Tierney v. Tierney
309 Neb. 310
| Neb. | 2021Background
- Kathryn and Lawrence Tierney married in 1980; they divorced and a decree dividing marital property was entered in October 2017.
- The marital estate included multiple agricultural tracts: a 286.46-acre “red” tract (containing the marital home and outbuildings), 159.49-acre “pink” tract, 319.17-acre “green” tract, and an “orange” tract (≈250–303 acres).
- The district court originally awarded the red and pink tracts to Kathryn and green and orange tracts to Lawrence, plus an equalization payment; Lawrence appealed.
- The Nebraska Court of Appeals modified the decree, awarding the red and pink tracts to Lawrence (necessary for the ranch operation) but affirmed the award of the marital home to Kathryn; the Court of Appeals’ opinion was silent as to how many acres would accompany the home.
- Kathryn moved for a metes-and-bounds legal description for the home and sought a 5.24-acre parcel (citing Custer County’s 5-acre minimum lot size outside subdivisions); Lawrence asked for 1 acre and argued law-of-the-case, primary jurisdiction (zoning) and valuation issues.
- The district court adopted Kathryn’s 5.24-acre description; the Nebraska Supreme Court affirmed that decision on appeal.
Issues
| Issue | Plaintiff's Argument (Kathryn) | Defendant's Argument (Lawrence) | Held |
|---|---|---|---|
| Whether the law-of-the-case doctrine prevented re‑deciding the acreage accompanying the marital home | The Court of Appeals awarded the house to Kathryn; acreage was not litigated on appeal so district court may define parcel consistent with zoning | The Court of Appeals’ award of the house implicitly included the 1 acre used in trial valuation; district court should not increase acreage post‑mandate | Court: law‑of‑the‑case inapplicable because acreage accompanying the home was not decided on appeal and facts on remand differed in context; no violation |
| Whether the district court should have deferred to local zoning authorities / invoked primary jurisdiction | District court may determine a legal description in dissolution actions; zoning bodies lack authority to set legal descriptions in divorce; zoning determinations often require a legal description first | The court should have worked with county zoning board or required exhaustion of administrative remedies before creating a parcel that implicates zoning minimums | Court: primary jurisdiction did not apply; the issue was property division in a divorce (properly a court function) and a legal description was needed before any zoning variance could be sought |
| Whether awarding 5.24 acres (vs. 1 acre) to Kathryn was erroneous | Kathryn submitted a proposed survey that respected ranch operations (easements to Lawrence) and complied with county 5‑acre minimum; survey was only evidence presented | Awarding 5.24 acres improperly reallocates outbuildings and increases Kathryn’s share beyond trial valuation | Court: district court acted reasonably in adopting Kathryn’s proposed metes‑and‑bounds (only evidence presented); Lawrence offered no alternative description at hearing |
| Whether the court erred by not adjusting valuations to account for the larger parcel awarded to Kathryn | Kathryn’s counsel agreed at hearing not to seek valuation adjustment | The change from 1 acre to 5.24 acres altered the valuation balance and required adjustment of equalization/payment | Court: Lawrence waived the valuation claim by not seeking adjustment or presenting evidence at trial; no error |
Key Cases Cited
- Higgins v. Currier, 307 Neb. 748 (2020) (standard of review for marital dissolution matters is de novo on the record and abuse‑of‑discretion framework)
- Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571 (2021) (definition and application of law‑of‑the‑case doctrine)
- Koch v. Aupperle, 274 Neb. 52 (2007) (primary jurisdiction doctrine principles)
- Adair Holdings v. Johnson, 304 Neb. 720 (2020) (issue‑waiver and failure‑to‑preserve arguments on appeal)