Mamot v. Mamot

Valara M aMot, appellant and cross -appellee , V.
K eVin B. M aMot, appellee and cross -appellant.
813 N.W.2d 440
Filed April 13, 2012. 	No. S-11-516.
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. 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.
3. Antenuptial Agreements: Proof. The party opposing enforcement of a premari-
tal agreement has the burden of proving that the agreement is not enforceable.
4. Antenuptial Agreements. Nebraska’s courts are governed by Nebraska’s version
of the Uniform Premarital Agreement Act, which authorizes parties who are con-
templating marriage to contract with respect to matters 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.
5. ____. A premarital agreement cannot be in violation of public policy or in viola-
tion of statutes imposing criminal penalties.
6. ____. A premarital agreement is not enforceable if the party against whom
enforcement is sought proves that (1) that party did not execute the agreement
voluntarily or (2) the agreement was unconscionable when it was executed and,
before execution of the agreement, that party (a) was not provided a fair and
reasonable disclosure of the property or financial obligations of the other party;
(b) did not voluntarily and expressly waive, in writing, any right to disclosure
of the property or financial obligations of the other party beyond the disclosure
provided; and (c) did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other party.
7. Judgments: Antenuptial Agreements. An issue of unconscionability of a pre-
marital agreement shall be decided by the court as a matter of law.
8. ____: ____. Factors that a court might consider in determining whether a premar-
ital agreement was entered into voluntarily include (1) coercion that may arise
from the proximity of execution of the agreement to the wedding or from surprise
in the presentation of the agreement; (2) the presence or absence of independent
counsel or of an opportunity to consult independent counsel; (3) inequality of
bargaining power, in some cases indicated by the relative age and sophistication
of the parties; (4) whether there was full disclosure of assets; and (5) the parties’
understanding of the rights being waived under the agreement or at least their
awareness of the intent of the agreement.
9. Antenuptial Agreements. An inequality of bargaining power may be shown by
the relative age and sophistication of the parties or by a disparity in the parties’
mAmoT V. mAmoT 	659
Cite as 283 Neb. 659
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

income and their respective assets at the time they entered into the premari-
tal agreement.
10. Judgments: Child Support: Appeal and Error. Domestic matters such as child
support are entrusted to the discretion of trial courts. A trial court’s determina-
tions on such issues are reviewed de novo on the record to determine whether
there has been an abuse of discretion. Under this standard, an appellate court
conducts its own review of the record to determine whether the trial court’s judg-
ment is untenable.
11. Child Support: Rules of the Supreme Court: Appeal and Error. Interpretation
of the Nebraska Child Support Guidelines presents a question of law, regarding
which an appellate court is obligated to reach a conclusion independent of the
determination reached by the court below.
12. Child Support: Rules of the Supreme Court. The Nebraska Child Support
Guidelines anticipate the contingency of fluctuating incomes.
13. ____: ____. The Nebraska Child Support Guidelines provide that income during
the immediate past 3 years may be averaged.
Appeal 	from 	the 	District 	Court 	for 	Howard 	County:
M arK d. KoziseK, Judge. Reversed and remanded for further
proceedings.
Sam Grimminger for appellant.
Barry D. Geweke, of Stowell, Kruml & Geweke, P.C.,
L.L.o., for appellee.
H eaVican, c.J., WrigHt, connolly, stepHan, MccorMacK,
and M iller-lerMan, JJ.
H eaVican, c.J.
The Howard County District Court entered a decree of
dissolution of the marriage of Kevin B. mamot and Valara
mamot. The 	court 	determined 	that 	the 	premarital 	agree-
ment entered into by the parties, although unconscionable,
was valid and enforceable. The court divided the assets and
entered an order regarding child support. Valara appeals, and
Kevin has filed a cross-appeal. We reverse, and remand for
further proceedings.
I. BACKGRoUND
Kevin and Valara began living together in Kevin’s house
near St. Libory, Nebraska, in 2003. Valara had two children
from a previous relationship, and Kevin had one child from a
660 	283 NeBRASKA RePoRTS

previous relationship who lived with him. Kevin and Valara had
two children together, twin daughters who were born on June
30, 2008.
The couple planned to get married on June 17, 2006, and
discussed signing a premarital agreement prior to the mar-
riage. Kevin testified that he and Valara had talked about his
financial worth from the beginning of their relationship and
that Valara knew from the time they started dating that his net
worth was more than $1 million. Valara testified that she was
unaware of the actual value of Kevin’s assets, but she believed
one of his businesses was worth more than $2 million. The
parties eventually signed a premarital agreement, the contents
of which will be discussed below, but Valara claimed that
she did not see Kevin’s financial statement prior to signing
the agreement.
on April 28, 2010, Valara filed a petition for legal separa-
tion, in which she alleged that the premarital agreement was
invalid because (1) it was not executed as contemplated by
the parties, (2) it is unconscionable as a matter of law, (3) it is
against public policy, and (4) the parties subsequently waived
its terms and provisions.
on July 21, 2010, Kevin filed a counterclaim for dissolution
of marriage. Kevin asked the court to (1) divide the assets and
debts under the premarital agreement; (2) set aside his premari-
tal and nonmarital property; (3) deny alimony; (4) grant joint
legal custody of the parties’ daughters and primary custody to
Valara with reasonable rights of visitation for Kevin; (5) order
child support, with credit for the support Kevin paid for his
child from a previous marriage; (6) apportion nonreimbursed
reasonable and necessary children’s health care costs; and (7)
allocate the dependency exemptions.
The trial court entered a decree of dissolution on may 27,
2011. The court determined that Valara executed the premarital
agreement voluntarily; that she had time for an independent
review of the premarital agreement, although she chose not to
consult with independent counsel; that there was no convincing
evidence that Valara was surprised that Kevin would require
the premarital agreement; and that there was no evidence of an
inequality of bargaining power between the parties. The trial
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Cite as 283 Neb. 659

court also found that Valara did not meet her burden to estab-
lish Kevin’s failure to fully disclose his assets.
The court then considered whether the premarital agreement
was unconscionable. It found that the language of the premari-
tal agreement “clearly defies the basic underpinnings of the
marital relationship.” The court also found that the premari-
tal agreement as written “truly makes Valara an ‘indentured
servant’, toiling with day-to-day activities with no possibility
of accumulating any assets under the circumstances existing
and the agreement as written.” The court determined that the
premarital agreement “is one-sided, evidences overreaching,
and demonstrates sharp dealing not consistent with the obliga-
tions of marital partners to deal fairly with each other.” The
court found that the premarital agreement is unconscionable,
but that “unconscionability alone does not make the [agree-
ment] unenforceable.”
The court found that Valara did not carry her burden to prove
that before execution of the premarital agreement, (1) she was
not provided a fair and reasonable disclosure of Kevin’s prop-
erty or financial obligations; (2) she did not voluntarily and
expressly waive, in writing, any right to disclosure; and (3) she
did not have, or reasonably could not have had, an adequate
knowledge of Kevin’s property or financial obligations.
each party was awarded all property in his or her posses-
sion, subject to all encumbrances, including one-half of the
2009 federal and state tax refunds and the property described
in the parties’ joint property statement. each was ordered to
pay the debts incurred personally since the separation, and the
debts on the joint property statement were divided. Neither
party was ordered to pay alimony. Kevin was ordered to pay
costs and an attorney fee of $9,500.
The parties were awarded joint legal custody of their twin
daughters, and Valara was awarded physical custody subject
to the parties’ parenting plan. After determining that Kevin’s
average monthly income was $19,357 and Valara’s average
monthly income was $2,769.37, the court ordered Kevin to pay
child support of $2,417 per month for two children. Kevin was
also ordered to pay 86 percent of the childcare expenses and
unreimbursed health care expenses.
662 	283 NeBRASKA RePoRTS

II. ASSIGNmeNTS oF eRRoR
Valara assigns nine errors, which in summary assert that the
trial court erred in finding that the premarital agreement was a
valid, enforceable contract and in failing to award the parties’
property in a fair and equitable manner.
on cross-appeal, Kevin argues, consolidated, that the trial
court erred in (1) finding that the premarital agreement was
unconscionable; (2) failing to use a 5-year average of commod-
ity trading gains and losses in calculating Kevin’s income for
child support purposes; (3) determining that Kevin’s monthly
income for child support purposes was $19,357; and (4) order-
ing him to pay 86 percent of childcare expenses and unreim-
bursed health care expenses.
III. 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.1
[2] 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.2
[3] The party opposing enforcement of a premarital agree-
ment has the burden of proving that the agreement is not
enforceable.3
IV. ANALYSIS
[4,5] The primary issue before us is the enforceability of the
premarital agreement. We are governed by Nebraska’s version
1 Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009).
2 Shearer v. Shearer, 270 Neb. 178, 700 N.W.2d 580 (2005).
3 Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008), citing
Neb. Rev. Stat. § 42-1006(1) (Reissue 2008) and In re Estate of Peterson,
221 Neb. 792, 381 N.W.2d 109 (1986).
mAmoT V. mAmoT 	663
Cite as 283 Neb. 659

of the Uniform Premarital Agreement Act,4 which was adopted
by Nebraska in 1994.5 The act authorizes parties who are con-
templating marriage to contract with respect to matters includ-
ing 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.6 The contract
cannot be in violation of public policy or in violation of stat-
utes imposing criminal penalties.7
[6,7] Specifically, § 42-1006 provides, in pertinent part:
(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 volun-
tarily; or
(b) The agreement was unconscionable when it was
executed 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 financial
obligations of the other party beyond the disclosure pro-
vided; 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.
. . . .
(3) An issue of unconscionability of a premarital agree-
ment shall be decided by the court as a matter of law.
As the party opposing enforcement of the premarital agree-
ment, Valara has the burden to prove that the premarital agree-
ment is not enforceable.8 Pursuant to § 42-1006, Valara must
prove either that she did not voluntarily execute the premarital
4 Neb. Rev. Stat. §§ 42-1001 to 42-1011 (Reissue 2008).
5 See 1994 Neb. Laws, L.B. 202.
6 See §§ 42-1002 and 42-1004.
7 § 42-1004.
8 Edwards v. Edwards, supra note 3.
664 	283 NeBRASKA RePoRTS

agreement or that the premarital agreement was unconscion-
able when it was executed. If she seeks to prove that the
premarital agreement was unconscionable, Valara must prove
three conditions: that before execution of the agreement, (1)
she was not provided a fair and reasonable disclosure of
Kevin’s property or financial obligations; (2) she did not vol-
untarily and expressly waive, in writing, her right to disclo-
sure of Kevin’s property and financial obligations beyond the
disclosure provided; and (3) she did not have, or reasonably
could not have had, an adequate knowledge of Kevin’s prop-
erty or financial obligations.
1. did Valara Voluntarily
sign agreeMent?
[8] We turn first to the question of whether Valara volun-
tarily executed the premarital agreement. Neither the Uniform
Premarital Agreement Act nor corresponding Nebraska stat-
utes define “voluntarily,” and this court has not previously
considered the term as related to a premarital agreement.
The Nebraska Court of Appeals was asked to review such
an agreement in Edwards v. Edwards.9 That court relied on
the California Supreme Court’s interpretation of “voluntarily”
as used in the Uniform Premarital Agreement Act.10 The
California court identified the following factors that a court
might consider:
(1) “coercion that may arise from the proximity of execution
of the agreement to the wedding, or from surprise in the pre-
sentation of the agreement”;
(2) “the presence or absence of independent counsel or of an
opportunity to consult independent counsel”;
(3) “inequality of bargaining power—in some cases indi-
cated by the relative age and sophistication of the parties”;
(4) “whether there was full disclosure of assets”; and
9 Id.
10 Id., citing In re Marriage of Bonds, 24 Cal. 4th 1, 5 P.3d 815, 99 Cal.
Rptr. 2d 252 (2000) (superseded by statute as stated in In re Marriage
of Cadwell-Faso and Faso, 191 Cal. App. 4th 945, 119 Cal. Rptr. 3d 818
(2011)).
mAmoT V. mAmoT 	665
Cite as 283 Neb. 659

(5) the parties’ understanding of the “rights being waived
under the agreement or at least their awareness of the intent of
the agreement.”11
The Nebraska Court of Appeals noted that other jurisdic-
tions have also relied on the California court’s interpretation of
“voluntarily.”12 We shall use these factors in our review of the
mamot agreement.
(a) Coercion or Surprise
Kevin and Valara lived together for 3 years prior to their
marriage. Their wedding was scheduled to be held June 17,
2006. Both had signed premarital agreements for earlier mar-
riages. They each testified as to the sequence of events that led
to the premarital agreement at issue.
Valara testified that Kevin hinted about a premarital agree-
ment several times before the marriage, but that the subject
was usually dropped. Valara said she eventually agreed to
a premarital agreement and told Kevin that if he had an
agreement drawn up, she would have it reviewed by the
attorney who drafted the premarital agreement for her previ-
ous marriage.
Valara stated that around June 9, 2006, Kevin came home
for lunch and presented Valara with two copies of the pre-
marital agreement, which Kevin told her she needed to read
and sign. Valara noted that there was no signature page and
was no financial statement listing the parties’ assets, which
she believed were normally included in a premarital agree-
ment. Kevin also testified that no financial statements were
attached to the copy he presented to Valara. Kevin told Valara
he would obtain a financial statement form for her. Valara said
that she and Kevin signed the premarital agreement and that
Kevin took both copies with him, preventing her from further
reviewing the document. That evening, Kevin gave Valara a
financial statement form to complete, and she filled it out that
night. Valara said she had no part in the preparation of the
11 In re Marriage of Bonds, supra note 10, 24 Cal. 4th at 18, 5 P.3d at 824-
25, 99 Cal. Rptr. 2d at 262.
12 Edwards v. Edwards, supra note 3.
666 	283 NeBRASKA RePoRTS

premarital agreement and did not have any contact with the
attorney who drafted it.
Valara stated that Kevin returned a few days later with one
copy of the premarital agreement, which had a signature page
attached. Valara told Kevin that they needed to list their assets
and that she needed to have her attorney review the agree-
ment, but Kevin said there was no time. Kevin reportedly said,
“You’ve got to get this signed otherwise we’re not getting mar-
ried Saturday.” Kevin did not contradict this statement, and he
testified that Valara had had “plenty of time” to have the docu-
ment reviewed by an attorney because she was not working
outside the home at the time.
Valara signed the document on June 12, 2006, but it was not
notarized. Valara said that she asked for a copy of the signed
document but that she did not receive it until a month or two
later. She stated that the copy she received did not have any
financial attachments or a signature page.
Kevin said he and Valara began talking about the premarital
agreement 3 or 4 months before the marriage because Valara
had been married previously and he had been married twice,
and both had used premarital agreements in their previous
marriages. A letter dated June 3, 2006, which accompanied the
premarital agreement, directed the parties to attach financial
statements, sign the premarital agreement, and return the origi-
nal to Kevin’s attorney. each party retained a copy.
Kevin testified that Valara had sufficient time to have an
attorney review the premarital agreement before she signed
it because she was not working outside the home. Kevin
acknowledged that the premarital agreement was not notarized
because there was not enough time to go to town to have it
signed. Kevin said that he was in a hurry to sign it, but that
Valara “had all day if she wanted somebody to look at it or go
through it” and that Valara “could have had anybody look at it
that she wanted.”
The record suggests that Valara may not have been surprised
at the idea of a premarital agreement, but it appears that she
was surprised when Kevin actually presented it to her. The par-
ties had discussed an agreement, but there is no indication that
there had been recent discussions regarding the matter.
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Cite as 283 Neb. 659

In order to get married in the Catholic church, which was
Kevin’s faith, it was necessary for Kevin to obtain an annul-
ment of his second marriage. Valara testified that they started
the annulment process in 2003 and that it was completed in
2006. once the annulment was approved, Kevin and Valara set
their wedding date for June 17, 2006, and she began making
wedding plans.
Valara testified that she and Kevin each had two attend-
ants at the wedding. About 20 members of their immediate
families were at the church, and about 150 guests were pres-
ent at the reception, which included a dance with music pro-
vided by a diskjockey. The parties’ children were involved in
the wedding.
The signed copy of the premarital agreement is dated June
12, 2006, which was the monday prior to the wedding. Based
on these facts, it is reasonable to find that Valara felt coerced
into signing the agreement when Kevin presented it to her
during the noon hour and told her she needed to sign it imme-
diately or there would be no wedding. Kevin did not dispute
these facts, which indicate a level of coercion. By that date,
Valara had already paid for or made commitments to pay for
invitations, the reception hall, flowers, a diskjockey, and wed-
ding attire for the children. If the wedding were canceled,
Valara would have been subjected to public embarrassment and
possible financial loss.
At the time of the wedding, Valara had quit her job and was
a homemaker taking care of three children. Kevin and Valara
lived on an acreage outside of St. Libory, an unincorporated
community in Howard County. Although Kevin testified that
she had time to have the agreement reviewed by a profes-
sional, the reality is that she had only a few hours between
when Kevin presented her with the agreement and when he
returned and expected her to sign it. During that short time,
she would have been required to attempt to find an attorney
who would immediately review the agreement and advise her
as to whether she should sign it. It is reasonable to believe
that Valara felt she had no choice but to sign the agreement
or the wedding would not take place as planned. Valara has
met her burden to show that she was coerced into signing
668 	283 NeBRASKA RePoRTS

the premarital agreement after Kevin delivered the ultima-
tum that she needed to sign the agreement or there would be
no wedding.
(b) Independent Counsel
The record shows that the premarital agreement was pre-
pared by Kevin’s attorney at Kevin’s request. Valara was not
represented by independent counsel. Although Valara testified
that she told Kevin she would have her attorney review the
agreement, she stated that once Kevin presented the document
to her, she did not have an opportunity to have it reviewed.
Valara stated that Kevin told her that his attorney would “take
care” of her. Kevin testified that he told Valara to consult with
her own lawyer. Because both parties were busy, Valara told
Kevin to have an agreement prepared because they both wanted
such an agreement.
The dated copy of the agreement was signed on June 12,
2006, which was 5 days prior to the wedding. That time might
have been sufficient for Valara to consult with an attorney.
However, according to Valara’s testimony, Kevin did not allow
sufficient time for review when he first presented the premari-
tal agreement to her. Kevin gave the document to her when
he was home for lunch and expected her to sign it immedi-
ately. Kevin did not dispute Valara’s testimony and asserted
that Valara “had all day” if she wanted someone to review
the agreement.
As noted above, Kevin and Valara lived on an acreage
outside a small community. In order to obtain professional
advice about the premarital agreement, Valara would have
been required to first locate an attorney who would be will-
ing to review it. The attorney would be required to agree to
review the document in a short period of time. Valara would
possibly have had to travel to meet with the attorney. A pre-
marital agreement can be a complicated legal document that
requires careful consideration of its provisions. At best, Kevin
expected Valara to sign the agreement with only a few hours
to consider it. Valara had fewer than 5 days before the wed-
ding in which to seek legal advice—5 days in which she was
also planning the wedding. The record supports a finding
mAmoT V. mAmoT 	669
Cite as 283 Neb. 659

that Valara did not have a sufficient opportunity to have
the premarital agreement reviewed by independent counsel.
Thus, Valara has met her burden to show this factor, which
weighs in favor of finding that Valara did not voluntarily sign
the agreement.
(c) Inequality in Bargaining Power
[9] The California Supreme Court identified inequality of
bargaining power as another factor for a court to consider.13
It noted that in some cases, this inequality may be shown by
the relative age and sophistication of the parties. A California
appeals court has also considered a disparity in the parties’
income and their respective assets at the time they entered into
a premarital agreement as an indication of an inequality of
bargaining power.14 We therefore review the record to consider
whether there was an inequality of bargaining power.
Prior to the marriage, Valara worked for 6 years in medical
administration and medical underwriting. She worked full time
until January 1, 2006, when she began working 30 hours per
week. In may, Valara’s employer asked her to return to full-
time work. But she quit on June 1 because Kevin said, “There’s
plenty to do around the house, you can fix it up, you can keep
the yard up.” Valara stated that she was not pleased about quit-
ting and that she “love[d her] job.”
Valara said that during the marriage, she had no way to
earn income except by helping her grandmother on a farm
and keeping financial records for her father. Valara said she
earned about $1,500 to $2,000 per year from her grandmother
and $2,000 to $3,000 per year from her father. She used
that money to pay for gas, school lunches, clothing for the
children, and groceries. Kevin provided her with $1,000 per
month, which she used to pay the mortgage on a house she
was renting out.
Valara spent a great deal of time working with Kevin’s 14-
year-old son from a previous marriage who had difficulties
13 In re Marriage of Bonds, supra note 10.
14 In re Marriage of Howell, 195 Cal. App. 4th 1062, 126 Cal. Rptr. 3d 539
(2011).
670 	283 NeBRASKA RePoRTS

at school and was eventually given psychiatric medication.
Valara claimed to have worked with him for 4 to 6 hours each
night until he was in the sixth grade. Valara stated that she
helped Kevin in his professional life by doing whatever he
asked of her, whether it was driving a truck or preparing meals
for employees.
Kevin owns interests in three business organizations: one-
half of a trucking company, one-half of a land and cattle
company, and one-third of a feedlot company. There was also
evidence that Kevin actively trades in the commodities market.
Thus, it appears that Kevin is more sophisticated in business
matters than is Valara. She was an employee in the insurance
industry while Kevin was self-employed and actively involved
in three business interests.
The record also suggests a disparity in the parties’ income
and assets at the time they entered into the agreement. Kevin
had a much greater net worth at the time the agreement was
signed. Testimony was offered that he was worth more than
$1 million and possibly more than $2 million when the parties
married. Prior to the marriage, Valara earned between $23,000
and $32,000 annually and had a retirement account worth
$18,000. Valara quit her job just prior to the wedding.
There was also an inequality in the bargaining power of
the two parties. While Valara had some business experience,
she worked as an hourly employee for an insurance company.
Kevin had partial ownership in three companies, serving as
president of at least one of them, and traded in the commodi-
ties market. After Valara quit working outside the home, she
was a homemaker who took care of five children as well as
the house. Valara met her burden to show an inequality in the
bargaining power of the two parties.
(d) Full Disclosure
The parties disputed whether there was adequate disclosure
of assets prior to the signing of the premarital agreement and
whether financial statements were attached to the premarital
agreement when it was signed.
Valara stated that she did not see Kevin’s financial state-
ment before she signed the agreement and that she had no idea
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Cite as 283 Neb. 659

that Kevin had a net worth in excess of $2 million. However,
Kevin said that he and Valara had talked about his financial
worth from the beginning of their relationship and that she
understood she would be “financially set.” Kevin believed
Valara knew from the time they started dating that he had a net
worth in excess of $1 million. Kevin asserted that Valara had
an opportunity to see his financial statement before signing the
premarital agreement. Although Valara admitted that she com-
pleted a financial statement, she maintained it was not a part of
the premarital agreement.
The trial court noted that Valara testified she reminded
Kevin on more than one occasion that the financial statements
needed to be attached to the premarital agreement. Kevin
provided the financial statement form for Valara to complete.
There is no definitive evidence to show whether Kevin fully
disclosed his assets to Valara prior to the signing of the pre-
marital agreement. We have only the conflicting testimony
of the two parties. As the trial court noted, the attorney who
drafted the premarital agreement was not called as a witness to
help explain whether the financial statements were attached to
the premarital agreement.
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.15 We determine that Valara did not meet her burden to
show that she was not aware of the extent of Kevin’s financial
holdings before the agreement was signed.
(e) Parties’ Understanding of Rights
Being Waived or Awareness of
Intent of Agreement
It is clear that both parties were aware of the purpose
and intent of premarital agreements because each had entered
into such agreements in earlier marriages. Valara demonstrated
an understanding that assets are “[u]sually” listed “within
the [agreement].” However, having an understanding of the
intent of a premarital agreement and understanding the rights
15 Shearer v. Shearer, supra note 2.
672 	283 NeBRASKA RePoRTS

being waived by the actual language of the agreement are not
the same.
The premarital agreement provided that each party would
retain sole ownership of all his or her property, “now owned or
hereafter acquired by him or her, free and clear of any claim
of the other.” In the event of divorce, the parties agreed that
neither would make any claim
to any property now owned or hereafter acquired by the
other party or to any separate property of the other party
or to any appreciation or increase in value of such prop-
erty during the marriage or to any property generated,
earned or purchased by the other party as his or her sole
and separate property.
The separate property of the parties was defined as all
property belonging to each party at the commencement of the
marriage, property “acquired by a party out of the proceeds
or income from property owned at the commencement of
the marriage or attributable to appreciation in value of said
property, whether the enhancement in value is due to market
conditions or to the services, skills or efforts of either party.”
The agreement also provided that any property “now owned
or hereafter acquired in a party’s name alone” shall be that
party’s separate property.
As the trial court determined, the agreement purported to
“isolate as separate property” that which was owned by Kevin
at the time of the marriage, but it also sought “to reach into
the future to prevent any marital interest arising from income
produced as a result of his ownership of these assets.” The
agreement left Valara as a homemaker who took care of the
children with “no possibility of accumulating any assets under
the circumstances existing and the agreement as written.”
The trial court stated that the language of the agreement
“defies” the basic underpinnings of the marital relationship,
which should be “a partnership where both parties through
their mutual efforts obtain assets subject to equitable division
in the event of a dissolution.” Under this agreement, Valara was
an “‘indentured servant.’”
The premarital agreement is a complex legal document
which uses specialized terminology that might not be easily
mAmoT V. mAmoT 	673
Cite as 283 Neb. 659

comprehended by a person unfamiliar with the law. We find no
evidence to suggest that Valara fully understood the terms of
the agreement. Valara met her burden to demonstrate that she
did not have a complete understanding of the rights she was
waiving in signing the premarital agreement.
2. agreeMent Was not
Voluntarily signed
This court reviews the trial court’s determinations de novo,
but we are also reminded that the trial court’s determinations
are initially entrusted to its discretion and will normally be
affirmed absent an abuse of that discretion.16 As noted above,
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.17
We have reviewed the record as it relates to the question of
whether Valara voluntarily entered into the premarital agree-
ment, and we find that the trial court abused its discretion
in finding that she did. Taking into consideration the factors
identified in Edwards,18 we find that Valara was coerced into
initially signing the document, during a lunch hour just a few
days before the wedding and after the wedding invitations
had been sent and she had already spent money on wedding
preparations. Kevin told her she needed to sign the agreement
or the wedding would not take place. Valara did not have an
adequate opportunity to have independent counsel review the
document. Although Kevin testified that Valara “had all day,”
that she had “plenty of time” to have the agreement reviewed
because she was not working outside the home at the time, and
that “she could have went [sic] to town” and “could have had
anybody look at it that she wanted,” it is unrealistic to believe
Valara had the time and wherewithal to adequately review
the agreement.
16 Reed v. Reed, supra note 1.
17 Shearer v. Shearer, supra note 2.
18 Edwards v. Edwards, supra note 3.
674 	283 NeBRASKA RePoRTS

The record supports a finding that there was a disparity in
the parties’ income and their respective assets at the time they
entered into the agreement, which indicates an inequality of
bargaining power. Valara met her burden to show that she did
not understand that by signing the agreement, she was waiving
her right to full disclosure of Kevin’s premarital property and
giving up any claim to Kevin’s property obtained during the
marriage. The sole factor for which Valara did not meet her
burden is whether there was a full disclosure of assets prior
to the signing of the agreement. The evidence on that issue is
in conflict.
After completing our de novo review, we find that Valara
met her burden to show that she did not sign the premarital
agreement voluntarily, and therefore, it is unenforceable.
Pursuant to § 42-1006, the party challenging a premarital
agreement must show either that the agreement was not signed
voluntarily or that it was unconscionable. If the challenging
party seeks to show that the agreement was unconscionable,
that party must also prove that he or she was not provided a
fair and reasonable disclosure of the other party’s property or
financial obligations; that the challenging party did not volun-
tarily and expressly waive, in writing, any right to disclosure
of the other party’s property or financial obligations beyond
the disclosure provided; and that the challenging party did not
have, or reasonably could not have had, an adequate knowledge
of the other party’s property or financial obligations. Because
we find that Valara did not sign the agreement voluntarily, we
need not further address whether it was unconscionable.
V. CRoSS-APPeAL
on cross-appeal, Kevin asserts that the trial court erred in
(1) its determination of Kevin’s child support, specifically by
failing to use a 5-year average of income including commodity
trading gains and losses in calculating his monthly income, and
(2) its percentage allocations of childcare and unreimbursed
health care expenses. Because we are remanding this case for
further proceedings, we decline to reach Kevin’s second argu-
ment on cross-appeal. But because the first is likely to recur on
remand, we address it here.
mAmoT V. mAmoT 	675
Cite as 283 Neb. 659

A witness who had been Kevin’s accountant since 1993 tes-
tified that Kevin had engaged in commodity trading over the
duration of the marriage and had made profits in certain years
and suffered losses in other years. He determined that Kevin’s
average yearly income for 2005 through 2010, including actual
commodity losses and depreciation, was $115,952.
The trial court used information from four pay periods
to determine that Valara’s monthly income was $2,769.37.
Because Kevin’s income fluctuated substantially based on the
nature of his businesses, the court determined that it should
use the previous 4 years to calculate Kevin’s monthly income,
beginning with 2007, the first full year that the parties were
married. The information included 2 years of gains and 2
years of losses. The court also determined that Kevin’s actual
income, rather than his reported income for tax purposes,
should be used. The court then found that Kevin’s income was
as follows:
Year 	Annual Income 	Monthly Average
2007 	($ 48,542) 	($ 4,045)
2008 	9,874 	823
2009 	561,793 	46,816
2010 	405,989 	33,832
Based on these figures, Kevin’s average monthly income over
the 4 years was $19,357.
The court then ordered Kevin to pay child support of
“$2,417.00 per month when there are two children subject to
the order, and $1,777.00 per month when there is one child
subject to the order.” Kevin was ordered to pay 86 percent of
the childcare expenses and 86 percent of unreimbursed health
care expenses after the initial $480 per calendar year.
Kevin argues that the trial court should have used a 5-year
average in calculating his income, which would have resulted
in a monthly income of $12,016, rather than $19,357.
[10,11] Domestic matters such as child support are entrusted
to the discretion of trial courts.19 A trial court’s determina-
tions on such issues are reviewed de novo on the record to
19 See Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).
676 	283 NeBRASKA RePoRTS

determine whether there has been an abuse of discretion.20
Under this standard, an appellate court conducts its own review
of the record to determine whether the trial court’s judgment
is untenable.21 Interpretation of the Nebraska Child Support
Guidelines presents a question of law, regarding which an
appellate court is obligated to reach a conclusion independent
of the determination reached by the court below.22
[12,13] We have noted that the child support guidelines
anticipate the contingency of fluctuating incomes.23 The guide-
lines provide that income during the immediate past 3 years
may be averaged. In Gress v. Gress,24 we found it proper for the
trial court to use income averaging to calculate child support.
The father in Gress was a farmer, and he urged the court to use
an 8-year average. We noted that both in Nebraska and in other
jurisdictions, a 3-year average tended to be the most common
approach, and that even if a longer period is used, courts are
reluctant to use more than a 5-year average. We approved the
3-year average as used by the trial court.
In the case at bar, the trial court used Kevin’s income from
4 years, beginning with 2007, the first full year of the par-
ties’ marriage. The 4-year period included 2 years of gains
and 2 years of losses. Kevin argues that the court should have
included his 2006 income. However, testimony was received
from a certified public accountant that in averaging invest-
ment income, current years should be weighed more heavily,
“because the further back you get in a volatile kind of an
investment like commodities, the less valu[able] the informa-
tion becomes.”
We find no abuse of discretion in the trial court’s use of 4
years of income to determine Kevin’s child support obligation.
The court used the first full year of the marriage as the starting
20 See id.
21 See id.
22 Id.
23 See id.
24 Id.
mAmoT V. mAmoT 	677
Cite as 283 Neb. 659

point and averaged Kevin’s income. Those 4 years showed both
profits and losses.
VI. CoNCLUSIoN
The judgment of the district court finding that the pre-
marital agreement is enforceable is reversed, and the cause
is 	remanded 	for 	further 	proceedings 	consistent 	with 	this
opinion.
reVersed and reManded for
furtHer proceedings.
678 	283 NeBRASKA RePoRTS