Edwards v. Edwards

judgment and remand the cause to the trial court with direction
to sustain Villanueva’s motion for partial summary judgment.
R eveRsed and Remanded foR
fuRtheR pRoceedings .
J effRey L. edwaRds , appeLLee and cRoss - appeLLant , v .
dianna y. edwaRds , appeLLant and cRoss - appeLLee .
744 N.W.2d 243
Filed January 15, 2008. 	No. A-06-1350.
1. Appeal and Error: Waiver. Whether a party waived his or her right to appellate
review is a question of law.
2. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney
Fees: Appeal and Error. An appellate court’s review in an action for dissolution
of marriage is de novo on the record to determine whether there has been an abuse
of discretion by the trial judge. This standard of review applies to the trial court’s
determinations regarding custody, child support, division of property, alimony, and
attorney fees.
3. Appeal and Error. In a review de novo on the record, an appellate court reap-
praises the evidence as presented by the record and reaches its own independent
conclusions with respect to the matters at issue.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
5. Evidence: Appeal and Error. When the evidence is in conflict, an appellate court
considers, and may give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another.
6. Judgments: Waiver: Appeal and Error. As a general rule, a party who accepts
the benefits of a decree waives the right to prosecute an appeal from it.
7. Divorce: Judgments: Waiver: Appeal and Error. A spouse who accepts the
benefits of a divorce judgment does not waive the right to appellate review under
circumstances where the spouse’s right to the benefits accepted is conceded by the
other spouse, the spouse was entitled as a matter of right to the benefits accepted
such that the outcome of the appeal could have no effect on the right to those
benefits, or the benefits accepted are pursuant to a severable award which will not
be subject to appellate review.
8. Antenuptial Agreements. Nebraska’s Uniform Premarital Agreement Act autho-
rizes parties contemplating marriage to contract with respect to matters, not in
violation of public policy or in violation of statutes imposing criminal penalties,
including the rights and obligations of each party in any property of the other,
the disposition of property upon divorce, and the modification or elimination of
spousal support.
edWArds v. edWArds 	297
Cite as 16 Neb. App. 297
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

9. ____. A premarital agreement is not enforceable if the party against whom enforce-
ment is sought proves that the party did not execute the agreement voluntarily.
10. Antenuptial Agreements: Proof. The party opposing enforcement of a premarital
agreement has the burden of proving that the agreement is not enforceable.
11. Antenuptial Agreements: Evidence. evidence of lack of capacity, duress, fraud,
and undue influence, as demonstrated by a number of factors uniquely probative
of coercion in the premarital context, would be relevant in establishing the invol-
untariness of a premarital agreement.
12. Antenuptial Agreements. The issue of unconscionability of a premarital agree-
ment is a question of law.
13. Contracts: Intent. Whether a contract is entire or several is a question of inten-
tions apparent in the instrument.
14. Statutes. The meaning of a statute is a question of law.
15. Judgments: Appeal and Error. An appellate court decides a question of law
independently of the conclusion reached by the trial court.
16. Statutes. Absent anything to the contrary, statutory language is to be given its
plain and ordinary meaning.
17. Antenuptial Agreements: Alimony. Neb. rev. stat. § 42-1004(1)(d) (reissue
2004) applies to both permanent and temporary spousal support.
18. Statutes. To the extent that there is conflict between two statutes on the same
subject, the specific statute controls over the general statute.
19. Supersedeas Bonds: Appeal and Error. An appellate court will not modify a
district court’s order setting the amount of a supersedeas bond unless it finds the
district court abused its discretion.
20. ____: ____. The exercise by the trial court of its discretion with respect to fix-
ing the terms and conditions of a supersedeas bond will not be interfered with
on appeal unless there has been a manifest abuse of discretion or injustice
has resulted.
21. Judgments: Records: Appeal and Error. It is the appellant’s duty to present and
show by the record that the judgment is erroneous.
22. Divorce: Attorney Fees: Appeal and Error. In an action for dissolution of
marriage, the award of attorney fees is discretionary with the trial court, is
reviewed de novo on the record, and will be affirmed in the absence of an abuse
of discretion.
23. Child Custody: Appeal and Error. In contested custody cases, where material
issues of fact are in great dispute, the standard of review and the amount of defer-
ence granted to the trial judge, who heard and observed the witnesses testify, are
often dispositive of whether the trial court’s determination is affirmed or reversed
on appeal.
24. Divorce: Child Custody. When custody of a minor child is an issue in a proceed-
ing to dissolve the marriage of the child’s parents, child custody is determined by
parental fitness and the child’s best interests.
25. Child Custody. When both parents are found to be fit, the inquiry for the court
is the best interests of the child.
298 	16 NebrAskA APPellATe rePorTs

Appeal from the district Court for douglas County: gaRy B.
R andaLL, Judge. Affirmed as modified.
Mark J. Milone, of Govier, Milone & kinney, l.l.P., for
appellant.
P. shawn McCann, of sodoro, daly & sodoro, P.C., for
appellee.
sieveRs, caRLson, and casseL, Judges.
casseL, Judge.
INTrodUCTIoN
The marriage of Jeffrey l. edwards and dianna Y. edwards
was dissolved by a decree of the district court for douglas
County. dianna appeals, and Jeffrey cross-appeals. on our de
novo review, we conclude that the district court did not abuse
its discretion in its determinations regarding the division of
the marital estate, Jeffrey’s motion for temporary relief, a
supersedeas bond, attorney fees, and custody of the parties’
minor children. We further conclude that a premarital agreement
entered into by the parties prior to their marriage is valid and
enforceable in its entirety. We affirm the district court’s decree
as modified.
bACkGroUNd
Jeffrey and dianna met in 1994. At the time of their meet-
ing, dianna was a registered nurse employed by the University
of Nebraska Medical Center. In the summer of 1994, dianna
began working for Jeffrey while continuing her employment
with the medical center. In 1995, she earned her bachelor of
science degree in nursing.
When the parties met, Jeffrey was a physician and the sole
shareholder and practitioner of a professional corporation he
formed in 1993. He had additional business interests in a
winery and in several assisted living facilities.
Approximately 3 months after they met, dianna moved into
Jeffrey’s residence, a house that he purchased in 1990. shortly
thereafter, the parties began contemplating marriage. They mar-
ried in June 1996.
edWArds v. edWArds 	299
Cite as 16 Neb. App. 297

According to Jeffrey, the parties started discussing a pre-
marital agreement approximately 14 months prior to their wed-
ding. They had continuing discussions on the matter until they
executed an agreement on May 21, 1996. Jeffrey testified that
both he and dianna were represented by counsel while they
negotiated the terms of the agreement. He testified that several
drafts of the agreement were prepared before the parties agreed
to the final terms. Jeffrey testified that requests by dianna’s
attorney prompted the changes that were made to the original
draft. Jeffrey’s attorney, the author of the premarital agreement,
corroborated Jeffrey’s testimony and also testified that dianna
was not pressured into signing the agreement.
dianna testified that she began preparing for the parties’
wedding approximately 9 months before it took place. In prepa-
ration for the wedding, she reserved a church and decorations
for the church, scheduled the reception, purchased her wed-
ding gown, prepared and mailed wedding invitations, and hired
someone to bake the wedding cake. dianna testified that Jeffrey
“brought up” the premarital agreement to her about 2 months
prior to the wedding. by that time, she had completed all of the
preparations mentioned above and had expended approximately
$1,500 in anticipation of the wedding. After Jeffrey presented
the first draft of the premarital agreement to her, dianna hired
an attorney and spent approximately 1 hour with her attorney
discussing the terms of the agreement.
According to dianna, on the day the parties executed the
agreement, Jeffrey called her from work and instructed her to
meet him at his attorney’s office. dianna then called her attor-
ney, who informed her that he no longer wished to represent
her. When dianna arrived at the office of Jeffrey’s attorney,
she told Jeffrey and his attorney that she no longer had legal
representation. According to dianna, Jeffrey responded, “Well,
you don’t really need [an attorney]” and told her to sign the
agreement. Jeffrey also informed her that his attorney was leav-
ing town the following day and would not return until after the
wedding. dianna testified that she protested, but still signed the
agreement. Jeffrey does not dispute that dianna’s counsel was
not present when the parties signed the agreement.
300 	16 NebrAskA APPellATe rePorTs

dianna testified that she was unaware of Jeffrey’s income
when she signed the agreement and that she felt “significant
pressure” to sign the agreement. she also testified that she was
taking antidepressant medication prescribed to her by Jeffrey
when she signed the agreement. We will further discuss the
circumstances surrounding the execution of the premarital agree-
ment as necessary in the analysis section.
The premarital agreement provides that each party had been
fully informed as to the other’s assets and property. Indeed,
exhibits listing the identity and approximate value of each
party’s assets are attached to the agreement. Jeffrey showed that
at the time the agreement was executed, his total assets were
valued at approximately $1,710,299.21. dianna showed her
total assets to be valued at $28,463. Jeffrey did not include his
income in his declaration of assets.
The agreement states that in the event of divorce, “neither
party shall be entitled to any of the separate property of the
other, except as set forth in Paragraph 9 hereinafter.” Paragraph
9 states that if the parties divorce, dianna is entitled to the fol-
lowing property: a family car worth at least $15,000, furniture
she brought into the marriage, all of her personal effects, and
permanent alimony and a lump-sum payment based upon the
duration of the marriage. In the event that children were born
to the marriage or either party became disabled, subparagraph
e of paragraph 9 contemplates temporary alimony or spousal
support but limits it to a period of 6 months.
The parties’ marriage produced two children: A.e., born in
september 1999, and J.J.e., born in october 2001. on February
12, 2003, Jeffrey petitioned the district court for dissolution of
the marriage. He sought custody of the children. dianna filed a
cross-petition seeking custody of the children, spousal support,
and exclusive possession of the marital residence. on June 5,
the district court issued a temporary order awarding dianna
custody of the children, child support, exclusive possession of
the family residence, and alimony.
A 5-day trial commenced on November 22, 2004. A con-
siderable amount of testimony was adduced during the trial.
We have considered all of the testimony, but summarize only
edWArds v. edWArds 	301
Cite as 16 Neb. App. 297

that which is the most pertinent to the issues presented for
our resolution.
both parties testified and called witnesses to testify regard-
ing their parenting abilities. Jeffrey, who was 47 years old at
the time of trial, testified that the marriage to dianna was his
second. His first marriage produced two daughters—Me.e. and
Ma.e.—and ended in divorce when those children were ages 4
and 3 respectively. Jeffrey was granted sole physical custody of
Me.e. and Ma.e. and raised those two girls with the assistance
of an in-house nanny. At the time of trial, Me.e. was 21 years
old and Ma.e. was 20 years old.
Jeffrey testified that he was still employed by the professional
corporation, but that he no longer worked nights or weekends as
he had in the past. He testified that if he were awarded custody
of A.e. and J.J.e., he intended to hire a nanny to care for them
while he is at work.
Although Jeffrey testified at trial that dianna is a good pro-
vider for A.e. and J.J.e., he also testified extensively about the
deficiencies he perceived in dianna’s parenting. He testified that
dianna used inappropriate language in the presence of A.e. and
J.J.e. He also testified that dianna had verbally and physically
abused A.e. and J.J.e. However, when pressed to explain the
alleged physical abuse, he gave the following examples: First,
he testified that dianna allowed her pet dog to lick A.e.’s mouth
and did nothing to discourage A.e. from this activity. second,
he testified that dianna took the children to unnecessary chiro-
practic appointments. Third, he testified that when he arrived at
the marital residence one day during the winter of 2003, he dis-
covered the children alone in a vehicle in the garage. He opined
that dianna left them in the garage after a trip because they
fell asleep in the vehicle. Jeffrey further testified that dianna is
an alcoholic. He testified that dianna had used alcohol in the
presence of the children and that on at least one occasion had
the children with her while she drove under the influence of
alcohol. Jeffrey also testified that dianna had physically abused
Me.e. and Ma.e. in the presence of A.e. and J.J.e.
Jeffrey expressed concern about the condition of the mari-
tal residence since his departure upon the parties’ separation.
Jeffrey testified that he returned to the residence after the
302 	16 NebrAskA APPellATe rePorTs

separation to inventory some personal items and observed a
“foul aroma” that he believed came from animal waste. He testi-
fied that after the parties’ separation, dianna had acquired two
dogs and two birds. These animals joined two dogs and three
cats already living in the home. He testified that he also noticed
stains from animal waste throughout the house.
Jeffrey testified that dianna made decisions about A.e.’s
education without consulting him. He explained that dianna had
removed A.e. from the kindergarten to which the parties had
agreed to send her without consulting with Jeffrey and eventu-
ally enrolled A.e. in preschool. He also testified that dianna
often placed the children in daycare while they were in her
custody even though she was not employed outside the home.
He testified that during the marriage, dianna was not at home
with the children on a regular basis and frequently used daycare
providers even when she was at home. Finally, Jeffrey testified
that dianna lacked financial stability.
Jeffrey called multiple witnesses to testify on his behalf. A
longtime friend of Jeffrey’s testified that he had observed both
Jeffrey and dianna with their children on many occasions. He
testified that when he saw dianna with the children, she seemed
“very aloof, very unattentive to the children,” and did not show
a lot of affection toward them. He testified that on one occasion,
he observed dianna caring for A.e. while dianna appeared to
be intoxicated.
Ma.e., Jeffrey’s daughter, testified that she lived with Jeffrey
and dianna until August 2002, at which time she moved out of
the family residence to attend college. Ma.e. testified that she
witnessed dianna consume alcoholic beverages on an almost
daily basis when she resided with Jeffrey and dianna. she testi-
fied that she believed dianna was intoxicated on one occasion
when dianna drove a vehicle in which Ma.e. and A.e. were
passengers. she also testified that she believed that on New
Year’s day 2003, dianna drove while intoxicated with J.J.e. in
the vehicle. Ma.e. also testified that dianna hit her while Ma.e.
held A.e. during a confrontation between the women. she also
testified that she witnessed dianna assault Me.e. on more than
one occasion. she recalled that dianna assaulted Me.e. and
edWArds v. edWArds 	303
Cite as 16 Neb. App. 297

attempted to run Jeffrey over with her car during a family trip
in August 2001.
Ma.e. testified that dianna often did not stay home to care for
A.e. and J.J.e. Instead, the children were put in daycare while
dianna engaged in self-gratifying activities. Ma.e. testified that
dianna even hired daycare providers to watch A.e. and J.J.e.
at the house while dianna was present. on cross-examination,
Ma.e. admitted that despite the weaknesses she perceived in
dianna’s parenting, A.e. and J.J.e. were well socialized, healthy,
and appropriately dressed and groomed.
dianna testified in her own behalf. dianna was 45 years old
at the time of trial. she testified that at all relevant times, she
had been the children’s primary caregiver and had been primar-
ily responsible for the children’s hygiene, health, and day-to-
day needs. she testified that she disciplines the children. she
testified that she stopped working during the parties’ marriage
in order to care for the children on a full-time basis. she testi-
fied that she supervises the children at extracurricular activi-
ties. she also testified that she takes the children to church and
teaches sunday school.
dianna admitted that some of the testimony given on Jeffrey’s
behalf was true. she admitted that she had made decisions
regarding A.e.’s 	education 	without 	consulting 	Jeffrey. 	she
explained that she removed A.e. from kindergarten because
A.e. experienced separation anxiety, was young for her class,
and was scoring below average. dianna testified that A.e. per-
formed very well in preschool. she also admitted that A.e. and
J.J.e. are placed in daycare on a regular basis. she testified
that she exercises while the children are in daycare, but testi-
fied that most of the time when they are placed in daycare, she
cleans or attends meetings and hearings, presumably related to
the divorce.
dianna also admitted that she has many pets. However, she
testified that she discourages A.e. from allowing the dogs to
lick her and further testified that she regularly cleans the car-
pets and sheets in the house. Finally, dianna admitted that she
grabbed Me.e. by the neck during a family trip. she explained
that she did not intend to hurt Me.e., but only wanted to get
Me.e.’s attention.
304 	16 NebrAskA APPellATe rePorTs

dianna denied much of the remaining testimony against her.
she denied trying to run over Jeffrey with her car. she testified
that much of Ma.e.’s testimony was untrue and opined that
Ma.e. was motivated to testify against her by Ma.e.’s close
relationship with Jeffrey. dianna denied that she ever drove
under the influence while the children were with her and denied
ever being intoxicated while caring for the children. she testi-
fied that she has never left the children unsupervised.
dianna’s neighbor of 5 years testified that she regularly allows
her daughter to spend time with A.e. under dianna’s care. she
testified that she regularly sees dianna with the children at
church and that dianna teaches sunday school. she testified that
dianna keeps the parties’ house “[p]retty tidy, probably better
than mine, but it[’]s fine, yeah.” she testified that A.e. and J.J.e.
interact well with others and are well-groomed children. she
testified that she has never seen dianna consume an alcoholic
beverage and has never thought that dianna had been drinking
while caring for the neighbor’s children. she further testified
that she has never observed dianna drive erratically.
dianna’s mother testified that although dianna is not the
“best housekeeper,” dianna keeps the parties’ house clean.
she testified that she has observed A.e. and J.J.e. in the pres-
ence of dianna’s animals and never worries about the children
or about their interaction with the animals. she testified that
dianna is a good, nurturing parent and that the children are
well disciplined.
Marlys oestreich, dianna’s psychotherapist, testified that she
counseled dianna from July 2000 to december 2003 for symp-
toms of depression, anxiety, and alcohol abuse. oestreich testi-
fied that dianna took medication to treat depression. oestreich
testified that during one counseling session, dianna disclosed
that she had had an altercation with either Me.e. or Ma.e. and
that she grabbed one of the girls by the neck. oestreich testified
that dianna asked her for assistance on how to mend her rela-
tionship with Me.e. and Ma.e. after the altercation. oestreich
understood from later sessions that dianna had made amends
with them.
oestreich testified that she does not see dianna as an alco-
holic. oestreich testified that she observed dianna interact with
edWArds v. edWArds 	305
Cite as 16 Neb. App. 297

A.e. and J.J.e., that dianna was appropriate with the children,
and that there was no indication that dianna is an unfit par-
ent; in fact, she opined that dianna could be a successful par-
ent. oestreich further testified that after dianna’s final visit,
oestreich made notes indicating that dianna was doing well,
that her depression was under control, and that there were no
alcohol concerns. she had also recorded that dianna was active
in life and was maintaining self-care activities.
on June 30, 2005, the court entered a decree dissolving the
parties’ marriage. The court found that both Jeffrey and dianna
are “fit and proper persons to be awarded the custody of the
minor children,” but that the best interests of the children would
be served by awarding custody to dianna subject to Jeffrey’s
reasonable rights of visitation. The court found the premarital
agreement valid and enforced it in its entirety, with the excep-
tion of subparagraph e of paragraph 9—the provision limiting
temporary spousal support. Pursuant to the terms of the premari-
tal agreement, the court awarded dianna alimony in the sum
of $1,000 per month for a period of 15 months commencing
May 1, as well as a lump-sum payment of $35,000. The court
awarded Jeffrey the marital residence. The court found that a
piano at issue was marital property and awarded each party one-
half of the value of the piano. The court ordered Jeffrey to pay
$12,500 of dianna’s attorney fees.
on July 8, 2005, dianna filed a motion to alter or amend
judgment, requesting the court to restore her maiden name. In a
separate motion made on the same day, dianna moved the court
for a new trial. After a hearing, the court overruled dianna’s
motion for new trial, but did not announce a decision on her
motion to alter or amend.
on August 31, 2005, dianna filed a notice of appeal. This
court dismissed dianna’s appeal for lack of jurisdiction, finding
it premature because the district court had not rendered a deci-
sion on her motion to alter or amend judgment. Upon remand,
the district court entered an order overruling dianna’s motion
to alter or amend judgment.
dianna timely appeals. Jeffrey cross-appeals.
306 	16 NebrAskA APPellATe rePorTs

AssIGNMeNTs oF error
dianna assigns that the district court erred in (1) determining
that most of the provisions of the premarital agreement are valid
and enforceable, (2) applying the provisions of the premarital
agreement and awarding dianna alimony of $1,000 per month
for 15 months in addition to a lump-sum payment of $35,000,
(3) dividing the parties’ financial accounts and business assets
as provided in the premarital agreement, and (4) finding the
piano to be marital property and awarding each party one-half
of its value.
Jeffrey assigns on cross-appeal that the district court erred in
(1) granting dianna custody of the parties’ children, (2) finding
that the provision of the premarital agreement limiting tem-
porary spousal support is unenforceable, (3) denying Jeffrey’s
motion for temporary relief in aid of appeal and not setting a
proper supersedeas, and (4) awarding dianna attorney fees.
sTANdArd oF reVIeW
[1] Whether dianna waived her right to appellate review is
a question of law. see Liming v. Liming, 272 Neb. 534, 723
N.W.2d 89 (2006).
[2-4] An appellate court’s review in an action for dissolution
of marriage is de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. Millatmal v.
Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006). This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees. Id. In a review de novo on the record, an appellate
court reappraises the evidence as presented by the record and
reaches its own independent conclusions with respect to the
matters at issue. Paulsen v. Paulsen, 11 Neb. App. 362, 650
N.W.2d 497 (2002). A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition. Id.
[5] When the evidence is in conflict, an appellate court
considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of
edWArds v. edWArds 	307
Cite as 16 Neb. App. 297

the facts rather than another. see Druba v. Druba, 238 Neb. 279,
470 N.W.2d 176 (1991).
ANAlYsIs
Waiver of Appeal.
We first address Jeffrey’s argument that dianna waived her
right to appeal by accepting alimony payments after entry of
the decree. The record confirms that after entry of the decree,
several alimony payments of $1,000 each were electronically
transferred from Jeffrey to dianna through the Nebraska Child
support Payment Center. The parties apparently had established
an automatic payment system whereby funds to satisfy Jeffrey’s
temporary spousal support obligation were automatically trans-
ferred from Jeffrey to dianna. Automatic payments continued
after entry of the decree.
The record demonstrates that dianna attempted to avoid
acceptance of these payments. she moved for an order from
the district court identifying a location where she could deposit
the alimony payments that she had received after entry of the
decree. dianna specifically stated in the motion that she was
seeking to avoid accepting the benefits of the decree. The court
determined that it lacked jurisdiction to determine whether
dianna had accepted benefits of the decree, but nonetheless
entered an order authorizing dianna to deposit the disputed
alimony payments into an interest-bearing account to be held
by the clerk of the district court pending appeal. on February 9,
2006, dianna provided notice that she tendered $10,000 to the
clerk of the district court.
[6] As a general rule, a party who accepts the benefits
of a decree waives the right to prosecute an appeal from it.
see Harte v. Castetter, 38 Neb. 571, 57 N.W. 381 (1894). In
Larabee v. Larabee, 128 Neb. 560, 259 N.W. 520 (1935), the
Nebraska supreme Court held that a litigant cannot voluntarily
accept payment of that part of a judgment that is in his or her
favor and thereafter prosecute an appeal from that part of the
judgment against him or her.
[7] one notable exception to the acceptance of benefits rule
was recognized by the Nebraska supreme Court in Kassebaum
v. Kassebaum, 178 Neb. 812, 135 N.W.2d 704 (1965). In
308 	16 NebrAskA APPellATe rePorTs

Liming v. Liming, 272 Neb. 534, 544-45, 723 N.W.2d 89, 97
(2006), the Nebraska supreme Court further developed the
exception, explaining:
[A] spouse who accepts the benefits of a divorce judg-
ment does not waive the right to appellate review under
circumstances where the spouse’s right to the benefits
accepted is conceded by the other spouse, the spouse was
entitled as a matter of right to the benefits accepted such
that the outcome of the appeal could have no effect on
the right to those benefits, or the benefits accepted are
pursuant to a severable award which will not be subject to
appellate review.
dianna received $46,000 in temporary alimony paid in sums
of $2,000 per month from June 2003 to April 2005. she
was awarded $50,000 in permanent alimony under the decree.
Jeffrey argues in his cross-appeal that the district court should
have enforced the provision in the premarital agreement limit-
ing temporary alimony to 6 months. It is therefore Jeffrey’s
contention that dianna should have only received $12,000 in
temporary alimony and $50,000 in permanent alimony. dianna
has thus far received $56,000 in temporary and permanent
alimony. she received $10,000 of that amount after entry of
the decree. Jeffrey does not contest that dianna was entitled
to at least this amount. His challenge is limited to how much
alimony dianna is entitled to in addition to that which she has
already received. Jeffrey has essentially conceded that dianna
was entitled to the $10,000 that she received after entry of the
decree. Therefore, this case falls within the exception set forth
in Liming v. Liming, supra. dianna did not waive her appellate
rights, and this argument lacks merit.
Validity of Premarital Agreement.
[8,9] In 1983, the National Conference of Commissioners
on Uniform state laws approved and recommended for enact-
ment in all states the Uniform Premarital Agreement Act (the
Uniform Act). In 1994, the Nebraska legislature adopted a ver-
sion of the Uniform Act. see 1994 Neb. laws, l.b. 202. Neb.
rev. stat. §§ 42-1001 to 42-1011 (reissue 2004) (the Nebraska
Act) govern premarital agreements executed on or after July
edWArds v. edWArds 	309
Cite as 16 Neb. App. 297

16, 1994. The Nebraska Act authorizes parties contemplating
marriage to contract with respect to matters, not in violation of
public policy or in violation of statutes imposing criminal pen-
alties, including the rights and obligations of each party in any
property of the other, the disposition of property upon divorce,
and the modification or elimination of spousal support. see
§ 42-1004(1). The enforceability of premarital agreements is
governed by § 42-1006, which in relevant part provides:
(1) A premarital agreement is not enforceable if the
party against whom enforcement is sought proves that:
(a) 	That 	party 	did 	not 	execute 	the 	agreement
voluntarily; or
(b) The agreement was unconscionable when it was exe-
cuted and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of
the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writ-
ing, any right to disclosure of the property or finan-
cial obligations of the other party beyond the disclosure
provided; and
(iii) did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obliga-
tions of the other party.
[10] The party opposing enforcement of a premarital agree-
ment has the burden of proving that the agreement is not
enforceable. see § 42-1006(1). see, also, In re Estate of
Peterson, 221 Neb. 792, 381 N.W.2d 109 (1986).
dianna contends that the factors set forth in § 42-1006(1) are
present in this case and that therefore, the premarital agreement
is unenforceable. We first consider whether dianna executed
the agreement voluntarily. Neither the Uniform Act nor the
Nebraska Act defines “voluntarily,” and the appellate courts of
this state have not addressed the meaning of “voluntarily” in this
context. We therefore turn to other sources for guidance.
[11] The term “voluntarily” is defined in black’s law
dictionary 1605 (8th ed. 2004) as “[i]ntentionally; without
coercion.” Appellate courts in other jurisdictions have consid-
ered the meaning of “voluntarily” in the context of premari-
tal agreements. Most notably, the California supreme Court
310 	16 NebrAskA APPellATe rePorTs

engaged in an extensive discussion of the meaning of “volun-
tarily” as used in the Uniform Act in In re Marriage of Bonds,
24 Cal. 4th 1, 5 P.3d 815, 99 Cal. rptr. 2d 252 (2000). After
reviewing multiple sources, including the record of the proceed-
ings of the National Conference of Commissioners on Uniform
state laws, the California supreme Court determined that a
number of factors are relevant to the issue of voluntariness. The
California supreme Court held that when considering the issue,
courts should consider whether the evidence demonstrates coer-
cion or lack of knowledge, and stated that in cases cited by the
commissioners, courts have considered factors such as
the coercion that may arise from the proximity of execu-
tion of the agreement to the wedding, or from surprise in
the presentation of the agreement; the presence or absence
of independent counsel or of an opportunity to consult
independent counsel; inequality of bargaining power—in
some cases indicated by the relative age and sophistication
of the parties; whether there was full disclosure of assets;
and the parties’ understanding of the rights being waived
under the agreement or at least their awareness of the
intent of the agreement.
Id. at 18, 5 P.3d at 824-25, 99 Cal. rptr. 2d at 262. The court
also stated:
[T]he party seeking to avoid a premarital agreement may
prevail by establishing that the agreement was involuntary,
and that evidence of lack of capacity, duress, fraud, and
undue influence, as demonstrated by a number of factors
uniquely probative of coercion in the premarital context,
would be relevant in establishing the involuntariness of
the agreement.
Id. at 19, 5 P.3d at 825-26, 99 Cal. rptr. 2d at 263-64.
Courts in other jurisdictions have relied upon the California
supreme Court’s interpretation of “voluntarily.” see, e.g., In
re Marriage of Shirilla, 319 Mont. 385, 89 P.3d 1 (2004);
Sheshunoff v. Sheshunoff, 172 s.W.3d 686 (Tex. App. 2005). We
likewise find its interpretation of “voluntarily” instructive and
therefore consider the factors set forth above in our discussion.
dianna argues that her lack of legal representation when she
signed the premarital agreement supports a finding that she did
edWArds v. edWArds 	311
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not voluntarily execute the agreement. Although the presence
or absence of independent counsel is a factor set forth in In re
Marriage of Bonds, supra, this factor is not determinative of
whether a party has voluntarily entered into a premarital agree-
ment. see Matter of Estate of Lutz, 563 N.W.2d 90 (N.d. 1997).
The fact that dianna was not represented by counsel when she
signed the agreement gives only minimal support to dianna’s
argument in light of the circumstances surrounding the execu-
tion of the agreement. We give this factor little weight because
dianna was represented by counsel while the terms of the
agreement were negotiated and until immediately prior to the
execution of the agreement. she met with counsel and had the
opportunity to ask questions about the agreement. The original
draft was altered at the request of dianna’s attorney. In addi-
tion, there were several weeks between the time dianna found
out that her attorney had withdrawn and the wedding. during
this time, she could have sought additional legal advice.
dianna also asserts that she was coerced into signing the
agreement. she argues that if she had refused to sign the agree-
ment, “she would have been left without a home and a relation-
ship with Jeffrey’s two young children for whom she then had
been the caretaker for a period of over a year” and her “profes-
sional life also would have been destroyed.” brief for appellant
at 13-14. she also asserts that she felt coerced because many
preparations had been made for the wedding by the time Jeffrey
asked her to sign the agreement and Jeffrey was treating her for
depression when she signed the agreement.
While there was testimony that Jeffrey would not marry
dianna unless she signed the agreement, there is no evidence to
support dianna’s contention that if she did not sign the agree-
ment, Jeffrey would terminate her employment and make her
leave his home. With regard to her depression, dianna gave
no reason why she could not get her medication from another
physician and did not adduce any evidence that this factor influ-
enced her decision to sign the agreement. Finally, because there
were several weeks between the execution of the agreement and
the parties’ wedding, we do not believe that the proximity of
these two events placed undue duress or coercion on dianna.
312 	16 NebrAskA APPellATe rePorTs

Finally, dianna cites to Jeffrey’s superior business knowl-
edge. At the relevant times, Jeffrey was a physician employed
by, and the sole shareholder of, a professional corporation pro-
viding medical services. When the parties executed the agree-
ment, Jeffrey also owned shares in several other businesses,
including assisted living facilities and a winery. He also served
as a medical advisor for three clinics. shortly before the par-
ties signed the agreement, Jeffrey had assets valued at over
$1.7 million.
dianna’s assets and business experience were considerably
less. she disclosed assets valued at approximately $28,000
before she signed the premarital agreement. In 1996, she made
approximately $50,000. she was not a business owner and was
employed by Jeffrey. While these factors lead us to conclude
that dianna’s business experience was less than Jeffrey’s, they
do not persuade us that dianna lacked the knowledge necessary
to make a voluntary decision regarding the agreement. dianna
was an educated individual who was assisted by an attorney
in the negotiation process. The record reveals that the parties’
marriage was dianna’s second. Her first marriage ended in
divorce. she therefore had some experience with the process
of divorce and the possibility of an award of spousal support
upon a divorce. Further, the terms and conditions of the pre-
marital agreement were set forth in a straightforward and clear
manner. The agreement states that dianna fully understood the
agreement and its covenants prior to signing the agreement. The
agreement also states, “The parties hereto acknowledge that they
execute this Agreement as their free and voluntary act and that
they are not under any constraint or not executing same based
upon any coercion or undue influence.”
[12] In addition to dianna’s specific assertions, we have
also considered whether any of the other factors set forth in
In re Marriage of Bonds, 24 Cal. 4th 1, 5 P.3d 815, 99 Cal.
rptr. 2d 252 (2000), require a finding that dianna’s entry into
the agreement was involuntary. We conclude that they do not.
We therefore proceed to dianna’s argument that the agreement
was unconscionable when it was executed. The issue of uncon-
scionability of a premarital agreement is a question of law. see
edWArds v. edWArds 	313
Cite as 16 Neb. App. 297

§ 42-1006(3). dianna’s sole support for this argument is that
because the district court determined that subparagraph e of
paragraph 9 was unconscionable, “it stands to reason the entire
document is therefore unconscionable.” brief for appellant at
20. We discuss the trial court’s holding regarding subparagraph
e of paragraph 9 later in our analysis.
[13] dianna’s argument is illogical and unsupported by law.
The provisions of § 42-1006 do not in any way suggest that
if any part of a premarital agreement is unconscionable, the
entire agreement is unenforceable. Case law has made it clear
that contract provisions may be severable. see, e.g., Gaspar v.
Flott, 209 Neb. 260, 307 N.W.2d 500 (1981). Whether a contract
is entire or several is a question of intentions apparent in the
instrument. Id.
The parties made their intentions clear. A provision in the
agreement specifically states, “The covenants and agreements
contained in this Agreement . . . are intended to be separate and
divisible.” It further states that if any of the agreement’s provi-
sions are found in violation of law, such provisions “shall be . . .
of no effect to the extent of such declaration of invalidity, and
this provision shall be deemed separable from the other provi-
sions of this Agreement, which other provisions shall continue
in full force and effect.” The provision deemed unconscionable
by the district court was severable from the other provisions of
the agreement; dianna’s argument is without merit regardless
of our decision regarding subparagraph e of paragraph 9.
because we conclude that the agreement was not unconscion-
able when it was executed, it is unnecessary for us to discuss
whether dianna was provided fair and reasonable disclosure
of Jeffrey’s assets, as this factor alone is not sufficient to make
the agreement unenforceable. see § 42-1006(1)(b). It is also
unnecessary, in light of our conclusions in this section, for us
to discuss dianna’s second and third assignments of error. see
Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994) (appellate
court is not obligated to engage in analysis which is not needed
to adjudicate case and controversy before it). We therefore turn
to dianna’s final assignment of error.
314 	16 NebrAskA APPellATe rePorTs

Piano as Marital Property.
The district court found the piano at issue to be marital prop-
erty and awarded each party one-half of the piano’s $20,000
value. dianna contends that the piano was her separate prop-
erty and that she should have been awarded its entire value.
Her argument relies upon a provision in the parties’ premarital
agreement that states that there is a presumption that all prop-
erty acquired by either spouse subsequently to the marriage is
nonmarital. We also notice a provision in the agreement reserv-
ing the parties’ right to own property jointly.
Jeffrey and dianna gave conflicting testimony as to which
party financed the piano. each testified that he or she alone
paid for the piano. Upon our de novo review, we give weight
to the district court’s finding that the piano was marital prop-
erty. Implicit in this finding is that neither party individually
purchased the piano, but that they purchased the piano together.
This finding is supported by the evidence. dianna’s argu-
ment lacks merit. We now direct our attention to Jeffrey’s
assigned errors.
Limitation of Temporary Support.
The district court determined that the premarital agreement
is valid and enforceable, with the exception of subparagraph e
of paragraph 9, which subparagraph provides:
In the event that [Jeffrey] and [dianna] have a child or
children from said marriage . . . the custodial parent . . .
shall be entitled to such amounts of temporary alimony
or spousal support as is [sic] awarded by a Court having
jurisdiction over the parties for a period not exceeding
six (6) months. After said six (6) month period, the above
[sliding-scale alimony award] is the maximum that said
[dianna] shall receive.
(emphasis omitted.) The district court found that subparagraph
e of paragraph 9 “violates the intent and purpose of statutory
provisions regarding an award of temporary support in a dis-
solution matter.” The court further found that enforcement of
this provision would be inequitable and unconscionable.
Pursuant to the premarital agreement, the district court awarded
dianna $50,000 in permanent alimony. Jeffrey was ordered to
edWArds v. edWArds 	315
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pay dianna $1,000 per month for 15 months commencing May
1, 2005, and a lump sum of $35,000. These payments were
in addition to the $46,000 of temporary alimony dianna had
already received in monthly installments of $2,000 from June
2003 to April 2005.
Jeffrey contends that subparagraph e of paragraph 9 should
have been enforced in full and that therefore, dianna should
have only received temporary alimony for 6 months—from June
to November 2003—at $2,000 per month, for a total of $12,000.
Thereafter, his obligation should have been $1,000 per month
for 15 months—from december 2003 to February 2005—in
addition to the lump-sum payment of $35,000. According to
Jeffrey, the total awarded dianna for both temporary and perma-
nent alimony should have been $62,000 instead of $96,000.
The resolution of this assignment turns upon the interplay
between § 42-1004(1) and Neb. rev. stat. § 42-357 (reissue
2004). section 42-1004(1), in relevant part, states: “Parties to a
premarital agreement may contract with respect to: . . . (d) The
modification or elimination of spousal support . . . and (h) Any
other matter, including their personal rights and obligations, not
in violation of public policy or a statute imposing a criminal
penalty.” section 42-357, in relevant part, states: “The court
may order either party to pay . . . a sum of money for the tem-
porary support and maintenance of the other party and minor
children if any are affected by the action and to enable such
party to prosecute or defend the action.”
[14-16] The meaning of a statute is a question of law. In
re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007).
An appellate court decides a question of law independently of
the conclusion reached by the trial court. Malena v. Marriott
International, 264 Neb. 759, 651 N.W.2d 850 (2002). Absent
anything to the contrary, statutory language is to be given its
plain and ordinary meaning. Geddes v. York County, 273 Neb.
271, 729 N.W.2d 661 (2007).
[17] section 42-1004(1)(d) grants parties the right to con-
tract with respect to the modification or elimination of spousal
support. section 42-1004(1)(d) does not limit its reach to only
permanent spousal support. If it was the intent of the legislature
316 	16 NebrAskA APPellATe rePorTs

to allow parties to eliminate only permanent spousal support, it
could have easily included a modifier in the statute. because the
legislature did not do this, we recognize that § 42-1004(1)(d)
applies to both permanent and temporary spousal support. see
Pepitone v. Winn, 272 Neb. 443, 449, 722 N.W.2d 710, 714
(2006) (“[t]hat which is implied in a statute is as much a part of
it as that which is expressed”).
We agree with Jeffrey that the district court erred in hold-
ing that subparagraph e of paragraph 9 violates the intent and
purpose of statutory provisions regarding an award of temporary
support in a dissolution matter. We find no conflict between the
two relevant statutory provisions. While § 42-357 allows the
court to enter an order for temporary support of a spouse and
§ 42-1004(1)(d) allows the parties to contractually eliminate
spousal support, § 42-357 also empowers the district court to
require a party to pay sums of money to enable the other party
to prosecute or defend against the action. The Nebraska Act
does not allow parties to contract away the court’s authority
to require such payments. Thus, despite the existence of a pre-
marital agreement limiting the amount or duration of temporary
spousal support, a trial court retains the ability to order payment
of moneys necessary to enable the party to maintain or defend
against the action. The district court made no finding that
temporary payments beyond those specified in the premarital
agreement were necessary to allow dianna to defend against
the action.
[18] even if we assume that such a conflict existed, the
rule giving preference to a specific statute over a general stat-
ute resolves the conflict. To the extent that there is conflict
between two statutes on the same subject, the specific statute
controls over the general statute. Soto v. State, 269 Neb. 337,
693 N.W.2d 491 (2005). The Nebraska Act specifically permits
parties to a premarital agreement to contract for “modification
or elimination of spousal support.” § 42-1004(1)(d). regarding
the issue we confront, § 42-1004(1)(d) is the more specific
statute. We hold that subparagraph e of paragraph 9 is valid
under § 42-1004(1)(d). We therefore modify the district court’s
decree on this issue.
edWArds v. edWArds 	317
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Supersedeas Bond and Temporary Relief
in Aid of Appeal Process.
After dianna filed her second notice of appeal, both parties
moved the district court for an order providing temporary relief
pending appeal and an order setting supersedeas. both parties
requested possession of the marital residence pending appeal.
The court held a hearing on the motions. during the hearing,
the court granted dianna continued possession of the marital
residence pending appeal. In support of its decision, the court
stated, “We’ve got an appeal and a cross appeal. Custody is one
of the issues. I’m not going to uproot the kids and I’m not going
to move anybody out until the Court of Appeals makes a deci-
sion on what they’re [sic] going to do.” The court set supersedeas
at $5,000 and stated, “[dianna] does need to pay the expenses
and that includes the homeowner’s insurance on the property.”
According to Jeffrey’s brief, the court entered a written order
memorializing its oral pronouncements, but we do not have that
order in our record.
First, Jeffrey assigns that the district court erred in not grant-
ing him possession of the marital residence pending appeal.
Under Neb. rev. stat. § 42-351(2) (reissue 2004), the district
court had jurisdiction while this appeal was pending to “provide
for such orders . . . shown to be necessary to allow the use of
property . . . or other appropriate orders in aid of the appeal
process.” The reasons provided by the district court for allowing
dianna to maintain possession of the residence convince us that
the court did not abuse its discretion.
Jeffrey also argues that because the supersedeas bond does
not contain the conditions that dianna pay all rents or dam-
ages to the residence that may accrue during the pendency of
the appeal and that she will not commit or suffer to be com-
mitted any waste upon the residence, the district court erred in
not setting a proper supersedeas bond in compliance with Neb.
rev. stat. § 25-1916(3) (Cum. supp. 2006). He further argues
that the supersedeas does not reflect 50 percent of dianna’s
net worth when considering the amount of money and property
awarded to her under the decree.
[19,20] The appellate court will not modify the district
court’s order setting the amount of a supersedeas bond unless it
318 	16 NebrAskA APPellATe rePorTs

finds the district court abused its discretion. World Radio Lab. v.
Coopers & Lybrand, 2 Neb. App. 747, 514 N.W.2d 351 (1994).
The exercise by the trial court of its discretion with respect to
fixing the terms and conditions of a supersedeas bond will not
be interfered with on appeal unless there has been a manifest
abuse of discretion or injustice has resulted. Id.
section 25-1916(3) states that
[w]hen the judgment, decree, or order directs the sale or
delivery of possession of real estate, the bond . . . shall
be in such sum, not exceeding the lesser of fifty percent
of the appellant’s net worth or fifty million dollars . . .
conditioned that the appellant or appellants will prosecute
such appeal without delay, will not during the pendency of
such appeal commit or suffer to be committed any waste
upon such real estate, and will pay all costs and all rents or
damages to such real estate which may accrue during the
pendency of such appeal and until the appellee is legally
restored thereto.
Jeffrey’s argument that the bond should be set aside because
it does not reflect 50 percent of dianna’s net worth lacks merit.
Contrary to Jeffrey’s assertion, § 25-1916(3) does not provide
that 50 percent of the appellant’s net worth is a minimum
amount for a supersedeas bond; this amount is the maximum
amount at which bond may be set.
[21] We move to Jeffrey’s argument regarding the conditions
placed on the bond. The district court orally pronounced the
bond and its conditions. Apparently, the court later entered a
written order. It is not uncommon for a court to orally announce
its decision in general terms and later formalize the decision in
a written order and include all statutorily required conditions.
The court’s written order is not in our record. We are unable
to ascertain whether the conditions required by § 25-1916(3)
were included in the written order. It is the appellant’s duty to
present and show by the record that the judgment is erroneous.
Buker v. Buker, 205 Neb. 571, 288 N.W.2d 732 (1980). As to
this matter, Jeffrey did not do so. We therefore cannot conclude
that the district court abused its discretion. This assignment has
no merit.
edWArds v. edWArds 	319
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Attorney Fees.
[22] Jeffrey assigns that the district court erred in awarding
dianna $12,500 in attorney fees. In an action for dissolution
of marriage, the award of attorney fees is discretionary with
the trial court, is reviewed de novo on the record, and will
be affirmed in the absence of an abuse of discretion. Gress v.
Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). Upon our de
novo review of the record, we find no abuse of discretion in the
district court’s award of attorney fees.
Custody.
The district court held that both dianna and Jeffrey are fit and
proper persons to be awarded custody of the parties’ children,
but that “the best interests of the . . . children would be served
by awarding [dianna] custody,” subject to Jeffrey’s reasonable
rights of visitation. Jeffrey assigns error to this determination.
[23] In contested custody cases, where material issues of fact
are in great dispute, the standard of review and the amount of
deference granted to the trial judge, who heard and observed the
witnesses testify, are often dispositive of whether the trial court’s
determination is affirmed or reversed on appeal. Marcovitz v.
Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004). our review
of the district court’s custody determination is de novo on the
record to determine whether the court abused its discretion, and
we give weight to the trial court’s determination of evidence in
conflict. see, Gress v. Gress, supra; Smith-Helstrom v. Yonker,
249 Neb. 449, 544 N.W.2d 93 (1996).
[24,25] When custody of a minor child is an issue in a pro-
ceeding to dissolve the marriage of the child’s parents, child
custody is determined by parental fitness and the child’s best
interests. Gress v. Gress, supra. When both parents are found
to be fit, the inquiry for the court is the best interests of the
child. see id. In the instant case, Jeffrey does not challenge the
district court’s determination that dianna is a fit parent; Jeffrey
argues only that it is in the children’s best interests to be placed
in his custody.
In determining the best interests of the child, Neb. rev. stat.
§ 42-364(2) (reissue 2004) provides that such consideration
shall include, but not be limited to the following:
320 	16 NebrAskA APPellATe rePorTs

(a) The relationship of the minor child to each par-
ent prior to the commencement of the action or any
subsequent hearing;
(b) The desires and wishes of the minor child if of an age
of comprehension regardless of chronological age, when
such desires and wishes are based on sound reasoning;
(c) The general health, welfare, and social behavior of
the minor child; and
(d) Credible evidence of abuse inflicted on any family
or household member.
In addition, courts may consider factors such as general
considerations of moral fitness of the child’s parents, including
the parents’ sexual conduct; respective environments offered by
each parent; the emotional relationship between child and par-
ents; the age, sex, and health of the child and parents; the effect
on the child as the result of continuing or disrupting an existing
relationship; the attitude and stability of each parent’s charac-
ter; and parental capacity to provide physical care and satisfy
the educational needs of the child. see Davidson v. Davidson,
254 Neb. 357, 576 N.W.2d 779 (1998).
In Davidson v. Davidson, the district court dissolved the par-
ties’ marriage and awarded the father custody of the parties’ five
children. The mother appealed. on petition for further review,
the Nebraska supreme Court found that both the father and the
mother were far from ideal parents. The court stated that while
the mother had provided adequate care for the children, she had
oftentimes used poor judgment and had placed her own immedi-
ate gratification before the children’s needs. she had not spent a
lot of time with the children since the birth of the parties’ fifth
child. regarding the father, the court stated that while there was
substantial testimony that the father was a fit parent and atten-
tive to the children’s needs, there was testimony that he used
poor judgment and had used inappropriate disciplinary measures
in the past. In addition, the father had a history of abuse and
drug use. He had been arrested for child abuse for leaving the
children unattended in a car, and there was testimony that he
abused the mother.
In its analysis, the court stated that it was not unconcerned
about evidence calling into question the father’s parental skills
edWArds v. edWArds 	321
Cite as 16 Neb. App. 297

and capacity or about the allegations regarding spousal abuse.
Nonetheless, the court found:
[T]here is substantial evidence that the father is a fit parent
and attentive to the children’s needs. Moreover, there was
evidence that the father would provide a more stable home
environment for the children’s educational and emotional
needs. It is this type of case, where neither parent can
be described as unfit in a legal sense but neither can be
described as an ideal parent, that we give particular weight
to the fact that the trial court saw and heard the witnesses
in making necessary findings as to the best interests and
welfare of the children.
Id. at 369, 576 N.W.2d at 786. The court concluded that the
trial court did not abuse its discretion in granting custody of the
children to the father.
The instant case is similar to Davidson v. Davidson, supra,
in that much of the testimony is conflicting and the parent-
ing skills of the custodial parent, dianna, have been called
into question.
At trial, Jeffrey presented dianna in a negative light. some
of the most disturbing testimony regarding dianna’s parental
skills was that she had driven while intoxicated with the chil-
dren in the vehicle and that she had been intoxicated while car-
ing for the children. dianna disputed this testimony. We infer
from its decision that the district court accepted dianna’s testi-
mony and give weight to the district court’s decision to accept
dianna’s testimony.
We also recognize that the district court’s decision implic-
itly favors dianna’s testimony over that of Ma.e. regarding
the other matter that is particularly disturbing—Ma.e.’s claim
that dianna had abused her and Me.e. while in the presence
of A.e. and J.J.e. While this testimony raises concern, that
concern is mitigated by other circumstances. First, there is no
doubt that dianna’s relationship with Me.e. and Ma.e., her
stepdaughters, was strained, at best, during most of the parties’
marriage. While there were at least two instances of physical
contact between dianna and her stepdaughters, the behavior
did not frequently occur. second, dianna sought assistance
from her therapist in order to improve her relationship with her
322 	16 NebrAskA APPellATe rePorTs

stepdaughters. Finally, and most importantly, there was no evi-
dence that these events in any way harmed A.e. or J.J.e. There
was no evidence of any effect, harmful or otherwise, that such
events had on the children. Me.e. and Ma.e. no longer live with
dianna, and therefore, we can presume that there will be no
further incidents between dianna and her stepdaughters in the
presence of A.e. and J.J.e.
There is evidence that dianna is a fit parent. oestreich testi-
fied that dianna is appropriate with the children and opined that
dianna could be a successful parent. While Jeffrey has worked
long hours and has often been away on trips, dianna has served
as the children’s primary caregiver. The children have done well
under dianna’s care. There is evidence that the children are
well-behaved, socialized, and well-groomed children.
After considering all of the evidence, we conclude that this
is a case in which we should give particular weight to the fact
that the district court saw and heard the witnesses in making
findings as to the best interests and welfare of the children. see
Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998).
We conclude that the district court did not abuse its discretion
in awarding custody of the minor children to dianna.
CoNClUsIoN
We conclude that the district court correctly found that the
majority of the premarital agreement is valid and enforceable,
but erred in finding that the provision limiting temporary support
is unenforceable. We also conclude that the district court did
not abuse its discretion in dividing the marital estate, denying
Jeffrey’s motion for temporary relief, setting the supersedeas
bond, awarding dianna attorney fees, and granting dianna cus-
tody of the parties’ minor children. We affirm the district court’s
decree as modified.
affiRmed as modified .
edWArds v. edWArds 	323
Cite as 16 Neb. App. 297