Becher v. Becher

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/09/2018 08:14 AM CST

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Nebraska Supreme Court A dvance Sheets

299 Nebraska R eports

BECHER v. BECHER

Cite as 299 Neb. 206

Sonia Becher, appellee and cross-appellant,

v. M ark A. Becher, appellant

and cross-appellee.

___ N.W.2d ___

Filed March 9, 2018. Nos. S-16-054, S-16-793.

1. Statutes: Appeal and Error. Statutory language is to be  given its

plain and ordinary meaning, and an appellate court will not resort to

interpretation to ascertain the meaning of statutory words which are

plain, direct, and unambiguous.

2. Statutes. It is not within the province of the courts to read a meaning

into a statute that is not there or to read anything direct and plain out of

a statute.

3. Appeal and Error. Generally, a party cannot complain of error which

the party has invited the court to commit.

4. Verdicts: Evidence: Appeal and Error. The recommended factual

findings of a special master have the effect of a special verdict, and the

report upon questions of fact, like the verdict of a jury, will not be set

aside unless clearly against the weight of the evidence.

5. Trial: Judgments. Neb. Rev. Stat. § 25-1131 (Reissue 2016) does not

require a district court reviewing a referee’s decision to make spe-

cific findings.

6. Statutes. To the extent there is a conflict between two statutes on the

same subject, the specific statute controls over the general.

7. Child Custody: Visitation: Courts. A trial court has an independent

responsibility to determine questions of custody and visitation of minor

children according to their best interests, which responsibility cannot be

controlled by an agreement or stipulation of the parties.

8. 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

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regarding custody, child support, division of property, alimony, and

attorney fees.

9. 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.

10. Property Division. With some exceptions, the marital estate does

not include property acquired by one of the parties through gift or

inheritance.

11. Modification of Decree: Divorce: Child Custody. If trial evidence

establishes a joint physical custody arrangement, courts will so construe

it, regardless of how prior decrees or court orders have characterized

the arrangement.

12. Waiver: Appeal and Error. Whether a party waived his or her right to

appellate review is a question of law.

13. Judgments: Appeal and Error. When reviewing questions of law,

an appellate court resolves the questions independently of the lower

court’s conclusions.

14. Estoppel. The doctrine of equitable estoppel is applied to transactions

in which it is found that it would be unconscionable to permit a person

to maintain a position inconsistent with one in which he or she has

acquiesced or of which he or she has accepted any benefit.

15. Divorce: Judgments: Waiver: Appeal and Error. A spouse who

accepts the benefits of a divorce judgment does not waive the right to

appellate review under circumstances where the spouse’s right to the

benefits accepted is conceded by the other spouse, the spouse was enti-

tled as a matter of right to the benefits accepted such that the outcome

of the appeal could have no effect on the right to those benefits, or the

benefits accepted are pursuant to a severable award which will not be

subject to appellate review.

16. Contempt: Appeal and Error. In a civil contempt proceeding where

a party seeks remedial relief for an alleged violation of a court order,

an appellate court employs a three-part standard of review in which (1)

the trial court’s resolution of issues of law is reviewed de novo, (2) the

trial court’s factual findings are reviewed for clear error, and (3) the trial

court’s determinations of whether a party is in contempt and of the sanc-

tion to be imposed is reviewed for abuse of discretion.

17. Courts: Restitution: Contempt. Through its inherent powers of con-

tempt, a court may order restitution for damages incurred as a result of

failure to comply with a past order.

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BECHER v. BECHER

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18. Contempt. Civil contempt proceedings are instituted to preserve and

enforce the rights of private parties to a suit when a party fails to com-

ply with a court order made for the benefit of the opposing party.

Petition for further review from the Court of Appeals,

Moore, Chief Judge, and R iedmann and Bishop, Judges, on

appeal thereto from the District Court for Lancaster County,

Steven D. Burns, Judge. Judgment of Court of Appeals in No.

S-16-054 affirmed in part, and in part reversed and remanded

with directions.

Appeal from the District Court for Lancaster County:

Steven D. Burns, Judge, and K aren Flowers, Judge, Retired.

Judgment in No. S-16-793 affirmed.

David P. Kyker for appellant in Nos. S-16-054 and S-16-793.

Brad Sipp for appellant in No. S-16-054.

Sally A. Rasmussen, of Mattson Ricketts Law Firm, for

appellee.

Heavican, C.J., Miller-Lerman, Cassel, K elch, and

Funke, JJ.

Cassel, J.

I. INTRODUCTION

These two appeals, which have been consolidated in this

court, stem from marital dissolution proceedings. One chal-

lenged the district court’s decree, and is before us on further

review of a Nebraska Court of Appeals’ decision.1 Primarily,

we disagree with the Court of Appeals’ determination that a

district court must state specific findings in order to set aside

or modify a referee’s report authorized by chapter 25 of the

Nebraska Revised Statutes (Chapter 25)2 as clearly against

the weight of the evidence. In this appeal, we affirm in part,

1

Becher v. Becher, 24 Neb. App. 726, 897 N.W.2d 866 (2017).

2

See Neb. Rev. Stat. §§ 25-1129 to 25-1137 (Reissue 2016) (authorizing

trial by referee).

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and in part reverse and remand with directions. The assigned

errors in the second appeal, flowing from contempt proceed-

ings, lack merit. In that appeal, we affirm.

II. BACKGROUND

1. A ppeal No. S-16-054

Mark A. Becher and Sonia Becher were married for 21

years before Sonia filed a complaint for dissolution of mar-

riage in 2013. Because they could not agree to the valuation

and division of their vast marital estate or to the award of child

custody, child support, alimony, and attorney fees and costs,

they agreed to have these issues tried before a court-appointed

referee. The consent cited § 25-1129 et seq.

(a) District Court Proceedings

After a 14-day trial, the referee submitted a report describ-

ing its findings of fact on uncontested issues and its “analy-

sis and recommendations” which are set forth in more detail

below. Both parties initially filed exceptions to the report, but

Mark later withdrew his. Therefore, only Sonia’s exceptions

and the voluminous record produced at trial were submitted to

the district court on review of the referee’s report.

The district court entered a final decree in December 2015

in which it adopted some of the referee’s factual findings and

recommendations and set forth its own findings and conclu-

sions on other issues. Specific findings and conclusions are

discussed in our analysis.

(b) Appeal to Court of Appeals

Mark timely appealed and challenged the district court’s

review and consideration of the referee’s report. He assigned

error to certain findings of the court regarding the classifica-

tion, valuation, and division of the parties’ assets and debts;

custody and parenting time; child support; alimony; and attor-

ney fees. Sonia cross-appealed and assigned error to the court’s

allocation of holiday parenting time and its failure to classify

certain property as nonmarital.

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The Court of Appeals found several of Mark’s assigned

errors had been waived pursuant to the acceptance of benefits

doctrine and for failure to take exception to the referee’s report.

After concluding that the majority of the issues were preserved

for appeal, it addressed the remaining assigned errors concern-

ing the district court’s revisions of the referee’s report.

The Court of Appeals reviewed Nebraska precedents which

generally provided that a referee’s findings are treated like a spe-

cial verdict and can be set aside only where it is “‘clearly against

the weight of the evidence.’”3 However, the court also relied on

a case from the District Court of Appeal of Florida4 to find that a

trial court must explicitly determine that a referee’s findings are

clearly against the weight of the evidence before setting aside or

modifying a referee’s report. With this new standard, the Court

of Appeals concluded that the district court failed to apply the

correct standard of review. The Court of Appeals then vacated

those portions of the decree where the district court made find-

ings and conclusions that were inconsistent with the referee’s

report and modified it to incorporate the findings and conclu-

sions of the referee.5

We granted Mark’s and Sonia’s petitions for further review

to address the correct standard of review owed to the findings

and recommendations of court-appointed referees.

2. A ppeal No. S-16-793

While the first appeal was pending before the Court of

Appeals, Mark and Sonia each filed cross-motions for orders

3

Brown v. O’Brien, 4 Neb. 195, 198 (1876). See, also, Mid America Agri

Products v. Rowlands, 286 Neb. 305, 835 N.W.2d 720 (2013) (reviewing

recommended findings of special master appointed by Nebraska Supreme

Court); Larkin v. Ethicon, Inc., 251 Neb. 169, 556 N.W.2d 44 (1996)

(reviewing recommended findings of special master appointed by Nebraska

Supreme Court); Hodges v. Graham, 71 Neb. 125, 98 N.W. 418 (1904);

Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450 (1888).

4

Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. App. 1974).

5

Becher v. Becher, supra note 1.

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to show cause, alleging numerous violations of the district

court’s decree. Because the parties contest only a few of the

findings of contempt, only those allegations and findings rel-

evant to this appeal are set forth.

Sonia alleged that Mark entered her residence uninvited,

caused damage to the residence, and removed personal prop-

erty that was not awarded to him under the decree. She fur-

ther alleged that he repeatedly entered one of her commercial

buildings without authorization, caused damage to the prop-

erty, and removed property from the building that was not

awarded to him under the decree.

Mark alleged that Sonia failed to deliver certain personal

property awarded to him under the decree. At the hearing,

Sonia admitted to having sold certain items awarded to Mark,

but maintained that several of the listed items were actually

awarded to her. She alleged that she did not have any of the

other items of property.

The district court entered orders of contempt against both

Mark and Sonia. The court did not make any findings as to

whether Mark entered Sonia’s home or commercial building

unauthorized, caused damage to the properties, or otherwise

removed property from those locations. Rather, it disposed

of these allegations with a blanket denial of all other relief

requested. In its order of contempt against Sonia, the court

found that she willfully and contumaciously failed to com-

ply with the decree requiring she turn over all the property

listed. Instead of ordering that she turn over the property, the

court entered a judgment against Sonia and required that she

pay $2,500 as “compensation for the property she did not

turn over.”

Mark timely appealed, and Sonia cross-appealed. We

moved the appeal to our docket6 and consolidated the appeal

with the appeal in case No. S-16-054 for oral argument and

disposition.

6

See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

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III. ASSIGNMENTS OF ERROR

In appeal No. S-16-054, the dissolution proceeding, Mark

assigns that the Court of Appeals erred in (1) finding that he

waived his right to appeal the award of three commercial prop-

erties to Sonia, because he quitclaimed the deeds to Sonia in

compliance with the district court’s decree; (2) adopting the

referee’s determination of custody and parenting time instead

of remanding the issues to consider new developments in the

18 months the appeal has been pending; and (3) not remanding

for further hearing to conduct a complete accounting.

Sonia assigns that the Court of Appeals erred in (1) applying

its standard of review and (2) concluding that the acceptance of

benefits doctrine did not bar Mark’s appeal as it relates to the

division of property.

In appeal No. S-16-793, the civil contempt proceeding,

Mark assigns that the district court (1) erred in modifying its

decree of dissolution while the appeal of the decree was pend-

ing, (2) abused its discretion in ordering Sonia to pay restitu-

tion for selling or retaining personal property awarded to Mark

in an amount less than the value of the property, and (3) abused

its discretion and violated Mark’s right to due process in refus-

ing to permit Mark to offer evidence or otherwise rebut Sonia’s

evidence in support of her motion for contempt.

Sonia cross-appeals and assigns that the district court erred

in failing to find Mark in contempt for (1) his unauthorized

entry into Sonia’s home and the damage he caused while at the

home and (2) his unauthorized entry into Sonia’s commercial

building and the removal of property not awarded to him in

the decree.

IV. ANALYSIS

1. Standard of R eview of Chapter 25

R eferee’s R eport

Sonia argues that the Court of Appeals incorrectly applied

its standard of review, because it “took issue with the fact that

the trial judge had not specifically stated the referee’s report

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(in certain, limited respects) was ‘against the weight of the

evidence.’”7 We agree. In addressing this assignment of error,

it is first necessary to clarify the standard of review owed to

a court-appointed referee’s findings. Because the referee in

this case additionally made findings and recommendations as

to child custody, child support, and alimony, it is also neces-

sary to discuss the effect of the child support referee statutes8

and the Parenting Act.9 This requires statutory interpretation.

Therefore, we begin by recalling basic guiding principles of

statutory interpretation.

[1,2] Statutory language is to be given its plain and ordinary

meaning, and an appellate court will not resort to interpretation

to ascertain the meaning of statutory words which are plain,

direct, and unambiguous.10 It is not within the province of the

courts to read a meaning into a statute that is not there or to

read anything direct and plain out of a statute.11

(a) District Court’s Standard of Review

(i) Chapter 25 Referee Statutes

[3] Our civil procedure statutes have provided for trial by

referee since Nebraska became a state.12 But we have been

unable to find a reported decision where this procedure has

been used in a divorce case since 1888.13 Prior to the adoption

of Nebraska’s no-fault divorce statute in 1972,14 our divorce

statute stated that suits for divorce “shall be conducted in

the same manner as other suits in courts of equity.”15 But our

7

Brief for appellee in support of petition for further review at 3.

8

Neb. Rev. Stat. §§ 43-1608 to 43-1613 (Reissue 2016 & Supp. 2017).

9

Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Supp. 2017).

10

Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).

11

In re Guardianship of Kaiser, 295 Neb. 532, 891 N.W.2d 84 (2017).

12

See Rev. Stat. §§ 299 to 306 (1867).

13

See Gibson v. Gibson, supra note 3.

14

See 1972 Neb. Laws, L.B. 820.

15

Neb. Rev. Stat. § 42-307 (Reissue 1968).

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current divorce statutes contain no such language. It is an

open question whether the Legislature intended the Chapter 25

referee provisions to apply to a dissolution action. But even if

doing so was error, it was one invited by the parties. Generally,

a party cannot complain of error which the party has invited

the court to commit.16 Thus, we assume that a Chapter 25 ref-

eree may be appointed in a dissolution action, and turn to the

specific issue presented here.

Section 25-1131 provides the relevant standard of review for

a general court-appointed referee’s findings:

The trial before referees is conducted in the same

manner as a trial by the court. . . . They must state the

facts found and the conclusions of law, separately, and

their decision must be given, and may be excepted to

and reviewed in like manner. . . . When the reference

is to report the facts, the report has the effect of a spe-

cial verdict.

(Emphasis supplied.) By its plain language, a Chapter 25 ref-

eree’s factual findings are entitled to some deference. This is

in line with our historical standard of review for the recom-

mended findings of special masters appointed by this court

pursuant to § 25-1129.17 But without similar language limiting

the district court’s review of a referee’s conclusions or recom-

mendations, we decline to read such language into the statute.

Therefore, we conclude that the district court owed no defer-

ence to the referee’s conclusions or recommendations.

[4] Our case law establishes that the recommended factual

findings of a special master have the effect of a special verdict,

and the report upon questions of fact, like the verdict of a jury,

will not be set aside unless clearly against the weight of the

evidence.18 The recommended factual findings of the referee

were entitled to the same treatment.

16

Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016).

17

See cases cited supra note 3 and accompanying text.

18

See, e.g., Mid America Agri Products v. Rowlands, supra note 3.

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[5] But the Court of Appeals went further. It reasoned that

because the district court did not make an explicit determi-

nation on the record that the findings were against the clear

weight of the evidence, it did not give deference to rec-

ommended factual findings.19 However, § 25-1131 does not

require a district court reviewing a referee’s decision to make

specific findings. Our divorce statutes do not require specific

findings in the division of property,20 except a finding whether

a property settlement agreement is or is not unconscionable.21

That is not to say that specific findings are not helpful. In

some instances, we have stated that they would have been.22

But even where our civil procedure code mandates specific

findings, it does so only upon a party’s request.23 Our case

law teaches that unless a statute requires specific findings or

we mandated them as a matter of case law, explicit findings

are not required.24 Because nothing in the plain language of

§ 25-1131 requires such explicit findings, a district court may

implicitly find that a referee’s findings are against the clear

weight of the evidence.

(ii) Child Support Referee Statutes

Having determined the correct standard of review for a

referee’s factual findings, we must now harmonize the appar-

ently conflicting standard espoused in the child support ref-

eree statutes.

19

Becher v. Becher, supra note 1.

20

See Neb. Rev. Stat. §§ 42-365 and 42-366 (Reissue 2016).

21

See § 42-366(2) to (4).

22

See, e.g., Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006).

23

See Neb. Rev. Stat. § 25-1127 (Reissue 2016).

24

See, e.g., State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017) (specific

factual findings not required to justify sentence even where factors are

enumerated by statute); State ex rel. Amanda M. v. Justin T., 279 Neb. 273,

777 N.W.2d 565 (2010) (specific finding not required in creating parenting

plan under Parenting Act); Jacox v. Pegler, 266 Neb. 410, 665 N.W.2d 607

(2003) (encouraging but not requiring specific findings on record at each

step of Batson challenge).

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[6] The child support referee statutes allow a trial court

to refer a case involving the establishment, modification,

enforcement, and collection of child, spousal, or medical sup-

port and protection orders to a court-appointed child support

referee.25 Like Chapter 25 referees, child support referees

must submit a written report containing findings of fact and

recommendations to the trial court, which may be excepted

to by the parties.26 But, the trial court owes no deference to

these findings and recommendations and “may accept or reject

all or any part of the report and enter judgment based on the

court’s own determination.”27 This necessarily conflicts with

the Chapter 25 referee statutes. To the extent there is a con-

flict between two statutes on the same subject, the specific

statute controls over the general.28 Accordingly, the standard

of review for the findings and recommendations of child sup-

port referees directs the district court’s review of findings and

recommendations on the issues of child support, including

payment of reasonable education expenses,29 and spousal sup-

port or alimony.

(iii) Parenting Act

[7] The referee’s report also included recommended find-

ings of fact related to child custody and a proposed parenting

plan. These recommended findings are subject to the standard

of review in § 25-1131, but the proposed parenting plan is

subject to the Parenting Act. The Parenting Act provides that a

court rule may provide for the parenting plan to be developed

by the parties or their counsel, a court conciliation program,

an approved mediation center, or a private mediator.30 Though

25

See § 43-1609(1).

26

§ 43-1612(3).

27

§ 43-1613 (emphasis supplied).

28

SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).

29

Neb. Rev. Stat. § 42-369(3) (Reissue 2016).

30

§ 43-2929(1).

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it does not specifically provide that a court-appointed referee

may propose a parenting plan, no one has challenged the ref-

eree’s authority to propose a parenting plan. But, regardless of

the referee’s authority, a trial court has an independent respon-

sibility to determine questions of custody and visitation of

minor children according to their best interests, which respon-

sibility cannot be controlled by an agreement or stipulation of

the parties.31

A court is required to review a parenting plan and determine

if it meets the requirements of the Parenting Act and if is in the

best interests of the minor child or children. If the parenting

plan lacks any of the elements required by the act or is not in

the child’s best interests, the court shall modify and approve

the parenting plan as modified, reject the parenting plan and

order the parties to develop a new parenting plan, or reject

the parenting plan and create a parenting plan that meets all

the required elements and is in the best interests of the child.32

However, if the court rejects a parenting plan, it must provide

written findings as to why the parenting plan is not in the best

interests of the child.33

This multiplicity of review standards counsels against using

Chapter 25 referees routinely in dissolution actions. And it may

explain why 130 years have passed since the last reported deci-

sion documenting its use.

(b) Appellate Court

Standard of Review

[8] Although the district court’s review of the referee’s

report was necessarily complicated by the effect of these differ-

ent statutes, the standard of review on appeal remains the same.

In a marital dissolution action, an appellate court reviews the

case de novo on the record to determine whether there has

31

See Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).

32

§ 43-2935(1).

33

See § 43-2923(4).

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been an abuse of discretion by the trial judge.34 This standard

of review applies to the trial court’s determinations regarding

custody, child support, division of property, alimony, and attor-

ney fees.35

[9] 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.36 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.37 In this case, the appellate court would

give weight to the fact that the court-appointed referee heard

and observed the witnesses and accepted one version of the

facts rather than another.

(c) Application of Standard of Review

Because the Court of Appeals did not correctly apply its

standard of review, we must review the district court’s decree

for an abuse of discretion, keeping in mind the multifaceted

standard of review that the district court was to apply to the

referee’s report.

The Court of Appeals correctly concluded that Mark waived

any challenge where the district court came to the same con-

clusion as a referee, because he withdrew his exceptions to

the referee’s report. Therefore, we limit our review to those

instances where the Court of Appeals modified the district

court’s decree to incorporate the referee’s findings and recom-

mendations. Though Mark filed a motion to strike the argument

in Sonia’s supplemental brief related to this assignment of

error, we overrule the motion.

34

Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).

35

Id.

36

Id.

37

Id.

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(i) Division of Marital Estate

a. Classification of Nonmarital Property

During the parties’ marriage, Sonia’s father gave her mon-

etary gifts totaling over $1.7 million. Both the referee and

the district court determined that the monetary gifts were not

traceable to identifiable assets with two exceptions—the gift

used to purchase the West O Development/Dollar General

building and the gift used to pay off the mortgage on the mari-

tal home.

i. West O Development/

Dollar General Building

The West O Development/Dollar General building was pur-

chased by Sonia and her sister using an $825,000 gift from

their father. Later, Sonia purchased her sister’s interest in the

building with a $500,000 loan on the building and $25,000

from a savings account. Additional money was put into the

property for repairs and improvements. The referee determined

the $825,000 gift did not retain its status as a gift, because the

equity in the building was encumbered by loans in order to pay

the sister back and money generated during the marriage was

invested into the building for repairs.

The district court disagreed with the referee’s determina-

tion and found that “[t]here is no evidence of any marital

funds being used for the purchase or continued operation

of [the property].” Because the rents and gifts from Sonia’s

father exceeded the costs associated with the property, the

court concluded that Mark had no claim to it. The court also

noted an additional monetary gift from Sonia’s father for

repairs to the building which was not discussed by the ref-

eree. Therefore, the court implicitly determined that the ref-

eree’s finding as to the gift status of the property was against

the clear weight of the evidence and set aside the property to

Sonia as nonmarital property.

The district court reviewed the evidence and concluded

that no evidence supported a finding that the monetary gifts

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represented by the West O Development/Dollar General

building lost their gift status. Accordingly, it did not abuse

its discretion when it substituted its own findings for that of

the referee.

ii. Mortgage Payoff

Sonia’s father made another gift to Sonia in the amount of

$432,948. Of this amount, $220,300 was used to pay off the

mortgage on the marital home. The remainder was placed in a

certificate of deposit held in Mark’s name only. Mark spent the

entirety of the certificate of deposit during a period of separa-

tion, and Sonia has not challenged this expenditure.

The referee determined that the monetary gift was a gift to

the marriage, or at least that it lost its status as a gift when it

was applied to the marital debt. Nonetheless, it concluded that

Sonia was entitled to some credit in equity and reduced the fair

market value of the marital home awarded to Sonia by one-

half of the payoff value ($110,150). The district court noted

the same evidence, but determined that Sonia was entitled to a

credit for the entire mortgage payoff ($220,300) in recognition

of the gift.

[10] With some exceptions, the marital estate does not

include property acquired by one of the parties through gift

or inheritance.38 And, there is no exception where an other-

wise nonmarital monetary gift is spent on a family expense.39

Therefore, the referee’s finding that the portion of the gift

spent on the mortgage payoff lost its gift status because it

was applied to a marital expense was contrary to the law

and against the weight of the evidence. The district court did

not err in its determination that the mortgage payoff money

retained its status as a gift. Even assuming that it did lose its

status, it was within the district court’s power in equity to give

38

Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).

39

See, e.g., Mathew v. Palmer, 8 Neb. App. 128, 589 N.W.2d 343 (1999).

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credit to Sonia for one-half of the gift where Mark dissipated

the other half.40

b. Valuation of Business Entities

The district court awarded two businesses to Mark at dif-

ferent values than those recognized by the court-appointed

referee. The valuation of a business is a question of fact. As

a result, the findings of the referee on the issue had the effect

of a special verdict.

i. Sark Tile, Inc.

The referee awarded Sark Tile, Inc., to Mark at a value of

$491,353 after altering the formula used in one of the expert

valuations. The district court also awarded the business to

Mark, but at a value of $570,000. It is apparent from the record

that the district court reweighed the testimony and the evidence

and used a different formula than that used by the referee. This

was an abuse of discretion.

The district court effectively retried the issue, taking on

the role of the fact finder, and did not engage in any analysis

of whether the value accepted by the referee was against the

clear weight of the evidence. Because we find, in our de novo

review, that it was not against the clear weight of the evidence,

Sark Tile should have been awarded at the value assigned by

the referee.

ii. Lamp & Lighting of Lincoln, Inc.

The referee awarded Lamp & Lighting of Lincoln, Inc., to

Mark at a value of $107,000 after altering the formula used

in one of the expert valuations similar to that used in Sark

Tile. The district court also awarded the business to Mark

40

See Neb. Rev. Stat. § 42-365 (Reissue 2016). See, also, Parde v. Parde,

258 Neb. 101, 108, 602 N.W.2d 657, 662 (1999) (“[i]n determining

what assets constitute the marital estate and how the property should be

divided, . . . Nebraska, by statute, is an equitable property distribution

jurisdiction”).

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at a net value of $107,000 after applying a $150,000 debt to

the business. However, the referee appears to have set the

$150,000 debt over to Mark separate from the business valued

at $107,000. After a careful review of the record, it is plain that

this was done in error.

The expert valuation relied upon by the referee included the

$150,000 debt in its calculation. Therefore, the referee gave

credit to Mark for the $150,000 debt twice—once in arriving

at the net value using the expert’s formula and once in setting

the $150,000 debt over to Mark in its division of the marital

estate. Because the district court arrived at the same net value

for Lamp & Lighting of Lincoln as the referee and did not

carry over the double credit for the debt, there was no error in

the district court’s valuation of the business.

c. Valuation of Personal Property

The district court adopted the referee’s allocation of per-

sonal property, but valued the property awarded to Sonia at

$27,365 and the property award to Mark at $23,870. The

referee had awarded the property to Sonia at $13,340 and the

property to Mark at $21,495. It appears that the court awarded

the personal property within the marital home to Sonia at the

value assigned by an appraiser, reduced by the appraised val-

ues of the individual items awarded to Mark. However, the

court awarded these items to Mark at the higher value Mark

proposed and not the appraised value. This was an abuse

of discretion.

The valuation of personal property is a question of fact,

and the referee’s valuations had the effect of a special verdict.

The district court does not appear to have found either the

appraised values or Mark’s values for the personal property to

be against the clear weight of the evidence, because it accepted

the values assigned by both for different items of property.

Because the referee’s findings cannot be set aside unless they

are against the clear weight of the evidence, the district court

abused its discretion in assigning different values to the per-

sonal property awarded.

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d. Separate Valuation of

Shipping Containers

The district court separately valued the shipping containers

used by Sark Tile and awarded them to Mark as personal prop-

erty. However, the shipping containers were already accounted

for in the referee’s valuation of Sark Tile. Because the ref-

eree’s valuation of Sark Tile was not against the clear weight

of the evidence, the district court erred in separately valuing

the shipping containers.

e. Summary

We reverse the Court of Appeals’ decision to the extent

that it is inconsistent with this opinion. Specifically, we find

that the district court did not err in its award of the West O

Development/Dollar General building to Sonia as nonmari-

tal property, in its determination that Sonia was entitled to

a credit of $220,300 against the value of the marital home

in recognition of the monetary gift from her father, or in its

valuation of Lamp & Lighting of Lincoln. We agree with

the Court of Appeals that the district court abused its discre-

tion by substituting its valuations of Sark Tile and the per-

sonal property awarded for those of the referee and in sepa-

rately valuing the shipping containers as personal property.

Accordingly, we modify the district court’s marital property

distribution and decrease Sonia’s share of the marital estate

by $14,025 (the difference between the court’s value for

the personal property awarded and the referee’s value) and

decrease Mark’s share by $142,174 (the difference between

the court’s values for Sark Tile, the shipping containers, and

the personal property awarded and the referee’s values for

the same).

(ii) Child Custody

The referee found that joint legal custody of all three of

the parties’ minor children was in their best interests. It rec-

ommended a split physical custody arrangement, with Mark

having primary physical custody of the parties’ son and Sonia

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having primary physical custody of the parties’ two daughters.

Based upon the recommendations of a counselor, the proposed

parenting plan did not provide a parenting schedule for the

two oldest children. Parenting time with Mark for the youngest

child was scheduled on alternating weekends, with one over-

night on the alternating weeks.

The district court found that a split and joint custody

arrangement with modifications to the proposed parenting plan

designed to reduce potential conflicts was in the best interests

of the children. In its decree, the court ordered that Sonia have

permanent legal and physical care, custody, and control of the

parties’ two daughters, while Mark have permanent legal and

physical care, custody, and control of the parties’ son with

each “subject to the rights of parenting time for the noncus-

todial parent as set forth in the parenting plan.” However, the

court-ordered parenting plan provided that the parties would

share joint legal custody of all three children, with Mark hav-

ing primary physical custody of the parties’ son, Sonia having

primary physical custody of the parties’ oldest daughter, and

shared joint physical custody of the parties’ youngest daughter.

Like the proposed parenting plan, the court-ordered parenting

plan did not provide a parenting schedule for the two oldest

children. It did provide a joint physical custody arrangement

for the youngest child with Mark and Sonia having equal par-

enting time on alternating weeks.

The district court did not abuse its discretion in modifying

the proposed parenting plan, because it had an independent

responsibility to determine custody and parenting time accord-

ing to the children’s best interests.41 And, it provided written

findings of why the modifications to reduce potential con-

flicts were in the children’s best interests. Therefore, only two

issues remain.

[11] First, the parties agreed on appeal that the decree’s lan-

guage concerning physical custody of the youngest child was

41

See supra note 31 and accompanying text.

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inconsistent with that in the parenting plan. In our review, we

find that at times, the court characterizes the custody arrange-

ment as “split and joint” and at other times, it uses language

consistent with sole custody arrangements. If trial evidence

establishes a joint physical custody arrangement, courts will

so construe it, regardless of how prior decrees or court orders

have characterized the arrangement.42

Our statutes define joint physical custody as “mutual author-

ity and responsibility of the parents regarding the child’s place

of residence and the exertion of continuous blocks of parenting

time by both parents over the child for significant periods of

time.”43 Here, the parents’ custody was awarded subject to the

parenting time in the parenting plan. That plan provided that

the youngest child will have “parenting time with her Father

and Mother on alternating weeks, commencing on Friday after

school until the following Friday after school.” Summer par-

enting time is equally divided, with each parent having parent-

ing time for exactly one half of the summer break. This meets

the statutory definition of joint physical custody.

Second, Sonia alleged that the district court erred in allo-

cating parenting time over the Christmas holiday. The court

ordered “[e]very year the parent who does not have parenting

time on Christmas Day as a result of the weekly rotation . . .

shall have parenting time beginning on December 24 at noon

until December 24 at 11:30 p.m.” In light of the specific find-

ings of the animosity between the parents and the difficulties

of past parenting time exchanges, we do not find that the dis-

trict court abused its discretion in ordering a default holiday

schedule that minimizes communication between the parties

and preserves the child’s typical schedule.

Ultimately, the labels make little difference. The provi-

sions of the decree adequately set forth each party’s rights

and responsibilities.

42

Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).

43

See § 43-2922(12).

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(iii) Child Support, Private School

Tuition, and Alimony

The district court made findings and conclusions concerning

child support, payment of the children’s private school tuition,

and alimony which differed from those in the referee’s report.

However, because the referee’s findings and recommendations

on these issues are governed by the child support referee stat-

utes, the district court was free to accept or reject any or all

of the referee’s findings and recommendations.44 Our review

is limited to whether the district court abused its discretion in

the child support, private school tuition, and alimony ordered.

Finding none, we affirm the district court’s decree as it relates

to these issues.

2. Acceptance of Benefits

Marks assigns that the Court of Appeals erred in applying

the acceptance of the benefits doctrine to find that he waived

his right to appeal the award of three commercial properties

to Sonia.

(a) Additional Facts

Sonia was awarded three commercial properties in the

district court’s decree that the referee had recommended be

awarded to Mark: “Mini Storage,” the West O Development/

Dollar General building, and 901 Sun Valley. Before filing an

appeal, Mark moved to determine a supersedeas bond. The

district court entered an order setting the supersedeas bond at

$600,000 and providing that Mark would not be required to

transfer any ownership interest he may have in the real estate

awarded to Sonia during the pendency of any appeal if he filed

the bond. However, there is nothing in the record before us or

in the court’s trial docket entry that shows Mark ever filed a

supersedeas bond.

After filing his appeal, Mark executed quitclaim deeds con-

veying his interest in three commercial properties to Sonia,

44

See § 43-1613.

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refinanced loans, utilized the proceeds of rent and receipts

from businesses awarded to him, and created a new corpora-

tion to hold title to properties awarded to him under the decree.

Sonia then sold one of the commercial properties awarded to

her in an arm’s-length sale to a third party.

The Court of Appeals found that Mark had waived his

right to appeal the award of the three commercial prop-

erties to Sonia, because his voluntary conveyance of the

properties evidenced an intent to be bound by the decree. It

applied the exception to the doctrine outlined in Kassebaum v.

Kassebaum45 to find that Mark had not waived his right with

regard to the other issues on appeal.

(b) Standard of Review

[12,13] Whether a party waived his or her right to appellate

review is a question of law.46 When reviewing questions of

law, an appellate court resolves the questions independently of

the lower court’s conclusions.47

(c) Analysis

Mark argues that executing the quitclaim deeds was not an

acceptance of a benefit, but, rather, was an “involuntary accept­

ance of a detriment.”48 We agree and conclude that the accept­

ance of the benefits doctrine did not apply in this instance,

because Sonia—not Mark—accepted the benefits in that trans-

action. However, we find that Mark is nonetheless equitably

estopped from challenging the award of Mini Storage.

45

Kassebaum v. Kassebaum, 178 Neb. 812, 815, 135 N.W.2d 704, 706

(1965) (“‘[i]f the outcome of the appeal could have no effect on the

appellant’s right to the benefit accepted, its acceptance does not preclude

the appeal’”) (quoting 4 Am. Jur. 2d Appeal and Error § 253 (1962)).

Accord Liming v. Liming, supra note 22.

46

Liming v. Liming, supra note 22.

47

Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356, 900 N.W.2d

32 (2017).

48

Supplemental brief for appellant on petition for further review at 13.

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(i) Mini Storage

[14] The doctrine of equitable estoppel is applied to trans-

actions in which it is found that it would be unconscionable

to permit a person to maintain a position inconsistent with

one in which he or she has acquiesced or of which he or

she has accepted any benefit.49 Mark had the opportunity to

supersede the divorce decree and elected not to file a super-

sedeas bond. He refinanced loans such that the three commer-

cial properties were unencumbered by his debt and executed

quitclaim deeds on the properties in favor of Sonia. And, at

least with regard to Mini Storage, Sonia relied on Mark’s

actions and exercised her ownership right to sell the property

to a third party. That property cannot now be recovered on

appeal. Therefore, Mark waived his right to challenge Sonia’s

ownership of Mini Storage.

(ii) West O Development/

Dollar General Building

and 901 Sun Valley

Equitable estoppel does not apply to Mark’s assignment of

error concerning West O Development/Dollar General build-

ing and 901 Sun Valley, because Sonia did not detrimentally

rely on Mark’s actions. But, Mark does not identify how the

award of those properties to Sonia constituted an abuse of

discretion—his argument is limited to the court’s “failing to

review the Referee’s Report.”50 As explained above, the dis-

trict court owed deference only to the referee’s factual find-

ings and could reach its own determinations on what to order

in its decree.

Because we find no abuse of discretion in the court’s award

of the two commercial properties to Sonia, we affirm that part

of the district court’s decree.

49

Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d

178 (2012).

50

Brief for appellant at 30.

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(iii) Other Assignments

of Error on Appeal

In applying the exception to the acceptance of the ben-

efits doctrine to Mark’s other assignments of error, the Court

of Appeals reviewed each assignment to determine whether

the outcome of the appeal could affect his acceptance of the

related benefits. Without concluding whether this was the

correct analysis, we find that another exception to the doc-

trine applied.

[15] A spouse who accepts the benefits of a divorce judg-

ment does not waive the right to appellate review under cir-

cumstances where the spouse’s right to the benefits accepted

is conceded by the other spouse, the spouse was entitled as

a matter of right to the benefits accepted such that the out-

come of the appeal could have no effect on the right to those

benefits, or the benefits accepted are pursuant to a severable

award which will not be subject to appellate review.51 Sonia

did not challenge Mark’s right to the benefits he accepted

either at trial or on appeal. Because Mark accepted only those

benefits which Sonia conceded his right to, Mark did not

waive his right to appellate review of his assignments of error

discussed above.

3. Contempt Orders

(a) Standard of Review

[16] In a civil contempt proceeding where a party seeks

remedial relief for an alleged violation of a court order, an

appellate court employs a three-part standard of review in

which (1) the trial court’s resolution of issues of law is

reviewed de novo, (2) the trial court’s factual findings are

reviewed for clear error, and (3) the trial court’s determinations

of whether a party is in contempt and of the sanction to be

imposed is reviewed for abuse of discretion.52

51

Liming v. Liming, supra note 22.

52

Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).

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(b) Analysis

(i) Mark’s Appeal

Mark argues that (1) the district court inappropriately modi-

fied its decree of dissolution while the appeal of the decree was

pending when it ordered Sonia to pay restitution for her viola-

tion of the decree, (2) the restitution was insufficient, and (3)

the court abused its discretion when it refused to permit him

to offer evidence or rebut Sonia’s evidence in her motion for

contempt. However, Mark did not appeal from the order find-

ing him in contempt and did not make an offer of proof for the

two rebuttal witnesses he was not allowed to call. Therefore,

we find that Mark failed to preserve his third argument for

appeal and we address only his first two.

[17] Through its inherent powers of contempt, a court may

order restitution for damages incurred as a result of failure to

comply with a past order.53 In ordering Sonia to compensate

Mark for the personal property she did not turn over to him, the

district court did not modify the district court decree. Instead,

it ordered restitution for the loss of the personal property to

which Mark was entitled. This was an appropriate remedy for

a finding of contempt.

Mark further maintains that restitution was inadequate to

compensate him for his loss and requests that the issue be

remanded for a recalculation of the items Sonia did not turn

over. Though the district court did not itemize its accounting,

it is apparent that it ordered restitution in the amount that the

missing personal property was initially valued when set over

to Mark in the decree. The valuation was not challenged then

and it cannot be challenged now on appeal. Accordingly, we

find no merit to Mark’s arguments on appeal.

(ii) Sonia’s Cross-Appeal

Sonia cross-appealed from the order finding Mark in con-

tempt and argues that the district court abused its discretion

53

Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).

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when it failed to find Mark in contempt for his unauthorized

entry into her residence and commercial building and the

removal and destruction of property on the premises.

[18] Civil contempt proceedings are instituted to preserve

and enforce the rights of private parties to a suit when a party

fails to comply with a court order made for the benefit of the

opposing party.54 They are not instituted to provide relief for

other wrongdoings by a private party where other relief is

available by statute. The district court’s jurisdiction over the

decree did not preclude Sonia from seeking separate relief in

tort for trespass and conversion. Therefore, it did not err in

denying the same relief under the guise of a contempt order.

V. CONCLUSION

For the reasons stated above, we affirm in part, and in part

reverse and remand case No. S-16-054 with directions that the

district court is to divide the marital estate in accordance with

this opinion. We affirm the orders of contempt in case No.

S-16-793 in all respects.

Judgment in No. S-16-054 affirmed

in part, and in part reversed and

remanded with directions.

Judgment in No. S-16-793 affirmed.

K elch, J., not participating in the decision.

Wright and Stacy, JJ., not participating.

54

Id.