Seivert v. Alli

S
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/21/2021 08:09 AM CDT




                                                          - 246 -
                               Nebraska Supreme Court Advance Sheets
                                        309 Nebraska Reports
                                                    SEIVERT v. ALLI
                                                   Cite as 

309 Neb. 246




                                        Patricia A. Seivert, appellee and
                                          cross-appellant, v. Tyron A.
                                              Alli, appellant and
                                                 cross-appellee.
                                                     ___ N.W.2d ___

                                            Filed May 21, 2021.     No. S-20-209.

                 1. Divorce: Child Custody: Child Support: Property Division:
                    Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
                    action, an appellate court reviews the case 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.
                 2. Evidence: Appeal and Error. In a review de novo on the record, an
                    appellate court is required to make independent factual determina-
                    tions based upon the record, and the court reaches its own independent
                    conclusions with respect to the matters at issue. When evidence is in
                    conflict, the appellate court considers and may give weight to the fact
                    that the trial court heard and observed the witnesses and accepted one
                    version of the facts rather than another.
                 3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
                    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
                    ing a litigant of a substantial right and denying just results in matters
                    submitted for disposition.
                 4. Statutes: Appeal and Error. Statutory interpretation presents a question
                    of law that an appellate court resolves independently of the trial court.
                 5. Statutes: Intent. When interpreting a statute, the starting point and
                    focus of the inquiry is the meaning of the statutory language, understood
                    in context.
                 6. Statutes: Appeal and Error. Statutory language is to be given its plain
                    and ordinary meaning, and an appellate court will not resort to inter-
                    pretation to ascertain the meaning of statutory words which are plain,
                    direct, and unambiguous.
                                     - 247 -
            Nebraska Supreme Court Advance Sheets
                     309 Nebraska Reports
                               SEIVERT v. ALLI
                              Cite as 

309 Neb. 246

 7. Statutes. It is not within the province of the courts to read meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
 8. Statutes: Legislature: Intent. Components of a series or collection of
    statutes pertaining to a certain subject matter are in pari materia and
    should be conjunctively considered and construed to determine the
    intent of the Legislature, so that different provisions are consistent, har-
    monious, and sensible.
 9. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
    2016), the equitable division of property is a three-step process. The first
    step is to classify the parties’ property as marital or nonmarital, setting
    aside the nonmarital property to the party who brought that property to
    the marriage. The second step is to value the marital assets and marital
    liabilities of the parties. The third step is to calculate and divide the net
    marital estate between the parties in accordance with the principles con-
    tained in § 42-365.
10. ____: ____. The ultimate test in determining the appropriateness of the
    division of property is fairness and reasonableness as determined by the
    facts of each case.
11. Divorce: Property Division: Appeal and Error. As a general principle,
    the date upon which a marital estate is valued should be rationally
    related to the property composing the marital estate. The date of val­
    uation is reviewed for an abuse of the trial court’s discretion.
12. Divorce: Property Division: Alimony. In dividing property and consid-
    ering alimony upon a dissolution of marriage, a court should consider
    four factors: (1) the circumstances of the parties, (2) the duration of the
    marriage, (3) the history of contributions to the marriage, 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.
13. Divorce: Property Division. In addition to the specific criteria listed
    in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the
    income and earning capacity of each party and the general equities of
    the situation.
14. Alimony. The purpose of alimony is to provide for the continued main-
    tenance or support of one party by the other when the relative economic
    circumstances make it appropriate.
15. Alimony: Appeal and Error. In reviewing an alimony award, an appel-
    late court does not determine whether it would have awarded the same
    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 a
    just result. The ultimate criterion is one of reasonableness.
                                    - 248 -
           Nebraska Supreme Court Advance Sheets
                    309 Nebraska Reports
                              SEIVERT v. ALLI
                             Cite as 

309 Neb. 246

16. ____: ____. An appellate court is not inclined to disturb the trial court’s
    award of alimony unless it is patently unfair on the record.
17. Divorce: Attorney Fees. In dissolution proceedings, an award of attor-
    ney fees depends on a variety of factors, including the amount of prop-
    erty and alimony awarded, the earning capacity of the parties, and the
    general equities of the situation.

  Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
   Kelly T. Shattuck, of Vacanti Shattuck, for appellant.
  Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Papik, J.
   Tyron A. Alli appeals and Patricia A. Seivert cross-appeals
the district court’s decree dissolving the parties’ marriage and
dividing the marital estate. Both parties assign multiple errors.
For the reasons discussed below, we affirm.
                       I. BACKGROUND
   In December 2013, Seivert filed a complaint against Alli in
the district court for Douglas County seeking a dissolution of
their marriage. At the time the complaint was filed, the parties
had four minor children, born in 1998, 2000, 2003, and 2004.
Earlier in 2013, Alli had moved out of the home in which he,
Seivert, and the children had lived.
   The parties attempted to resolve disputed issues over the
next several years. The matter eventually went to trial in July
2019. The disputed issues included the following: if and when
the parties were married; if the parties were not married,
whether they should be treated as putatively married under
Neb. Rev. Stat. § 42-378 (Reissue 2016); the date on which the
marital estate should be identified and valued; the valuation of
Alli’s business interests; and whether Alli should be obligated
                               - 249 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

to pay alimony. Evidence presented at trial relevant to the par-
ties’ assignments of error is detailed later in this opinion.
   On January 13, 2020, the district court entered a decree dis-
solving the marriage. The district court found that the parties
were married on January 26, 2012, rejecting both Seivert’s
arguments that the parties were either validly or putatively
married in 1996, as well as Alli’s argument that the parties
were never married.
   The decree adopted the parties’ existing parenting plan, which
awarded sole legal and physical custody of the minor children
to Seivert subject to Alli’s parenting time. By the time of the
decree, only two of the parties’ children were minors.
   The decree ordered Alli to pay Seivert $8,390 per month in
child support, $5,000 per month for 60 months in alimony, and
$50,000 for attorney fees. The decree further ordered Alli to
continue to pay tuition and educational expenses for the minor
children to attend the private high school in which they were
enrolled. It also provided, “The children’s 529 accounts or
other accounts held for the benefit of the children shall be held
by [Seivert] as a constructive trustee and/or custodian for the
benefit of the minor children and their educational expenses.”
In dividing the marital estate, the district court awarded to Alli
a bank account containing $304,130 that the parties used to pay
the minor children’s private school tuition.
   Using January 26, 2012, as the date of the marriage, the dis-
trict court divided the marital assets between the parties. The
court utilized the date of trial as the valuation date for the divi-
sion of the assets. Accordingly, the district court included in
the marital estate an investment account and equity in a home
that Alli purchased in 2014, both of which were funded by Alli
with postcomplaint and postseparation earnings.
   In valuing Alli’s business interests, the district court found
that “the valuation of [Alli’s] business interests are most accu-
rately determined by relying on [Alli’s] existing business and
buy/sell agreement terms.” The district court awarded the mari-
tal portion of Alli’s business interests to Alli.
                               - 250 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

   The district court ordered Alli to make an equalization pay-
ment to Seivert of over $1.2 million. It also directed Alli to
assign to Seivert over $800,000 in his retirement accounts to
equalize the division of assets.
   After the district court overruled Alli’s motion for new
trial and Seivert’s motion to alter or amend, Alli appealed and
Seivert cross-appealed.
                II. ASSIGNMENTS OF ERROR
   Alli assigns that the district court erred (1) by including
in the marital estate property that he obtained after the par-
ties separated and the complaint for dissolution was filed, (2)
by ordering him to pay alimony, (3) by ordering him to pay
attorney fees, and (4) by dividing an account intended for the
minor children’s school tuition while also ordering him to be
responsible for those costs.
   In her cross-appeal, Seivert assigns that the district court
erred (1) in its determination of the value of Alli’s business
interests and (2) in its failure to find that the parties were puta-
tively married in June 1996.
                 III. STANDARD OF REVIEW
   [1] In a marital dissolution action, an appellate court reviews
the case 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 regard-
ing custody, child support, division of property, alimony, and
attorney fees. Higgins v. Currier, 

307 Neb. 748

, 

950 N.W.2d
631

 (2020).
   [2] In a review de novo on the record, an appellate court
is required to make independent factual determinations based
upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. 

Id.

 However,
when evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial court heard and
observed the witnesses and accepted one version of the facts
rather than another. Dooling v. Dooling, 

303 Neb. 494

, 

930
N.W.2d 481

 (2019).
                               - 251 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

    [3] A judicial abuse of discretion exists if the reasons or rul-
ings 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.

    [4] Statutory interpretation presents a question of law that
an appellate court resolves independently of the trial court.
Connolly v. Connolly, 

299 Neb. 103

, 

907 N.W.2d 693

 (2018).
                         IV. ANALYSIS
                   1. Seivert’s Cross-Appeal
                          (a) § 42-378
   We begin with Seivert’s argument that the district court
erred when it declined to treat the parties as putatively married
in 1996 under § 42-378. Although Seivert provides little in
the way of specifics, she generally contends that if the district
court had found the parties were putatively married in 1996,
the marital estate would have been larger and she would have
been entitled to a larger equalization payment. Because the
resolution of this issue could possibly impact the resolution of
other assigned errors, we address it first.
                   (i) Additional Background
   During the course of the proceedings, both parties took mul-
tiple positions as to whether and when they were married. In
her initial complaint, Seivert alleged that the parties were mar-
ried in Omaha, Douglas County, Nebraska, on June 16, 1996.
In Alli’s answer to the initial complaint, he denied that the
parties were married in Douglas County in 1996 and alleged
that the parties were married in Douglas County on January
26, 2012.
   In an amended complaint, Seivert changed her allegations
regarding the date of the marriage. She alleged that “[o]n or
about” June 18, 1996, she “in good faith participated in a mar-
riage ceremony and accordingly was married to [Alli] in Kauai,
Hawaii.” She alleged that the parties renewed their vows on
January 26, 2012, in Douglas County. Alli then changed his
                              - 252 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

allegations regarding the date of the marriage in his answer to
the amended complaint. He denied Seivert’s allegations and
alleged that no marriage ceremony took place in either 1996
or 2012. He asked that the district court declare that the parties
were never married and dismiss Seivert’s complaint.
    Whether and when the parties married remained a disputed
issue at trial, and both parties testified regarding the subject.
Seivert testified that she and Alli met in 1994 and became
engaged to be married in 1995. According to Seivert, she
and Alli planned a trip to Hawaii in June 1996, where they
intended to get married and have a honeymoon. Shortly before
leaving for Hawaii, they obtained a marriage license applica-
tion from the Douglas County clerk’s office. They partially
completed the application, but did not sign or file it, and they
did not participate in a marriage ceremony in Nebraska at that
time. Seivert testified that in Hawaii, she and Alli signed some
papers and participated in a marriage ceremony on the beach
by their hotel. She recalled being given some type of certifi-
cate, but did not recall what she or Alli did with it.
    Alli agreed that the parties were engaged prior to June
1996 and that they traveled to Hawaii in that month, but he
testified that they went there solely for a vacation. He denied
that they participated in any ceremony in Hawaii and denied
that they applied for or obtained a Hawaii marriage license.
Alli acknowledged that after returning from Hawaii, the par-
ties consistently represented themselves as husband and wife.
According to Alli, he believed the parties were married at the
time as a result of their obtaining a license in Douglas County
prior to leaving for Hawaii.
    Approximately 16 years later, Seivert was asked to provide
documentation of her marital status as part of an insurance
audit. She testified that she was unable to find the marriage
certificate and that she was told by “Hawaii” that any records
had been “purged.” Because she was unable to locate docu-
mentation and did not have time to search further, Seivert tes-
tified that she and Alli agreed to obtain a marriage license in
                              - 253 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

Douglas County and have a ceremony performed. In a hand-
written, signed, and dated statement on the marriage license
application, Seivert and Alli both acknowledged that they were
married in a ceremony in June 1996, but that the marriage
certificate paperwork was misplaced and never received by
the Douglas County clerk’s office. Alli testified he signed the
acknowledgment of a prior ceremony because Seivert asked
him to, but it was a lie.
   Seivert and Alli again provided conflicting testimony about
whether a marriage ceremony took place in 2012. Seivert
asserted that a ceremony was held in the parties’ Omaha home
on January 26 of that year. Alli disputed that such a ceremony
took place.
   As noted above, the district court found that the parties were
not validly married in Nebraska or any other state in 1996. It
concluded that under Nebraska and Hawaii law, a valid mar-
riage required both a duly obtained license and a ceremony per-
formed by a person licensed to solemnize marriage. The district
court found that the parties did not sign and file a Nebraska
marriage license in 1996, nor was a ceremony performed in
Nebraska in that year. In addition, the district court found a
lack of evidence that the parties obtained a marriage license or
participated in a marriage ceremony in Hawaii.
   The district court also rejected Seivert’s argument that it
should treat the parties as putatively married in 1996 under
§ 42-378. The district court concluded that § 42-378 applied
only if the parties completed the necessary requirements to
enter into a valid marriage and that marriage was later declared
a nullity.
   The district court rejected Alli’s argument that the parties
were never married, finding that the parties were validly mar-
ried in Douglas County in January 2012.

                         (ii) Analysis
  Seivert’s sole argument regarding the date of the parties’
marriage is that the district court erred by not treating the
                              - 254 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

parties as putatively married in 1996 under § 42-378. She does
not assign and argue on appeal that the parties were validly
married in 1996. Alli likewise does not challenge on appeal
the district court’s finding that the parties were validly mar-
ried in 2012. We thus limit our consideration to the question of
whether the district court erred by declining to treat the parties
as putatively married in 1996 under § 42-378.
   Section 42-378 provides:
          When the court finds that a party entered into the con-
      tract of marriage in good faith supposing the other to be
      capable of contracting, and the marriage is declared a nul-
      lity, such fact shall be entered in the decree and the court
      may order such innocent party compensated as in the case
      of dissolution of marriage, including an award of costs
      and attorney fees.
   Section 42-378 “closely parallels” a doctrine adopted in
many other states, either through case law or by statute,
referred to as the “putative marriage doctrine.” Hicklin v.
Hicklin, 

244 Neb. 895

, 901, 

509 N.W.2d 627

, 631 (1994). As
one commentator described the putative marriage doctrine, “it
is designed to allow all the civil effects—rights, privileges, and
benefits—which obtain in a legal marriage to flow to parties
to a null marriage who had a good faith belief that their ‘mar-
riage’ was legal and valid.” See Christopher L. Blakesley, The
Putative Marriage Doctrine, 60 Tul. L. Rev. 1, 2 (1985).
   Seivert argues that the district court should have applied
§ 42-378, because Seivert and Alli both believed in good faith
that they were married in 1996 and lived and represented
themselves as a married couple for years thereafter. As Seivert
understands § 42-378, it does not matter whether she and Alli
obtained a license and participated in a marriage ceremony in
either Nebraska or Hawaii in 1996.
   We find that Seivert’s argument is at odds with both our
precedent and the language of § 42-378. Take first our prec-
edent. In the last case in which we considered the applicabil-
ity of § 42-378, a woman continued to live with her former
                               - 255 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

husband after their marriage was dissolved under the good
faith belief that they remained married. See Manker v. Manker,

263 Neb. 944

, 

644 N.W.2d 522

 (2002). Even so, we held that
§ 42-378 did not permit the district court to treat the parties
as putatively married after their marriage was dissolved. We
focused on the fact that § 42-378 applies only when “the mar-
riage is declared a nullity” and, in reliance on a legal diction-
ary, concluded that this occurs only when a presumed or sup-
posed marriage is void or voidable. We reasoned that § 42-378
did not apply under the circumstances, because there was
never a void or voidable marriage; the marriage was valid dur-
ing its duration and then it was dissolved. We also contrasted
§ 42-378 with statutes in other states that allow a party to
obtain relief as a putative spouse by showing only cohabitation
with another and a good faith belief that the parties were mar-
ried. We concluded that § 42-378 did not define the putative
marriage doctrine in Nebraska in that manner.
   Although Manker v. Manker, 

supra,

 presented different fac-
tual circumstances than this case, we find it instructive here
for two reasons. First, in Manker, we rejected the argument
Seivert essentially presents here: that a party can obtain relief
under § 42-378 merely by showing cohabitation and a good
faith belief in a valid marriage. Second, we made clear that a
party can be treated as a putative spouse only if permitted by
the language of § 42-378.
   [5-8] Before turning to the language of § 42-378 in the
context of this case, we pause briefly to review the familiar
principles of statutory interpretation applicable to this analysis.
When interpreting a statute, the starting point and focus of the
inquiry is the meaning of the statutory language, understood
in context. In re Guardianship of Eliza W., 

304 Neb. 995

,

938 N.W.2d 307

 (2020). Our analysis begins with the text,
because statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. See 

id.

 Neither is it within the
                              - 256 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

province of the courts to read meaning into a statute that is
not there or to read anything direct and plain out of a statute.
Parks v. Hy-Vee, 

307 Neb. 927

, 

951 N.W.2d 504

 (2020). When
legal terms of art are used in statutes, they are to be construed
and understood according to their term of art meaning. State
ex rel. Peterson v. Creative Comm. Promotions, 

302 Neb. 606

,

924 N.W.2d 664

 (2019). Components of a series or collection
of statutes pertaining to a certain subject matter are in pari
materia and should be conjunctively considered and construed
to determine the intent of the Legislature, so that different pro-
visions are consistent, harmonious, and sensible. In re Interest
of Seth C., 

307 Neb. 862

, 

951 N.W.2d 135

 (2020).
   Applying the foregoing principles, we do not believe that
the parties to this case can be treated as putatively married
under § 42-378. To obtain relief under § 42-378, a party must
“enter[] into the contract of marriage in good faith supposing
the other to be capable of contracting” only for the “marriage”
to be “declared a nullity” (emphasis supplied). The statute
does not apply merely because a party believes that he or she
is validly married or has a subjective desire to be married.
Rather, in order for § 42-378 to apply, its language provides
that the parties must enter into the contract of marriage. We
believe the district court was correct to conclude that this
requires parties seeking relief under § 42-378 to show that
they completed the necessary legal steps to enter into a con-
tract of marriage.
   This conclusion is not inconsistent with our opinion in
Hicklin v. Hicklin, 

244 Neb. 895

, 

509 N.W.2d 627

 (1994),
the primary case upon which Seivert relies. In Hicklin, we
concluded that § 42-378 should have been applied in a case
in which a man and woman participated in a marriage cer-
emony when the man’s prior marriage was not yet dissolved.
We focused in that case on whether the woman acted in good
faith and concluded she did, reasoning that she did not know
that the man’s marriage was not yet dissolved and, under the
circumstances, had no duty to conduct additional inquiry into
that question. But there was apparently no dispute in Hicklin
                              - 257 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

that the parties completed the necessary legal steps to enter
into a contract of marriage. Our decision today does not dis-
turb our conclusion in Hicklin that § 42-378 applies when a
party enters into the contract of marriage with a good faith
yet mistaken belief that the other party is capable of forming
a valid marriage contract. See, also, Neb. Rev. Stat. § 42-103
(Reissue 2016) (setting forth circumstances in which marriages
are void).
   Given that § 42-378 applies only if the parties completed
the necessary legal steps to enter into a contract of marriage,
it becomes clear that the district court did not abuse its discre-
tion by concluding the statute did not apply. In 1996, Neb.
Rev. Stat. § 42-104 (Reissue 2016) defined how a marriage is
contracted in Nebraska, and still does, providing in relevant
part that “[n]o marriage hereafter contracted shall be recog-
nized as valid unless such license has been previously obtained
and used within one year from the date of issuance and unless
such marriage is solemnized by a person authorized by law
to solemnize marriages.” Hawaii law also required in 1996,
as it does now, that parties obtain a license and participate in
a ceremony to form a marriage contract. See Haw. Rev. Stat.
§ 572-1(6) and (7) (1993).
   There is no dispute that the parties did not complete and
file a Nebraska marriage license in 1996, nor is it disputed
that the parties did not participate in a marriage ceremony in
Nebraska in that year. The parties disagree about whether they
obtained a license and participated in a ceremony in Hawaii
in 1996. However, no license was presented at trial, and the
district court appears to have credited Alli’s testimony that the
parties did not obtain a license or participate in a ceremony in
Hawaii. Because the question of whether the parties obtained
a license and participated in a marriage ceremony in Hawaii
turned largely on the testimony of Seivert and Alli and the
district court had the opportunity to observe this testimony,
we believe deference to its assessment of the issue is war-
ranted. See Dooling v. Dooling, 

303 Neb. 494

, 930 N.W.2d
                               - 258 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

481 (2019) (when evidence is in conflict, appellate court con-
siders and may give weight to fact that trial court heard and
observed witnesses and accepted one version of facts rather
than another). The district court did not abuse its discretion
by declining to find that the parties were putatively married in
1996 under § 42-378.
   In reaching this conclusion, we are not without sympathy
for Seivert’s position. Alli admits that even he believed he was
lawfully married in 1996 and represented that was the case
to everyone from the Internal Revenue Service, lenders, and
employers to family and friends. Under those circumstances,
an argument could certainly be made that he should not be able
to reap financial benefits from a failure to complete the legal
steps to form a marriage. As we have previously explained,
however, the matter is governed by statute, and any expansion
of this State’s putative marriage principles is the province of
the Legislature rather than this court. See Manker v. Manker,

263 Neb. 944

, 

644 N.W.2d 522

 (2002).
            (b) Valuation of Alli’s Business Interests
   Seivert also challenges the district court’s valuation of Alli’s
business interests. In particular, she contends that it erred by
relying on a buy-sell agreement contained in a limited liability
company’s operating agreement to determine the value of Alli’s
ownership interest in the company.
                   (i) Additional Background
   One of the disputed issues at trial was the marital value of
Tyron A. Alli, M.D., P.C. (Alli P.C.), a corporation of which
Alli was the sole shareholder. Alli formed Alli P.C. in 1998.
Alli worked as a gastroenterologist with what became Midwest
Gastrointestinal Associates, P.C. (MGI). After forming Alli
P.C., Alli assigned his employment agreements with MGI to
Alli P.C. Alli was also a shareholder of MGI.
   MGI is the operating branch of Midwest Endoscopy Services,
L.L.C. (MES). Upon employment with MGI, a physician may
be invited to become a member of MES. Alli P.C. became
                             - 259 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                        SEIVERT v. ALLI
                       Cite as 

309 Neb. 246

a member of MES, and, like all members of MES, it had a
5.88-percent ownership interest.
   The operating agreement of MES included provisions that
restricted members’ rights to sell their interest in MES. The
operating agreement generally prohibited a transfer of a mem-
ber’s interest. Upon a “favorable disassociation” from the
company, the operating agreement provided that the departing
member was obligated to sell his or her interest to the com-
pany. The parties called this provision a buy-sell agreement.
The buy-sell agreement set forth a formula to determine the
price at which MES would purchase the departing member’s
interest upon a favorable disassociation: twice the previous 12
months’ net taxable income divided by the number of mem-
bers, then multiplied by 102 percent.
   The parties presented expert testimony on how Alli P.C.’s
value should be calculated. Seivert’s expert witness was
Gregory Harr, a certified public accountant and accredited
business appraiser. Harr testified that he completed a calcula-
tion of value of Alli P.C. for both December 31, 2016, and
December 31, 2018. He testified that he analyzed Alli P.C.’s
value using an income approach and a market approach.
   To analyze value using the income approach, Harr consid-
ered the income Alli P.C. generated in 2014 through 2018.
Harr included both the income Alli P.C. generated as a result
of Alli P.C.’s employment agreement with MGI and its own-
ership interest in MES. After calculating Alli P.C.’s average
net operations income less taxes for 2014 through 2018, Harr
applied a capitalization rate to determine present value. Using
this method, Harr determined that the value of Alli P.C. was
approximately $2.28 million on December 31, 2016, and $3.67
million on December 31, 2018.
   Harr testified that he also used a market approach in which
he analyzed recent sales of comparable medical practices. He
testified that he used the market approach as a “sanity check.”
Harr’s opinion as to the value of Alli P.C. corresponded to his
determination of value using the income approach.
                               - 260 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

   On cross-examination, Harr admitted that in his valuation
of Alli P.C., he did not consider that under the buy-sell agree-
ment, Alli P.C.’s interest in MES could only be sold back to
MES at the formula provided therein. He also conceded that he
did not consider the fact that in the last several years, a num-
ber of physicians had retired from MGI and their interests in
MES had been purchased pursuant to the terms of the buy-sell
agreement. Finally, Harr acknowledged that he did not apply
discounts for lack of control or lack of marketability in calcu-
lating the value of Alli P.C.
   Alli presented the expert testimony of William Kenedy, a
certified public accountant accredited in business valuation.
Kenedy reviewed Harr’s report and the underlying documents.
He opined that Harr’s valuation of Alli P.C. was flawed.
Kenedy testified that by including income Alli P.C. received
through its employment agreement with MGI in determining
value under the income approach, Harr improperly placed
business value on Alli’s employment agreement. Kenedy also
testified that by failing to apply discounts to reflect Alli P.C.’s
minority status in MES and the restrictions on the sale of the
interest, Harr overvalued Alli P.C.’s interest in MES.
   In Kenedy’s opinion, the proper valuation method was an
adjusted asset method, which is based on the net value of
the business’ assets and debts. Alli P.C.’s assets consisted of
cash, a vehicle, and the interest in MES. Kenedy testified that
because the interest in MES lacked marketability, it should be
valued according to the formula in the buy-sell agreement.
   Lori Mueller, who had served as the certified public accoun-
tant for Alli’s business enterprises since 1997, also testified.
Mueller applied the terms of the buy-sell agreement and deter-
mined the value of Alli P.C.’s share of MES both as of
December 31, 2011, and as of June 30, 2019. She also testi-
fied as to the value of the other assets of Alli P.C. as of both
December 31, 2011, and as of June 30, 2019. According to
Mueller, Alli P.C. had a total value of $869,000 as of December
31, 2011, and $1,093,000 as of June 30, 2019. The latter
                               - 261 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

number included Alli P.C.’s vehicle, which Mueller’s documen-
tation valued at $29,339 as of July 5, 2019. In his testimony,
Alli said that he wanted to receive the vehicle in the division
of the marital estate.
   The district court concluded that the valuation of Alli P.C.’s
interest in MES was “most accurately determined” by rely-
ing on the terms of the buy-sell agreement. In the exhibit in
which it set forth its division of property, it cited to the exhibit
summarizing Mueller’s calculations of value and awarded Alli
P.C. and Alli’s other business entities to Alli. The district court
determined the marital value of Alli P.C. was $194,661. This
value corresponds to the difference between Mueller’s 2011
and 2019 valuations, less the value of Alli P.C.’s vehicle, which
was awarded to Alli.
                           (ii) Analysis
   Seivert contends that the district court abused its discretion
in valuing Alli P.C.’s interest in MES. Seivert argues that the
district court erred by treating the terms of the buy-sell agree-
ment, a type of redemption agreement, as “controlling” as to
the value of Alli P.C.’s interest in MES. Brief for appellee on
cross-appeal at 28. She relies on Brozek v. Brozek, 

292 Neb.
681

, 692, 

874 N.W.2d 17

, 28 (2016), where we observed that
“most courts do not treat a redemption agreement as conclu-
sive evidence of a share’s value,” and she cites cases from
other jurisdictions in which courts held that the terms of a
redemption agreement are not determinative evidence of value.
See, e.g., Garcia v. Garcia, 

25 So. 3d 687

 (Fla. App. 2010);
Von Hohn v. Von Hohn, 

260 S.W.3d 631

 (Tex. App. 2008); In re
Marriage of Morris, 

588 S.W.2d 39

 (Mo. App. 1979).
   We find that Seivert’s argument rests on a flawed premise.
We do not understand the district court to have treated the
buy-sell agreement as conclusive as to the value of Alli P.C.’s
interest in MES. The district court stated that the value of Alli
P.C.’s interest in MES was “most accurately determined” by
relying on the terms of the buy-sell agreement. Based on this
language, we understand the district court to have evaluated
                              - 262 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

the buy-sell agreement as one relevant piece of evidence it
could consider in determining the value of Alli P.C.’s interest
in MES.
   Even courts that have held that the terms of a redemption
agreement are not conclusive as to the value of a business
recognize that such an agreement is relevant to valuation. For
example, in one of the cases Seivert relies upon, Garcia v.
Garcia, 

supra,

 the court acknowledged that when stock is sub-
ject to a restrictive transfer agreement, the agreement impairs
marketability and affects the value and must be considered
when the court determines the value of the stock for purposes
of equitable distribution. See, also, In re Marriage of Nevarez,

170 P.3d 808

 (Colo. App. 2007); In re Marriage of Gillespie,

89 Wash. App. 390

, 

948 P.2d 1338

 (1997); Amodio v. Amodio,

70 N.Y.2d 5

, 

509 N.E.2d 936

, 

516 N.Y.S.2d 923

 (1987). As one
commentator has explained, even if not treated as conclusive,
the terms of a redemption agreement are important evidence of
the value of the owning spouse’s interest:
      Where the agreement was signed in good faith and not
      in contemplation of divorce, it reflects an attempt by dis-
      interested parties negotiating at arms’ length to establish
      the fair value of the business. As such, it deserves serious
      consideration, and a higher or lower value should not be
      reached without substantial supporting evidence.
2 Brett R. Turner, Equitable Distribution of Property § 7:19 at
1133 (4th ed. 2020).
   Here, although the district court did not believe it was
bound to follow the terms of the buy-sell agreement in deter-
mining Alli P.C.’s interest in MES, it did ultimately conclude
that the value was best determined by applying the terms of
the buy-sell agreement. Under the circumstances, we cannot
say that was an abuse of discretion. According to Kenedy,
Harr significantly overvalued Alli P.C.’s interest in MES by
including Alli P.C.’s income under the employment agreement
when valuing Alli P.C. using the income approach, by fail-
ing to consider the buy-sell agreement, by failing to consider
                               - 263 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

that other recently departed physicians had their interests in
MES bought out pursuant to the buy-sell agreement, and by
generally failing to apply discounts for lack of marketability
and lack of control. The district court was entitled to ascribe
weight to Kenedy’s testimony and thus conclude that Harr’s
valuation was flawed. A number of appellate courts have held
that trial courts do not commit reversible error by following a
redemption agreement’s determination of value rather than that
of an expert who fails to consider the agreement in forming
an opinion as to value. See, e.g., In re Watterworth, 

149 N.H.
442

, 

821 A.2d 1107

 (2003); In re Marriage of Gillespie, 

supra;

Amodio v. Amodio, 

supra.

 Cf. In re Marriage of Decosse, 

282
Mont. 212

, 

936 P.2d 821

 (1997) (holding that trial court erred
by accepting expert valuation that failed to take redemption
agreement into account).
   The district court did not abuse its discretion in valuing
Alli’s business interests.

                        2. Alli’s Appeal
                       (a) Valuation Date
  Alli’s first assignment of error is that the district court erred
by using the date of trial to identify and value property com-
posing the marital estate.

                   (i) Additional Background
   As noted above, the parties separated and Seivert filed
her initial dissolution complaint in 2013, but the matter did
not proceed to trial until July 2019. Alli testified that in the
intervening years, he worked additional hours and lived fru-
gally. According to Alli, he used his earnings in those years to
pay off the marital home, Seivert’s motor vehicle, and other
expenses incurred by Seivert and the children. Alli testified
he paid these expenses “to make sure the kids were comfort-
able and have [Seivert] be in a place that she can take care of
them.” Alli also testified that he used money he earned during
the time between the parties’ separation and trial to contribute
                               - 264 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

approximately $1.1 million to an investment account and to
purchase a residence with a total equity of $481,445.
   From the time the parties separated in 2013 through trial
in 2019, the minor children resided with Seivert in the family
home. The parties agreed to a parenting plan in July 2014. It
gave Seivert sole legal and physical custody of the minor chil-
dren, with Alli’s parenting time at Seivert’s discretion. Seivert
testified that during the 6 years preceding trial, Alli had not
requested time with the children and she provided care “24/7.”
She acknowledged that on one occasion in 2017 or 2018, Alli
had stayed in the home when she was out of town for work,
and that on another, one of the minor children had spent one
night at Alli’s house.
   Alli testified that he communicated with the children at least
once a week. He asserted he had not requested parenting time
because he wanted the children to be comfortable rather than
“bouncing back and forth.”
                            (ii) Analysis
   [9,10] In a divorce action, “[t]he purpose of a property
division is to distribute the marital assets equitably between
the parties.” Neb. Rev. Stat. § 42-365 (Reissue 2016). Under
§ 42-365, the equitable division of property is a three-step
process. Dooling v. Dooling, 

303 Neb. 494

, 

930 N.W.2d 481

(2019). The first step is to classify the parties’ property as mar-
ital or nonmarital, setting aside the nonmarital property to the
party who brought that property to the marriage. 

Id.

 The sec-
ond step is to value the marital assets and marital liabilities of
the parties. 

Id.

 The third step is to calculate and divide the net
marital estate between the parties in accordance with the prin-
ciples contained in § 42-365. Dooling v. Dooling, 

supra.

 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.

   Alli contends that the district court erred by identifying and
valuing the property composing the marital estate as of the
date of trial. Because the district court used the date of trial to
                              - 265 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

identify and value the marital estate, amounts Alli earned and
invested after Seivert filed for divorce were included and sub-
ject to equitable division. This, Alli contends, is unfair under
the circumstances.
   [11] As a general principle, the date upon which a marital
estate is valued should be rationally related to the property
composing the marital estate. Rohde v. Rohde, 

303 Neb. 85

,

927 N.W.2d 37

 (2019). The date of valuation is reviewed for
an abuse of the trial court’s discretion. 

Id.

   Alli earned and invested substantial sums during the period
between the parties’ separation and trial. During this time,
however, the evidence shows that Seivert was providing almost
exclusive care for the parties’ minor children and, thus, to at
least some extent, made Alli’s earnings possible. The val­uation
date applied by the district court was rationally related to the
property composing the marital estate, and we thus find no
abuse of discretion.
                           (b) Alimony
   Alli next argues that the district court erred by ordering him
to pay $5,000 per month in alimony for 60 months.
                   (i) Additional Background
   At the time of trial, Seivert was working part time as a
pediatrician, earning $87,768 per year. By contrast, according
to Alli’s suggested child support calculation, in 2016, 2017,
and 2018, his total income averaged $131,991 per month. Alli’s
2018 tax return showed the compensation Alli received that
year from his corporate interests: From Alli P.C., he received
$490,441 for officer compensation, $271,565 for pension, and
$964,838 for ordinary business income; and from other medi-
cal corporations in which he had an interest, he received a total
of nearly $100,000 in ordinary business income.
   According to Seivert, the parties’ children were always
her main focus and she gave them and Alli’s career priority
over her own career. Seivert practiced full time as a pediatri-
cian until the year after the parties’ first child was born, when
                               - 266 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

she began working part time. Alli practiced gastroenterology
on a full-time basis during all relevant times. Seivert testified
that Alli helped with the children when he was available, but
his focus was on his career.
   Alli testified that Seivert could have been earning more. He
testified that pediatricians who start full time in private practice
earn $180,000 to $190,000 per year. Seivert testified that she
has focused on treating children who have no insurance or are
on Medicaid and that her practice is therefore less lucrative.
                          (ii) Analysis
   Alli argues that the district court’s award of alimony was
an abuse of discretion. He primarily asserts that the award of
alimony was unwarranted because Seivert did not need it. He
contends that she could earn more money and that she over-
stated her expenses.
   [12-14] In dividing property and considering alimony upon
a dissolution of marriage, a court should consider four fac-
tors: (1) the circumstances of the parties, (2) the duration of
the marriage, (3) the history of contributions to the marriage,
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. Dooling v. Dooling, 

303
Neb. 494

, 

930 N.W.2d 481

 (2019). In addition, a court should
consider the income and earning capacity of each party and
the general equities of the situation. 

Id.

 Alimony is not a tool
to equalize the parties’ income, but a disparity of income or
potential income might partially justify an alimony award. The
purpose of alimony is to provide for the continued maintenance
or support of one party by the other when the relative eco-
nomic circumstances make it appropriate. 

Id.

   [15,16] In reviewing an alimony award, an appellate court
does not determine whether it would have awarded the same
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 a just result. 

Id.

 The ultimate criterion is
one of reasonableness. 

Id.

 An appellate court is not inclined to
                               - 267 -
          Nebraska Supreme Court Advance Sheets
                   309 Nebraska Reports
                          SEIVERT v. ALLI
                         Cite as 

309 Neb. 246

disturb the trial court’s award of alimony unless it is patently
unfair on the record. 

Id.

   Having reviewed the record de novo, we do not believe this
alimony award is untenable or patently unfair on the record.
The evidence in the record shows that Alli earns substantially
more income than Seivert. It also shows that Seivert sacrificed
personal career advancement to care for the parties’ children.
Further, even assuming that Seivert is capable of earning addi-
tional income, there is a wide disparity of earning capacity
between the parties. The district court’s award of alimony was
not an abuse of discretion.
                        (c) Attorney Fees
   Alli also argues that the district court erred by ordering him
to pay $50,000 of Seivert’s attorney fees.
                    (i) Additional Background
   Prior to trial, the district court entered a temporary order
directing Alli to deposit $15,000 for expert fees and $10,000
for attorney fees in the trust account of Seivert’s attorneys. In
the decree, the district court ordered Alli to pay the clerk of the
court $50,000 for the use and benefit of Seivert’s attorneys.
                          (ii) Analysis
   Alli’s argument regarding the district court’s award of attor-
ney fees borders on conclusory. He asserts that the district
court should not have ordered him to pay Seivert’s attorney
fees because she is a physician capable of earning a signifi-
cant income and could pay her own attorney fees. Alli does
not specifically challenge the amount he was ordered to pay in
attorney fees.
   [17] We have said that in dissolution proceedings, an award
of attorney fees depends on a variety of factors, including the
amount of property and alimony awarded, the earning capac-
ity of the parties, and the general equities of the situation.
Schaefer v. Schaefer, 

263 Neb. 785

, 

642 N.W.2d 792

 (2002).
In dissolution cases, attorney fees may also be awarded to
                              - 268 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

prevailing parties. See, e.g., Moore v. Moore, 

302 Neb. 588

,

924 N.W.2d 314

 (2019).
   The district court did not explain its reasoning for its attor-
ney fees order in the decree. However, we cannot say that it
was untenable. As noted above, there was a significant gap
between Alli’s earning capacity and Seivert’s earning capac-
ity. Further, although Seivert did not prevail in every argument
she presented at trial, she was successful in overcoming Alli’s
argument that the parties were never married and that the dis-
trict court should therefore dismiss the action entirely. Under
these circumstances, we find that the district court did not
abuse its discretion in awarding Seivert attorney fees.
               (d) Educational Support Obligation
   Finally, Alli argues that the district court erred by requiring
him to continue to pay the educational expenses of the parties’
minor children. He contends that the district court required
that he continue to pay the children’s educational expenses but
awarded Seivert half of the account the parties had previously
used to pay those expenses. This, Alli asserts, was “double dip-
ping.” Brief for appellant at 18. He asks that we either award
him the bank account or relieve him of his obligation to pay all
of the expenses for the children’s education.
                   (i) Additional Background
   Evidence admitted at trial showed that the minor children’s
private school tuition and related expenses were paid from a
joint savings account that contained approximately $304,000
at the time of trial. The parties referred to this account as the
“MES account,” as did bank statements that were received into
evidence. The parties also maintained a 529 college savings
account for the children’s college tuition.
   In the decree, the district court ordered Alli to continue to
pay the tuition and other necessary expenses for the minor
children to continue to attend their private school. The decree
specifically addressed how the district court was dividing sev-
eral assets. It provided that “[t]he children’s 529 accounts or
                              - 269 -
         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         SEIVERT v. ALLI
                        Cite as 

309 Neb. 246

other accounts held for the benefit of the children shall be held
by [Seivert] as a constructive trustee and/or custodian for the
benefit of the minor children and their educational expenses.”
It also provided that any asset not specifically divided in the
body of the decree was to be divided as set forth in an attached
exhibit. The attached exhibit listed several assets and amounts,
and it included separate columns for Seivert and Alli. An asset
labeled as “Savings MES” with a value of $304,130 was listed
in Alli’s column. A bank statement received into evidence
showed that the “MES account” referred to by the parties as
the account used to pay the minor children’s tuition contained
$304,130.37 as of April 2019.
                           (ii) Analysis
   Alli contends that the district court should not have ordered
him to pay the educational expenses while also awarding a
portion of the account used to pay those expenses to Seivert.
But the district court did not award the account used to pay
the educational expenses to Seivert. As explained above, the
decree awarded that account to Alli. And to the extent Alli
argues that the district court erred in ordering him to pay the
tuition expenses while also attributing the value of the account
to him and thereby increasing the equalization payment owed
to Seivert, considering the value of the account relative to the
size of the marital estate, we discern no abuse of discretion.
See Dooling v. Dooling, 

303 Neb. 494

, 

930 N.W.2d 481

 (2019)
(as general rule, spouse should be awarded one-third to one-
half of marital estate, the polestar being fairness and reason-
ableness as determined by facts of each case).
   We find that the district court did not abuse its discretion in
ordering Alli to pay the children’s educational expenses.
                      V. CONCLUSION
   We find no merit to either party’s assigned errors and there-
fore affirm.
                                                    Affirmed.

Add comment

By

Recent Posts

Recent Comments