenses of the parties’ 

minor children. He contends that the district court required 

that he continue to pay the children’s educational expenses but 

awarded Seivert half of the account the parties had previously 

used to pay those expenses. This, Alli asserts, was “double dipping.” Brief for appellant at 18. He asks that we either award 

him the bank account or relieve him of his obligation to pay all 

of the expenses for the children’s education.

(i) Additional Background

Evidence admitted at trial showed that the minor children’s 

private school tuition and related expenses were paid from a 

joint savings account that contained approximately $304,000 

at the time of trial. The parties referred to this account as the 

“MES account,” as did bank statements that were received into 

evidence. The parties also maintained a 529 college savings 

account for the children’s college tuition.

In the decree, the district court ordered Alli to continue to 

pay the tuition and other necessary expenses for the minor 

children to continue to attend their private school. The decree 

specifically addressed how the district court was dividing several assets. It provided that “[t]he children’s 529 accounts or 
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other accounts held for the benefit of the children shall be held 

by [Seivert] as a constructive trustee and/or custodian for the 

benefit of the minor children and their educational expenses.” 

It also provided that any asset not specifically divided in the 

body of the decree was to be divided as set forth in an attached 

exhibit. The attached exhibit listed several assets and amounts, 

and it included separate columns for Seivert and Alli. An asset 

labeled as “Savings MES” with a value of $304,130 was listed 

in Alli’s column. A bank statement received into evidence 

showed that the “MES account” referred to by the parties as 

the account used to pay the minor children’s tuition contained 

$304,130.37 as of April 2019.

(ii) Analysis

Alli contends that the district court should not have ordered 

him to pay the educational expenses while also awarding a 

portion of the account used to pay those expenses to Seivert. 

But the district court did not award the account used to pay 

the educational expenses to Seivert. As explained above, the 

decree awarded that account to Alli. And to the extent Alli 

argues that the district court erred in ordering him to pay the 

tuition expenses while also attributing the value of the account 

to him and thereby increasing the equalization payment owed 

to Seivert, considering the value of the account relative to the 

size of the marital estate, we discern no abuse of discretion. 

See Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019) 

(as general rule, spouse should be awarded one-third to onehalf of marital estate, the polestar being fairness and reasonableness as determined by facts of each case).

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

ordering Alli to pay the children’s educational expenses.

V. CONCLUSION

We find no merit to either party’s assigned errors and therefore affirm.

Affirmed.