Tierney v. Tierney, 309 Neb. 310

Background

Kathryn and Lawrence Tierney divorced after a 2017 decree dividing multiple ranch tracts (red, pink, green, orange); the marital home sat on the red tract.
The district court originally awarded the red and pink tracts to Kathryn and the green and orange to Lawrence, with an equalization payment to Kathryn.
On appeal, the Nebraska Court of Appeals modified the property division, awarding the red and pink tracts to Lawrence (needed for ranch operations) but affirmed that the marital home belonged to Kathryn; the opinion did not specify acreage for the home.
Because the home remained physically within the larger red tract now awarded to Lawrence, Kathryn moved for a metes-and-bounds legal description for the home; she sought a 5.24-acre parcel (consistent with Custer County’s 5-acre minimum), while Lawrence argued the home should be described with 1 acre as valued at trial.
The district court adopted Kathryn’s 5.24-acre description (citing county zoning minimums and Kathryn’s submitted survey) and declined to adjust valuations; Lawrence offered no alternative metes-and-bounds description and appeals.

Issues

Issue	Plaintiff's Argument (Lawrence)	Defendant's Argument (Kathryn)	Held
Whether district court violated law-of-the-case by awarding 5.24 acres instead of 1 acre for the marital home	Court of Appeals awarded the house (valued with 1 acre) to Kathryn on appeal; that holding becomes law of the case and precludes relitigation of acreage	Court of Appeals was silent about acreage; acreage was not litigated on appeal and could not reasonably have been anticipated	Law-of-the-case doctrine inapplicable; acreage was not decided on appeal; no violation
Whether district court should have deferred to county zoning authorities or required exhaustion (primary jurisdiction)	Zoning board has primary jurisdiction over lot sizes/variances; court should not create a legal description without administrative input	Divorce courts may equitably divide marital estates and may determine legal descriptions; no variance was sought and regulators often need a legal description to consider variances	Primary jurisdiction not triggered; court acted within authority to set legal description in divorce action
Whether awarding the 5.24-acre tract was erroneous	Awarding 5.24 acres improperly increases Kathryn’s property and conflicts with trial valuation tied to 1 acre	Kathryn’s proposed survey was reasonable, left Lawrence necessary facilities and included easements; zoning required ~5-acre minimum; Lawrence offered no alternative at hearing	District court properly adopted Kathryn’s metes-and-bounds; no abuse of discretion
Whether court erred by not adjusting valuation to reflect larger parcel award	The larger parcel increased value to Kathryn and should have been accounted for	Parties expressly agreed at the hearing not to seek a valuation adjustment	Lawrance waived valuation challenge by not requesting adjustment or presenting evidence; claim denied

Key Cases Cited

Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (2020) (sets de novo-on-record review and abuse-of-discretion standard in dissolution matters)
Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696 (2021) (explains law-of-the-case doctrine and its limits)
Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007) (discusses primary jurisdiction doctrine applicability)
Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020) (addresses waiver for failure to raise issues at trial)