Tierney v. Tierney
309 Neb. 310
| Neb. | 2021Background:
- Kathryn and Lawrence Tierney divorced; the 2017 decree divided multiple agricultural tracts (red tract included the marital home and outbuildings; pink, green, and orange tracts comprised the remainder).
- District court originally valued land at $1,446/acre, awarded pink and red to Kathryn, green and orange to Lawrence, and ordered an equalization payment to Kathryn.
- On appeal, the Nebraska Court of Appeals modified the decree: it awarded the red and pink tracts to Lawrence (necessary for his ranch operation) but affirmed that the marital home belonged to Kathryn.
- Because the home remained physically within the larger red tract awarded to Lawrence, Kathryn moved for a metes and bounds legal description for the home; she proposed a 5.24-acre parcel to conform to Custer County minimum-lot zoning rules.
- Lawrence requested a 1-acre parcel (the acreage used at trial to value the house), argued the law-of-the-case doctrine and primary jurisdiction/zoning concerns, and contended any increased acreage should change valuations; the district court adopted Kathryn’s 5.24-acre survey and denied relief.
- The Nebraska Supreme Court affirmed the district court, rejecting Lawrence’s arguments on law-of-the-case, primary jurisdiction, parcel size, and valuation adjustment.
Issues:
| Issue | Plaintiff's Argument (Kathryn) | Defendant's Argument (Lawrence) | Held |
|---|---|---|---|
| Whether law-of-the-case barred reallocation of acreage accompanying the marital home | Court of Appeals awarded the home to Kathryn; acreage not litigated by Kathryn on remand — district court may define parcel | Law-of-the-case prohibits awarding more acreage than the 1 acre used at trial and presumed by the appellate disposition | Court: Law-of-the-case inapplicable because Court of Appeals did not decide the acreage; facts on remand materially different and acreage was not litigated previously |
| Whether court should have deferred to county zoning board (primary jurisdiction) or required administrative exhaustion | Kathryn: divorce court may equitably divide property and determine legal description; zoning bodies lack authority to set legal descriptions in divorce; zoning decision would require a legal description first | Lawrence: county zoning and variance processes are the appropriate forum; court should have worked with zoning authorities or required variance/exhaustion | Court: primary jurisdiction inapplicable; divorce court may create a legal description for equitable division and zoning bodies often need a legal description to act |
| Whether 5.24-acre metes and bounds award (vs 1 acre) was proper | Kathryn: proposed survey complies with county minimum lot rules, preserves Lawrence’s ranch facilities via easements, and was the only survey evidence | Lawrence: trial valuation was based on house + 1 acre; award of 5.24 acres improperly changes property division | Court: district court did not err—Kathryn’s survey was the only evidence, court avoided violating zoning regs, and Lawrence offered no alternative description |
| Whether court should have adjusted valuations/equalization for larger awarded parcel | Kathryn: parties and court at hearing confirmed no valuation adjustment sought | Lawrence: increased acreage should have altered trial valuations and equalization payment | Court: Lawrence waived objection by not requesting valuation adjustment or presenting evidence at trial; no relief warranted |
Key Cases Cited
- Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (Neb. 2020) (standard of review and abuse-of-discretion framework in dissolution matters)
- Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696 (Neb. 2021) (law-of-the-case doctrine explained)
- Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (Neb. 2007) (primary jurisdiction principles)
- Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (Neb. 2020) (waiver of appellate issue by failing to raise at trial)