Tierney v. Tierney, 309 Neb. 310

Background:

Kathryn and Lawrence Tierney divorced after a long marriage; the marital estate included several large tracts of ranch land and the marital home located on the 286.46-acre "red" tract.
The district court (at trial) valued acreage and awarded the red and pink tracts (including the home) to Kathryn and other tracts to Lawrence, plus an equalization payment to Kathryn.
On direct appeal the Nebraska Court of Appeals modified the decree: it awarded the red and pink tracts to Lawrence (as necessary for his cattle operation) but affirmed that the marital home itself belonged to Kathryn; the Court of Appeals did not specify acreage for the parcel with the home.
After mandate, Kathryn moved for a metes-and-bounds legal description for the home; she proposed a 5.24-acre parcel. Lawrence argued the home should be described with only 1 acre (the acreage used in the trial valuation).
The district court adopted Kathryn’s 5.24-acre description, citing Custer County zoning rules (5-acre minimum for single-family dwellings in the agricultural district) and the fact Kathryn’s survey was the only description offered; Lawrence raised law-of-the-case, primary jurisdiction, and valuation objections.
The Nebraska Supreme Court affirmed: law-of-the-case did not control the acreage issue; primary jurisdiction did not require referral to county zoning authorities; adoption of Kathryn’s 5.24-acre legal description was appropriate; Lawrence waived valuation adjustment by failing to request or present evidence below.

Issues:

Issue	Plaintiff's Argument (Kathryn)	Defendant's Argument (Lawrence)	Held
Whether law-of-the-case bars changing the acreage awarded with the marital home	The Court of Appeals awarded the home to Kathryn; parties valued the home with 1 acre at trial, so acreage was settled	The appellate mandate implicitly included the 1-acre description; district court violated law-of-the-case by granting 5.24 acres	Law-of-the-case inapplicable: Court of Appeals did not decide acreage and parties could not have anticipated separate award; district court did not abuse discretion
Whether district court should have deferred to county zoning authorities (primary jurisdiction) or required exhaustion of administrative remedies	Court can issue a legal description in divorce property division; zoning issues (e.g., variances) were not before the court	Zoning administration is within county authority; district court should have worked with zoning board or required exhaustion	Primary jurisdiction/administrative exhaustion not required: court may define legal description in divorce; zoning board needs a legal description to consider variances
Whether awarding a 5.24-acre tract (rather than 1 acre) was erroneous	Kathryn’s proposed survey (5.24 acres) complied with zoning minima, preserved Lawrence’s ranch facilities by granting easements, and was the only description offered	1 acre matched the valuation at trial and better reflected prior proceedings	District court properly adopted Kathryn’s 5.24-acre survey as the only adequate evidence and to avoid violating local zoning rules; no abuse of discretion
Whether court erred by not adjusting valuations/equalization after increasing acreage with the home	Kathryn did not seek valuation change at hearing and her counsel agreed not to request adjustment	Increasing acreage necessarily changed value; district court should have adjusted equalization	Lawrence waived valuation claim by failing to request or present evidence at trial court; court asked and parties agreed no valuation adjustment was sought

Key Cases Cited

Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (Sup. Ct. Neb. 2020) (standards for de novo review and abuse of discretion in family law matters)
Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696 (Sup. Ct. Neb. 2021) (explaining law-of-the-case doctrine)
Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (Sup. Ct. Neb. 2007) (primary jurisdiction doctrine overview)
Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (Sup. Ct. Neb. 2020) (waiver of appellate objections where not raised below)