934 N.W.2d 497
Neb. Ct. App.2019Background
- Donald and Brandi Anderson married in 1999; they separated in July 2016 and have three children (born 2006, 2008, 2015).
- Temporary orders granted Brandi primary custody and limited Donald alternating weekend parenting time; disputes concerned one-on-one visitations with the eldest child (S.A.), who has Asperger’s and behavioral issues.
- Financial facts: Donald was primary earner historically (often >$100,000), changed jobs multiple times and was working for a lower base at trial; evidence of retirement withdrawals (2008–2014) and some gambling losses; Brandi had premarital student loans and later received inheritances/gifts.
- Trial court: awarded Brandi custody, imputed income to Donald for child support, ordered Donald to pay child support and $500/month spousal support for 24 months, valued the marital home at $150,000, allocated a $20,000 IRA withdrawal to Donald as his asset, and divided marital property giving Brandi the larger share.
- Appeals: Donald appealed home valuation, characterization of the $20,000 IRA withdrawal, failure to account for student loan repayments, imputation of income for child support, and the alimony award; Brandi cross-appealed parenting time (opposing one-on-one visits with S.A.), spousal support duration, and denial of attorney fees.
Issues
| Issue | Donald's Argument | Brandi's Argument | Held |
|---|---|---|---|
| Valuation of marital home | Court undervalued home; actual value ~$185,000 (based on assessor) | Appraiser’s $150,000 valuation is accurate given condition | Affirmed trial court — $150,000 valuation accepted (trial court’s assessment credible) |
| IRA withdrawal characterization ($20,000) | Withdrawal repaid marital obligations and should not be treated as dissipation/asset to him | Withdrawal paid gambling debts and deprived marital estate; should reduce Donald’s share | Reversed as to this item — no evidence withdrawal was dissipation during marital breakdown; cannot assign $20,000 as Donald’s asset |
| Student loan repayments by marital funds | Trial court erred by not reducing Brandi’s share for marital payments toward her premarital loan | Loan enabled Brandi’s career; inheritances offset loan repayments; payments not proven | Affirmed — although repayments could reduce Brandi’s share, Donald failed to prove amount paid during marriage so no setoff warranted |
| Child support (imputed income) | Court should use Donald’s actual lower income at trial | Donald voluntarily reduced income; earning capacity supports imputation | Affirmed — court appropriately imputed higher earning capacity based on work history and potential |
| Spousal support amount/duration | Alimony improper or excessive because incomes similar; temporary support already paid | Alimony justified for loss of career progression and disparity | Affirmed — $500/month for 24 months reasonable under circumstances |
| Parenting time (one-on-one visits with S.A.) | (Brandi) One-on-one visits harm S.A.; counselor’s testimony supported restriction | (Donald) One-on-one time preserves parent-child relationship; necessary for quality time | Affirmed — trial court did not abuse discretion in permitting individual parenting time; trial court found counselor’s testimony unpersuasive |
| Attorney fees (Brandi’s request) | Brandi sought fees given outcome | Trial court should award as customary in dissolutions | Affirmed — trial court did not abuse discretion in denying fees given parties’ relative finances and lack of detailed fee evidence |
Key Cases Cited
- Westwood v. Darnell, 299 Neb. 612 (Neb. 2018) (standard of review in dissolution appeals)
- Brozek v. Brozek, 292 Neb. 681 (Neb. 2016) (burden to prove nonmarital assets; tracing requirement)
- Osantowski v. Osantowski, 298 Neb. 339 (Neb. 2017) (appellate de novo review but deference to trial court fact findings)
- Reed v. Reed, 277 Neb. 391 (Neb. 2009) (definition and remedy for dissipation of marital assets)
- Johnson v. Johnson, 290 Neb. 838 (Neb. 2015) (use of earning capacity to calculate child support)
- Wiedel v. Wiedel, 300 Neb. 13 (Neb. 2018) (review of alimony awards; reasonableness standard)