Tierney v. Tierney
309 Neb. 310
| Neb. | 2021Background
- Kathryn and Lawrence Tierney divorced after a 2017 decree that divided multiple marital tracts: the 286.46-acre “red” tract (containing the marital home and outbuildings), a 159.49-acre “pink” tract, a 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 the green and orange tracts to Lawrence and ordered an equalization payment to Kathryn.
- On direct appeal, the Nebraska Court of Appeals modified the decree, awarding the red and pink tracts to Lawrence (necessary for his ranch operation) but nonetheless awarded the marital home to Kathryn; the opinion did not specify how many acres would accompany the house.
- Kathryn moved for a metes-and-bounds legal description for the marital home and proposed a 5.24-acre parcel; Lawrence argued the home should carry only the 1 acre valued at trial and invoked law-of-the-case and zoning concerns.
- The district court adopted Kathryn’s 5.24-acre description (citing Custer County’s 5-acre minimum lot size) as the only survey evidence and declined to consult zoning authorities or adjust valuations; Lawrence appealed.
Issues
| Issue | Plaintiff's Argument (Kathryn) | Defendant's Argument (Lawrence) | Held |
|---|---|---|---|
| 1) Law-of-the-case applicability to acreage | Court of Appeals did not decide acreage; district court may determine legal description on remand | Court of Appeals’ award of the home implied the 1-acre parcel valued at trial; law-of-the-case bars relitigation | Not applicable—acreage was not litigated or decided on appeal; law-of-the-case does not bind district court to 1 acre |
| 2) Primary jurisdiction / need to involve zoning board | Divorce court may set a legal description; no variance was sought so zoning board involvement is unnecessary | District court should defer to county zoning authority and require exhaustion of administrative remedies | Primary jurisdiction inapplicable; divorce courts may reasonably set metes-and-bounds descriptions; zoning board need not be consulted before description is fixed |
| 3) Appropriateness of awarding 5.24 acres vs 1 acre | 5.24-acre survey complies with county minimums, preserves Lawrence’s operational areas, and Kathryn offered easements | Awarding >1 acre contradicts trial valuation and Court of Appeals’ disposition | District court did not err: it adopted Kathryn’s reasonable, sole-survey evidence and Lawrence offered no alternative at hearing |
| 4) Failure to adjust valuation for larger parcel | (Kathryn) Parties agreed not to seek valuation adjustment at hearing | (Lawrence) Court should have accounted for increased value from 5.24 acres | Waived—Lawrence did not request or present evidence for a valuation adjustment at the trial-court hearing |
Key Cases Cited
- Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (Neb. 2020) (marital dissolution reviewed de novo on the record; standard of review explained)
- Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696 (Neb. 2021) (law-of-the-case doctrine discussed)
- Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (Neb. 2007) (primary jurisdiction doctrine described)
- Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (Neb. 2020) (issues not raised at trial are waived)