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Joy R. Vanderveer, appellee and cross-appellant, 

v. Steve M. Vanderveer, appellant 

and cross-appellee.

___ N.W.2d ___

Filed September 24, 2021. No. S-20-733.

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.

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. Property Division: Appeal and Error. The division of marital property is a matter initially entrusted to the trial judge, and an appellate 

court will not disturb the trial court’s findings, absent an abuse of 

discretion.

5. Divorce: Property Division. In a dissolution action, the equitable division of property is a three-step process. The first step is to classify the 

parties’ property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the marriage. 

The second step is to value the marital assets and marital liabilities of 

the parties. And the third step is to calculate and divide the net marital 

estate equitably between the parties.

Nebraska Supreme Court Online Library

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

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6. ____: ____. In a dissolution action, there is no mathematical formula 

by which property awards can be precisely determined, but as a general 

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

estate, the polestar being fairness and reasonableness as determined by 

the facts of each case.

7. Property Division. Marital debt includes only those obligations incurred 

during the marriage for the joint benefit of the parties.

8. Property Division: Proof. The burden to show that a debt is nonmarital 

is on the party making that assertion.

9. Property Division: Stock. Unvested employee stock options and stock 

retention shares constitute marital property when accumulated and 

acquired during the marriage through the joint efforts of the parties.

10. Property Division: Stock: Proof. To apply the time rule from Davidson 

v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998), it is essential 

that the court be presented with evidence from which it can determine 

whether the unvested stock options or stock retention shares were 

granted as compensation for past, present, or future services. The burden to present such evidence is on the party asserting the time rule 

is applicable.

11. Child Support: Rules of the Supreme Court. When calculating the 

amount of support to be paid under the Nebraska Child Support Guidelines, a court must consider the total monthly income of the parties.

12. ____: ____. The main principle behind the Nebraska Child Support 

Guidelines is to recognize the equal duty of both parents to contribute to the support of their children in proportion to their respective 

net incomes.

13. ____: ____. When determining total income under the Nebraska Child 

Support Guidelines, all income from all sources is to be included except 

for those incomes specifically excluded.

14. Child Support: Rules of the Supreme Court: Presumptions: Proof.

When determining total income under the Nebraska Child Support 

Guidelines, a court should not include income that is speculative in 

nature and over which the party has little or no control. But when the 

evidence shows the party earns or can reasonably expect to earn a certain amount of income on a regular basis, a rebuttable presumption of 

including such income arises, and to rebut that presumption, the party 

must produce sufficient evidence to show that including the income 

would not result in a fair and equitable child support order.

15. Divorce: Alimony. Neb. Rev. Stat. § 42-365 (Reissue 2016) gives 

courts discretion, in an appropriate case, to require sufficient security 

to be given for the payment of alimony awards. Generally, reasonable 
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security for payment of alimony should be invoked in the original 

decree only when compelling circumstances require it.

16. Child Custody: Appeal and Error. Child custody and parenting time 

determinations are matters initially entrusted to the discretion of the trial 

court, and although reviewed de novo on the record, the trial court’s 

determination will normally be affirmed absent an abuse of discretion.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed in part, and in part reversed 

and remanded with directions.

Virginia A. Albers and Dennis G. Whelan, of Slowiaczek 

Albers, P.C., L.L.O., for appellant.

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

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

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

Papik, and Freudenberg, JJ.

Stacy, J.

After a trial, the district court for Douglas County entered 

a decree dissolving the marriage of Steve M. Vanderveer and 

Joy R. Vanderveer, dividing their marital estate, awarding alimony to Joy, and deciding issues of custody, child support, and 

parenting time. Steve appeals, and Joy cross-appeals. For the 

reasons explained below, we affirm in part, and in part reverse 

and remand with directions.

I. BACKGROUND

Steve and Joy were married in 2004. The marriage produced 

two children, a daughter born in 2006 and a son born in 2010. 

The parties separated in February 2019, and Steve moved out 

of the marital home. In May 2019, Joy filed a complaint for 

dissolution in the district court for Douglas County.

The district court entered a temporary order under which 

the parties shared joint legal and physical custody of their 

minor children. The temporary order established a 2-2-2-1 

parenting time schedule that accommodated Steve’s work 
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schedule. Under the temporary plan, Joy had a total of four 

overnights with the children each week and Steve had three. 

Among other things, Steve was ordered to pay temporary child 

support of $1,250 per month; the monthly mortgage, taxes, 

insurance, and utilities on the family residence; the monthly car 

payment on Joy’s vehicle; and “all joint credit card obligations 

of the parties.”

1. Trial

Trial was held February 25, 2020. Steve and Joy were the 

only witnesses. We summarize their testimony only as it pertains to the issues on appeal.

(a) Parties’ Education, 

Employment, and Income

Steve has a bachelor’s degree in business and has worked 

for Costco since he was 17 years old. Joy has a 12th grade 

education but did not graduate from high school. Steve and 

Joy got married in their early 20’s, in the State of Washington. 

At that time, Joy worked as a barista and Steve worked as a 

department manager for Costco.

When Joy became pregnant with their first child, the parties 

agreed that she would stay home and raise the children and 

that Steve would focus on his career. In 2013, Steve was promoted to a general manager position with Costco and the family moved to Illinois. In 2016, the family moved to Nebraska 

when Steve accepted a general manager position with a Costco 

facility in Omaha.

At the time of trial, Joy had returned to working part time 

as a barista, earning $10 per hour. She testified that due to 

ongoing pain from a prior foot injury, it was difficult for her 

to stand for more than 5 hours at a time, and she generally 

suggested that this restricted her ability to work full time. Joy 

testified she was planning to obtain her GED and then pursue 

further education in either interior design or real estate.

At the time of trial, Steve was still working as a general 

manager for Costco in Omaha. His income in that position 
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has increased every year, and in 2019, his reported earnings from Costco were approximately $631,000. This amount 

included, among other things, a base salary of approximately 

$125,000, an annual performance-based bonus of roughly 

$42,000, and more than $461,000 from Steve’s participation in 

Costco’s “Restricted Stock Unit” (RSU) program.

Steve’s RSU income is by far the largest portion of his 

annual income, and it was a central point of contention in this 

dissolution. The parties disputed how to classify and equitably 

divide the unvested RSUs granted during the marriage, and 

they disagreed about whether Steve’s RSU income should be 

included as part of his total income for purposes of calculating 

child support. As relevant to the issues on appeal, we describe 

the evidence regarding RSUs in some detail.

(b) RSUs

The RSUs granted to Steve are controlled by the “Costco 

Wholesale Corporation Restricted Stock Unit Award Agreement” 

(RSU agreement) and the “Costco Wholesale Corporation 

Seventh Restated 2002 Stock Incentive Plan.” Only the RSU 

agreement was offered into evidence. That agreement generally 

describes that RSUs are not stock shares, but, rather, “Stock 

Units” which represent “hypothetical shares” of Costco stock 

that “will be converted into shares when the Stock Units are 

settled after vesting.” Participation in the RSU program does 

not create a right to future employment with Costco and does 

not affect the company’s right to terminate or modify employment. The RSU agreement states that RSUs “shall not be sold, 

encumbered, pledged or otherwise disposed of, whether voluntarily or by operation of law.”

Costco grants RSUs annually, usually on October 22, to 

those who are eligible. The RSU agreement in our record 

does not set out the eligibility criteria for participation in the 

RSU program, nor does it describe how the company determines the number of RSUs to be granted. The total number 

of RSUs granted annually to Steve varied year to year, but in 
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each of the 6 years prior to trial, Costco granted Steve at least 

1,100 RSUs.

The parties agree that all of the RSUs granted to Steve were 

subject to a 5-year graded vesting schedule, under which 20 

percent of the units vested into shares each year so long as 

Steve worked continuously during the year at his current position or higher. The RSU agreement contains provisions for 

accelerated vesting after 25 years of service and in the event of 

employee death. It also contains vesting provisions for employees who are terminated for other than cause.

Costco’s 2019 proxy statement was also received into evidence, and it generally describes both “time-vesting” and 

“performance-vesting” under Costco’s RSU program. It states 

that “RSU grants to all executive officers are performancebased, with performance-vesting over a one-year period [and] 

time-vesting over five years . . . .” And it states that “[v]esting of RSUs awarded to non-executive officers and employees is not performance-based.” No party contends that Steve, 

as a general manager, was considered an executive officer 

of Costco.

Steve testified that every October, when a portion of his 

accumulated RSUs vest into shares, he has the option to either 

cash them in or hold them as an investment. He routinely 

cashes them, and he held no vested shares at the time of 

trial. Throughout the marriage, the parties typically relied on 

Steve’s base salary to pay regular monthly expenses and used 

his annual bonus, and the annual income from cashing vested 

RSUs, to pay off accumulated debt.

Under the RSU agreement, the value of vested shares is 

determined based on the closing stock price on the date of 

vesting. According to Steve’s investment and tax records, the 

gross income earned from cashing his vested RSUs in 2017 

was $227,328. In 2018, it was $384,591, and in 2019, it was 

$461,053.

In October 2019, Costco granted Steve another 1,150 RSUs, 

none of which had vested by the time of trial. At the time of 
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trial, Steve’s Costco brokerage account held a total of 5,468 

unvested RSUs from grants made in the previous 5 years, with 

a projected value of more than $1.1 million. Steve asked the 

court to classify the entire 2019 grant of RSUs as nonmarital 

and set it off to him, reasoning that the grant was made after 

the parties separated and would not begin vesting until after 

the marriage was dissolved. Steve proposed that the unvested 

RSUs remaining from grants made in 2015 through 2018 be 

classified and divided using the “time rule” announced in 

Davidson v. Davidson.

 1

(c) “Postseparation” Debt

The parties’ spending habits were also a point of contention 

at trial. Joy testified, “We, as a family, spent insane amounts of 

money shopping and we’re accustomed to a very comfortable 

lifestyle . . . .” During the marriage, both parties regularly used 

credit cards in their own names, and Joy also used credit cards 

issued to Steve. According to Joy, Steve handled all of their 

finances and, during the year, he would make minimum payments on all of the credit cards to keep them current until the 

RSUs vested, after which he would use that income to pay off 

the balance on all the cards. Joy testified that Steve helped her 

apply for a credit card in her name because “we were running 

short on money and we had to figure out how we were going 

to live until October when [the RSUs vested so that] we could 

continue living the lifestyle that we were living.”

Steve generally agreed the parties’ spending habits had been 

an issue throughout their marriage and had prompted them 

to file bankruptcy 8 years earlier. He testified that their debt 

accumulated “so frequently I can’t keep up” and stated “I’m 

the only guy in the world [who] makes [$]630,000 and I have 

no money. I’m broke.”

Joy testified that after the parties separated, she was 

“taken off” their joint checking account and used credit cards 

because she had no other source of income. Joy admitted that 

1 Davidson v. Davidson, 254 Neb. 656, 664, 578 N.W.2d 848, 856 (1998).
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between the date of separation and the date of trial, she accumulated $73,656 in credit card debt. During this period, she 

used credit cards to purchase what she described as “necessities” for the family, including clothes, furniture and household 

goods, gas, groceries, dental and medical care, cell phones, 

and “[m]iscellaneous stuff” for herself and the children. Joy 

also testified that when Steve was setting up his apartment, she 

used credit cards to purchase several thousand dollars’ worth 

of furnishings and household items for Steve and the children. 

Steve did not, for the most part, dispute Joy’s description of 

the items she purchased on credit, but he did characterize her 

spending as excessive. When Steve was asked whether his 

spending habits were similar to Joy’s, he responded, “Not even 

in the ballpark . . . .”

Steve testified that postseparation, he incurred $72,238.54 

in debt using credit cards in his name, personal lines of credit, 

and loans against his 401K. He testified that some of this debt 

was incurred to meet his obligations under the temporary order, 

but he took the position that each party should be responsible 

for the postseparation debt incurred in his or her own name. 

Joy took the position that her postseparation credit card debt 

should be classified as marital.

(d) Proceeds From Vested RSUs Sold in 2019

Steve testified that when he cashed the shares that vested in 

October 2019, the proceeds were $322,921.95, after taxes. He 

used those proceeds to pay off $191,421 in what the parties 

generally agree was marital debt. At the time of trial, $131,500 

of the proceeds remained. Steve proposed that after using the 

proceeds to pay the parties’ 2019 tax obligations, all remaining 

proceeds should be awarded to him, with an appropriate equalization payment to Joy.

(e) Custody and Parenting Time

At the time of trial, the parties’ daughter was 13 years old 

and their son was 9 years old. Neither parent claimed the 
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other was unfit, and they agreed joint legal custody was appropriate. But they disagreed on how physical custody and parenting time should be allocated.

Joy asked for sole physical custody, reasoning:

[B]efore Steve and [I] ever had children, it had been 

established that I would stay at home with the children 

and raise them, and that would enable him to further his 

career with Costco.

I’ve always been the primary caretaker in charge of 

doing all the school — all of their educational stuff, doctors’ appointments, dentist appointments. I would still like 

to be able to play that role.

Joy testified she did not like the temporary parenting time 

schedule. She thought it required too much “back and forth,” 

and she did not “feel like [the children were] ever able to 

settle at either home before they ha[d] to be taken to the next 

home.” She also testified that Steve had missed several days of 

parenting time due to his work schedule, and she disapproved 

of some of his parenting decisions, including allowing the children to use electronics in the evening and leaving their teenage 

daughter to watch their preteen son.

Steve asked the court to order joint physical custody and to 

continue the roughly equal parenting time schedule the parties 

had been following under the temporary order. Steve thought 

it was important for the children to have regular contact with 

both parents, and he liked that “neither one of us ha[s] to go 

more than two nights without seeing our children.” He testified 

that the children had “never expressed any concerns with the 

back-and-forth” and he liked the temporary parenting schedule 

because it accommodated his work hours and allowed him to 

“spend the most time with my children and still work and provide” for them.

(f) Child Support

For purposes of calculating child support, Joy estimated 

her total monthly income at $1,083, based on a 25-hour 
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workweek earning $10 per hour. She estimated Steve’s total 

monthly income at $52,594 based on his 2019 W-2 form, 

which reported “Medicare wages and tips” in the amount of 

$631,130. The parties agree this included Steve’s 2019 salary, 

bonus, and vested RSU income.

Steve took the position that his RSU income should not be 

considered when calculating child support, reasoning that such 

income was not “guaranteed” in the future, because stock prices 

could fall or he could be demoted or terminated. Excluding his 

RSU income, Steve estimated his total monthly income at 

$13,955.83, based on his 2019 base salary of $125,000 and 

his 2019 bonus of $42,000. Steve believed Joy was capable of 

working full time and earning more than $10 per hour. He thus 

estimated Joy’s total monthly income either at $2,080, based 

on a 40-hour workweek earning $12 per hour, or at $2,600, 

if she worked the same amount earning $15 per hour. Steve 

asked the court to calculate child support using the joint physical custody worksheet, based on his request for roughly equal 

parenting time.

(g) Alimony

Joy requested an award of alimony, but our record does not 

indicate the proposed amount or duration of her request. Joy 

supported her request with an exhibit showing her anticipated 

monthly living expenses were $8,470. Most of the itemized 

expenses were for rent, food, utilities, and medical payments, 

but approximately $2,000 was allocated monthly for clothing, 

cosmetics, haircuts, entertainment, vacations, and “[m]iscellaneous” costs.

Steve generally agreed Joy should receive alimony, but 

he asked the court to order graduated payments, claiming 

that otherwise, he would not have enough to live on without 

incurring monthly debt. Steve estimated his monthly expenses 

were approximately $13,225, but that amount included several 

thousand dollars in payments required under the temporary 

order, which would not exist postdecree. Steve proposed paying alimony for a period of 5 years, with payments of $750 
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for the first 24 months, $1,500 for the next 24 months, and 

$2,000 for the final 12 months.

2. Dissolution Decree

On September 3, 2020, the court entered a dissolution 

decree. We summarize below only those provisions pertinent to 

the issues raised on appeal and cross-appeal.

(a) Classification and Division of RSUs

When classifying and dividing the RSUs, the court made the 

following findings:

[T]he RSUs granted . . . on October 22, 2015, October 

22, 2016, October 22, 2017, and October 22, 2018, even 

though not yet fully vested, are marital property and when 

said RSUs vest [Joy] shall be awarded 50% of the actual 

net value after the payment of taxes. [Steve] is awarded 

the RSUs granted on October 22, 2019 free and clear of 

any interest of [Joy].

Regarding proceeds from the vested RSUs cashed in 2019, 

the court found that $191,421.10 had been used to pay down 

marital debt, including credit card debt. It directed that the 

remaining proceeds of $131,500.90 be used to pay the parties’ 2019 state and federal taxes and to pay off Joy’s postseparation credit card balance of $72,656, which the court 

classified as marital debt. After payment of these marital debts, 

the remaining proceeds of $24,583.90 were awarded equally to 

the parties.

(b) Child Custody and Support

The court found that both Steve and Joy were fit and proper 

persons to be awarded the care, custody, and control of the 

children and that it was in the children’s best interests for the 

parties to share joint legal custody, with Joy having physical 

custody. The decree ordered an alternating weekly parenting 

time schedule under which Steve had the children four consecutive overnights during the first week and two consecutive overnights during the second week. As such, Steve still 

had 6 out of every 14 overnights with the children, but each 
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parent had longer blocks of time than the temporary schedule 

allowed and the children had fewer transitions each week.

In calculating child support, the court generally accepted 

each party’s estimate of his or her own total monthly income. 

It did not include any RSU income when determining Steve’s 

gross income, reasoning:

The Court finds that the [RSUs] and the income therefrom which have not vested [from units granted] on 

October 22, 2015, October 22, 2016, October 22, 2017, 

and October 22, 2018 are marital property and as such 

should not be used to compute the child support due and 

owing from [Steve] to [Joy]. . . .

At such time as the [RSUs] granted on October 22, 

2019 begin to vest and when any such units granted 

thereafter vest any RSU income realized by [Steve] 

shall be considered income for purposes of calculating 

child support.

The court’s child support worksheet was attached to the 

decree. Using gross monthly income of $1,083 for Joy and 

$13,955.83 for Steve, the court calculated that Steve should 

pay $1,875 per month in child support for two children. After 

determining that a downward deviation was appropriate “due 

to the additional parenting time granted to [Steve],” the decree 

ordered Steve to pay monthly child support of $1,600 for two 

children and $1,100 for one child.

(c) Alimony

The court ordered Steve to pay alimony of $4,000 per month 

for a period of 8 years or until the death of either party or 

Joy’s remarriage, whichever occurred first. The decree did not 

require Steve to provide security for his alimony obligation.

3. Motions to Alter or Amend

Both parties timely moved to alter or amend the decree, 

seeking changes to provisions regarding parenting time, child 

support, alimony, classification and division of unvested 

RSUs, and allocation of the proceeds remaining from the 
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vested RSUs cashed in 2019. After a hearing, the court generally overruled the motions, but it did modify Steve’s parenting 

time to better accommodate his work schedule. That modification resulted in each parent having the children 7 out of every 

14 overnights.

Steve timely appealed, and Joy cross-appealed. We moved 

this appeal to our docket on our own motion, primarily to 

address the assignments of error pertaining to the RSUs.

II. ASSIGNMENTS OF ERROR

Steve assigns, consolidated and restated, that the district court 

erred by (1) classifying Joy’s postseparation credit card debts 

as marital, (2) failing to apply the time rule from Davidson 2

when classifying and dividing unvested RSUs, (3) miscalculating child support, and (4) awarding excessive alimony.

On cross-appeal, Joy assigns, restated and renumbered, that 

the district court erred by (1) miscalculating child support, (2) 

awarding insufficient alimony, (3) failing to require Steve to 

maintain life insurance to secure the alimony award, and (4) 

awarding the parties equal parenting time.

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. 3 This standard 

of review applies to the trial court’s determinations regarding 

custody, child support, division of property, alimony, and attorney fees. 4

[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. 5

2 Id.

3 Cornwell v. Cornwell, 309 Neb. 156, 959 N.W.2d 243 (2021).

4 Id.

5 Id.
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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. 6

IV. ANALYSIS

1. Classification and Division of 

Marital Assets and Debts

[4-6] The division of marital property is a matter initially 

entrusted to the trial judge, and an appellate court will not disturb the trial court’s findings, absent an abuse of discretion. 7

In a dissolution action, the equitable division of property is 

a three-step process. 8 The first step is to classify the parties’ 

property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the 

marriage. 9 The second step is to value the marital assets and 

marital liabilities of the parties. 10 And the third step is to calculate and divide the net marital estate equitably between the 

parties. 11 There is no mathematical formula by which property 

awards can be precisely determined, but as a general rule, a 

spouse should be awarded one-third to one-half of the marital 

estate, the polestar being fairness and reasonableness as determined by the facts of each case. 12

(a) Classifying Joy’s Credit Card Debt

At trial, Steve asked the court to classify all postseparation 

debt as nonmarital and set it off to the spouse who incurred 

6 Id.

7 Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001).

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

9 Id. See Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).

10 Dooling, supra note 8.

11 Id.

12 Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
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it. The court’s decree classified all of Joy’s postseparation 

credit card debt as marital, and Steve argues that was an abuse 

of discretion. He also argues the court should have similarly 

classified all of his postseparation debt as marital, but since 

Steve expressly asked the court to set that debt off to him, he 

cannot now argue it was error to do so. 13 We therefore consider 

only his assignment that it was error to classify Joy’s postseparation debt as marital.

[7,8] It is well settled in Nebraska that marital debt includes 

only those obligations incurred during the marriage for the 

joint benefit of the parties. 14 The burden to show that a debt is 

nonmarital is on the party making that assertion. 15

Steve concedes that Joy’s credit card debt was incurred during the marriage, but he argues it should have been classified 

as nonmarital debt because it was incurred after the parties 

separated. We understand his appellate briefing to generally 

urge adoption of a bright-line rule requiring that marital debt 

must have been incurred “‘before [the] date of separation.’” 16

We decline his invitation.

In the 2004 case of Mathews v. Mathews,

 17 we announced 

the general rule that “[m]arital debt includes only those obligations incurred during the marriage for the joint benefit of 

the parties.” We have consistently applied this flexible, factspecific standard, 18 and we see no principled reason to apply 

a different standard in this case. To the extent the Nebraska 

Court of Appeals articulated a more restrictive definition of 

13 See Mahlendorf v. Mahlendorf, 308 Neb. 202, 952 N.W.2d 923 (2021) 

(parties cannot complain on appeal of error they invited court to commit).

14 Fetherkile, supra note 9; Millatmal v. Millatmal, 272 Neb. 452, 723 

N.W.2d 79 (2006); Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 

(2004).

15 Fetherkile, supra note 9; Millatmal, supra note 14.

16 Brief for appellant at 16.

17 Mathews, supra note 14, 267 Neb. at 621, 676 N.W.2d at 58.

18 See, e.g., Fetherkile, supra note 9; Millatmal, supra note 14.
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marital debt in a 2002 opinion, 19 that definition was implicitly disapproved by Mathews and we expressly disapprove of 

it here.

Applying the settled definition of marital property in our 

de novo review, we find undisputed evidence that Joy’s credit 

card debt was incurred during the marriage, and we also find 

evidence showing the items she purchased were for the joint 

benefit of the parties. Joy testified she used credit cards to 

pay family medical and dental expenses, to purchase items 

for Steve’s apartment postseparation, and to purchase groceries, clothing, furniture, household goods, gas, cell phones, 

and “[m]iscellaneous stuff” for herself and the children. Steve 

did not specifically dispute Joy’s description of the items she 

purchased on credit, but he did generally characterize her purchases and her spending habits as excessive.

The record shows a pattern of indulgent spending by the parties throughout their marriage, but indulgent spending and marital debt are not necessarily mutually exclusive. It was Steve’s 

burden to show the debt was nonmarital, 20 and on this record, 

we cannot find an abuse of discretion in classifying Joy’s postseparation credit card debt as marital. We reject Steve’s first 

assignment of error.

(b) Classification of Unvested 

RSUs and Time Rule

At the time of trial, Steve’s Costco brokerage account held 

unvested RSUs from annual grants made in 2015, 2016, 2017, 

2018, and 2019. The trial court classified all of the unvested 

RSUs awarded from 2015 through 2018 as marital property, 

and it classified the RSUs awarded in 2019 as nonmarital property. Neither party challenges the classification of the 2019 

19 See McGuire v. McGuire, 11 Neb. App. 433, 448, 652 N.W.2d 293, 305 

(2002) (stating “[a] marital debt is ‘one incurred during marriage and 

before date of separation by either spouse or both spouses for joint benefit 

of parties’”).

20 See, Fetherkile, supra note 9; Millatmal, supra note 14.
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RSUs as nonmarital. But Steve assigns that when classifying 

and dividing the unvested RSUs granted to him from 2015 

through 2018, the district court erred by not applying the time 

rule from Davidson.

 21

One of the issues in Davidson was how to classify and equitably divide unvested employee stock options and stock retention shares. When the parties in Davidson married, the husband 

was a senior executive with Union Pacific. Both before and 

during the marriage, a large portion of the husband’s compensation was composed of employee stock options and stock 

retention shares. Similar to the RSUs at issue here, the stock 

retention shares in Davidson were described as “stock shares 

that are unvested when granted but will vest at some predetermined point in time . . . only if [the husband] remained 

employed with Union Pacific until a certain point in time.” 22

When the parties in Davidson separated after roughly 2 years 

of marriage, a primary dispute at trial was how to classify 

and value the husband’s unvested stock options and unvested 

stock retention shares. The trial court concluded this property 

was “too difficult to value” and excluded it from the marital 

estate. 23 On appeal, we found the trial court abused its discretion by entirely excluding the unvested stock options and stock 

retention shares from the marital estate.

[9] Our opinion in Davidson considered an issue of first 

impression in Nebraska: How should courts determine whether 

unvested employee stock options and restricted stock plans 

are marital or nonmarital property? To answer that question, 

Davidson began with the long-settled rule that “the marital 

estate includes property accumulated and acquired during the 

marriage through the joint efforts of the parties.” 24 Davidson

also observed that Neb. Rev. Stat. § 42-366(8) (Reissue 

21 Davidson, supra note 1.

22 Id. at 660, 578 N.W.2d at 853.

23 Id. at 660, 578 N.W.2d at 854.

24 Id. at 662, 578 N.W.2d at 854. See, also, Dooling, supra note 8.
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2016) mandates that “court[s] shall include as part of the marital estate . . . any pension plans, retirement plans, annuities, and 

other deferred compensation benefits owned by either party, 

whether vested or not vested.” After considering this authority, 

Davidson announced a new proposition of law: “[U]nvested 

employee stock options and stock retention shares constitute 

marital property when accumulated and acquired during the 

marriage through the joint efforts of the parties.” 25

Applying this new proposition to the evidence in Davidson, 

we first rejected the husband’s argument that all of his unvested 

stock options and stock retention shares were the result of his 

sole efforts, rather than the parties’ joint efforts. We explained 

that so long as “unvested stock options and stock retention 

shares were accumulated and acquired during the marriage, 

they were accumulated and acquired through the joint efforts 

of the parties.” 26 The harder question in Davidson was how to 

determine when unvested stock options and retention shares 

were “accumulated and acquired.”

In Davidson, some of the unvested stock options and retention shares had been awarded to the husband before the marriage, and some during the marriage. Additionally, the evidence 

showed that some had vested during the marriage and that 

others were scheduled to vest after the date of dissolution. In 

fashioning a general rule to determine when unvested stock 

options and retention shares are accumulated and acquired for 

purposes of determining the marital estate, we observed:

Most courts faced with the issue of when stock options 

and retention stock are accumulated and acquired look to 

whether and to what extent the unvested employee stock 

options at issue were granted for past, present, or future 

services and then determine what percentage thereof was 

earned during the marriage and what percentage was 

25 Davidson, supra note 1, 254 Neb. at 662, 578 N.W.2d at 855.

26 Id. at 663, 578 N.W.2d at 855.
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earned prior to the marriage and/or subsequent to its 

dissolution. 27

Davidson referred to this as a “time rule” and concluded it 

was consistent with Nebraska law and “generally applies” 28

to employee stock options and stock retention shares in dissolution actions. We saw no reason, on the facts in Davidson, 

to distinguish between the two forms of compensation when 

applying the time rule, but we acknowledged that “other jurisdictions have held that stock retention shares are accumulated 

and acquired in their entirety when granted.” 29

Davidson described application of the time rule as a two-step 

process. First, “it is incumbent upon the trial court to calculate 

whether and to what extent the options were granted as compensation for past, present, or future services.” 30 Next, “the trial 

court should determine what percentage of each portion thereof 

was accumulated and acquired during the marriage.” 31

In Davidson, the director of compensation for Union Pacific 

testified that its employee stock option program was “designed 

to recognize and reward past performance and to create an 

incentive for future contribution to the organization” and that 

Union Pacific granted stock retention shares “to retain [the 

employee] through a predetermined point in time.” 32 Based on 

that evidence, we concluded that the husband’s employee stock 

options were intended to compensate him “equally for both 

past and future services” and that the stock retention shares 

“were granted entirely for future services.” 33

27 Id. at 664, 578 N.W.2d at 856.

28 Id.

29 Id., citing In re Marriage of Miller, 915 P.2d 1314 (Colo. 1996) (en 

banc) (applying time rule to unvested stock options but holding unvested 

retention shares were marital property on date they were granted even 

though husband must remain employed to realize full vesting).

30 Davidson, supra note 1, 254 Neb. at 665, 578 N.W.2d at 856.

31 Id.

32 Id. at 660, 578 N.W.2d at 854.

33 Id. at 665, 578 N.W.2d at 856.
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Guided by those findings, Davidson then proceeded to determine what percentage of each was accumulated and acquired 

during the marriage. To do so, we described several different 

formulas to apply, depending on the specific factual scenario. 

The general purpose of each formula is to identify and exclude 

from the marital estate “that portion [of unvested stock options 

and retention shares] which represented compensation for services performed prior to the marriage or subsequent to the 

dissolution.” 34 Among others, Davidson described the following factual scenarios:

If the option or retention share is granted during the 

marriage and vests during the marriage, that portion of 

the option or retention share which represents compensation for future services, if any, was accumulated and 

acquired entirely during the marriage. If, however, the 

option or retention share is granted during the marriage 

and will vest sometime after dissolution, the percentage 

of future services, if any, is determined by a fraction. The 

numerator is the period of time from the date of the grant 

until dissolution, and the denominator is the period of 

time from the date of the grant until the employee stock 

option vests. 35

Steve argues the district court erred by not applying this 

formula from Davidson to determine which portion of his 

unvested RSUs were marital. On this record, we disagree.

Steve’s argument assumes the RSUs he was granted by 

Costco were intended as compensation for future services. But 

unlike the husband in Davidson, Steve adduced no evidence 

to support any judicial determination of whether his unvested 

RSUs were granted as compensation for past, present, or future 

services. On this record, Costco’s reasons for granting the 

RSUs to Steve remain a mystery.

34 Id. at 664, 578 N.W.2d at 855.

35 Id. at 667, 578 N.W.2d at 857.
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Steve offered no testimony from his employer on this key 

issue, and although he offered the RSU agreement, that document does not set out the eligibility criteria for participation in the RSU program, nor does it describe how Costco 

determines the number of RSUs to be granted, or whether it 

intends RSUs to compensate employees for past, present, or 

future services. Costco’s 2019 proxy statement summarized 

the company’s criteria and rationale for awarding performancebased RSUs to its executive officers, but it did not specifically 

address the criteria or rationale for granting RSUs to nonexecutive employees like Steve. Indeed, to the extent Costco’s 

proxy statement addressed any of the criteria governing RSUs 

granted to nonexecutive employees, it stated that vesting was 

not performance based at all.

[10] To apply the Davidson time rule, it is essential that the 

court be presented with evidence from which it can determine 

whether the unvested stock options or stock retention shares 

were granted as compensation for past, present, or future services. As such, if Steve wanted to rely on the time rule to argue 

that some or all of his unvested RSUs were nonmarital, it was 

his burden to prove, by a preponderance of the evidence, that 

at least some portion of the RSUs granted during the marriage 

were granted as compensation for future services. 36 He failed 

to meet that burden.

Absent sufficient evidence on which to make the factual 

determinations necessary to apply the Davidson time rule, we 

cannot find an abuse of discretion in the court’s decision not to 

apply the rule. This assignment of error has no merit.

2. Child Support

Steve’s appeal and Joy’s cross-appeal both assign error 

to the district court’s child support calculation. Steve argues 

36 See id. (stating any “option/retention share or portion thereof which is 

granted during the marriage and determined to be compensation for present 

services is accumulated and acquired in its entirety when granted”).
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the court should have used worksheet 3 of the Nebraska Child 

Support Guidelines (Guidelines), rather than worksheet 1 of the 

Guidelines, to calculate child support, because the parenting 

plan effectively established a joint physical custody arrangement. 37 Alternatively, Steve argues that when calculating the 

downward deviation based on Steve’s additional parenting 

time, the court made a mathematical error.

In her cross-appeal, Joy argues the court erred by excluding 

all of Steve’s RSU income when determining his total monthly 

income for purposes of calculating child support. We address 

Joy’s assigned error first and find it has merit.

[11] When calculating the amount of support to be paid 

under the Guidelines, a court must consider the total monthly 

income of the parties. 38 The Guidelines define “[t]otal monthly 

income” as

the income of both parties derived from all sources, except 

all means-tested public assistance benefits which includes 

any earned income tax credit and payments received for 

children of prior marriages. This would include income 

that could be acquired by the parties through reasonable 

efforts. For instance, a court may consider as income the 

retained earnings in a closely-held corporation of which 

a party is a shareholder if the earnings appear excessive 

or inappropriate. All income should be annualized and 

divided by 12. 39

[12-14] The main principle behind the Guidelines is to 

recognize the equal duty of both parents to contribute to the 

37 See, e.g., State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 948, 932 

N.W.2d 692, 704 (2019) (“[w]here a parenting plan effectively establishes 

a joint physical custody arrangement, courts will so construe it, regardless 

of how prior decrees or court orders have characterized the arrangement”). 

See, also, Elsome v. Elsome, 257 Neb. 889, 900, 601 N.W.2d 537, 545 

(1999) (directing courts to use worksheet 3 when joint physical custody is 

ordered, unless a “sound reason not to do so is established by the record”).

38 Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).

39 Neb. Ct. R. § 4-204 (rev. 2020).
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support of their children in proportion to their respective 

net incomes. 40 We have been very clear that when determining total income under the Guidelines, “‘all income from all 

sources is to be included except for those incomes specifically excluded.’” 41 A party’s total monthly income “should not 

be based on income that is ‘speculative in nature and over 

which the employee has little or no control.’” 42 But when 

the evidence shows the party “earns or can reasonably expect 

to earn a certain amount of income on a regular basis, a 

rebuttable presumption of including such income arises under 

the Guidelines.” 43 To rebut that presumption, the party must 

produce sufficient evidence to show that application of the 

Guidelines would not result in a fair and equitable child support order. 44

The undisputed evidence shows that Steve regularly receives 

annual grants of RSUs from his employer, and there was no 

evidence this pattern is likely to change in the future. Each 

year, Steve cashes the RSUs that vest into shares of Costco 

stock, and as a result, he receives significant income above 

and beyond his base salary and annual bonus. The evidence 

shows that in 2017, 2018, and 2019, Steve’s reported RSU 

income was approximately $227,328, $384,591, and $461,053, 

respectively. As such, over the 3-year period immediately 

before trial, Steve’s actual RSU income averaged well over 

$357,000 annually.

Because Steve regularly earns significant RSU income and 

can reasonably be expected to earn it in the future, there is 

40 Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).

41 Id. at 108, 917 N.W.2d at 474.

42 Noonan v. Noonan, 261 Neb. 552, 560, 624 N.W.2d 314, 322 (2001), 

quoting Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991).

43 Noonan, supra note 42, 261 Neb. at 561, 624 N.W.2d at 322-23. See, also, 

Neb. Ct. R. § 4-203 (rev. 2020) (“[t]he child support guidelines shall be 

applied as a rebuttable presumption”).

44 See Noonan, supra note 42.
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a rebuttable presumption that some amount of RSU income 

should have been included when computing his total income 

under the Guidelines. 45 And on this record, we do not see sufficient evidence to rebut that presumption.

The trial court excluded all of Steve’s RSU income, and its 

only stated reason for doing so was that the unvested RSUs 

granted in 2015 through 2018 had been classified as marital 

property and equitably divided. We have two concerns with 

this reasoning.

First, it implies that when calculating child support, courts 

must make a binary choice between classifying something as 

marital property subject to equitable division and considering 

it as income for purposes of child support. Our precedent contains no such bright-line rule. 46 We have been careful to avoid 

a rigid definition of income for purposes of calculating child 

support, and instead have relied upon a flexible, fact-specific 

inquiry that recognizes the wide variety of circumstances that 

may be present. 47 We take this flexible approach because child 

support proceedings are equitable in nature. 48 As such, we 

reject the suggestion that the trial court had to make an all-ornothing choice when it came to including RSU income in the 

child support calculation.

Moreover, the fact that a finite number of Steve’s unvested 

RSUs were classified as marital and divided in the decree does 

not adequately explain why the court excluded all RSU income 

when determining total income for purposes of calculating 

45 See id.

46 See, e.g., Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 

(2000) (finding no abuse of discretion in decree that treated growing and 

stored crops as divisible marital asset and also as income for purposes of 

child support); Venter v. Venter, 249 Neb. 712, 545 N.W.2d 431 (1996) 

(rejecting argument that it was error to treat husband’s accounts receivable 

as marital property subject to division and as income for purposes of 

child support).

47 See Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017).

48 Id.
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child support. 49 In addition to the marital RSUs, Steve has 

unvested RSUs granted in 2019 that were deemed nonmarital 

and set off exclusively to him, and it is reasonable to infer from 

the evidence that he will continue to accumulate significant 

grants of RSUs annually in the future. As those nonmarital 

RSUs accumulate and vest into shares, Steve will receive 

significant taxable income that is not subject to the decree’s 

property division provisions, yet was not considered by the 

court when calculating child support. We note the decree states 

that when the nonmarital RSUs “begin to vest,” the income 

should be considered for purposes of calculating child support. The first 20 percent of nonmarital RSUs was scheduled 

to vest just a few weeks after the decree was entered, yet the 

court excluded all RSU income when calculating Steve’s total 

monthly income.

It is true that under the decree, Joy will receive a portion of 

Steve’s annual RSU income until the last of the marital RSUs 

vest into shares—likely sometime in 2023, assuming no accelerated vesting applies. This may support a downward deviation in child support during that time period, but it does not 

justify a blanket exclusion of all RSU income when calculating 

child support.

In sum, on this record, we see no principled reason to 

exclude all RSU income from the child support calculation. 

We recognize Steve’s annual RSU income fluctuated somewhat, but his average annual income from RSUs was well over 

49 See, e.g., Hoegen v. Hoegen, 89 Mass. App. 6, 43 N.E.3d 718 (2016) 

(finding father’s income from vested RSUs should have been included 

along with his base salary and bonus compensation when calculating 

his child support obligation, because father regularly received RSUs 

as part of compensation package and regularly earned income from 

vested RSUs); Heckman v. Heckman, 422 S.W.3d 336 (Mo. App. 2013) 

(finding no error in using 3-year average of father’s actual earnings 

from restricted stocks when calculating his income for purposes of child 

support, where restricted stocks were regularly granted as part of father’s 

annual compensation package).
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$357,000, and to categorically exclude all RSU income from 

the child support calculation was an abuse of discretion. We 

therefore reverse the child support provisions in the decree and 

remand the matter to the district court with directions to recalculate child support, on the existing record, without excluding 

all RSU income. We necessarily leave to the trial court’s discretion the specific amount of RSU income to include when 

determining total monthly income for purposes of child support, and we express no opinion on the amount or duration of 

any downward deviation.

Because we are remanding for a recalculation of child support, we do not reach Steve’s assignments of error on this issue.

3. Alimony

On appeal, Steve argues that the amount and duration of the 

alimony award was excessive, and on cross-appeal, Joy argues 

the amount of alimony was insufficient. She also argues the 

court should have required Steve to maintain life insurance to 

secure his future alimony obligation.

The Guidelines “intend that spousal support be determined 

from income available to the parties after child support has 

been established.” 50 Because we are remanding this matter 

for recalculation of child support, it is appropriate to likewise 

reverse the alimony award and remand the matter with directions to determine alimony after Steve’s child support obligations have been recalculated. 51 As such, we do not address the 

parties’ assignments of error pertaining to the amount or duration of alimony. 52

[15] We do, however, address Joy’s argument that the court 

erred by failing to require Steve to maintain a life insurance 

50 Neb. Ct. R. § 4-213. See, also, Hotz, supra note 40 (for purposes of determining alimony, relative economic circumstances of parties are to be 

tested based on income available after child support obligations, if any, 

have been accounted for).

51 See Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006).

52 See id.
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policy as security for his alimony obligation. Neb. Rev. Stat. 

§ 42-365 (Reissue 2016) addresses alimony and provides that 

“[r]easonable security for payment may be required by the 

court.” We have long construed this statute to give courts discretion, “in an appropriate case, to require sufficient security to 

be given for the payment of alimony . . . awards.” 53 We have 

also said that “reasonable security for payment of alimony . . . 

should be invoked in the original decree only when compelling 

circumstances require it.” 54

Joy argues the decree should have included a requirement 

that Steve maintain a life insurance policy sufficient to secure 

his future alimony obligation. But she adduced no evidence 

of what such a policy would cost annually to maintain, and 

she directs us to no evidence of compelling circumstances 

that would warrant requiring security. On this record, we find 

no abuse of discretion in not requiring Steve to maintain life 

insurance as security for his alimony obligation.

4. Equal Parenting Time

[16] Lastly, Joy asserts on cross-appeal that the court erred 

in awarding Steve equal parenting time. Child custody and 

parenting time determinations are matters initially entrusted to 

the discretion of the trial court, and although reviewed de novo 

on the record, the trial court’s determination will normally be 

affirmed absent an abuse of discretion. 55

Our de novo review shows no abuse of discretion in awarding equal parenting time. The record fully supports the court’s 

finding that both Steve and Joy are fit and proper parents and 

that the equal parenting time schedule imposed by the court is 

in the best interests of the children.

53 Lacey v. Lacey, 215 Neb. 162, 164, 337 N.W.2d 740, 741 (1983).

54 Wheeler v. Wheeler, 193 Neb. 615, 617, 228 N.W.2d 594, 596 (1975). 

Accord Lacey, supra note 53.

55 See Dooling, supra note 8.
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V. CONCLUSION

For the foregoing reasons, we reverse the decree only as it 

pertains to the calculation of child support and alimony and 

remand the matter for recalculation on the existing record, in 

accordance with the Guidelines and this opinion. We affirm the 

decree in all other respects.

Affirmed in part, and in part reversed 

and remanded with directions.