Thompson v. Thompson

Carrdale’s possession of crack cocaine will result in harm to
the child, while the majority does not. I contend that the weight
of human experience, as described in the extensive cases and
government reports cited above, firmly establishes that my
assumption is the reasonable one. It therefore follows that
the juvenile court was empowered to assume jurisdiction and
act accordingly. I would affirm the juvenile court’s decision
doing so.
SuSan K aye ThompSon, appellanT, v.
Gary D ean ThompSon, appellee .
782 N.W.2d 607
Filed May 11, 2010. 	No. A-09-612.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of marriage,
an appellate court reviews de novo on the record the trial court’s determinations
of custody, child support, property division, alimony, and attorney fees; these
determinations, however, are initially entrusted to the trial court’s discretion and
will normally be affirmed absent an abuse of that discretion.
2. Trial: Evidence: Appeal and Error. The reopening of a case to receive addi-
tional evidence is a matter within the discretion of the district court and will not
be disturbed on appeal in the absence of an abuse of that discretion.
3. Child Support. An obligor parent is entitled to a credit against his or her cur-
rent child support obligation for payments made by the Department of Veterans
Affairs to the child as a result of the obligor parent’s disability, in the absence of
circumstances making the allowance of such a credit inequitable.
4. Trial: Expert Witnesses. Expert opinions are not binding on the trial court.
5. Divorce: Property Division. As a general rule, all property accumulated and
acquired by either spouse during the marriage is part of the marital estate.
6. Property Division. The ultimate test in determining the appropriateness of the
division of property is fairness and reasonableness as determined by the facts of
each case.
7. Divorce: Property Division. In cases where the growth of the marital estate can-
not be attributed to one party more than to another, the trial court may divide the
estate equally.
8. ____: ____. The division of marital property should take into account when the
growth of the marital estate can be traced to one spouse, and the other spouse,
through indolence or neglect, chose to make only minimal beneficial contribu-
tions to the marriage and was not engaged in activity beneficial to the marriage.
9. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court
does not determine whether it would have awarded the same amount of alimony
ThoMpsoN v. ThoMpsoN 	363
Cite as 18 Neb. App. 363
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

as did the trial court, but whether the trial court’s award is untenable such as to
deprive a party of a substantial right or just result.
10. Alimony. Factors which should be considered by a court in determining alimony
include: (1) the circumstances of the parties; (2) the duration of the marriage; (3)
the history of contributions to the marriage, including contributions to the care
and education of the children, and interruption of personal careers or educational
opportunities; and (4) the ability of the supported party to engage in gainful
employment without interfering with the interests of any minor children in the
custody of each party.
11. Attorney Fees. The award of attorney fees depends on multiple factors that
include the nature of the case, the services performed and results obtained, the
earning capacity of the parties, the length of time required for preparation and
presentation of the case, customary charges of the bar, and the general equities of
the case.
Appeal from the District Court for Douglas County: G reGory
m. SchaTz, Judge. Affirmed in part, affirmed in part as modi-
fied, and in part reversed and vacated.
stephanie Weber Milone for appellant.
Michael B. Lustgarten and Justin A. Roberts, of Lustgarten
& Roberts, p.C., L.L.o., for appellee.
I nboDy, Chief Judge, and SIeverS and caSSel, Judges.
SIeverS, Judge.
FACTuAL BACkgRouND
susan kaye Thompson and gary Dean Thompson were
married January 2, 1987, and two children were born of the
marriage, one of whom, sarah Jane Thompson, remained a
minor at the time of trial, at age 17. The parties separated on
August 1, 2006, and sarah continued to live with susan in the
family home. gary lived in a number of apartments thereafter
with the parties’ older daughter, who attended college and
worked. The older daughter reached the age of majority in
May 2007. susan did not pay support to gary for the older
daughter, nor did gary pay support to susan for sarah either
after the separation or during the pendency of this dissolu-
tion action. gary’s contact with sarah following the parties’
separation was extremely limited, and the parties stipulated
at trial that gary’s parenting time with sarah would be at
sarah’s discretion.
364 	18 NEBRAskA AppELLATE REpoRTs

At the time of trial, susan was 55 years of age and without
health problems. susan’s education consisted of an associate
degree in business management, and she had been employed
for 25 years with Commercial Federal Bank, which later
became Bank of the West. her job was operations manager of
the consumer lending division. susan’s earnings were approxi-
mately $55,000 gross per year. After the trial was completed,
but before the entry of the decree, susan was notified by her
employer that she was being laid off effective June 1, 2009. she
filed a motion to reopen the evidence and introduce evidence
of such pending layoff, but that motion was denied by the trial
court, which reasoned that such fact could be addressed via a
modification proceeding.
At the time of trial, gary was 54 years of age and living
alone. gary’s education consisted of several associate degrees
and a bachelor’s degree, and he had largely completed the
work for a master’s degree, but had not actually received the
degree. During the parties’ marriage, gary worked at a variety
of jobs, including being self-employed doing home improve-
ments and repair. he worked doing consulting for ConAgra,
he worked for oriental Trading Company, and he worked
as a property manager. Additionally, gary had been in the
military for approximately 28 years, with his service ending in
March 1999.
susan testified that during the course of the marriage, gary
incurred substantial debt, often without her knowledge, and
that the parties were required on a number of occasions to take
second mortgages on their home, but that at the time of trial,
all of the second mortgages had been paid off. susan asserts
that gary had been a “spendthrift” during the marriage.
The parties agreed that 70 percent of gary’s military retire-
ment was accumulated prior to their marriage, and they agreed
to divide the marital portion, 30 percent, equally; thus, susan’s
portion of the military retirement was 15 percent. In 2005, gary
decided to work on a Web-based business from his home due to
his health problems. gary’s testimony at trial was that he was
disabled from engaging in gainful employment and that after
July 2007, he had not done any work that generated income. In
February 2006, gary had applied for social security disability
ThoMpsoN v. ThoMpsoN 	365
Cite as 18 Neb. App. 363

benefits because he considered himself totally disabled at
that time due to severe anxiety, major depression, short-term
memory loss, carpal tunnel “trigger lock,” heart palpitations,
and knee problems. gary introduced into evidence certified
records from the Department of Veterans Affairs (VA), which
had determined that he was permanently and totally disabled.
Because of such award of VA disability, gary elected to with-
draw his social security disability application and take VA
benefits. gary’s VA benefits as of trial were $985 per month,
medical care, and some benefits to be paid on behalf of
his children. sarah’s benefits were to start retroactively from
December 1, 2007, but the VA had not made a determination
of the benefits sarah would receive as a consequence of gary’s
disabled status.
such additional facts as are necessary to resolve the assign-
ments of error will be set forth in our analysis section.
pRoCEDuRAL BACkgRouND
The trial was held on october 8, 2008, and January 5,
2009, and the trial court issued a letter with its findings dated
January 16, 2009. on March 11, gary filed a motion with the
court, asking it to clarify certain rulings in its January 16 let-
ter. A hearing was held April 10 on gary’s motion to clarify
the rulings, and the court determined that gary’s child sup-
port obligation was $118 per month, which was to begin the
first full month following the entry of the decree. The trial
court also ordered gary to sign authorizations giving susan
access to information about the VA benefits for the children.
Also, on April 8, susan asked the court to reopen the evi-
dence because of her discovery of a Centris Federal Credit
union account that she alleged she was unaware of until after
the trial.
on May 1, 2009, the trial court filed its order on gary’s
motion for clarification and the other pending motions. on
May 20, susan filed a second motion to reopen the evidence,
alleging that she had been notified the previous day that she
was being laid off from her employment, effective June 1. The
trial court denied susan’s motion, indicating that the proper
procedure for modifying a decree was to file an application to
366 	18 NEBRAskA AppELLATE REpoRTs

modify, although a decree had not yet been entered. The decree
of dissolution, which was issued on May 22, largely followed
the January 16 decision letter.
DIsTRICT CouRT DECREE oF DIssoLuTIoN
The district court’s decree of dissolution of marriage was
entered on May 22, 2009. That decree dissolved the marriage
and awarded legal and physical custody of the parties’ remain-
ing minor child, sarah, to susan, subject to gary’s parenting
time as arranged with sarah. The decree further provided:
• gary was found “legally disabled” and his child support was
set at $118 per month, but such obligation was ordered to be
credited, dollar for dollar, by any VA benefits payable to
sarah. Any VA benefits payable to sarah for the time prior
to the start date of gary’s child support obligations were pay-
able directly to sarah and not to be credited against gary’s
child support obligation.
• susan was to maintain health and dental coverage on sarah
as long as such coverage was available through her employ-
ment. susan was further ordered to maintain health and dental
insurance on gary for 6 months following the entry of the
decree, if such was available through her employment.
• “As a result of [gary’s] disability,” susan was solely respon-
sible for noncovered medical and dental expenses for sarah.
• The trial court found that the marital estate should be divided
pursuant to exhibit 62, finding the division proposed therein
to be fair and reasonable and further finding that the values
contained therein were supported by the evidence offered
at trial.
• susan was awarded the marital real estate (equity found to be
$89,923), household goods, miscellaneous personal property
valued at $5,000, and 15 percent of gary’s military pension
(monthly annuity).
• gary was awarded the coin collection (valued at $6,500), per-
sonal property in storage (valued at $5,000), and the balance
(85 percent) of his military pension.
• gary was awarded a lien in the sum of $40,000 against the
real estate awarded to susan, to be paid within 90 days from
the date of entry of the decree.
ThoMpsoN v. ThoMpsoN 	367
Cite as 18 Neb. App. 363

• susan’s 401k account (valued at $234,366 at the time of
trial) was to be divided equally, with a valuation date being
set as of the date of the entry of decree. Any gains or losses
from the date of the decree to the date of the distribution were
to be divided equally between the parties, and an appropriate
qualified domestic relations order (QDRo) “shall be prepared
to effectuate the equal division of [susan’s] 401(k) retire-
ment account.”
• gary was ordered to pay credit card debts in his name that
had a combined balance of $25,657 as of the parties’ separa-
tion in August 2006.
• gary was ordered to pay the Centris Federal Credit union
overdraft protection accounts ending in the numbers 937-8,
937-9, and 218-8. The record indicates that the total owed on
all three accounts was $662.81.
• The court attached to the decree an exhibit showing the debts
gary was ordered to pay, which totaled $78,034.83.
• susan was ordered to pay alimony to gary in the amount
of $300 per month beginning on the first day of the month
following the entry of the decree and similarly each month
thereafter until gary is no longer disabled, reaches age 60,
or remarries, or upon the death of either party, whichever
occurs first.
• susan 	was 	ordered 	to 	pay 	$3,000 	toward 	gary’s 	attor-
ney fees.
AssIgNMENTs oF ERRoR
susan assigns, consolidated and restated, the following
errors by the trial court: (1) failing to use gary’s earning
capacity as the basis for child support and crediting gary’s
VA disability benefits against his child support obligation;
(2) abusing its discretion in its division of property in the
following respects: (a) the value attributed to the family resi-
dence, (b) ordering susan to pay gary a $40,000 lien within
90 days, (c) failing to dispose of the asset known as Icon
Mountain, Inc., (d) awarding gary the coin collection when it
had already been disposed of, (e) awarding items “in storage”
to gary that had been disposed of, and (f) awarding gary 50
percent of susan’s 401k even though he was a “spendthrift”
368 	18 NEBRAskA AppELLATE REpoRTs

throughout the parties’ marriage and failed to contribute to
the accumulation of the marital estate; (3) failing to employ
language in the decree sufficient to accomplish the award to
susan of 15 percent of gary’s military retirement; (4) order-
ing susan to pay gary alimony; (5) ordering susan to con-
tinue to pay for gary’s health insurance during the interlocu-
tory period even though he has health care benefits available
through the VA; (6) ordering susan to pay $3,000 toward
gary’s attorney fees; (7) ordering a parenting plan which the
parties had not agreed upon; and (8) not allowing susan to
reopen the evidence regarding her posttrial but predecree lay-
off from employment.
sTANDARD oF REVIEW
[1] In an action for the dissolution of marriage, an appellate
court reviews de novo on the record the trial court’s determi-
nations of custody, child support, property division, alimony,
and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion. Sitz v. Sitz, 275
Neb. 832, 749 N.W.2d 470 (2008).
ANALYsIs
Motion to Reopen Evidence.
[2] Because susan’s last assignment of error, that the trial
court should have allowed the reopening of the evidence,
would necessarily require a remand to the trial court if we
sustained such assignment, we discuss it first. After the trial
evidence was completed and the trial court had outlined its
intended decision via a letter ruling, but before a decree of
dissolution was actually entered, susan filed a motion on May
20, 2009, to reopen the evidence. The basis for such, as shown
by the evidence introduced concerning the motion, was that on
May 19, she had received a letter from her employer, Bank of
the West, indicating that she would be laid off effective June 1
due to economic conditions. The trial court denied the motion,
reasoning that such matter would be more properly taken up
in a motion to modify the decree. The rule is that the reopen-
ing of a case to receive additional evidence is a matter within
ThoMpsoN v. ThoMpsoN 	369
Cite as 18 Neb. App. 363

the discretion of the district court and will not be disturbed on
appeal in the absence of an abuse of that discretion. Myhra v.
Myhra, 16 Neb. App. 920, 756 N.W.2d 528 (2008); Jessen v.
DeFord, 3 Neb. App. 940, 536 N.W.2d 68 (1995).
The termination letter references a future event, albeit said
to occur in the very near future. Thus, whether the termination
would come to pass would be somewhat speculative. Moreover,
although susan was earning a net of $3,626 per month, the let-
ter does state that she “will be eligible for severance” pursuant
to the company’s “severance plan.” No evidence was intro-
duced about the value of such severance, but given that susan
was a 25-year employee, the inference is reasonable that she
would not be immediately without resources and that such sev-
erance could affect a modification of the decree based on the
potential loss of her job. Finally, as a longtime employee who
was the operations manager in the consumer lending division,
susan would clearly have substantial experience and skills,
and evidence about job replacement and the marketability of
her skills and experience after a termination would enable the
trial court to more accurately assess how the termination would
affect the financial obligations that the decree imposed on her.
For these reasons, we cannot say the trial court abused its dis-
cretion in denying the motion to reopen the evidence. however,
we find that in the event a motion to modify because of susan’s
loss of her job at Bank of the West is filed (or has been filed),
such change shall not be deemed a change that was in contem-
plation of, or anticipated by, the parties.
Gary’s Earning Capacity and VA Benefits.
susan’s attack on the trial court’s imposition of a $118-per-
month child support obligation for sarah is multifaceted. she
argues that the court should have used gary’s “earning capac-
ity,” that the record lacks evidence to support the court’s find-
ing that gary is “‘legally disabled’” from gainful employment,
and that the trial court lacks jurisdiction to give gary credit
against his child support obligation, because federal law pro-
hibits state courts “from exercising subject matter jurisdiction
over [VA] disability benefits.” Brief for appellant at 18. susan
cites Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999),
370 	18 NEBRAskA AppELLATE REpoRTs

for the jurisdictional argument. Ryan is not really on point,
because it involved a denial by the trial court of the wife’s
attempt to receive a portion of the husband’s VA disability pen-
sion as part of the division of marital property. The Nebraska
supreme Court held that Nebraska courts lack jurisdiction to
divide the VA disability income, because such is not divisible
marital property under the federal uniformed services Former
spouses’ protection Act. The Ryan court, referencing the deci-
sion in Mansell v. Mansell, 490 u.s. 581, 109 s. Ct. 2023, 104
L. Ed. 2d 675 (1989), held:
The Court concluded that the [uniformed services Former
spouses’ protection Act] had a preemptive effect of its
own and held that “the Former spouses’ protection Act
does not grant state courts the power to treat as property
divisible upon divorce military retirement pay that has
been waived to receive [VA] disability benefits.” 490 u.s.
at 594-95.
257 Neb. at 690-91, 600 N.W.2d at 745. Thus, Ryan does not
directly address what the trial court did in this case, which was
to order that “[gary’s] monthly child support obligation shall
be credited, dollar for dollar, by any [VA] Benefits payable to
[sarah]” and that the credit would continue as long as gary’s
child support obligation remains in effect. however, under the
trial court’s decree, any VA benefits payable for sarah prior
to the time that gary’s child support obligation began (June
1, 2009) would be payable directly to sarah and not credited
to gary’s obligation. Therefore, the Ryan decision, while
excluding VA disability benefits from the divisible marital
estate, is not on point on the question of whether a child sup-
port obligor can be awarded credit against the child support
obligation from the obligor’s VA disability pension. Thus,
susan’s reliance on Ryan is misplaced. That said, we have not
found any Nebraska authority which directly addresses this
precise issue.
[3] however, in Duke v. Richard, 215 W. Va. 470, 600
s.E.2d 182 (2004), the court concluded that the father was
entitled to credit against his current child support obligation
for payments made by the VA to the child as a result of the
father’s disability and that the family court erred in holding
ThoMpsoN v. ThoMpsoN 	371
Cite as 18 Neb. App. 363

otherwise. The West Virginia court reasoned that such benefits
should properly be regarded as a substitute for current support
payments from the obligor’s own earnings. In other words, the
obligor is entitled to a credit against his or her current support
obligation for those payments in a manner similar to that speci-
fied in the statute governing the application of social security
benefits to such obligations. Id. other courts have permitted a
credit on the ground that the federal benefits received on behalf
of the children are merely a substitute for the wages the obligor
would have received but for the fact of disability or retire-
ment, and from which support payments would have otherwise
been received. see, Davis v. Davis, 141 Vt. 398, 449 A.2d
947 (1982); Binns v. Maddox, 57 Ala. App. 230, 327 so. 2d
726 (1976). We note that our supreme Court used a virtually
identical rationale in Hanthorn v. Hanthorn, 236 Neb. 225, 460
N.W.2d 650 (1990), when the court held that social security
payments made to a parent’s child on account of the parent’s
disability should be considered as credits toward the parent’s
court-ordered support obligation, in the absence of circum-
stances making the allowance of such a credit inequitable. see,
also, Tash v. Tash, 353 N.J. super. 94, 801 A.2d 436 (2002) (if
non-means-tested benefits are paid to or for dependent child for
whom support is being determined, benefits must be deducted
from basic support obligation). Therefore, we conclude that the
trial court did have jurisdiction to award a credit against child
support for VA benefits paid to the minor child.
We now turn to susan’s claim that the trial court erred in
its calculation of child support, because, summarized, gary is
simply not disabled, he produced insufficient evidence of such
disability, and his earning capacity should be used to set child
support. Against those claims, we note that the parties’ joint
tax returns show that in 2003, gary earned $17,426 from his
maintenance and repair business; that in 2004, that business
had a net loss of $7,361; that in 2005, the net loss was $962;
and that in 2006, the net loss was $9,281. In 2007, the parties
filed separately and gary reported a loss of $16,941 (from
three different businesses—Web marketing services, mainte-
nance and repair, and resale of coins and currency). Thus, it
can hardly be said that in recent years, gary has actually had
372 	18 NEBRAskA AppELLATE REpoRTs

much earning capacity. Additionally, on May 22, 2008, the
VA acted on his claim for disability filed November 15, 2007,
by granting him a “nonservice-connected pension.” The VA
decision letter states: “The evidence shows that you have dis-
abilities, to include major depression, right [and] left upper
extremity carpal tunnel syndrome and hypertension, which
prevent you from working. . . . [W]e consider you to be per-
manently and totally disabled.” The monthly benefit awarded
was $931—which had apparently increased as of the time of
trial to $985. susan’s argument suffers from the failure to tell
us what gary’s monthly earning capacity might be in the face
of the evidence we have just detailed, including his lack of
earning in recent years. Accordingly, we reject the assignment
of error that the trial court should have used some figure for
gary’s earnings other than his VA disability, and we reject the
claim that the trial court erred by giving gary credit for the VA
benefits that sarah receives after June 1, 2009, when his child
support obligation begins.
Valuation and Division of Family Residence.
susan assigns error to the trial court’s valuation of the
family residence. The trial court used the figure of $122,000
from a licensed appraiser hired by gary, resulting in equity of
$89,923. she also complains of the trial court’s order that she
pay gary a $40,000 lien on the residence, as property division,
within 90 days of the date of the decree.
susan finds fault with gary’s appraisal, because the appraiser
has been used 50 to 75 times in the past by gary’s attorney, the
appraiser acknowledged limited recent sales in that particular
subdivision, the basement was only partially remodeled, and
there was a leakage problem in the master bedroom, causing
its use to be limited. however, these matters simply go to the
weight a fact finder would give to the appraisal.
[4] In contrast, susan, calling on her experience in the
lending division of Bank of the West, valued the real estate at
$95,000, or $27,000 less. susan then argues that expert opin-
ions are not binding on the trial court, citing Anania v. Anania,
6 Neb. App. 572, 576 N.W.2d 830 (1998), a general proposi-
tion which we certainly agree with and frequently cite. susan
ThoMpsoN v. ThoMpsoN 	373
Cite as 18 Neb. App. 363

then concludes that “the trial court abused its discretion in not
utilizing susan’s value for the real estate,” brief for appellant at
22, a conclusion that seems facially at odds with the authority
she cites. In any event, we have reviewed the appraisal done by
the licensed appraiser, who does appraisals of predominantly
residential real estate. The appraisal is comprehensively done
in a standard format with comparables. susan, as an owner of
the property, is certainly entitled to express her opinion as to
the value of the residence, and she has valuable work experi-
ence giving her a knowledge level beyond that of the average
homeowner. Thus, the trial court likely could have used her
valuation without error, but the trial court obviously was not
required to accept her opinion. The trial court made a reason-
able choice between competing valuations, and there is no
basis to find error in the acceptance of the licensed appraiser’s
opinion of the value of the marital residence.
With respect to the court’s order that susan pay gary the
$40,000 lien imposed on the property within 90 days of the
decree, we note that the ratio of equity to value is 73 percent.
Accordingly, given the substantial equity in the home, it is not
inequitable that gary promptly receive his share of the home,
and we assume that the trial court operated on the basis that
susan would be able to refinance the house to secure the funds
to pay the lien. susan argues that gary’s appraisal would not
support a loan from her employer and that she “likely would
not qualify to refinance the home loan,” brief for appellant at
23, given that she had been laid off from her job. As to the
effect of the alleged layoff, we have already upheld the trial
court’s rejection of susan’s motion to reopen the evidence
to prove up on the layoff. Thus, we cannot consider that she
might now be laid off from her job and the impact such occur-
rence would have on her ability to secure funds to pay off the
$40,000 lien. however, we conclude, as we did earlier, that
such alleged layoff shall not be considered as an event that was
in contemplation of, or anticipated by, the parties, in the event
of a future contempt proceeding or other enforcement proceed-
ing with respect to susan’s payment of the lien. We find no
error in the trial court’s valuation of the marital residence, or
the terms of the payoff of the lien.
374 	18 NEBRAskA AppELLATE REpoRTs

Treatment of Icon Mountain, Inc.
susan alleges that the trial court erred in failing to dispose
of an “asset,” a company entitled “Icon Mountain, Inc.,” which
gary described as “active.” however, his testimony about such
was that while he had renewed the Internet domain name,
applied for the corporate name, and paid the fees in 2006,
“nothing else has been done with the corporation” and that it
exists “[i]n name only.” susan does not argue that it has any
value, but only error by the trial court in “failing to dispose
of th[is] asset.” The evidence makes it debatable as to whether
this is even an “asset,” but it is true the decree is silent as
to such. using our de novo review power, we simply award
all right, title, and interest in Icon Mountain to gary, but we
assign it no value, given the complete lack of evidence that it
has any value.
Coin Collection and Items in Storage.
susan argues that the trial court erred in awarding gary the
coin collection at an equity value of $6,500, because it does
not exist. The evidence shows that gary gave possession of it
to his son, who had loaned gary money, and that the son sold
it for $6,500 and kept the money. After citing some authority
concerning dissipation of marital assets, susan argues: “Thus,
while the trial court should have included a value for the coin
collection and included the same as a marital asset in its divi-
sion of property, it erred in awarding the actual asset to gary.”
Brief for appellant at 24. While we could understand if gary
were complaining about being given an asset that did not exist
and having such count as part of his share of the marital prop-
erty, we simply do not understand susan’s argument or, for that
matter, why she cares that the trial court put an asset on gary’s
side of the property division ledger that does not exist any
longer. If anyone got the “short end of the stick” with respect
to the coin collection, it is gary, not susan, assuming that it is
now “gone” as gary testified; but if it still exists, the fact that
gary was awarded it is not inequitable—unless it is worth more
than the $6,500 value gary assigned to it—but susan offered
no proof of such fact. Thus, we find this assignment of error to
be meritless.
ThoMpsoN v. ThoMpsoN 	375
Cite as 18 Neb. App. 363

The same argument is advanced with respect to $5,000
worth of personal items gary had in storage that were lost to
the storage facility because he did not pay his rent. The stor-
age items were awarded to gary by the trial court at a value of
$5,000. Again, we do not comprehend how susan was harmed
by the trial court’s action, and we likewise find this assignment
of error to be meritless.
We note that if these two allegedly nonexistent assets were
simply backed out of gary’s property division award, as susan
apparently wants us to do, gary’s award would drop from
$143,026 to $131,526, while susan’s award would stay the
same at $172,106, meaning gary’s percentage of the marital
estate would drop from 45.4 percent to 43.3 percent, but as
said, gary is not complaining, and susan’s complaint is with-
out merit.
Division of Susan’s 401K Plan.
susan had accumulated a 401k plan that was valued at
$234,366 as of september 15, 2008, and it was this value that
was in gary’s proposed property division, exhibit 62, which
the trial court adopted. The trial court ordered that the 401k
be divided equally between the parties “with a valuation date
being set as the date of the entry of the Decree” and, further,
that any “gains/losses from the date of the Decree to the
date of distribution” be divided equally between the parties.
The decree ordered that a QDRo be prepared to effectuate
the division.
[5,6] susan asserts that gary made “little contribution” to
the marital estate, repeatedly quit jobs, and repeatedly ran up
substantial debt, thus dissipating resources, and that her con-
tributions to the accumulation of the marital estate were vastly
more substantial than gary’s. Brief for appellant at 25. Thus,
she claims that an equal division of her 401k was error, citing
Mathew v. Palmer, 8 Neb. App. 128, 589 N.W.2d 343 (1999).
susan makes no claim that her 401k was not accumulated
during the marriage, and thus she tacitly admits that it was
properly included in the marital estate—but argues that an
equal division of it is unfair and inequitable. As a general rule,
all property accumulated and acquired by either spouse during
376 	18 NEBRAskA AppELLATE REpoRTs

the marriage is part of the marital estate. Heald v. Heald,
259 Neb. 604, 611 N.W.2d 598 (2000). The ultimate test in
determining the appropriateness of the division of property is
fairness and reasonableness as determined by the facts of each
case. Id.
[7,8] In Mathew, the evidence was that while the wife
worked steadily plus carried much of the load in caring for the
children, the husband was “indolent.” 8 Neb. App. at 144, 589
N.W.2d at 354. In that opinion, we said:
The Nebraska supreme Court recently considered the
propriety of a division of marital assets and noted that
“[b]oth parties were gainfully employed throughout the
20-year marriage and contributed their earnings to the
marriage.” Reichert v. Reichert, 246 Neb. 31, 40, 516
N.W.2d 600, 607 (1994). The supreme Court has also
stated, “[I]n cases where the growth of the marital estate
cannot be attributed to one party more than to another,
the trial court may divide the estate equally.” Shockley v.
Shockley, 251 Neb. 896, 903, 560 N.W.2d 777, 782 (1997)
(citing Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d
615 (1995), and Kullbom v. Kullbom, 209 Neb. 145, 306
N.W.2d 844 (1981)). We think these statements recognize
the reciprocal proposition, that is, the division of marital
property should take into account when the growth of the
marital estate can be traced to one spouse, and the other
spouse, through indolence or neglect, chose to make only
minimal beneficial contributions to the marriage and was
not engaged in activity beneficial to the marriage.
Id. at 148, 589 N.W.2d at 356.
In the instant case, the parties were married over 19 years
before they separated in August 2006, and it is only susan
who has a retirement account. gary’s social security earn-
ings record shows that during those 19 years, gary had “taxed
social security earnings” of $436,275, or average taxed yearly
earnings of $22,962 for those 19 years. The husband’s contri-
butions to the marriage in Mathew v. Palmer, supra, generated
adjectives in our opinion such as “indolent,” “abysmal,” and
“minimal.” The evidence about gary’s work history, including
service in the National guard during approximately 12 years of
ThoMpsoN v. ThoMpsoN 	377
Cite as 18 Neb. App. 363

the marriage, cannot be seen as comparable to the husband’s
history in Mathew. Nonetheless, gary’s work history is not
comparable to susan’s record, because she was the steady and
substantial contributor to the economic status of the union.
gary changed jobs frequently and engaged in a series of less-
than-successful business ventures, particularly after the parties
separated on August 1, 2006.
The parties have only two assets of consequence: approxi-
mately $90,000 of equity in the marital residence and susan’s
401k, the value of which has gone up and down during the
parties’ lengthy separation and during the pendency of this
action. The value adopted by the trial court via exhibit 62 for
the 401k was $234,366, and we use that value for analytic pur-
poses, recognizing that at this point in time, it could be quite
different given stock market fluctuations.
The existence of the substantial 401k is due solely to
susan’s steadfast work at the same job during the entirety of
the marriage. Moreover, the parties indisputably separated and
lived separate lives beginning August 1, 2006 (personally and
financially), and while gary’s employment and earnings there-
after were sporadic and of little consequence, susan continued
to be fully employed. And the evidence shows that susan’s
contributions to her 401k, including the company match, were
at the approximate rate of $1,500 per quarter. Thus, between
the date the parties’ marriage had ended for all practical pur-
poses and the date of the decree, susan would have had an
additional 11 or 12 quarters of contributions to her account at
the rate of approximately $1,500 per quarter. During this same
time, gary was largely unemployed and living on credit cards.
Thus, an equal division of this account gives gary the benefit
of her additional contributions after the separation and ignores
the substantial disparity between the economic contributions of
the parties to the accumulation of the marital estate. Therefore,
we find that an award of 50 percent of the 401k to gary is
not reasonable, or equitable, and was an abuse of discretion.
We therefore modify the property division to provide that gary
shall be awarded 33 percent of the total value of susan’s 401k
account. see Ragains v. Ragains, 204 Neb. 50, 281 N.W.2d 516
(1979) (property division should generally vary from one-third
378 	18 NEBRAskA AppELLATE REpoRTs

to one-half value of property involved, depending upon facts
and circumstances of particular case).
The trial court used the date of the decree (May 22, 2009) as
the date of valuation and provided: “Any gains/losses from the
date of the Decree to the date of distribution of the retirement
account shall be divided equally between the parties.” There
is, of course, no evidence as to the value of the 401k as of the
date of the decree, which is somewhat problematic, but no error
was assigned to this valuation date. The most current evidence
about the 401k is that, as of January 2, 2009, the account had
a value of $183,017.16 invested in eight different mutual funds.
The provision in the decree dividing “gains/losses,” as quoted
above, implies that gary was to receive, via the QDRo, 50
percent of the shares held in each mutual fund within the 401k
as of the date of the decree. We believe that implied notion for
division is appropriate, but we think it wise to make it explicit,
as outlined below.
The trial court shall promptly enter the necessary QDRo,
within 30 days of the date of the issuance of our mandate, if
possible, and may call upon counsel’s assistance in accom-
plishing the entry of the QDRo. see, Klimek v. Klimek, 18
Neb. App. 82, 775 N.W.2d 444 (2009); Fry v. Fry, 18 Neb.
App. 75, 775 N.W.2d 438 (2009). Because of the unknown
value of the account on May 22, 2009, as well as how the value
of the account was allocated among various investment options
available in susan’s plan, the district court may exercise its
equitable powers to receive evidence regarding the composi-
tion of the account and value of such assets of the 401k both
at the date of entry of decree and at the date of any hearing for
purposes of issuance of the QDRo. The purpose of doing such
would be to allow the trial court to enter an appropriate QDRo
specifically dividing the assets of the account such that susan
receives two-thirds of the value of the 401k as of the date of
decree, as adjusted for two-thirds of any gains or losses real-
ized thereafter in the account and gary receives the remaining
one-third of the value, again adjusted for gains or losses after
May 22, 2009. of course, any withdrawals susan may have
taken from the account during such time would be allocated
toward her two-thirds share of the account.
ThoMpsoN v. ThoMpsoN 	379
Cite as 18 Neb. App. 363

Award of Alimony.
susan argues that the trial court erred in requiring her to pay
gary $300 per month in alimony beginning June 1, 2009, and
continuing until gary reaches age 60, he is no longer disabled,
he remarries, or either party dies, whichever occurs first. At the
time of trial, gary said he was 54 years of age. Thus, the award
is roughly $21,600 over 6 years. The trial court made factual
findings in support of the alimony award, reciting the duration
of the marriage, the history of contributions to the marriage,
gary’s disability, his living expenses, susan’s monthly earn-
ings, and her expenses. susan argues that the alimony award
was error because “the record does not reflect he is disabled
from employment, reflects he has earning capacity, . . . reflects
he has been [a] spendthrift . . . and reflects susan was laid off
from her job.” Brief for appellant at 26-27. The last reason
cannot be considered at this juncture, because such fact is not
in evidence. And while the evidence shows that gary was not
as economically productive as susan during the marriage, and
that his self-employment businesses in later years were not suc-
cessful, there is little, if any, evidence to show that he wasted
money on bad habits or personal indulgences. In this regard,
we note that although susan testified about the three second
mortgages that were taken out because of gary’s shortcomings,
the evidence is that as of trial, all of such have been paid, and
susan admitted that gary always gave her money to apply to
the second mortgages. Accordingly, we do not believe that such
evidence is really convincing proof that gary wasted the par-
ties’ assets. In short, susan’s “spendthrift” characterization of
gary finds little support in the evidence.
[9,10] In response to susan’s claim that the alimony award
was error, gary points to susan’s long and stable career in
which she was earning in excess of $50,000 per year, in
contrast to his permanent and total disability status, which
generates less than $12,000 a year in income for him, plus
his lack of earnings since 2007. he directs us to Kalkowski v.
Kalkowski, 258 Neb. 1035, 1044, 607 N.W.2d 517, 525 (2000),
where the court said:
In reviewing an alimony award, an appellate court does
not determine whether it would have awarded the same
380 	18 NEBRAskA AppELLATE REpoRTs

amount of alimony as did the trial court, but whether the
trial court’s award is untenable such as to deprive a party
of a substantial right or just result. . . . In determining
whether alimony should be awarded, in what amount, and
over what period of time, the ultimate criterion is one of
reasonableness. . . . The purpose of alimony is to provide
for the continued maintenance or support of one party by
the other when the relative economic circumstances make
it appropriate. Alimony should not be used to equalize
the incomes of the parties or to punish one of the par-
ties. . . . Factors which should be considered by a court in
determining alimony include: (1) the circumstances of the
parties; (2) the duration of the marriage; (3) the history
of contributions to the marriage, including contributions
to the care and education of the children, and interrup-
tion of personal careers or educational opportunities; and
(4) the ability of the supported party to engage in gainful
employment without interfering with the interests of any
minor children in the custody of each party.
(Citations omitted.)
gary introduced an exhibit showing monthly living expenses
of $2,277, of which $1,454 was debt service on his credit
cards. otherwise, his monthly expenses are moderate—for
example, $200 for food. In contrast, at the time of trial, susan
was netting $3,627, her mortgage payment was only about
$700 per month, and she has no other debt. susan describes
herself as healthy, and the remaining minor child was born in
1991 and therefore does not interfere with susan’s employment
or ability to work. Thus, given the evidence and our standard of
review, we cannot say that the trial court abused its discretion
in the award of alimony.
Is Trial Court’s Decree Sufficient to Award Susan
15 Percent of Gary’s Military Retirement?
susan argues that the district court erred in failing to employ
language in the decree sufficient to accomplish the award to
susan of 15 percent of gary’s military retirement. In order
for the award to be enforceable under the uniformed services
Former spouses’ protection Act, the award must be expressed
ThoMpsoN v. ThoMpsoN 	381
Cite as 18 Neb. App. 363

either as a fixed dollar amount or as a percentage of disposable
retired pay. 10 u.s.C. § 1408(a)(2)(C) (2006).
In its decree, the district court ordered as follows:
5. DIVISION OF THE MARITAL ESTATE: The
Court finds that [gary’s] proposed division of the marital
estate as set forth in Exhibit #62 is fair and equitable and
the values contained therein are supported by the evidence
offered at trial.
. . . .
pursuant to Exhibit #62, [Gary] is awarded all right,
title, and interest in and to the coin collection (equity
value 	$6500.00); 	personal 	property 	items 	in 	storage
(equity value $5000.00); remaining portion of his military
Pension after 15% transfer to [Susan] (monthly annuity).
(Emphasis supplied.)
Although the intent of the decree is clear—that susan is to
receive 15 percent of gary’s military pension—this portion of
the award could have been set forth more precisely. To avoid
any confusion, we modify the above italicized portion of the
decree as follows: susan is awarded 15 percent of gary’s mili-
tary pension, and gary is awarded the remaining 85 percent of
his military pension. our research indicates that an award in a
divorce decree specifying the percentage of military retirement
pay each spouse is to receive is sufficient and that a QDRo is
not required.
Did Trial Court Err in Requiring Susan to Continue
to Pay for Gary’s Health Insurance
During Interlocutory Period?
susan argues that the district court erred in ordering her to
pay for gary’s health insurance during the interlocutory period.
susan testified that providing health insurance for gary costs
her an additional $100 per month. gary testified that because
of his disability, he is 100 percent covered by the VA for his
health care and prescriptions, but “as long as I’m insured
[through other means,] they’re gonna take whatever insurance
I can collect to keep the cost down for the system.” Based on
the testimony of the parties, the district court abused its dis-
cretion in ordering susan to continue to pay for gary’s health
382 	18 NEBRAskA AppELLATE REpoRTs

insurance during the interlocutory period—at an additional cost
to her of $100 per month—when gary is able to receive free
health insurance from the VA. Thus, we reverse and vacate this
portion of the decree. Additionally, in order that our modifica-
tion has meaning, we also order that gary reimburse susan for
any cost she paid for health insurance for him since the decree,
if she did in fact make such payments.
Did Trial Court Err in Requiring Susan to Pay
$3,000 Toward Gary’s Attorney Fees?
[11] susan argues that the district court erred in ordering her
to pay $3,000 toward gary’s attorney fees.
The award of attorney fees depends on multiple factors
that include the nature of the case, the services performed
and results obtained, the earning capacity of the parties,
the length of time required for preparation and presenta-
tion of the case, customary charges of the bar, and the
general equities of the case.
Gress v. Gress, 271 Neb. 122, 132, 710 N.W.2d 318, 328
(2006). gary submitted a detailed accounting of his attorney
fees, which we have reviewed. After a thorough review of the
record, and considering the significant difference in the parties’
earning capacities, we find that the district court did not abuse
its discretion in ordering susan to pay $3,000 toward gary’s
attorney fees.
Did Trial Court’s Order for Parenting Plan
Constitute Abuse of Discretion?
sarah was born in March 1991. Thus, she is now 19 years of
age and any issues regarding the parenting plan are now moot
and will not be addressed by this court. see State v. McCormick,
246 Neb. 890, 523 N.W.2d 697 (1994) (it is not within prov-
ince of supreme Court to determine moot questions).
CoNCLusIoN
For the reasons stated above, we modify the district court’s
decree as set forth above and which we summarize as fol-
lows: All right, title, and interest in Icon Mountain is awarded
to gary. gary shall be awarded 33 percent of susan’s 401k
account as of May 22, 2009, plus 33 percent of gains or losses
ThoMpsoN v. ThoMpsoN 	383
Cite as 18 Neb. App. 363

since such date pursuant to the more specific directions regard-
ing the necessary QDRo found above in our opinion. We
reverse and vacate the portion of the decree ordering susan to
pay for gary’s health insurance during the interlocutory period
and order gary to reimburse susan for any health insurance she
may have paid on his behalf since the decree was entered. We
affirm the remainder of the decree.
affIrmeD In parT, affIrmeD In parT aS moDIfIeD,
anD In parT reverSeD anD vacaTeD.
brIan l. hall , appellanT, v.
K rISTen K. hall , appellee .
782 N.W.2d 339
Filed May 11, 2010. 	No. A-09-839.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
4. ____: ____. Notwithstanding whether the parties raise the issue of jurisdiction,
an appellate court has a duty to raise and determine the issue of jurisdiction
sua sponte.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
6. Final Orders: Appeal and Error. An order is final for purposes of appeal if it
affects a substantial right and (1) determines the action and prevents a judgment,
(2) is made during a special proceeding, or (3) is made on summary application
in an action after judgment is rendered.
Appeal from the District Court for Nemaha County: DanIel
e. bryan, Jr ., Judge. Appeal dismissed.
Louie M. Ligouri, of Ligouri Law office, for appellant.
David J. partsch, of hoch, partsch & Noerrlinger, for
appellee.
384 	18 NEBRAskA AppELLATE REpoRTs