Tierney v. Tierney
309 Neb. 310
| Neb. | 2021Background
- Kathryn and Lawrence Tierney divorced after separation in 2015; a 2017 decree divided multiple marital tracts (color-coded: red, pink, green, orange) and ordered equalization payments.
- The marital home sat on the red tract. At trial the court valued acreage and awarded the red and pink tracts to Kathryn, and green and orange to Lawrence, plus an equalization payment.
- On appeal, the Nebraska Court of Appeals modified the decree, awarding the red and pink tracts to Lawrence (as necessary for his cattle operation) but affirmed that the marital home itself went to Kathryn.
- Because the home lay within a larger tract awarded to Lawrence, Kathryn moved for a metes-and-bounds legal description separating the house; she asked for a 5.24-acre parcel (conforming with Custer County 5-acre minimum); Lawrence argued the house should be conveyed with 1 acre (as valued at trial).
- The district court adopted Kathryn’s proposed 5.24-acre legal description, citing county zoning minimum lot size and noting Kathryn’s survey was the only adequate evidence; Lawrence raised law-of-the-case, primary jurisdiction/zoning, and valuation arguments on appeal.
- The Nebraska Supreme Court affirmed the district court: law-of-the-case did not bar the determination of acreage; the court could enter a legal description in a divorce; Lawrence waived valuation adjustment by not presenting evidence or requesting it at the hearing.
Issues
| Issue | Kathryn's Argument | Lawrence's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case bars awarding >1 acre with the house | Court of Appeals didn’t decide acreage; law-of-the-case inapplicable | Court of Appeals’ mandate awarding the house implied the 1-acre used at trial | Held: law-of-the-case inapplicable; acreage was not litigated on appeal so district court could decide |
| Whether district court must defer to county zoning / administrative bodies (primary jurisdiction) | Divorce court may determine legal description; zoning bodies lack authority to set legal descriptions in divorce; zoning agencies often need a legal description first | District court should have deferred and required exhaustion of administrative remedies | Held: primary jurisdiction not triggered; court may lawfully create a legal description in a divorce action |
| Whether 5.24-acre parcel was proper (vs 1-acre) | Kathryn’s survey conformed to county 5-acre minimum, preserved Lawrence’s ranch facilities by easements; her survey was only evidence | Requested 1 acre (as trial valuation) and argued district court should follow appellate outcome; offered no alternate description at hearing | Held: district court properly adopted Kathryn’s 5.24-acre description; Lawrence offered no alternative evidence |
| Whether valuation/equalization should be adjusted for larger parcel | Kathryn and court treated valuation issue as not being relitigated at that hearing | Parcel award increased land to Kathryn and Lawrence sought adjustment for changed value | Held: No adjustment made; parties agreed not to seek valuation change at hearing and Lawrence waived the issue by not presenting evidence or requesting adjustment |
Key Cases Cited
- Higgins v. Currier, 307 Neb. 748 (2020) (standard for de novo review on the record and abuse of discretion in dissolution matters)
- Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571 (2021) (law-of-the-case doctrine explained)
- Koch v. Aupperle, 274 Neb. 52 (2007) (primary jurisdiction doctrine and when administrative expertise should be invoked)
- Adair Holdings v. Johnson, 304 Neb. 720 (2020) (waiver of issues not raised or supported by evidence at trial)