   Decisions of the Nebraska Court of Appeals
280	21 NEBRASKA APPELLATE REPORTS



who may be guest passengers. In fact, we read the list provided
in the statute to be an explanation of the type of relative that is
within the second degree of relation to the owner or operator
of the vehicle, whether the relationship be one of consanguinity
or one of affinity.
   Based on our review, we conclude that Faye and Eugene
were related within the second degree of affinity. As a result
of Faye’s marriage to Gordon, Eugene’s son, Eugene was
Faye’s father-in-law and the two were related within the sec-
ond degree of affinity pursuant to the language of § 25-21,237.
Because Faye and Eugene were related within the second
degree of affinity, Faye was a guest passenger and is prohibited
from recovering any damages resulting from the September
2009 automobile accident. We affirm the decision of the dis-
trict court to grant Gordon’s motion for summary judgment and
to dismiss Faye’s complaint with prejudice.
                       VI. CONCLUSION
   Pursuant to § 25-21,237, Faye was a guest passenger in
Eugene’s automobile at the time of the accident in September
2009. As a result, Faye is prohibited from recovering any
damages arising from that automobile accident. We affirm the
decision of the district court to dismiss Faye’s complaint with
prejudice.
                                                    Affirmed.



         Brent Bussell, appellant and cross-appellee, v.
          Sheri Bussell, appellee and cross-appellant.
                                    ___ N.W.2d ___

                     Filed September 17, 2013.      No. A-12-713.

 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.
            Decisions      of the    Nebraska Court of Appeals
	                               BUSSELL v. BUSSELL	281
	                               Cite as 21 Neb. App. 280

 2.	 Judges: Words and Phrases. A judicial abuse of discretion exists when the
      reasons or rulings of a trial judge are clearly untenable, unfairly depriving
      a litigant of a substantial right and denying just results in matters submitted
      for disposition.
 3.	 Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the
      equitable division of property is a three-step process. The first step is to classify
      the parties’ property as marital or nonmarital. 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 prin-
      ciples contained in § 42-365.
 4.	 ____: ____. The ultimate test in determining the appropriateness of the divi-
      sion of property is fairness and reasonableness as determined by the facts of
      each case.
 5.	 ____: ____. Property which one party brings into the marriage is generally
      excluded from the marital estate.
  6.	 ____: ____. The manner in which property is titled or transferred by the parties
      during the marriage does not restrict the trial court’s ability to determine how the
      property should be divided in an action for dissolution of marriage.
 7.	 ____: ____. When awarding property in a dissolution of marriage, property
      acquired by one of the parties through gift or inheritance ordinarily is set off to
      the individual receiving the gift or inheritance and is not considered a part of the
      marital estate. An exception to the rule applies where both of the spouses have
      contributed to the improvement or operation of the property which one of the
      parties owned prior to the marriage or received by way of gift or inheritance, or
      the spouse not owning the property prior to the marriage or not receiving the gift
      or inheritance has significantly cared for the property during the marriage.
 8.	 Divorce: Property: Words and Phrases. “Dissipation of marital assets” is
      defined as one spouse’s use of marital property for a selfish purpose unrelated
      to the marriage at the time when the marriage is undergoing an irretrievable
      breakdown.
 9.	 Divorce: Property Division. Marital assets dissipated by a spouse for purposes
      unrelated to the marriage should be included in the marital estate in dissolu-
      tion actions.
10.	 Divorce: Property Division: Alimony. In dividing property and considering
      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.
11.	 Alimony: Appeal and Error. In reviewing an alimony award, an appellate court
      does not determine whether it would have awarded the same amount of alimony
      as did the trial court, but whether the trial court’s award is untenable such as to
      deprive a party of a substantial right or just result.
12.	 Alimony. Alimony should not be used to equalize the incomes of the parties or to
      punish one of the parties.
   Decisions of the Nebraska Court of Appeals
282	21 NEBRASKA APPELLATE REPORTS


13.	 ____. In determining whether alimony should be awarded, in what amount, and
     over what period of time, the ultimate criterion is one of reasonableness.
14.	 ____. The purpose of alimony is to provide for the continued maintenance or
     support of one party by the other when the relative economic circumstances make
     it appropriate.
15.	 Divorce: Attorney Fees. In a marital dissolution action, an award of attorney
     fees depends on a variety of factors, including the amount of property and ali-
     mony awarded, the earning capacity of the parties, and the general equities of
     the situation.

  Appeal from the District Court for Chase County: David
Urbom, Judge. Affirmed as modified.
  James C. Bocott, of Law Office of James C. Bocott, P.C.,
L.L.O., for appellant.
  Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier
& Byrne, P.C., for appellee.
   Inbody, Chief Judge, and Irwin and Moore, Judges.
   Moore, Judge.
                      I. INTRODUCTION
   Brent Bussell appeals, and Sheri Bussell cross-appeals,
from the decree of dissolution entered by the district court
for Chase County dissolving the parties’ marriage. The parties
challenge certain aspects of the district court’s determination
and division of the marital estate. Sheri also assigns error to
the court’s calculation of child support, failure to order Brent
to pay health insurance premiums, and awards of alimony
and attorney fees. For the reasons set forth herein, we affirm
as modified.
                        II. BACKGROUND
   The parties were married on August 5, 1995. They have
two minor children, Ashlin Bussell, born in 1996, and Jadin
Bussell, born in 1998. The parties separated in 2010. Brent
filed a complaint for dissolution of marriage on July 5, 2010.
   Sheri received $1,400 per month in temporary child sup-
port. It is not clear from the record on appeal whether the child
support was voluntary or court ordered or when the payments
began. On October 3, 2011, the district court ordered Brent to
         Decisions   of the  Nebraska Court of Appeals
	                       BUSSELL v. BUSSELL	283
	                       Cite as 21 Neb. App. 280

pay Sheri additional temporary spousal support of $1,500 per
month beginning on October 1.
   The dissolution trial was held on January 18 and 19, 2012.
Prior to trial, the parties entered into a parenting plan concern-
ing custody and parenting time, which plan was received into
evidence by the district court. The court heard evidence on
the parties’ assets and debts, child support, alimony, and attor-
ney fees. Specifically, the district court received documentary
exhibits and heard testimony from witnesses, including the
parties, Brent’s brother and father, Brent’s accountant, and two
real estate appraisers. We summarize only the evidence rel-
evant to the contested issues on appeal.
   Sheri was employed when the parties married, but she quit
working outside the home shortly before Ashlin was born.
Thereafter, Sheri became the primary caregiver and performed
most of the household chores, while Brent continued to work
for his father on the family farm and earn the income for the
parties’ monthly expenses. The parties mutually decided that
it would be best for Sheri to stay home with the children, and
they could financially afford for her to do so. Sheri did not
return to work until 2003 or 2004, after Jadin was enrolled
in school. Sheri took medical transcription courses online and
also obtained a certified nursing assistant certificate or degree.
She began courses for a nursing degree in 2007, but she quit
because it was difficult for the children to have her gone.
At the time of trial, Sheri was working at a Chase County
clinic, earning $10.28 per hour. Her gross wages for 2011
were $18,194.99.
   Sheri testified that she wanted to pursue an advanced direc-
tive registered nurse degree, which would take 3 years to
complete. She testified that it would cost about $11,000 a
year plus mileage to either Sterling, Colorado, or North Platte,
Nebraska, to receive such degree. She testified that oppor-
tunities for a registered nurse in Chase County are minimal
compared to other areas, but that there are two nursing homes,
a hospital, and a clinic in the county. The starting salary for
a full-time registered nurse in Chase County would be $19
an hour.
   Decisions of the Nebraska Court of Appeals
284	21 NEBRASKA APPELLATE REPORTS



   Sheri testified about the ways she helped out on the farm
during the marriage. She took lunches to the field so that the
children could see Brent, made sure he had meals and clean
clothes, helped move people and vehicles to different fields,
picked up parts at several stores, delivered utility checks and
loan payments, made bank deposits, picked up grain checks,
and rode in the “semi” to deliver grain. In addition, she made
sure all of the parties’ personal bills were paid and mailed,
maintained their house and yard, and reminded Brent of the
children’s activities.
   Brent graduated from high school in 1985 and obtained his
associate’s degree in production agriculture in 1987. Brent
worked for approximately a year in Colorado before return-
ing to Nebraska in 1988 or 1989 to work for the family
farming partnership. Brent’s father formed an informal fam-
ily farming partnership with Brent and Brent’s brother. Brent
and his brother were each given a 20-percent interest in the
partnership, and Brent’s parents had the remaining 60-percent
interest. Brent did not pay anything or provide any particular
consideration for his interest in the partnership. Brent has had
no other employment since that time. Brent later received an
additional 5-percent interest in the partnership, for a total of 25
percent. The partnership was formalized in February 2010 as
Bussell Farms.
   The partnership owns grain and equipment, including
machinery, tools, and supplies. Evidence was presented to
value Brent’s 20-percent interest in the equipment that was
owned by the partnership prior to his marriage in 1995 and to
value his 25-percent interest at the time of trial. Specifically,
the evidence included a farm equipment appraisal prepared by
an appraisal service. The appraisal identifies the farm equip-
ment owned by the partnership on the date of the marriage
in 1995 and the equipment owned by the partnership as of
September 29, 2011. The appraisal valued the premarital farm
equipment at $955,850. It valued the equipment owned as of
September 2011 at $1,982,200. The record shows that the part-
nership regularly buys and sells farm equipment at the end of
each year.
        Decisions   of the  Nebraska Court of Appeals
	                      BUSSELL v. BUSSELL	285
	                      Cite as 21 Neb. App. 280

   The partnership’s sole source of income is from the sale of
grain. The partners each receive their respective percentage of
the income from the grain sales, which they deposit into their
own bank accounts, and the partners each pay their respective
share of expenses associated with the grain production. At the
time of trial, all of the 2011 beans and corn had been harvested
and the wheat planted in 2011 remained in the fields to be har-
vested in 2012. It appears from the record that all of the 2011
beans had been sold by the time of trial. Some of the 2011
corn had been sold, and the remainder was stored in grain bins
owned by the partnership. Of the stored corn, 95 percent had
been contracted for sale. Depending on shrinkage that occurs in
the bins, there may be remaining approximately 10,000 bushels
of corn that had not yet been contracted or sold at the time
of trial. Although not clear from the entire record, it appears
from exhibit 71 that approximately 175,000 bushels of corn
under contract were set to be delivered in January, February,
and March 2012, after which the partners would receive their
respective shares of the gross revenues. However, it appears
from the record that the partnership had received significant
income in early January 2012 and it is not clear whether this
revenue derived from any of the contracted corn shown in
exhibit 71.
   The parties’ tax returns from 2005 to 2010 were received
in evidence. The 2011 tax return had not yet been prepared
at the time of trial. According to Brent and his brother, the
2011 corn crop suffered significant hail damage, which cut
the yield approximately in half compared to previous years.
Brent expects that the revenue from the 2011 crops will be
dramatically reduced because of the hail losses and that the
impact will be felt for the next 2 years, a consequence that is
not within his control. In addition, approximately 75 percent of
the 2011 seed wheat was totally hailed out and the remainder
was damaged.
   At the time of the marriage, Brent owned an undivided one-
fourth interest in an acreage in Chase County. The acreage
included a house, garage, and steel building. During the mar-
riage, Brent’s parents gifted him the remaining three-fourths
   Decisions of the Nebraska Court of Appeals
286	21 NEBRASKA APPELLATE REPORTS



interest in the acreage. In 1997, Brent executed a deed for
the property to Brent and Sheri as joint tenants with right of
survivorship. Brent testified that when he executed the deed,
it was not his intent to make a gift to Sheri of one-half of the
property; rather, he placed her name on the property because
Sheri was concerned that she would lose the property if
Brent died.
   The parties lived in the house on the acreage for about
8 years. Sheri testified that they made and paid for many
improvements to the home, including a new roof, siding,
windows, upstairs carpet, downstairs bathroom and bedroom
carpet, a furnace, and central air conditioning. They also
tore out and replanted trees, and they poured a concrete floor
in the steel building on the property, which floor cost over
$20,000. Sheri testified that they also spent $20,000 on a
kitchen remodel, which included custom-made oak cabinets,
new flooring, and new appliances. Finally, they put in a
sprinkler system that cost about $5,000. The parties sold the
property in 2003 for $120,000. They used the $120,000 in the
construction of the marital home, where Sheri was residing at
the time of trial and which was awarded to her in the division
of property.
   After the parties separated, Brent purchased a house for
$156,000 and took out two loans for the full purchase amount.
He purchased a 2010 Chevrolet Avalanche for his personal use.
The house and vehicle, along with their corresponding debts,
were included in the marital estate and assigned to Brent. Brent
also purchased some household goods and furnishings for his
new home, although it is not clear whether these items were
listed in the court’s division of property.
   We have set forth additional details of the evidence at trial
as necessary to our resolution of this appeal in the analysis
section below.
   The district court entered a decree of dissolution on May
18, 2012. The court approved the parties’ parenting plan, and
pursuant to that plan, it awarded custody of Ashlin to Sheri and
custody of Jadin to Brent, subject to each party’s rights of visi-
tation with the other child as specified in the parenting plan.
The court ordered Brent to pay Sheri child support of $816
        Decisions   of the  Nebraska Court of Appeals
	                      BUSSELL v. BUSSELL	287
	                      Cite as 21 Neb. App. 280

per month, commencing June 1, pursuant to a split custody
calculation. The court also ordered child support to increase
to $1,431 when there was only one minor child remaining.
We note that this portion of the child support award was later
corrected through the court’s order on the parties’ motions for
new trial. In calculating child support, the court assigned Sheri
total monthly income of $1,782, with a net monthly income of
$1,629.91, and Brent total monthly income of $11,153.93, with
a net monthly income of $8,737.35. The court ordered Brent
to pay 84 percent and Sheri to pay 16 percent of any medical,
orthodontic, ophthalmic, and dental expenses not covered by
insurance, in excess of $480 per year per child.
   The district court gave Brent credit for his 20-percent pre-
marital interest in the partnership equipment, which the court
valued at $191,170, and for the gift of the additional 5-percent
interest, which the court valued at $99,110. The court also
gave Brent credit for the $120,000 from the sale of the Chase
County acreage. The court awarded Brent two quarter sections
of pivot-irrigated real property as marital property, which real
estate was used by the partnership, and valued Brent’s interest
in those tracts at $135,937.50 and $775,000. The court also
awarded Brent his farm bank account, valued at $418,413.78
as of January 11, 2012, as well as other miscellaneous prop-
erty. In dividing the marital estate, the court assigned property
and debt to Brent totaling $1,692,246.73 and property and
debt to Sheri totaling $353,066.57. In order to equalize the
division of the marital estate, the court ordered Brent to pay
Sheri $650,000 and set forth provisions for the payment of
the judgment.
   Finally, the district court awarded Sheri alimony and attor-
ney fees. The court ordered Brent to pay Sheri alimony of
$1,500 per month, beginning July 1, 2012, and continuing for a
total of 96 months. The court noted Sheri’s request for attorney
fees in the amount of $70,000. The court also noted the evi-
dence that Sheri withdrew $100,000 from Brent’s farm account
and $18,264 from the parties’ savings account, and took $1,800
in cash from the marital home at the time of the separation,
which sums were used by Sheri for her living expenses during
the separation. The court awarded attorney fees of $10,000, but
   Decisions of the Nebraska Court of Appeals
288	21 NEBRASKA APPELLATE REPORTS



inadvertently ordered the payment of these attorney fees from
Sheri to Brent, instead of from Brent to Sheri.
   The parties filed motions for new trial, and on July 10, 2012,
the district court entered an order amending the decree to order
Brent to pay Sheri attorney fees of $10,000 and amending its
child support award to order Sheri to pay Brent child support
of $267 per month at the time when there is only one minor
child remaining. Brent subsequently perfected his appeal to
this court and Sheri her cross-appeal.
                III. ASSIGNMENTS OF ERROR
   Brent asserts that the district court erred in valuing his inter-
est in the partnership farm equipment at $734,512.50.
   On cross-appeal, Sheri asserts that the district court erred in
(1) calculating the value of certain premarital assets of Brent
and dividing the marital estate, (2) calculating child support
and failing to order Brent to pay health insurance for Sheri for
6 months following the dissolution and for the minor children,
(3) failing to award alimony for a period of 10 years, and (4)
awarding Sheri attorney fees of only $10,000.
                 IV. STANDARD OF REVIEW
   [1,2] In an action for the dissolution of marriage, an appel-
late court reviews de novo on the record the trial court’s deter-
minations 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. Mamot v. Mamot,
283 Neb. 659, 813 N.W.2d 440 (2012). A judicial abuse of
discretion exists when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying just results in matters submitted for
disposition. Fisher v. PayFlex Systems USA, 285 Neb. 808, 829
N.W.2d 703 (2013).
                        V. ANALYSIS
   We begin our analysis with the parties’ assignments of error
regarding property division. Both parties challenge certain
aspects of the valuation of Brent’s interest in the partnership
farm equipment, and Sheri also challenges the credit given
         Decisions   of the  Nebraska Court of Appeals
	                       BUSSELL v. BUSSELL	289
	                       Cite as 21 Neb. App. 280

to Brent for the premarital acreage, the failure of the court to
include partnership grain as a marital asset, Brent’s alleged
failure to account for certain checks received while the divorce
was pending, and Brent’s alleged dissipation of assets during
the pendency of the action.
               1. Valuation of P remarital Assets
                 and Division of M arital Estate
   [3-5] Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the
equitable division of property is a three-step process. The first
step is to classify the parties’ property as marital or nonmarital.
The second step is to value the marital assets and marital liabil-
ities of the parties. The third step is to calculate and divide the
net marital estate between the parties in accordance with the
principles contained in § 42-365. Plog v. Plog, 20 Neb. App.
383, 824 N.W.2d 749 (2012). 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.
Property which one party brings into the marriage is generally
excluded from the marital estate. Gress v. Gress, 271 Neb. 122,
710 N.W.2d 318 (2006).
                (a) Valuation of Farm Equipment
  Both parties assign error to the district court’s valuation of
Brent’s interest in the partnership farm equipment. We address
Brent’s argument first and then Sheri’s.
                       (i) Brent’s Argument
   Brent asserts that the district court erred in valuing his inter-
est in the partnership farm equipment at $734,512.50.
   In the decree, the district court, using the values from the
appraiser, found that the premarital partnership equipment
was worth $955,850, found that Brent’s 20-percent premarital
interest was $191,170, and excluded this value from its calcu-
lation of the marital estate. The court then found that the cur-
rent value of the partnership equipment was $1,982,200, found
that Brent’s gifted 5-percent interest was valued at $99,110,
and excluded that value from the marital estate. Brent does
not take issue with these valuations and calculations. Rather,
he asserts that the court erred in calculating his 25-percent
   Decisions of the Nebraska Court of Appeals
290	21 NEBRASKA APPELLATE REPORTS



interest in the current partnership equipment at $734,512.50,
as reflected in the court’s recapitulation chart contained in
the decree. We agree with Brent that based on the court’s
valuation of the current partnership equipment in the decree
at $1,982,200, Brent’s 25-percent interest should be $495,550
($1,982,200 × .25). We have reviewed the record and Brent’s
arguments and agree that the court erroneously included a dif-
ferent figure in the chart than is supported by the evidence
and reflected in the valuations contained in the body of the
decree. Accordingly, we modify the marital asset division chart
to reflect that Brent’s 25-percent interest in the Bussell Farms
equipment is $495,550.
                       (ii) Sheri’s Argument
   Sheri does not dispute that Brent should be given credit for
his premarital interest in the partnership equipment, but she
argues that he should be given credit only for his interest in the
premarital equipment still owned by the partnership at the time
of the dissolution.
   In deciding to exclude the value of Brent’s premarital inter-
est in the equipment from the value of the interest in the equip-
ment owned at the time of trial, the district court relied on this
court’s decision in Shafer v. Shafer, 16 Neb. App. 170, 741
N.W.2d 173 (2007), a case involving the setoff of premarital
cattle. In that case, the husband’s practice had been to sell
cattle and purchase replacement cattle or additional cattle. The
husband owned cattle at the time of the marriage, and through-
out the marriage, the proceeds from the sale of cattle were
reinvested in replacement cattle, producing the herd owned at
the time of the divorce. In finding that the setoff should have
been allowed, we stated:
      Given the undisputed evidence concerning the cattle herd
      which we have recounted above, the controlling precedent
      on set-aside of premarital assets, and the fact that this is
      an equitable matter, we can discern no reason not to set
      aside to [the husband] that portion of the value of the
      present cattle herd which is attributable to [his] premarital
      cattle. In doing so, we view the cattle herd as in effect a
      single asset—rather than taking a “cow by cow” approach
         Decisions   of the  Nebraska Court of Appeals
	                       BUSSELL v. BUSSELL	291
	                       Cite as 21 Neb. App. 280

      to the tracing issue. Thus, we believe we have simply
      acknowledged the realities of what happens over time
      in a cattle operation. In short, while an individual cow
      which [the husband] owned in 1991 was long ago turned
      into hamburger, hot dogs, and shoe leather and thus is not
      traceable, the cattle herd itself, which has always been
      part of [his] farming operation, is in fact traceable. To do
      otherwise seems to us to exalt form over substance and
      ignore the equitable nature of a dissolution action.
Id. at 178, 741 N.W.2d at 179.
   Although we are dealing with the replacement of farm
equipment as opposed to cattle, we find no abuse of discretion
in the district court’s reliance on Shafer under the particular
facts of this case. The record shows that Brent, his brother, and
his father would regularly trade and upgrade the partnership
equipment. The court did not err in setting aside $191,170 and
giving Brent credit for this amount as his 20-percent premarital
interest in the equipment.
                (b) Proceeds from Sale of Acreage
   Sheri argues that Brent should not have been given credit for
the $120,000 from the sale of the acreage that was then used to
purchase the marital home.
   Prior to the marriage, Brent owned an undivided one-fourth
interest in an acreage in Chase County, and during the mar-
riage, Brent’s parents gifted him the remaining three-fourths
interest. Brent thereafter deeded the property to himself and
Sheri. Brent testified that he did not intend to make a gift of
the property to Sheri by placing her name on the deed, but only
wished to make her a joint owner with right of survivorship
in the event he were to meet an untimely death. Brent’s father
also testified that he did not intend to make a gift to Sheri at
the time of the conveyance and that he wanted the property
to remain in the family. There is no evidence in the record of
the value of the property at the time it was gifted to Brent; the
only evidence of value is that the property was sold in 2003 for
$120,000. There is no dispute that the $120,000 was applied to
the purchase of the marital home, which Sheri is receiving in
the property division.
   Decisions of the Nebraska Court of Appeals
292	21 NEBRASKA APPELLATE REPORTS



    [6] Sheri argues that Brent’s conveyance of the property to
the parties jointly showed an intent to turn the property into
marital property. However, the manner in which property is
titled or transferred by the parties during the marriage does not
restrict the trial court’s ability to determine how the property
should be divided in an action for dissolution of marriage. Plog
v. Plog, 20 Neb. App. 383, 824 N.W.2d 749 (2012).
    [7] Sheri also argues that an exception to the rule concern-
ing the treatment of gifted property should apply in this case.
When awarding property in a dissolution of marriage, prop-
erty acquired by one of the parties through gift or inheritance
ordinarily is set off to the individual receiving the gift or
inheritance and is not considered a part of the marital estate.
An exception to the rule applies where both of the spouses
have contributed to the improvement or operation of the prop-
erty which one of the parties owned prior to the marriage or
received by way of gift or inheritance, or the spouse not own-
ing the property prior to the marriage or not receiving the gift
or inheritance has significantly cared for the property during
the marriage. Id. When applying this exception, evidence of the
value of the contributions and evidence that the contributions
were significant are generally required. See id. See, also, Tyler
v. Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997).
    Although there is evidence in the record that the parties
made certain improvements to the acreage during the time
that they lived there and evidence of the cost associated with
some of those improvements, there is no evidence to show the
value of these improvements, that these improvements were
significant, or that they resulted in an increase in the value of
the property between the time the property was gifted to Brent
and its sale. We find no error in the district court’s treatment of
the acreage as Brent’s premarital or gifted property and in the
credit to Brent of $120,000.
                      (c) Brent’s Interest in
                        Partnership Grain
  Sheri argues that the district court erred in not considering
Brent’s interest in the partnership grain to be a marital asset.
The evidence at trial showed that all of the 2011 beans and
        Decisions   of the  Nebraska Court of Appeals
	                      BUSSELL v. BUSSELL	293
	                      Cite as 21 Neb. App. 280

corn had been harvested and that virtually all of the corn had
been either sold or contracted. Some of the partnership’s con-
tracted corn remained in the bins at the time of trial and was
scheduled to be delivered to the buyers in the next couple of
months. At the time of trial, the only growing crop was wheat.
The evidence also showed that all of the crop insurance pay-
ments for 2011, except for one of approximately $6,000, had
been received and deposited. After reviewing the evidence, the
court found that the stored crops should not be treated as a
divisible marital asset.
   In Kalkowski v. Kalkowski, 258 Neb. 1035, 1042, 607
N.W.2d 517, 524 (2000), the Nebraska Supreme Court declined
“to adopt any bright-line rule as to whether or not crops which
will eventually generate income may be treated as divisible
marital property in a dissolution proceeding.” In Kalkowski,
the Supreme Court found that inclusion of the growing and
stored crops in the marital estate was not an abuse of discre-
tion, primarily because the husband had valued these assets
and asked to be awarded them in the division of the mari-
tal estate.
   In this case, Brent did not value the stored crops as part of
the marital estate and, in fact, he testified that awarding Sheri
one-half of his portion of the partnership grain would amount
to an award of half of his income for the upcoming year, which
would have a significantly negative impact upon his ability
to meet his farm expense obligations. The record shows that
the only thing the partnership does to produce income is sell
grain and that this is Brent’s only source of income. When the
remaining 2011 corn is delivered to the buyers in 2012, Brent
will receive his respective portion of the proceeds, which will
be included in his 2012 income. In fact, Brent received a por-
tion of the proceeds from the stored grain in January 2012,
shortly before trial. Brent argues that including the remaining
stored grain in the marital estate valuation would amount to
“double-dipping,” because his child support and alimony pay-
ments are based upon and paid from his income derived from
the sale of grain.
   It was within the court’s discretion as to whether the stored
grain in this case would be treated as a divisible marital asset.
   Decisions of the Nebraska Court of Appeals
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The court declined to do so, and under the circumstances of
this case, we find no abuse of discretion. Even if we were to
consider Brent’s portion of the 2011 stored grain as a marital
asset, it is not clear from this record what the total value of
the stored grain was at the time of trial, since some of the
stored grain shown on various exhibits had recently been sold
and the revenue distributed to the partners. Further, it was
not clear from the record what Brent’s share of the expenses
were in connection with the production of this 2011 grain,
which should be considered in arriving at the net value of the
stored grain. See Gebhardt v. Gebhardt, 16 Neb. App. 565, 746
N.W.2d 707 (2008) (rejected inclusion of gross value of corn
crop while ignoring all costs associated with planting, fertil-
izing, watering, and harvesting).
   We reject Sheri’s argument that the district court abused its
discretion in its decision to not include the stored grain in the
division of the marital estate.
                  (d) Checks Received While
                        Divorce Pending
   Sheri argues that Brent failed to disclose or account for a
number of checks he received while the divorce was pend-
ing. She first points to a check for $58,699 for hail insur-
ance proceeds that was issued in September 2011, but not
deposited by Brent until a week before trial. However, this
$58,699 deposit was included in the bank account awarded to
Brent in the division of marital assets, as reflected in exhibit
94. Sheri also notes an insurance check for $38,775 that
Brent stated he deposited into one of his accounts but which
deposit he was unable to locate when reviewing copies of his
statements at trial. Brent testified it was possible that when
he copied his bank statements, he missed copying informa-
tion on the back of a page, but in any event, he thought it
had been deposited.
   Other than stating that Brent failed to disclose or account
for these crop insurance checks, Sheri presents no argument
in support of this portion of her assignment of error. As noted
above, the $58,699 check had been deposited and was included
in the division of assets. We can find nothing in the record to
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	                       Cite as 21 Neb. App. 280

suggest that the handling of these checks was anything other
than in the normal course of the farm’s business or that Brent
was hiding assets. This argument is without merit.
                 (e) Dissipation of Marital Assets
   [8,9] Sheri argues that Brent dissipated some marital assets
following the parties’ separation. “Dissipation of marital
assets” is defined as one spouse’s use of marital property for
a selfish purpose unrelated to the marriage at the time when
the marriage is undergoing an irretrievable breakdown. Reed
v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009). Marital assets
dissipated by a spouse for purposes unrelated to the mar-
riage should be included in the marital estate in dissolution
actions. Id.
   Sheri points to trips Brent took to Las Vegas, Nevada, and
Alabama, certain charges he made in Las Vegas, and his pur-
chase of a television and a vehicle. She argues that these and
any other substantial withdrawals made by Brent from the par-
ties’ joint account following their separation should be taken
into account in the division of the marital estate.
   The record shows that both parties made withdrawals from
their joint account at or near the time of separation, and we
find no error in the district court’s failure to consider these
withdrawals in the division of the marital estate. In this regard,
we note that the court determined prior to trial to value the
marital estate as of the date of trial. With regard to Brent’s
purchase of a vehicle postseparation, this vehicle and the cor-
responding debt were included in the court’s division of the
marital estate, as were the home and associated debt purchased
by Brent after the separation.
   Brent testified that he went to Las Vegas once following the
separation and that he also took a friend to Alabama to look
at a truck. However, no evidence was presented to indicate
the cost of these trips, other than a credit card charge at a res-
taurant and an automated teller machine withdrawal totaling
$1,600. Brent purchased a television and stand in the process
of furnishing his new house for approximately $1,800, which
does not appear to be listed on the court’s property division.
After considering the overall division of this relatively large
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marital estate, we find no error in the district court’s treatment
of these items addressed in this assignment of error.
               (f) Conclusion Regarding Property
                     Valuation and Division
   Based on the above analysis and our finding regarding
the value of Brent’s interest in the partnership equipment,
we modify the total value of the marital property assigned
to Brent to $1,641,934.23. Once the debts assigned to Brent
of $188,650 are subtracted, Brent’s net portion of the marital
estate becomes $1,453,284.23. When Sheri’s net portion of
the marital estate ($353,066.57) is subtracted from Brent’s net
portion, the difference is $1,100,217.66. Half of this amount is
$550,108.83. We note that in the court’s original calculation of
the equalization payment, one-half of the difference between
the parties’ net awards was $669,590, which the court rounded
down to $650,000 due from Brent to Sheri. Similarly, we deter-
mine that the property equalization payment reflected in the
decree should be reduced from $650,000 to the rounded figure
of $550,000. We modify the decree to enter judgment against
Brent in favor of Sheri for that amount. We modify the provi-
sion of the decree regarding the payment of the property equal-
ization payment to provide that Brent shall pay to Sheri, on or
before October 1, 2012, the sum of $50,000 without interest.
The balance of the judgment of $500,000 shall draw interest
from the date of the decree and shall be paid in five equal
annual principal installments of $100,000 each. In addition to
the annual principal installment, Brent shall pay any accrued
interest at the judgment rate of 2.142 percent per annum. The
first annual payment shall be made on or before March 1,
2013, and a like amount plus accrued interest on the first day
of each March thereafter until the full amount of the judgment
plus the accrued interest is paid.
                      2. Child Support and
                        Health Insurance
   Sheri asserts that the district court erred in calculating child
support and failing to order Brent to pay health insurance
for Sheri for 6 months following the dissolution and for the
minor children.
         Decisions   of the  Nebraska Court of Appeals
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	                       Cite as 21 Neb. App. 280

                  (a) Brent’s Income for Child
                        Support Purposes
   Sheri argues that the district court erred in determining
Brent’s income for child support purposes. She takes issue with
the deduction of depreciation expenses from Brent’s income
and the court’s averaging of Brent’s income. In calculating
child support, the court assigned Brent total monthly income of
$11,153.93 and net monthly income of $8,737.35.

                          (i) Depreciation
   With respect to depreciation, the Nebraska Child Support
Guidelines provide:
         Depreciation calculated on the cost of ordinary and
      necessary assets may be allowed as a deduction from
      income of the business or farm to arrive at an annual-
      ized total monthly income. After an asset is shown to be
      ordinary and necessary, depreciation, if allowed by the
      trial court, shall be calculated by using the “straight-line”
      method, which allocates cost of an asset equally over its
      useful duration or life. . . . A party claiming depreciation
      shall have the burden of establishing entitlement to its
      allowance as a deduction.
Neb. Ct. R. § 4-204.
   Brent’s income tax returns for 2005 to 2010 were admitted
into evidence. We note that Brent complied with § 4-204 of
the guidelines, which requires any party claiming an allow-
ance of depreciation as a deduction from income to furnish
a minimum of 5 years’ tax returns. Brent also offered testi-
mony from his accountant, Jeffrey Olsen. Olsen examined
Brent’s prior tax documents and testified about how Brent had
been claiming depreciation on farm and business equipment.
Olsen testified that in many of the past few years, Brent had
been using the “fast write off” method for the section 179
elections to expense a lot of the equipment purchases in the
year that they were purchased. Olsen opined that this may
not accurately reflect Brent’s income in recent years. In an
effort to comply with the above guideline regarding deprecia-
tion deduction, Olsen recalculated Brent’s depreciation sched-
ules using a straight-line method from 2005 to 2010, which
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298	21 NEBRASKA APPELLATE REPORTS



recalculation of depreciation was received in evidence. Olsen
testified that in order to arrive at an adjusted net farm profit
for Brent for purposes of determining child support income,
the claimed depreciation on schedule F should be added back
to the net profit and then the straight-line depreciation should
be deducted.
   We summarize Brent’s schedule F documents from his tax
returns for 2006 to 2010 (5 years) and Olsen’s recalculation to
arrive at the adjusted net farm profit as follows:
	        Net Profit	+	Depreciation	−	Straight-Line	=	Adj. Net
	         (Sch. F)	       (Sch. F)	       (Olsen)	         Profit
2006	 $ 67,394	          $ 43,778	        $33,810	       $ 77,362
2007	80,132	 47,384	 35,061	 92,455
2008	95,758	 51,115	 39,098	 107,775
2009	115,485	 131,495	                     47,505	 199,475
2010	127,858	 127,306	                     62,995	 192,169
   While the district court did not specifically articulate how it
arrived at its calculation of Brent’s monthly income, it is appar-
ent from our chart above that the court averaged the adjusted
income from 2006 to 2010 ($669,236 ÷ 5 years = $133,847.20
÷ 12 months = $11,153.93). We conclude that the district court
properly allowed and determined the depreciation deduction
from Brent’s farm income to arrive at his monthly income as
provided in the guidelines. Sheri’s argument to the contrary is
without merit.
                     (ii) Income Averaging
   The next question we must address is whether the district
court properly averaged Brent’s income in calculating child
support. As shown above, the court apparently utilized a 5-year
average in determining Brent’s monthly income. Sheri argues
that because Brent’s income is steadily increasing, the use of
income averaging was error.
   The Nebraska Supreme Court first discussed the propriety
of using income averaging in determining a parent’s income
for purposes of setting child support in Peter v. Peter, 262
Neb. 1017, 637 N.W.2d 865 (2002). The court recognized
that a footnote to worksheet 1 of the guidelines provided that
“‘[i]n the event of substantial fluctuations of annual earnings
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	                      Cite as 21 Neb. App. 280

of either party during the immediate past 3 years, the income
may be averaged to determine the percent contribution of each
parent . . . .’” Peter v. Peter, 262 Neb. at 1023-24, 637 N.W.2d
at 872. The father-obligor in Peter was working on commission
as a stockbroker and successfully convinced the trial court to
average his last 3 years of income in modifying his child sup-
port obligation. The Supreme Court found the income averag-
ing to be error because the father’s annual earnings showed a
clear pattern of consistently increasing income. In reaching this
conclusion, the court noted that there was no evidence in the
record to suggest the father’s current rate of earnings would
decrease and that in fact, there was evidence to suggest that
his income would continue to increase. This court applied the
same rationale in a situation where the father-obligor’s income
was steadily declining, finding that income averaging was not
appropriate. See State on behalf of Hannon v. Rosenberg, 11
Neb. App. 518, 654 N.W.2d 752 (2002). See, also, Lucero v.
Lucero, 16 Neb. App. 706, 750 N.W.2d 377 (2008) (income
averaging not appropriate where father-obligor’s W-2 state-
ments for only 2 years do not show that his income has sub-
stantially fluctuated).
   On the other hand, several cases have allowed the use
of income averaging when dealing with farm income. The
Nebraska Supreme Court addressed the issue of income aver-
aging for a farmer in Gress v. Gress, 274 Neb. 686, 743 N.W.2d
67 (2007). The husband-obligor had annual income which
fluctuated the 3 years prior to trial from $51,654 to $61,059
to $28,400, respectively. The Supreme Court recognized that
as a self-employed farmer, the husband’s income was prone to
fluctuations from year to year, which is the type of contingency
provided for in the guidelines. The court discussed at length
the number of years that a court should use when averaging
income pursuant to the guidelines, including an unpublished
decision from this court that used a 5-year average, and deci-
sions or recommendations from other jurisdictions that support
the use of 2-, 3-, 4-, 5-, and 10-year averages. The court in
Gress concluded that a 3-year average tended to be the most
common approach in cases where a parent’s income fluctu-
ates and that courts appear reluctant to use more than a 5-year
   Decisions of the Nebraska Court of Appeals
300	21 NEBRASKA APPELLATE REPORTS



average. In Gress, the trial court used a 3-year average rather
than the 8-year average urged by the husband. The Supreme
Court concluded that even assuming that income averaging
under the Nebraska guidelines is not limited to a 3-year aver-
age, the district court did not abuse its discretion by declining
to use an 8-year average. We note that the Supreme Court
recently found no abuse of discretion in averaging a father-
obligor’s income over 4 years where the income was derived
from investments and included both years of gain and years
of losses. See Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d
440 (2012).
    In Willcock v. Willcock, 12 Neb. App. 422, 675 N.W.2d
721 (2004), this court affirmed a trial court’s utilization of
a 3-year income average in calculating the father-obligor’s
child support obligation. The father’s income was derived
from farming, “a profession that is subject to income fluctua-
tions based on a variety of factors.” Id. at 430, 675 N.W.2d at
727. The father testified about the variety of factors that affect
his income, including the farm economy, weather conditions
and crop yields, and government payments. The father’s tax
returns bore out such fluctuations, showing both increases and
decreases over a 5-year period. Thus, we rejected the father’s
argument that his current income should be used as opposed
to the 3-year average, distinguishing this case from State on
behalf of Hannon v. Rosenberg, supra, where the father’s
income was derived from an hourly wage and no evidence
existed to suggest that his pay decrease was temporary in
nature. However, we also stated that “[t]his is not to say that
the principles [income averaging not appropriate where income
steadily increasing or decreasing] announced in Peter v. Peter
. . . and State on behalf of Hannon v. Rosenberg could never be
applicable in calculating the child support obligation of some-
one engaged in the farming profession.” Willcock v. Willcock,
12 Neb. App. at 430, 675 N.W.2d at 727.
    This court again found that income averaging was appropri-
ate in determining a self-employed farmer’s annual income
in Pohlmann v. Pohlmann, 20 Neb. App. 290, 824 N.W.2d 63
(2012). A review of the evidence in that case showed that the
father’s income from farming was prone to fluctuations from
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	                       Cite as 21 Neb. App. 280

year to year, due in part to his use of the cash basis of account-
ing. Although the father’s income showed a pattern of decline
for the 3 years prior to trial, we found merit to his argument
that the court should have used the average income reported on
his tax returns for the 3 years preceding trial, and we remanded
the cause to the district court to recalculate the father’s income
and resulting child support obligation. See, also, Hughes v.
Hughes, 14 Neb. App. 229, 706 N.W.2d 569 (2005) (error
found in failure to include 4-year average of trust income in
calculating father’s child support obligation).
   Applying the foregoing principles to the case at hand, we
conclude that the district court did not abuse its discretion in
using a 5-year income average in determining Brent’s income
and resulting child support obligation. While Brent’s tax
returns for the past 5 years show that his income has steadily
increased, there is also evidence in the record to indicate that
Brent’s farm income is subject to various factors outside of his
control which can cause fluctuations. The district court did not
err in setting Brent’s total monthly income at $11,153.93 for
purposes of calculating his child support obligation.

                      (b) Health Insurance
   The district court made no ruling in the decree for the pro-
vision of health insurance for the children, nor did it include
an adjustment for health insurance premiums for the children
in its child support calculation. Sheri argues that the district
court erred in this regard and that Brent should be ordered
to pay all of the children’s health insurance premiums in the
future and to pay for her health insurance for 6 months fol-
lowing the dissolution. She also argues that she should be
given credit for the health insurance premiums she paid dur-
ing the separation and following trial, including credit for
her own health insurance premium in the 6 months following
the dissolution.
   Neb. Rev. Stat. § 42-369(2)(a) (Cum. Supp. 2012) provides
in part:
      If the party against whom an order, decree, or judg-
      ment for child support is entered or the custodial party
      has health insurance available to him or her through an
   Decisions of the Nebraska Court of Appeals
302	21 NEBRASKA APPELLATE REPORTS



      employer, organization, or other health insurance entity
      which may extend to cover any children affected by the
      order, decree, or judgment and the health care coverage is
      accessible to the children and is available to the responsi-
      ble party at reasonable cost, the court shall require health
      care coverage to be provided.
The Nebraska Child Support Guidelines provide, “As required
by . . . § 42-369(2), the child support order shall address
how the parents will provide for the child(ren)’s health care
needs through health insurance . . . .” Neb. Ct. R. § 4-215
(rev. 2011).
   At trial, Sheri asked the district court to order Brent to pay
all health insurance premiums for the children and to pay her
health insurance premium for 6 months following the dissolu-
tion. Up through the date of trial, Sheri had been “covered by
the family plan . . . through Brent.” Sheri paid all of the health
insurance premiums for the family after the divorce was filed
in July 2010 to the time of trial. In an affidavit filed after trial
and dated March 23, 2012, Sheri stated that the premium for
the whole family is $778.46 per month and that she continued
to pay the premiums after trial.
   We agree that the district court erred in failing to address
the provision of health insurance for the minor children in
the decree. We modify the decree so that Brent is ordered to
provide health insurance for the minor children, so long as
such coverage is available to him through his health insurance
policy at a reasonable cost, and is ordered to pay the premium
for the children commencing on the date of the entry of the
decree. However, because we do not have evidence of the
cost to provide health insurance solely for the children, we are
not able to make any adjustment to the child support calcula-
tion as allowed under § 4-215. We decline to require Brent to
reimburse Sheri for premiums paid for the family during the
pendency of the dissolution proceeding, because Sheri had
both temporary support and the use of funds withdrawn from
the parties’ accounts during this time. Likewise, we decline to
require Brent to reimburse Sheri for the premium associated
with her health insurance coverage after the trial. First, we note
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	                      Cite as 21 Neb. App. 280

from the record before us that Sheri’s request for reimburse-
ment of premiums paid by her after the completion of the trial
was not addressed by the trial court below, and as such, there
is no error for us to review. Further, we note that Sheri was
awarded alimony and a significant property award from which
to pay for her health insurance.

                          3. Alimony
   Sheri asserts that the district court erred in failing to
award alimony for a period of 10 years. The court awarded
Sheri alimony of $1,500 per month for 96 months, which is
8 years.
   [10-14] 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 gain-
ful employment without interfering with the interests of any
minor children in the custody of each party. Jensen v. Jensen,
20 Neb. App. 167, 820 N.W.2d 309 (2012). 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
just result. Id. Alimony should not be used to equalize the
incomes of the parties or to punish one of the parties. Smith
v. Smith, 20 Neb. App. 192, 823 N.W.2d 198 (2012). In deter-
mining whether alimony should be awarded, in what amount,
and over what period of time, the ultimate criterion is one
of reasonableness. Id. The purpose of alimony is to provide
for the continued maintenance or support of one party by
the other when the relative economic circumstances make it
appropriate. Id.
   The parties were married for over 15 years, and during
the marriage, Sheri contributed by maintaining the parties’
household, being the primary caregiver for their children, and
providing assistance with the farming operation in various
ways. Sheri quit working outside the home when the parties’
   Decisions of the Nebraska Court of Appeals
304	21 NEBRASKA APPELLATE REPORTS



first child was born, becoming the primary caregiver and
performing most of the household chores. This was a mutual
decision by the parties. Sheri returned to work in 2003 or
2004. Sheri has taken medical transcription courses online and
has obtained a certified nursing assistant certificate or degree.
At the time of trial, Sheri was working at a Chase County
clinic, earning $10.28 per hour, and her gross wages for 2011
were $18,194.99. Sheri plans to pursue an advanced directive
registered nurse degree, which will take 3 years to complete.
Although she testified that opportunities for a registered nurse
in Chase County are limited, the starting salary for a full-
time registered nurse would be $19 an hour, which is almost
double her current wage. Sheri testified that she has monthly
living expenses of $5,773.27. In addition to alimony and
child support, Sheri has been awarded marital assets totaling
$416,746.62. The only marital debt assigned to her is the mort-
gage on the marital home of $63,680.05, leaving a net marital
estate of $353,066.57. Sheri is receiving property equalization
payments of $550,000. Sheri will continue to receive alimony
for a number of years after she has completed her 3-year nurs-
ing program. We find no abuse of discretion in the duration of
the district court’s alimony award.

                         4. Attorney Fees
   [15] Sheri asserts that the district court erred in awarding her
attorney fees of only $10,000. Although the court noted in the
decree that Sheri requested attorney fees of $70,000, her actual
request at trial was for $50,000 in attorney fees. In a marital
dissolution action, an award of attorney fees depends on a vari-
ety of factors, including the amount of property and alimony
awarded, the earning capacity of the parties, and the general
equities of the situation. Molczyk v. Molczyk, 285 Neb. 96, 825
N.W.2d 435 (2013).
   In awarding attorney fees to Sheri, the district court noted
that at the time of the separation, Sheri took $100,000 from the
parties’ farm account, $18,264 from their savings account, and
$1,800 in cash from the family home. Sheri testified at trial
that she did so to protect herself and the children during the
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	                      Cite as 21 Neb. App. 280

separation and that she has used the money for living expenses,
including paying the mortgage on the marital residence and
health insurance premiums for Brent and the children. At
the time of trial, she had only $17,984.75 remaining of the
$100,000. However, Sheri also received temporary child sup-
port of $1,400 per month and spousal support of $1,500 per
month during the pendency of the proceedings. And, she will
continue to receive $1,500 in monthly alimony for 8 years.
Finally, Sheri has received a significant award of property and
equalization payments.
   We have reviewed the record and find no abuse of discretion
in the court’s award of $10,000 in attorney fees to Sheri. Her
assignment of error is without merit.

                      VI. CONCLUSION
   As discussed above, we modify the marital asset division
chart to reflect that Brent’s 25-percent interest in the Bussell
Farms equipment is $495,550. We find no merit to the other
assignments of error relating to the valuation of premarital
assets, the credits given to Brent, and the division of the
marital estate. We have modified the decree with respect to the
property equalization payment as set forth above.
   In determining Brent’s income for child support purposes,
the district court properly allowed and determined the depre-
ciation deduction and did not abuse its discretion in using a
5-year income average in determining Brent’s income and
resulting child support obligation. Accordingly, the court did
not err in setting Brent’s total monthly income at $11,153.93
for purposes of calculating child support.
   We modify the decree so that Brent is ordered to provide
health insurance for the minor children, so long as such cover-
age is available to him through his health insurance policy at
a reasonable cost, and is ordered to pay the premium for the
children’s health insurance commencing on the date of the
entry of the decree. However, because we do not have evidence
of the cost to provide health insurance solely for the children,
we are not able to make any adjustment to the child support
calculation. Further, we decline to require Brent to reimburse
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306	21 NEBRASKA APPELLATE REPORTS



Sheri for premiums paid during the pendency of the dissolution
proceeding or after trial.
   We find no abuse of discretion in the duration of the district
court’s alimony award or in its award of $10,000 in attorney
fees to Sheri.
                                        Affirmed as modified.



       Sam Grimminger and K ay Grimminger, appellants,
                 v. James Mudloff, appellee.
                                   ___ N.W.2d ___

                     Filed September 17, 2013.     No. A-12-1000.

 1.	 Actions: Restrictive Covenants: Equity. An action to enjoin a breach of restric-
      tive use covenants is equitable in nature.
 2.	 Equity: Appeal and Error. In an appeal of an equitable action, an appellate
      court tries factual questions de novo on the record and reaches a conclusion
      independent of the findings of the trial court, provided, where credible evidence
      is in conflict on a material issue of fact, the appellate court considers and may
      give weight to the fact that the trial judge heard and observed the witnesses and
      accepted one version of the facts rather than another.
 3.	 Restrictive Covenants: Intent. Restrictive covenants are to be construed so
      as to give effect to the intentions of the parties at the time they agreed to
      the covenants.
 4.	 Restrictive Covenants. If the language of a restrictive covenant is unambiguous,
      the covenant shall be enforced according to its plain language, and the covenant
      shall not be subject to rules of interpretation or construction.
  5.	 ____. Restrictive covenants are not favored in the law and, if ambiguous, should
      be construed in a manner which allows the maximum unrestricted use of the
      property.
 6.	 Contracts. An ambiguity exists when the instrument at issue is susceptible of
      two or more reasonable but conflicting interpretations or meanings. Moreover,
      the fact that the parties have suggested opposing meanings of the disputed
      instrument does not necessarily compel the conclusion that the instrument
      is ambiguous.
 7.	 Restrictive Covenants: Words and Phrases. A dwelling is a structure in which
      a person lives or that has been designed for living.
  8.	 ____: ____. The term “residential” prohibits the affected real property from being
      utilized for commercial purposes.

   Appeal from the District Court for Howard County: Karin
L. Noakes, Judge. Affirmed.
