Sitz v. Sitz

832 	275 Nebraska reports
the City’s purpose was not to separate smokers and non-
smokers, nor to limit smoking in public places to designated
smoking establishments. Instead, the City’s ultimate goal or
purpose is to ban smoking in public gathering places and
places of employment, and to guarantee the right of employees,
residents, and visitors to breathe smoke-free air. Under the ordi-
nance, these businesses and horseracing operators have only a
time-limited exemption. the exemption can only be explained
as an economic benefit to offset the ban’s financial impact for
a limited class of businesses and horseracing operations. this
benefit does not promote or have a substantial relation to the
City’s legislative purpose of protecting public health and citi-
zens’ right to breathe smoke-free air.
to sum up, the City’s exemptions have sucked the air out of
an otherwise constitutional ordinance.
W illiam J acoB sitz , appellant and cRoss - appellee , v .
ellen katheRine sitz , appellee and cRoss - appellant .
749 N.W.2d 470
Filed May 30, 2008. 	No. s-07-395.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of marriage,
an appellate court reviews de novo on the record the trial court’s determinations
of custody, child support, property division, alimony, and attorney fees; these
determinations, however, are initially entrusted to the trial court’s discretion and
will normally be affirmed absent an abuse of that discretion.
2. Judgments: Words and Phrases. an abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
3. Property Division. Under Neb. rev. stat. § 42-365 (reissue 2004), the equitable
division of property is a three-step process. the first step is to classify the par-
ties’ property as marital or nonmarital. the second step is to value the marital
assets and liabilities of the parties. the third step is to calculate and divide the
net marital estate between the parties in accordance with the principles contained
in § 42-365.
4. Divorce: Property Division. as a general rule, all property accumulated and
acquired by either spouse during the marriage is part of the marital estate, unless it
falls within an exception to the general rule.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

5. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court
does not determine whether it would have awarded the same amount of alimony
as did the trial court, but whether the trial court’s award is untenable such as to
deprive a party of a substantial right or just result.
6. Alimony. In determining whether alimony should be awarded, in what amount,
and over what period of time, the ultimate criterion is one of reasonableness.
7. Divorce: Attorney Fees: Appeal and Error. In an action for dissolution of mar-
riage, the award of attorney fees is discretionary with the trial court, is reviewed de
novo on the record, and will be affirmed in the absence of an abuse of discretion.
8. Attorney Fees. the award of attorney fees depends on multiple 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 general equities of the case.
appeal from the District Court for Loup County: kaRin l.
noakes, Judge. affirmed.
barry D. Geweke, of stowell, kruml, Geweke & Cullers,
p.C., L.L.o., for appellant.
Cheryl 	C. 	Guggenmos, 	of 	Guggenmos 	& 	peterson, 	for
appellee.
heavican , 	c.J., 	WRight , 	connolly , 	geRRaRd , 	stephan ,
mccoRmack , and milleR-leRman , JJ.
WRight , J.
NatUre oF Case
after 10 years of marriage, William Jacob sitz sought a dis-
solution of his marriage to ellen katherine sitz and a division
of the marital property. William and ellen had a premarital
agreement, and this appeal concerns the effect of such agree-
ment upon the division of the property.
sCope oF reVIeW
[1,2] In an action for the dissolution of marriage, an appellate
court reviews de novo on the record the trial court’s determi-
nations of custody, child support, property division, alimony,
and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion. Zahl v. Zahl, 273
Neb. 1043, 736 N.W.2d 365 (2007). an abuse of discretion
occurs when a trial court’s decision is based upon reasons that
sItZ v. sItZ 	833
Cite as 275 Neb. 832

834 	275 Nebraska reports
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. Id.
FaCts
the premarital agreement stated that William and ellen
wanted to “set apart” the property that was accumulated by
each of them prior to their marriage. the parties disclaimed
any right of inheritance or any interest in the property of the
other that was accumulated prior to the marriage. each party
represented that they had made full disclosure of all property
they currently held. the agreement provided that property then
held in the individual names of each party would remain their
sole and separate property. the agreement, which was offered at
trial, contained attachments that purportedly listed the property
of the parties at the time of the marriage.
William and ellen married on June 3, 1995. this was a
second marriage for both, and no children were born of the
marriage. thereafter, William remained employed selling ani-
mal health supplies and ellen continued to work as a family
counselor. In November 2001, ellen and a colleague opened
their own business, sandhills Center for services, Inc. (sandhills
services). an exhibit that purported to compare the parties’
W-2 income showed that in 2005, ellen earned $30,146 and
William earned $122,242. the 2005 end-of-year balance sheet
of sandhills services indicated that the business had a negative
equity of $31,551.
at trial, ellen claimed that the premarital agreement was
not enforceable because it did not disclose the ranch owned
by William, a pfizer annuity, and a property settlement debt to
William’s first wife. the trial court found that even if William’s
property statement did not disclose ownership of the ranch, there
was no doubt that ellen was aware William owned the ranch.
the court also concluded there was no evidence to suggest that
ellen would have refused to sign the agreement had she known
the ranch was to be considered premarital property.
at the time of the marriage, William had a pfizer annuity
with a vested accrued monthly benefit of $1,269 that would
commence when he turned age 65. William stated he was
not aware of the annuity when the premarital agreement was

executed. the property settlement debt from William’s previ-
ous marriage was approximately $33,750, which the trial court
found to be a relatively small percentage of his premarital
estate. although the pfizer annuity and the property settlement
debt owed by William were not disclosed in the agreement, the
court determined that the nondisclosure of these facts did not
result in the agreement’s being unenforceable.
the trial court awarded the ranch to William subject to all
encumbrances. the court concluded that ellen was not entitled
to a share of the increased value of the ranch because it was
premarital property and there was no evidence that her con-
tributions to managing and operating the ranch resulted in an
increased value.
evidence was presented concerning improvements to the
ranch that were made with assets earned through the effort of
both parties during the marriage. the improvements were val-
ued at approximately $32,500, and the trial court awarded ellen
a percentage of these improvements.
the trial court determined that the $1,269 monthly benefit
from the pfizer annuity was premarital property. However, dur-
ing the marriage, William earned an additional monthly benefit
of $2,549. the court awarded ellen one-half of the benefit earned
during the marriage ($1,274 per month) to begin when William
turned 65. William was ordered to prepare a qualified domestic
relations order to effectuate the above transfer of the annuity.
a pfizer savings plan was included in William’s property
statement attached to the premarital agreement. the approxi-
mate value of the savings plan on the date of the marriage was
$28,631. the trial court awarded William this amount and the
interest on such amount as premarital property. because the
court had no evidence as to earnings on the investment, the
court applied a rate of return of 6 percent per year and deter-
mined that the approximate earnings on that investment during
the marriage were $52,563. the value of the savings plan as of
December 1, 2005, was $371,817.
the record showed that during the marriage, contributions to
the pfizer savings plan were made by William’s employer and
through deductions from his paychecks. the trial court held that
earnings and benefits earned through employment were marital
sItZ v. sItZ 	835
Cite as 275 Neb. 832

836 	275 Nebraska reports
property. It deducted the above-described $52,563 to obtain the
marital value of the savings plan, which the court found was
$319,254. ellen was awarded $159,627, or one-half the net
value of the savings plan. William was ordered to prepare a
qualified domestic relations order to reflect that division.
the other assets divided between the parties are not at issue,
except for a Dodge truck. the parties were ordered to pay their
individual debts incurred since December 1, 2005. each party
was ordered to indemnify and hold harmless the other party for
such liabilities and all debts encumbering property received by
each party.
William was ordered to pay $13,939 to the clerk of the court
as a property settlement, to be payable to ellen at $583 per
month commencing on the first of each month beginning May
1, 2007, until paid. the trial court ordered William to pay ali-
mony of $750 per month commencing May 1 for a period of 24
months. the alimony would terminate upon the death of either
party or ellen’s remarriage. William was ordered to pay $5,000
in costs within 120 days of the entry of the decree, as well as
$5,000 of ellen’s attorney fees in addition to any temporary
allowance of such fees taxed as additional costs.
assIGNMeNts oF error
William claims the trial court erred (1) in awarding ellen
$159,627 of his pfizer savings plan, (2) in awarding her a por-
tion of his pfizer annuity, (3) in finding that ellen was entitled
to one-half the value of the improvements to the ranch, (4) in
finding that sandhills services had a “negative marital value”
for purposes of asset division, (5) in ordering William to pay a
property settlement judgment of $13,939, (6) in ordering him
to pay $750 per month in alimony for 24 months, and (7) in
ordering him to pay $5,000 of ellen’s attorney fees.
ellen cross-appeals, claiming the trial court erred in fail-
ing to consider William’s use of marital funds to pay his first
wife a $33,750 property settlement award as a credit to ellen’s
marital assets.
aNaLYsIs
[3] there are two principal issues for our resolution: What
assets should the trial court have treated as marital property,

and did the court make a fair and equitable division of the
marital property? Under Neb. rev. stat. § 42-365 (reissue
2004), the equitable division of property is a three-step process.
the first step is to classify the parties’ property as marital or
nonmarital. the second step is to value the marital assets and
liabilities of the parties. the third step is to calculate and divide
the net marital estate between the parties in accordance with the
principles contained in § 42-365. Millatmal v. Millatmal, 272
Neb. 452, 723 N.W.2d 79 (2006). In the case at bar, the value
of the assets is not in dispute.
division of pfizeR savings plan
William asserts that the intent of the premarital agreement
was that ellen would not share in the benefits of his pfizer
savings plan. He argues that because the savings plan was
described in the premarital agreement and because the Uniform
premarital agreement act describes “property” as an interest,
present or future in real or personal property, including income
and earnings, all increases in value of the pfizer savings plan
should not be considered marital property. see Unif. premarital
agreement act, 9C U.L.a. 39 (2001). We disagree.
the definition of “property” in the Uniform premarital
agreement act is simply a definition of the term as it is used
in the act. However, that definition was not incorporated into
the parties’ premarital agreement. the premarital agreement
stated that the parties agreed to disclaim any right to or interest
in property accumulated “prior to” the marriage. the agree-
ment said nothing about property acquired during the marriage,
and the record reflects that the parties combined their incomes
in a joint account and acted as if both parties had a right to
the money.
[4] as a general rule, all property accumulated and acquired
by either spouse during the marriage is part of the marital
estate, unless it falls within an exception to the general rule.
Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
William’s contributions to the savings plan were made with
deductions from his pfizer paycheck, which was marital prop-
erty. accordingly, the contributions to the savings plan made
during the marriage and the returns earned during the marriage
sItZ v. sItZ 	837
Cite as 275 Neb. 832

838 	275 Nebraska reports
were subject to division by the trial court. thus, because the
court merely awarded ellen one-half of the benefits earned dur-
ing the parties’ marriage, we find no abuse of discretion.
division of pfizeR annuity
William argues that the trial court erred in awarding ellen
a portion of the pfizer annuity. He again relies upon his inter-
pretation of the word “property” in the premarital agreement
as meaning present or future property and argues that the
annuity was his property at the time of the marriage and that
any increase in value during the marriage should be his sole
property. as pointed out above, the premarital agreement did
not allow each party to keep the benefits earned through his or
her employment during the marriage. therefore, the general rule
regarding the division of retirement plans applies.
pursuant to Neb. rev. stat. § 42-366(8) (reissue 2004),
retirement plans are to be included in the marital estate. In the
case at bar, the marital estate included only that portion of the
pension plan earned during the marriage. (the amount of the
pension plan that was earned prior to the marriage was set aside
to William.) William earned an additional $2,549 in monthly
benefits through his employment during the marriage, and this
money was subject to division by the trial court in accordance
with the same principles applied to the savings plan because it
was marital property. the court awarded one-half of the addi-
tional $2,549 to ellen. the court’s division of this benefit was
not an abuse of discretion.
value of impRovements made to R anch
William argues that the trial court erred in finding that ellen
was entitled to one-half the value of the well that was added to
the ranch and one-third of the value of the improvements made
to the home located on the ranch. He claims that because ellen
did not contribute any of her earnings toward these improve-
ments to the ranch, she should not share in the value of the
improvements to his premarital property. these improvements
were paid for with funds earned during the course of the mar-
riage and were therefore marital property that was subject to
division. ellen made no claim to the increase in value of the

ranch as a whole, and we cannot say that the trial court abused
its discretion in making this small award regarding improve-
ments to the ranch.
evidence at trial showed that the ranch was worth approxi-
mately $332,000 in June 1993, and in December 2005, the value
had increased to $800,000. ellen did not seek a share of the
increase in this value because it was basically an increase in the
value of the land. she did, however, seek a share of the value
of the improvements placed on the property during the marriage
that were paid for with funds out of the parties’ joint checking
account. Included in these improvements were the cost of a
new well at $10,000 and improvements to the home of $22,500,
which included new carpet, linoleum, curtains, wallpaper, inte-
rior paint, a patio door, a bay window, a front door, a lower door,
bathroom tile, kitchen cabinets, a deck, underground sprinklers,
and landscaping. It was admitted at trial that the joint check-
ing account was used to pay for these improvements and other
assets, including a boat and trailer, an International tractor and
dual loader, a Honda all-terrain vehicle, an antique John Deere
tractor, a Harley-Davidson motorcycle, and a John Deere riding
mower. the trial court did not abuse its discretion in awarding
part of the value of the improvements to ellen.
valuation of sandhills seRvices
William argues that the trial court erred in finding that
sandhills services had a “negative marital value” for purposes
of the property division. the business was marital property, and
the court did not abuse its discretion in considering the negative
value of the property in making its distribution of marital assets
between the parties. at trial, ellen produced a balance sheet for
sandhills services that showed a negative total equity of $31,551.
this negative value was obtained from the corporation’s accoun-
tant, who had been subpoenaed to testify. there was no evidence
as to an alternate value for the corporation, and accordingly, the
court used that as the value of this marital asset.
geneRal pRopeRty division
William claims that the trial court erred in awarding the prop-
erty settlement judgment of $13,939 to ellen, because the court
sItZ v. sItZ 	839
Cite as 275 Neb. 832

840 	275 Nebraska reports
included the value of improvements to the ranch at $32,500
and the negative value for sandhills services of $15,776, which
we have decided above. William contends an additional error
occurred when the court included the value of a 1996 Dodge
ram truck in dividing the marital estate. He claims that because
the ranch purchased the truck, the truck should not be included
as part of the marital estate.
However, the record reflects that ellen assisted William in
the operation of the ranch and that the parties’ shared in the
ranch’s profits or losses. accordingly, because the truck was
purchased with money that otherwise would have been distrib-
uted to the parties through profits, it was within the trial court’s
discretion to consider the truck property acquired with marital
assets and subject to the division of the marital estate.
alimony
[5,6] William argues that the trial court erred in ordering him
to pay $750 per month in alimony for 24 months. this argu-
ment has no merit. In reviewing an alimony award, an appellate
court does not determine whether it would have awarded the
same amount of alimony as did the trial court, but whether the
trial court’s award is untenable such as to deprive a party of a
substantial right or just result. Millatmal v. Millatmal, 272 Neb.
452, 723 N.W.2d 79 (2006). In determining whether alimony
should be awarded, in what amount, and over what period of
time, the ultimate criterion is one of reasonableness. Id.
the record reflects that in 2005, ellen earned $30,146 while
William earned $122,242. ellen had moved from kearney,
Nebraska, to Loup County to live on the ranch. she invested
time in assisting with the ranch and supporting William’s career.
the substantial disparity in the parties’ income, combined with
the support ellen provided to the ranch and William’s career,
demonstrate that the trial court’s award of alimony was reason-
able under the circumstances.
attoRney fees
[7,8] William argues that the trial court abused its discretion
in awarding ellen attorney fees. In an action for dissolution
of marriage, the award of attorney fees is discretionary with

the trial court, is reviewed de novo on the record, and will
be affirmed in the absence of an abuse of discretion. Gress v.
Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). the award of
attorney fees depends on multiple 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 general equities of the case. Id. We conclude the
trial court did not abuse its discretion in ordering William to
pay $5,000 in attorney fees.
cRoss -appeal
ellen assigns on cross-appeal that the trial court erred in
failing to credit her for William’s premarital debt paid with
marital funds. she asserts that although she brought debt into
the marriage and that that debt was paid with marital funds, her
debt was disclosed in the premarital agreement, thereby making
payment of her premarital debt with marital funds significantly
different than the payment of William’s premarital debt.
both parties had premarital liabilities that were paid from
marital funds. the record shows that the trial court excluded
all premarital debt from its calculations, regardless of the par-
ties’ disclosure. We conclude that the trial court did not abuse
its discretion in not allowing ellen to receive a credit in the
amount of the marital funds used by William to pay his undis-
closed premarital debt.
CoNCLUsIoN
Finding no merit to the errors assigned on appeal and cross-
appeal, we affirm the judgment of the district court dissolving
the marriage, dividing the property between the parties, and
awarding alimony and attorney fees.
affiRmed .
sItZ v. sItZ 	841
Cite as 275 Neb. 832