Leners v. Leners, 925 N.W.2d 704

Background

Sharon and Stacy Leners married in 1997; Sharon filed for dissolution in 2016. They have two children; the younger was 15 at trial.
Temporary order established joint custody with a parenting-time schedule tailored to Stacy’s sporadic work travel (9th–15th and 24th–month end).
Financially, Sharon is a nurse with a 401(k), pension, and a Nebraska public-employee account (approx. $250/mo pension estimate); Stacy works for Union Pacific and has a railroad retirement benefit with Tier I (nondivisible) and Tier II (divisible) components (Tier II estimate ~$253.50–$360/mo).
At trial the court found Stacy more credible, described the case as highly contentious, and awarded shared legal and physical custody adopting Stacy’s parenting schedule.
The court awarded each spouse their own retirement accounts (Sharon: 401(k), employer pension, NPERs; Stacy: Union Pacific pension and 401(k)), entered judgment awarding Sharon $50,019, and ordered Sharon to pay Stacy $9,000 in attorney fees.
Sharon appealed, arguing errors in federal pension-law interpretation, custody and parenting-time award, allocation of child expenses, and the attorney-fee award.

Issues

Issue	Plaintiff's Argument (Sharon)	Defendant's Argument (Stacy)	Held
Division of railroad retirement benefits	Court misinterpreted federal law; court should have equitably divided Stacy’s Tier II pension (and not awarded him whole pension)	Court’s award of each party’s own pension equitably divides marital estate given lack of present dollar valuations	Affirmed: court did not abuse discretion in awarding Stacy his railroad pension; any misstatements about divorced-spouse annuity did not render division inequitable
Assumption re: divorced-spouse annuity	Court wrongly assumed Sharon would receive a divorced-spouse annuity from Union Pacific	Even if assumption was erroneous, it favored Stacy and does not require reversal given overall equitable division	Held: court erred in assuming entitlement but error did not require reversal
Custody and parenting time	Sharon sought sole custody; argued shared custody/ equal parenting time is not in younger child’s best interests	Stacy sought shared legal and physical custody and continuation/extension of temporary schedule to accommodate work	Affirmed: shared legal/physical custody and adopted parenting schedule were not untenable given child’s preference, parental fitness, and work schedule accommodations
Allocation of child expenses	Court should have required equal division of all reasonable/necessary child expenses (including extracurriculars) without needing mutual agreement	Court’s order allocated medical expenses and assigned routine expenses to each parent during their parenting time; extracurriculars required mutual agreement to prevent unilateral imposition	Affirmed: decree adequately addressed required expense allocation and did not abuse discretion
Attorney fees	Award of $9,000 against Sharon was improper	Stacy sought fees for litigation caused by Sharon’s vexatious conduct	Affirmed: court permissibly awarded fees under inherent-power doctrine given Sharon’s vexatious, unfounded, dilatory conduct (destruction of property, incendiary texts, false testimony)

Key Cases Cited

Hisquierdo v. Hisquierdo, 439 U.S. 572 (federal Railroad Retirement Act and preemption/characterization of benefits)
Shearer v. Shearer, 270 Neb. 178 (Nebraska recognizing Railroad Retirement Board must honor divorce decrees classifying Tier II as divisible)
Webster v. Webster, 271 Neb. 788 (trial court discretion in valuing and dividing pension rights in dissolution)
Vogel v. Vogel, 262 Neb. 1030 (child’s expressed intelligent preference is entitled to consideration in custody determinations)
Connolly v. Connolly, 299 Neb. 103 (standard and scope of de novo review in dissolution/custody appeals)
Donald v. Donald, 296 Neb. 123 (discussion of joint physical custody considerations)
Fetherkile v. Fetherkile, 299 Neb. 76 (courts’ inherent power to award attorney fees for vexatious or bad-faith litigation conduct)