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03/23/2018 08:13 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                               CONNOLLY v. CONNOLLY
                                                 Cite as 299 Neb. 103




                                        Valerie K. Connolly, appellant, v.
                                          Monte D. Connolly, appellee.
                                                     ___ N.W.2d ___

                                         Filed February 23, 2018.   No. S-16-1174.

                1.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
                    tion of law that an appellate court resolves independently of the
                    trial court.
                2.	 Divorce: Appeal and Error. In actions for dissolution of marriage, 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.
                3.	 Evidence: Appeal and Error. In a review de novo on the record, an
                    appellate court reappraises the evidence as presented by the record and
                    reaches its own independent conclusions with respect to the matters
                    at issue.
                4.	 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.
                5.	 Appeal and Error. Error without prejudice is not a ground for
                    reversal.
                6.	 Divorce: Attorney Fees: Appeal and Error. In an action for dissolu-
                    tion of marriage, the award of attorney fees is discretionary, is reviewed
                    de novo on the record, and will be affirmed in the absence of an abuse
                    of discretion.
                7.	 Divorce: Attorney Fees. The award of attorney fees depends on mul-
                    tiple factors that include the nature of the case, the services performed
                    and results obtained, the earning capacity of the parties, the length of
                    time required for preparation and presentation of the case, customary
                    charges of the bar, and the general equities of the case.

                 Appeal from the District Court for Scotts Bluff County: Leo
               Dobrovolny, Judge. Affirmed.
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                     CONNOLLY v. CONNOLLY
                       Cite as 299 Neb. 103

   Paul W. Snyder, of Smith, Snyder, Petitt & Hofmeister, G.P.,
for appellant.
  William E. Madelung, of Madelung Law Office, for
appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
  Heavican, C.J.
                      I. INTRODUCTION
   In this dissolution action, Valerie K. Connolly filed a peti-
tion for legal separation. Valerie and her husband, Monte D.
Connolly, then filed a stipulation and agreement, which was
approved by the district court in its decree of legal separation.
Monte subsequently filed a motion to amend the complaint
from legal separation to dissolution of marriage. Following a
hearing, the district court issued a divorce decree, which dif-
fered from the decree of legal separation and included both an
award of alimony and an award of half of the attorney fees to
Valerie. Valerie appeals. We affirm.
                II. FACTUAL BACKGROUND
   Monte and Valerie were married on April 15, 1974. At
the time of trial, Monte was 64 years old and Valerie was 61
years old. Valerie worked from approximately 1976 until 2008,
when, as a result of two automobile accidents, she became
medically disabled and required continuing medical treatment.
Valerie collects, as her sole source of income, approximately
$1,500 per month in long-term disability payments. Prior to the
divorce decree, Valerie received medical insurance coverage
through Social Security, Monte’s health insurance policy, and a
supplemental policy paid for by Monte.
   Monte also suffers from medical issues that prevent him from
working. Monte collects long-term disability payments totaling
approximately $3,600 per month. Monte placed $78,062.74
from a lump-sum payment of his retirement program in an
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                      CONNOLLY v. CONNOLLY
                        Cite as 299 Neb. 103

annuity with an insurance company. Together, these form his
sole sources of income.
   During their marriage, the couple purchased a home as
joint tenants. Monte placed a value of $250,000 on the marital
home, while Valerie valued the home at $299,950. As of July
2016, the home had a mortgage of $182,598. According to
their 2015 joint income tax return, the couple’s adjusted gross
income was $20,018.
   On August 15, 2012, Valerie filed the petition for legal sep-
aration against Monte. On December 12, Monte and Valerie
filed a stipulation and agreement, agreeing that in the event
the parties’ marriage dissolved, their jointly owned real estate
property would be sold and the proceeds would be divided
equally between the parties. The parties agreed that Monte
would continue to carry Valerie on his health insurance policy
and be responsible for the premiums on that policy through
December 31, 2012. Monte further agreed that commencing
January 1, 2013, he would pay the premiums on Valerie’s
Medicare supplemental policy. The parties also agreed that
neither party shall pay or receive alimony. Furthermore, each
party agreed to be responsible for one-half of the attorney
fees incurred in the processing of this action for a legal
separation. Both parties were using the same attorney at
the time.
   The parties waived a hearing on the entry of a final decree
of legal separation. On December 12, 2012, the district court
issued a decree of legal separation, approving the parties’ stipu-
lations and granting the parties a decree of legal separation.
   On September 9, 2015, Monte filed a motion to amend the
complaint from legal separation to dissolution of marriage.
Valerie filed an answer requesting that the real estate owned
by the parties be sold; that Monte provide health insurance for
Valerie until Valerie reached the age of 65 or, in the alternative,
that Monte pay spousal support; and that Monte pay Valerie’s
attorney fees. Valerie subsequently filed a separate application
for attorney fees.
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                      CONNOLLY v. CONNOLLY
                        Cite as 299 Neb. 103

  On November 15, 2016, following a hearing, the district
court filed a decree of dissolution. The decree divided the
marital estate as follows:
        2. . . . [E]ach party shall pay his or her own debts
     to include his or her own medical bills and credit card
     debts, and hold the other party harmless with respect to
     such debts.
        3. . . . [E]ach party shall receive as his or her sep-
     arate property his or her own clothing and personal
     effects, and all personal property presently in his or her
     own possession.
        4. . . . [E]ach party shall receive as his or her separate
     property all bank accounts, retirement accounts, invest-
     ments, and insurance policies currently held in his or her
     name respectively, and any other property currently in
     the party’s possession.
        5. The parties shall list the marital home for sale within
     thirty days. It shall be . . . initially listed for $300,000.00.
     In the event a closing on the property has not occurred
     within 180 days from the listing date, it shall be sold at
     public auction, and the proceeds divided consistent with
     the parties’ legal separation agreement.
        6. Monte shall pay alimony to Valerie in the amount
     of $363.00 per month beginning December 1, 2016, and
     continuing monthly thereafter until the death of either
     party or until Valerie remarries. This amount is the esti-
     mated Medicare supplement premium ($218.00) and
     the prescription supplement premium ($145.00) from
     exhibit 2. . . .
        ....
        8. Monte shall pay one-half of the attorney’s fees of
     Valerie, in the amount of $1,347.57 within sixty days.
  In support of its modification of the legal separation decree,
specifically as related to alimony, the court found that it was
not barred from considering an award of alimony, but that
because it was a modification, it would be necessary for
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                           CONNOLLY v. CONNOLLY
                             Cite as 299 Neb. 103

Valerie to show a change in circumstances, which the court
found she had not done. Despite this, the district court awarded
Valerie alimony in an amount that equaled the health insurance
costs which Monte had been paying under the decree of legal
separation. Valerie appealed.

                III. ASSIGNMENTS OF ERROR
    Valerie assigns, restated and consolidated, that the district
court erred in (1) determining that Valerie needed to show a
change of circumstances in order to be entitled to an award
of alimony in the divorce decree and (2) awarding an insuf-
ficient amount of attorney fees based on the totality of the
circumstances.
    Monte asserts several assignments of error in his appellee’s
brief, but did not comply with this court’s rules regarding the
filing of a cross-appeal. As such, we do not consider any of
Monte’s assignments of error.1

                 IV. STANDARD OF REVIEW
   [1] Statutory interpretation presents a question of law that an
appellate court resolves independently of the trial court.2
   [2,3] In actions for dissolution of marriage, 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.3 In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches
its own independent conclusions with respect to the matters
at issue.4
   [4] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving

 1	
      Neb. Ct. R. App. P. § 2-109 (rev. 2014).
 2	
      State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
 3	
      Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
 4	
      Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                            CONNOLLY v. CONNOLLY
                              Cite as 299 Neb. 103

a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.5

                           V. ANALYSIS
                       1. Award of A limony
               (a) Whether Parties Need to Show
                    Change in Circumstances
   Valerie assigns that the district court erred in requiring that
she show a change of circumstances in the time between the
decree of legal separation and the divorce decree in order to
receive an award of alimony. In the alternative, Valerie argues
that she has shown a change in circumstances, because her
costs have increased due to the divorce decree, while Monte’s
income has increased.
   We begin our analysis with the underlying statutes. The
availability of an award of alimony is addressed in Neb. Rev.
Stat. § 42-365 (Reissue 2016), which states in pertinent part:
         When dissolution of a marriage is decreed, the court
      may order payment of such alimony by one party to
      the other and division of property as may be reason-
      able, having regard for the circumstances of the parties,
      duration of the marriage, a history of the contributions
      to the marriage by each party, including contributions
      to the care and education of the children, and interrup-
      tion of personal careers or educational opportunities,
      and 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 such party. . . . A
      proceeding to modify or revoke an order for alimony for
      good cause shall be commenced by filing a complaint
      to modify. . . . Amounts accrued prior to the date of fil-
      ing of the complaint to modify may not be modified or
      revoked. A decree may not be modified to award alimony

 5	
      Stephens v. Stephens, supra note 3.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                           CONNOLLY v. CONNOLLY
                             Cite as 299 Neb. 103

      if alimony was not allowed in the original decree dissolv-
      ing a marriage.
   Actions involving legal separation are considered sepa-
rately. Neb. Rev. Stat. § 42-347(7) (Reissue 2016) provides
that “[l]egal separation means a decree of a court of compe-
tent jurisdiction providing that two persons who have been
legally married shall thereafter live separate and apart and
providing for any necessary adjustment of property, support,
and custody rights between the parties but not dissolving
the marriage.”
   Finally, Neb. Rev. Stat. § 42-368 (Reissue 2016) states in
pertinent part:
         When a legal separation is decreed, the court may order
      payment of such support by one party to the other as may
      be reasonable, having regard for the circumstances of the
      parties and the ability of the supported party to engage in
      gainful employment without interfering with the interests
      of any minor children in the custody of such party. Orders
      for support may be modified or revoked for good cause
      shown upon notice and hearing . . . .
   This court held in Pendleton v. Pendleton6 that the prohi-
bition against modifying a decree of dissolution to provide
alimony when none was awarded in the original decree was
applicable only in cases involving dissolution, and inapplica-
ble in the case of legal separation. We explained that the defi-
nition of legal separation set forth in § 42-347(7) contained
no provisions similar to the language set forth in § 42-365
dealing with alimony in a dissolution action. We further
explained that the language in Neb. Rev. Stat. § 42-366(6)
(Reissue 2016) and § 42-368 specifically stated that the pro-
hibition against modifying a decree did not apply to a decree
of legal separation. Finally, we noted that res judicata did not
preclude the district court from awarding alimony in the dis-
solution decree.

 6	
      Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993).
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               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                          CONNOLLY v. CONNOLLY
                            Cite as 299 Neb. 103

   As in Pendleton, we find that because § 42-347(7) contains
no provisions similar to the language set forth in § 42-365,
we must construe these statutes separately. And because we
construe the decree of legal separation and the decree of dis-
solution separately, we find that an award of alimony in a
decree of dissolution is not equivalent to a modification of an
award of alimony in a decree of legal separation such that it is
modifiable only upon a finding of good cause under § 42-365.
Furthermore, we note that by its terms, § 42-365 is applicable
only to an alimony award in a decree of dissolution and makes
no mention of a decree of legal separation.
   We hold that Valerie was not required to show a change of
circumstances for purposes of good cause to modify the award
of alimony awarded in the decree of legal separation. Instead,
the district court should have determined a reasonable award of
alimony based on the criteria set forth in § 42-365.
   Valerie’s first assignment of error has merit.

                  (b) Whether Alimony Award
                      Was Reversible Error
   [5] Next, we turn to whether the district court error was
prejudicial. Error without prejudice is not a ground for rever-
sal.7 Both in dividing property and in 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 mar-
riage, 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 such party, the polestar
being fairness and reasonableness as determined by the facts
of each case.8
   Monte has a monthly income of approximately $3,600, and
his monthly living expenses total $2,551. Valerie’s monthly

 7	
      Emery v. Mangiameli, 218 Neb. 740, 359 N.W.2d 83 (1984).
 8	
      See, § 42-365; Meints v. Meints, supra note 4.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                            CONNOLLY v. CONNOLLY
                              Cite as 299 Neb. 103

income is approximately $1,500, and her monthly budget
totals $2,341. In the separation order, the judge approved
the parties’ agreement that Monte would continue to carry
Valerie on his health insurance policy and be responsible for
the premiums on that policy through December 31, 2012.
Monte agreed that thereafter, commencing January 1, 2013, he
would be responsible for the premiums on Valerie’s Medicare
supplemental policy. According to Valerie’s monthly budget,
these costs totaled $363. This calculation formed the basis of
the judge’s determination in the divorce decree of $363 as the
amount of alimony.
   Valerie contends that the award of alimony is insufficient,
because she is now responsible for half of the monthly house
payments, she pays rent, and she must pay the medical insur-
ance that was previously provided by Monte. Valerie further
argues that Monte’s finances have improved due to the lump-
sum payment of his retirement plan.
   The parties agreed in the stipulation that the retirement
accounts would remain separate, nonmarital property. Therefore,
we do not find that the district court abused its discretion in
failing to take the lump sum from Monte’s retirement plan into
consideration for purposes of alimony. Nor do we find merit
in Valerie’s contention that because she is now responsible for
payment of her supplemental medical policy, half the payments
on the house, and payment of rent where she lives, the amount
of alimony was an abuse of discretion.
   Contrary to Valerie’s contention otherwise, the district court
explicitly took into account Valerie’s payment of her supple-
mental medical policy in the calculation of the amount of
alimony in the decree. And Valerie did not include monthly
house payments in her proposed monthly budget that she sub-
mitted to the court. It was Valerie’s responsibility to furnish
this information in the record, and she did not do so.9 In addi-
tion, as noted above, the decree ordered the parties to sell the

 9	
      See Pendleton v. Pendleton, supra note 6.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                           CONNOLLY v. CONNOLLY
                             Cite as 299 Neb. 103

house within 6 months and split the proceeds equally; thus,
this monthly cost for house payments was of short duration.
Furthermore, as the district court noted, Monte testified that he
refinanced the real estate mortgage to lower the house payment
after the separation and has paid approximately $75,000 toward
the value of the real estate. Accordingly, the net value was to
be divided equally between the parties. It was not an abuse of
discretion for the court to omit this cost in its calculation of the
amount of alimony.
   We further find that the amount of alimony, when consid-
ered alongside Valerie’s monthly income and the proceeds
from the sale of the couple’s home, was not an abuse of
discretion. We note that the district court correctly took into
account the income and earning capacity of each party and
any disparity in the incomes between the parties. While Monte
has a higher monthly income, his income is also based solely
on disability payments. The disparity between the parties’
income is not of such a degree that the amount of alimony
was unfair.
   After consideration of all other facts and circumstances
of the case, we hold that the district court did not abuse its
discretion in awarding Valerie $363 per month in alimony
for her lifetime or until she remarries. We therefore hold
that any error by the court in its analysis was not prejudicial
to Valerie.

                        2. Attorney Fees
   [6,7] Finally, Valerie assigns that the district court abused
its discretion in ordering Monte to pay one-half of Valerie’s
attorney fees. In an action for dissolution of marriage, the
award of attorney fees is discretionary, is reviewed de novo
on the record, and will be affirmed in the absence of an abuse
of discretion.10 The award of attorney fees depends on mul-
tiple factors that include the nature of the case, the services

10	
      Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
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               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                           CONNOLLY v. CONNOLLY
                             Cite as 299 Neb. 103

performed and results obtained, the earning capacity of the
parties, the length of time required for preparation and pre-
sentation of the case, customary charges of the bar, and the
general equities of the case.11
   Based on our de novo review of the record and the general
equities of the case, we find nothing to indicate an abuse of
discretion on the part of the district court in its decision to
award Valerie one-half of her attorney fees. Therefore, the
district court did not err in awarding Valerie one-half of her
attorney fees. Valerie’s second assignment of error is with-
out merit.
                        VI. CONCLUSION
      We affirm the order of the district court.
                                                             A ffirmed.
      Wright, J., not participating.

11	
      Bowers v. Lens, 264 Neb. 465, 648 N.W.2d 294 (2002).
