Hamann v. Hamann

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Nebraska Court of Appeals Advance Sheets
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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
Breanna M. Hamann, appellee,
v. Jay M. Hamann, appellant.
___ N.W.2d ___
Filed June 28, 2022. 	No. A-21-490.
1. Divorce: 	Child 	Custody: 	Child 	Support: 	Property 	Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), the equitable division of property is a three-step process. The first
step is to classify the parties’ property as marital or nonmarital, setting
aside the nonmarital property to the party who brought that property to
the marriage. The second step is to value the marital assets and marital
liabilities of the parties. The third step is to calculate and divide the net
marital estate between the parties in accordance with the principles con-
tained in § 42-365.
3. ____: ____. The ultimate test in determining the appropriateness of the
division of property is fairness and reasonableness as determined by the
facts of each case.
4. ____: ____. In a dissolution action, there is no mathematical formula
by which property awards can be precisely determined, but as a general
rule, a spouse should be awarded one-third to one-half of the marital
estate, the polestar being fairness and reasonableness as determined by
the facts of each case.
5. Divorce: Alimony. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), in
considering alimony, a court should consider four factors: (1) the cir-
cumstances of the parties, (2) the duration of the marriage, (3) the his-
tory of contributions to the marriage, and (4) the ability of the supported
party to engage in gainful employment without interfering with the
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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
interests of any minor children in the custody of each party. In addition,
a court should consider the income and earning capacity of each party
and the general equities of the situation.
6. Alimony. The purpose of alimony is to provide for the continued main-
tenance or support of one party by the other when the relative economic
circumstances make it appropriate.
7. Alimony: Appeal and Error. An appellate court is not inclined to
disturb the trial court’s award of alimony unless it is patently unfair on
the record.
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed as modified.
W. Gregory Lake, of Nebraska Legal Group, for appellant.
Wesley S. Dodge for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Jay M. Hamann appeals from an order of the Sarpy County
District Court dissolving his marriage to Breanna M. Hamann
and distributing marital property. Jay challenges the division of
the marital estate in two respects, as well as the court’s award
of alimony, and the failure to reimburse him for a portion of
Breanna’s attorney fees paid with a joint credit card. For the
following reasons, we affirm as modified herein.
BACKGROUND
Jay and Breanna were married in July 2010, in Mesa,
Arizona. Three children were born to the marriage in 2015,
2017, and 2019, respectively. After the marriage in 2010, the
parties initially resided in Tucson, Arizona. Jay is a member
of the U.S. Air Force, and at the time of the marriage, Jay
was stationed at Davis-Monthan Air Force Base in Tucson.
From January to March 2017, Jay attended officer training
school in Montgomery, Alabama, after which the parties relo-
cated to Pensacola, Florida. The parties then relocated to the

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
Omaha, Nebraska, area in October 2018, as Jay was stationed
at Offutt Air Force Base.
On December 12, 2019, Breanna filed a complaint for dis-
solution of marriage in the district court for Sarpy County.
On December 16, Jay filed an answer and counterclaim for
dissolution of marriage. Both parties filed motions for tem-
porary allowances, and a hearing on those motions was held
on January 8, 2020. On February 5, the court entered an order
establishing temporary joint physical and legal custody of the
three children. The order also awarded Breanna temporary
exclusive occupancy of the marital home; however, the court
ordered that Jay “shall pay and be responsible for the monthly
mortgage payment, taxes, and insurance and utility expenses
for the marital residence until further order of the Court.” Trial
was held on February 23, 2021.
Disputed Vanguard Retirement Account.
The record reflects that the parties had three Vanguard
retirement accounts which were ultimately distributed as part
of the marital estate. Two of the three accounts were amply
supported by both testimonial and documentary evidence at
trial. Both parties testified and submitted exhibits regarding a
Vanguard “joint brokerage account” No. 2908. Furthermore,
Jay testified and submitted an exhibit regarding a Vanguard
“individual IRA” No. 9205 in his name only.
Both parties also testified to a third Vanguard account in
Breanna’s name only; however, neither party testified to any
specifics about that account, such as the account number or
account value. Indeed, the court entered oral findings on the
record at the end of trial indicating that the record failed to
adequately support the third account. Yet, the court ultimately
distributed all three accounts, even making reference to the
specific account number of the third Vanguard account in
Breanna’s name only. To reconcile this apparent inconsistency,
one need only look to the last page of exhibit 32, which was
admitted very shortly before the court entered its oral findings
on the record.

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
Toward the end of trial, during the cross-examination of
Jay, Breanna’s counsel asked a series of questions regard-
ing recent transfers of funds from the parties’ joint checking
account. The basis for the questions was an exhibit which
Breanna’s counsel referred to as “a rebuttal exhibit on with-
drawals from joint accounts.” Breanna’s counsel neglected
to offer the exhibit during cross-examination; however, upon
reviewing the trial exhibits at the close of the evidence,
Breanna’s counsel confirmed that he intended to offer the
exhibit. Thereafter, the exhibit was admitted into evidence as
exhibit 32 without any objection from Jay.
Exhibit 32 consists of 7 pages total, including pages 1
through 5 which reflect various transfers of funds from the par-
ties’ joint checking account. However, pages 6 and 7 contain
documents regarding the Vanguard retirement accounts. Page
6 appears to be a confirmation regarding a change in contact
information on file with Vanguard, and page 7 appears to be
a screenshot of an online “dashboard” summarizing the val-
ues of all three Vanguard accounts as of December 27, 2019.
Specifically, exhibit 32 reflects a “Roth IRA” account No.
9026 in Breanna’s name only, a “Roth IRA” account No. 9205
in Jay’s name only, and a brokerage account No. 2908 in the
name of both parties.
Notably, the account values reflected in exhibit 32 with
respect to accounts Nos. 2908 and 9205 differ slightly from
the 	stand-alone 	exhibits 	the 	parties 	submitted 	for 	those
accounts. For example, exhibits 13 and 21 demonstrate a total
value of $48,551.04 for account No. 2908 as of December
31, 2019, whereas exhibit 32 demonstrates a total value of
$48,671.52 in the same account as of December 27. Likewise,
exhibit 23 demonstrates a total value of $57,918.55 for account
No. 9205 as of December 31, 2019, whereas exhibit 32 dem-
onstrates a total value of $58,066.86 in the same account as of
December 27.
These minor fluctuations in the account values are sig-
nificant insofar as they indicate that the court relied upon

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
exhibit 32, as opposed to the stand-alone exhibits, when dis-
tributing these accounts. The court stated on the record, “I’m
going to order that the Vanguard account of the amount of
$58,066.86 be awarded to [Breanna] in its entirety[, a]nd the
other account, in the amount of $48,671.52 be ordered to
[Jay].” Thus, the court was obviously aware of the Vanguard
account information in exhibit 32. While the parties’ testimony
regarding the third Vanguard account was admittedly lacking
in specificity, such limited testimony, in conjunction with the
information contained in exhibit 32, was apparently sufficient
for the court to change course and ultimately award the third
account. Altogether, the court awarded the entirety of accounts
Nos. 9026 and 9205 to Breanna and awarded the entirety of
account No. 2908 to Jay. Using the account values reflected in
exhibit 32, Breanna was awarded a total value of $88,600.19
in retirement assets, whereas Jay was awarded a total value
of $48,671.52.
Deferred Mortgage Payments.
As discussed above, the court entered a temporary order
in February 2020, awarding Breanna exclusive occupancy
of the marital home and ordering Jay to continue paying the
mortgage on the home. Exhibit 8 demonstrates that as of
March 2020, the monthly mortgage payment on the home
was $2,239.69, with $476.22 of that sum going toward the
principal. At trial, Jay testified that he took advantage of a
COVID-19 mortgage forbearance program, which allowed
him to defer mortgage payments beginning in March 2020.
Jay testified that he understood the deferred payments would
“just be put on the backside of the loan [and] shouldn’t
increase the cost of the mortgage [but] should extend the pay-
ments of the mortgage.”
On cross-examination, Breanna’s counsel pressed Jay, stat-
ing, “[Y]ou were ordered to pay $2,239 a month and you
didn’t pay it. And you didn’t have a reduction in income, so
you’re ahead of the game 26-, 27,000-plus dollars than you

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
would have been if you’d had to pay that mortgage, right?”
Counsel then added the following:
And there’s less equity in the house than there would
have been otherwise, because the house was gaining at
least $500 a month in equity. And now that equity’s not
there, because you chose not to make those payments.
You took advantage of an opportunity, and nobody can
blame you for that, but you at least should admit that you
gained from it, correct? You’re in a better spot because
of it.
Jay acknowledged that the forbearance provided him with
almost $27,000 which he would not have had if he had made
the mortgage payments as ordered. However, Jay also indicated
that he would not have been able to afford his other living
expenses without that money. The court ultimately entered the
following findings on the record:
I understand the testimony of [Jay] that he had to pay,
provide for his own apartment for the children; however,
he was ordered by the court, based on [his income], to
maintain the mortgage on the home, on the marital home.
He did not do so, and now is asking the court to essen-
tially, award him the home, which he now believes that
he’d like to keep, because it’s a financial deficit to both
parties if it were sold, but wants to kind of circumvent
the court’s order and not make him[self] responsible for
the mortgage that he did not pay, which comes, approxi-
mately, to the amount of $26,868. So, the court mentions
that only insofar as to show that there was sufficient
money, at least based on his pay stubs, that he did have
that accessible to him to make those mortgage payments
and chose to defer it to a later date.
. . . .
It’s my understanding that [Jay] wishes to have the
marital home. That marital home shall be awarded to
[Jay]. However, he is to pay $26,868 to [Breanna] for the

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
amount of — total amount of mortgage that he did not
pay pursuant to the temporary order.
Thus, in the final decree, the court awarded the home to Jay
and ordered him to pay Breanna $26,868 “representing unpaid
mortgage payments, that were to be paid, pursuant to the prior
Temporary Order by this Court.”
Alimony.
Throughout the parties’ marriage, Breanna stayed home
with the children as a full-time parent. The record reflects
that Breanna has a degree of some kind, but her mother testi-
fied that it is “kind of a general associates of arts,” adding
that “[s]he doesn’t have any specific career training.” Breanna
testified that she was admitted into a radiology program at a
medical institute in Arizona shortly before giving birth to the
parties’ first child in 2015, but she deferred her enrollment to
care for the newborn. Thereafter, the parties decided to have
another child and eventually relocated to Florida, so Breanna
became a stay-at-home mother.
Breanna continued to stay home with the children through
the parties’ relocation to Omaha and the birth of their third
child. Breanna testified that her “goal” was to go back to
school when the youngest child turned 1 year old, adding that
she was interested in reapplying to the medical institute in
Arizona. Breanna testified that alimony in the sum of $500
per month for 2 years plus $300 per month for another 2 years
would allow her to complete some form of further education
and transition to supporting herself and the children. The court
entered the following findings on the record:
[T]he parties were married for approximately 11 years;
. . . during the term of the marriage, there was an agree-
ment of some sort that [Breanna] would remain home
until, I believe it was the youngest child turned one. She
did not continue with her education nor employment,
so she was able to stay home and care for the children.

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
She has an associates degree and has a plan for further
education to increase her income.
Sometime after relocating to Florida, Breanna began work-
ing for her mother in a limited remote capacity, earning $500
per month. Sometime after filing this action in December 2019,
Breanna took on additional responsibilities in that position and
began earning between $1,500 and $1,700 per month. Breanna
testified that she was waiting to know the outcome of the trial
prior to applying for any jobs in Omaha, but that she had begun
looking for jobs in both Omaha and Arizona. For purposes of
calculating child support, the court set Jay’s monthly income
at $5,689.80 and set Breanna’s monthly earning capacity at
$1,800. The court ultimately ordered Jay to pay Breanna ali-
mony in the amount of $500 per month for 24 months and
$300 per month for 24 months thereafter.
Reimbursement of Attorney Fees.
Breanna initially retained the law firm Hightower Reff
Law, L.L.C., to represent her in this action. Breanna hired
different counsel prior to trial; however, Jay testified that
Breanna’s initial retainer was charged to his credit card. An
account statement from a credit card account under the name of
both parties reflects a charge of $3,570 from “HIGHTOWER
REFF LAW” on December 9, 2019. Jay testified that he paid
that credit card bill and thus sought to be reimbursed for
the charge. In the final decree, the court ordered each party
responsible for his or her own debts and attorney fees, with-
out any mention of the $3,570 in attorney fees that Breanna
charged to the credit card.
ASSIGNMENTS OF ERROR
Jay assigns, restated, that the district court erred in (1)
distributing three retirement accounts after entering oral find-
ings that the record adequately supported only two retire-
ment accounts, (2) ordering Jay to pay Breanna a cash award
in 	the 	sum 	of 	$26,868 	for 	deferred 	mortgage 	payments,

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
(3) ordering Jay to pay alimony in the sum of $500 for 24
months and $300 for 24 months thereafter, and (4) failing to
reimburse Jay for a portion of Breanna’s attorney fees charged
to a joint credit card account.
STANDARD OF REVIEW
[1] In a marital dissolution action, an appellate court reviews
the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. White v.
White, 304 Neb. 945, 937 N.W.2d 838 (2020). This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees. Id.
ANALYSIS
[2,3] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the
equitable division of property is a three-step process. White v.
White, supra. The first step is to classify the parties’ property
as marital or nonmarital, setting aside the nonmarital property
to the party who brought that property to the marriage. Id. The
second step is to value the marital assets and marital liabili-
ties of the parties. Id. The third step is to calculate and divide
the net marital estate between the parties in accordance with
the principles contained in § 42-365. Id. 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. In this case, Jay does not challenge the classification
of property in any respect. Rather, Jay’s central arguments on
appeal pertain to the appropriateness of the court’s division of
the marital assets.
Disputed Vanguard Retirement Account.
Jay’s first assignment of error pertains to the court’s divi-
sion of the three Vanguard retirement accounts. Jay first
argues that it was an abuse of discretion to divide all three
accounts despite having previously found that only two were

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HAMANN v. HAMANN
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adequately supported by the record. However, as discussed
above, we find that the record does adequately support the
existence and value of all three accounts. Thus, we cannot say
it was an abuse of discretion for the court to award all three
accounts in the final decree.
Jay further argues that even if it was proper to award the
third account, the court’s distribution thereof amounted to “a
windfall” for Breanna. Brief for appellant at 22. Using the
values reflected in exhibit 32, Breanna was awarded a total
of $88,600.19 in retirement assets, whereas Jay was awarded
a total of $48,671.52. The parties were each awarded the
personal property and vehicles in their possession; however,
the court did not assign a value to those items for purposes
of equalizing the marital estate. Additionally, Breanna was
awarded 50 percent of the marital portion of Jay’s military
retirement benefits and Jay retained his benefits under the
“GI Bill”; however, the court similarly did not assign a value
to these matters. The only other asset distributed from the
marital estate was the marital home, which was awarded to
Jay subject to the $26,868 cash award for deferred mort-
gage payments.
The court found that it did not have any direct evidence
of the value of the home, but Jay testified that he estimated
the value of the home to be $325,000. Jay testified that his
estimate was based on his review of eight comparable homes
listed in exhibit 31. Moreover, exhibit 8 demonstrates that at
the time of trial, there remained an unpaid mortgage balance
of $305,973.12. Thus, if we assume Jay’s estimate is accu-
rate, then he was awarded approximately $19,000 of equity
in the home. However, after accounting for the $26,868 cash
award to Breanna, Jay effectively took a $7,800 loss on the
home. While the $26,868 cash award will be discussed in the
following section, excluding that payment, Jay was awarded
$48,671.52 in retirement assets and approximately $19,000
of equity in the marital home for a total of approximately
$67,671.52 in marital assets.

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[4] “The purpose of a property division is to distribute the
marital assets equitably between the parties.” § 42-365. There
is no mathematical formula by which property awards can be
precisely determined, but as a general rule, a spouse should be
awarded one-third to one-half of the marital estate, the polestar
being fairness and reasonableness as determined by the facts of
each case. Vanderveer v. Vanderveer, 310 Neb. 196, 964 N.W.2d
694 (2021). In the present case, there was a total of approxi-
mately $156,272 in marital assets which the court distributed to
the parties. Of that sum, Breanna was awarded $88,600.19, or
approximately 57 percent. Excluding the $26,868 cash award,
Jay was awarded $67,671.52, or approximately 43 percent.
That figure is well within the general rule, and we cannot say
such was an abuse of discretion. Thus, with the exception of
the $26,868 cash award discussed below, we affirm the court’s
division of the marital estate.
Deferred Mortgage Payments.
While the court awarded the home to Jay, it also ordered Jay
to pay Breanna a cash award of $26,868 representing mort-
gage payments which were deferred under a COVID-19 relief
program. On appeal, Jay points out that the forbearance did
not impact Breanna’s use and enjoyment of the home pending
trial, and he also emphasizes that he was ultimately awarded
the home and thus will be responsible for the deferred pay-
ments when they come due. Jay argues that ordering him to
pay Breanna the full amount of deferred payments “is punitive
and results in a windfall for Breanna.” Brief for appellant at
24. We agree.
We acknowledge that Jay was ordered to continue mak-
ing mortgage payments on the home pending trial. We also
acknowledge that Jay failed to do so because he took advan-
tage of a COVID-19 mortgage relief program. However,
upon our review of the record, the only identifiable detriment
to Breanna as a result of the forbearance was a decrease in
marital equity in the home. That is, the equity in the marital

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HAMANN v. HAMANN
Cite as 31 Neb. App. 131
home would have increased by roughly $500 per month, or a
total of roughly $6,000, if Jay had not deferred the payments.
Because Jay was ultimately awarded the home, that increase
in equity would have increased Jay’s share of the marital
estate by an equivalent amount. Although, even if that addi-
tional $6,000 in equity had been realized and awarded to Jay,
he would still have received less than one-half of the marital
assets divided by the court.
We conclude it was an abuse of discretion to order Jay to
pay Breanna any amount of the deferred mortgage payments,
and we modify the final decree to eliminate the cash award of
$26,868 to be paid from Jay to Breanna. Accordingly, para-
graph 18, subparagraph c, of the decree is modified to elimi-
nate the sentences after the following: “The [real] property
shall be awarded to the Defendant. Defendant shall take pos-
session of such property on April 5th, 2021.”
Alimony.
[5-7] Jay’s third assignment of error pertains to the court’s
award of alimony to Breanna. Under § 42-365, in considering
alimony, a court should consider four factors: (1) the circum-
stances of the parties, (2) the duration of the marriage, (3)
the history of contributions to the marriage, and (4) the abil-
ity of the supported party to engage in gainful employment
without interfering with the interests of any minor children in
the custody of each party. See Wiedel v. Wiedel, 300 Neb. 13,
911 N.W.2d 582 (2018). In addition, a court should consider
the income and earning capacity of each party and the general
equities of the situation. Id. The purpose of alimony is to pro-
vide for the continued maintenance or support of one party by
the other when the relative economic circumstances make it
appropriate. Id. An appellate court is not inclined to disturb the
trial court’s award of alimony unless it is patently unfair on the
record. Id.
Based on our review of the record, we cannot say the
court’s award of alimony amounted to an abuse of discretion.

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Breanna stayed home with the children throughout the roughly
11-year 	marriage, 	while 	Jay 	worked 	full 	time, 	including
periodic deployments. At the time of dissolution, the court
found that Jay earned a monthly income of $5,689.80 and
set Breanna’s monthly earning capacity at $1,800. Breanna
testified 	that 	she 	intended 	to 	seek 	further 	education 	to
increase her earning capacity and that alimony in the amount
requested would facilitate that transition. Under these circum-
stances, the court’s award of alimony was not patently unfair.
Thus, we affirm the court’s award of alimony in the sum of
$500 per month for 24 months and $300 per month for 24
months thereafter.
Reimbursement of Attorney Fees.
Jay’s fourth assignment of error pertains to the court’s
failure to reimburse him for $3,570 of Breanna’s attorney
fees which were charged to the parties’ joint credit card. Jay
argues that “[o]rdering Jay and Breanna to pay their own
debts and their own attorney fees, while ignoring the fact that
Breanna paid $3,570 in attorney fees using Jay’s credit card,
is a clear and obvious abuse of discretion.” Brief for appellant
at 28. We disagree. First of all, it appears that the credit card
used to charge $3,570 in attorney fees was actually a joint
credit card, as both parties’ names are listed on the account.
Moreover, the transaction occurred on December 9, 2019,
3 days prior to Breanna’s filing the initial complaint in this
action. While the court certainly could have ordered Breanna
to reimburse Jay for the $3,570 charge, under the circum-
stances of this case, we cannot say the failure to do so was an
abuse of discretion.
CONCLUSION
We conclude the district court abused its discretion in
ordering Jay to pay Breanna $26,868 representing deferred
mortgage payments. Accordingly, we modify the decree to
eliminate that cash award, and we affirm the court’s division

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of the marital estate as modified. With respect to Jay’s third
and fourth assignments of error, we conclude the record fails
to demonstrate an abuse of discretion, and thus, we affirm the
order of the district court in those respects.
Affirmed as modified.