Avery v. Whittle

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
AVERY v. WHITTLE
Cite as 34 Neb. App. 126
Justin Avery, appellant, v.
Amy Whittle, appellee.
___ N.W.3d ___
Filed March 17, 2026. 	No. A-25-373.
1. Divorce: 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.
2. Child Custody: Child Support: Property Division: Alimony: Appeal
and Error. An abuse of discretion standard of review applies to the
trial court’s determinations regarding custody, child support, division of
property, alimony, and attorney fees.
3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Child Custody. When deciding custody issues, the court’s paramount
concern is the child’s best interests.
5. ____. A trial court must consider the factors set forth in Neb. Rev. Stat.
§ 43-2923(6) (Reissue 2016) when making determinations about the best
interests of a child, in the context of custody.
6. ____. In determining the best interests of a child in a custody determina-
tion, a court must consider pertinent factors, such as the moral fitness of
the child’s parents, including sexual conduct; respective environments
offered by each parent; the age, sex, and health of the child and parents;
the effect on the child as a result of continuing or disrupting an existing
relationship; the attitude and stability of each parent’s character; and
parental capacity to provide physical care and satisfy educational needs
of the child.
7. ____. In determining the best interests of a child in a custody deter-
mination, no single factor is determinative, and different factors may
weigh more heavily in the court’s analysis, depending on the evidence
presented in each case.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:39 AM CDT

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
AVERY v. WHITTLE
Cite as 34 Neb. App. 126
8. Child Custody: Words and Phrases. Under the Parenting Act, the
concept of child custody encompasses both physical custody and
legal custody, with legal custody focusing entirely on decisionmaking
authority.
9. Child Support: Rules of the Supreme Court. In general, child support
payments should be set according to the guidelines established pursuant
to Neb. Rev. Stat. § 42-364.16 (Reissue 2016).
10. ____: ____. Neb. Ct. R. § 4-212 (rev. 2011) is applicable when the
threshold amount of parenting time is met, even if no specific provision
for joint physical custody is ordered.
11. ____: ____. The Nebraska Child Support Guidelines offer flexibility and
guidance, with the understanding that not every child support scenario
will fit neatly into the calculation structure.
12. ____: ____. Pursuant to Neb. Ct. R. § 4-203(C) (rev. 2020), a deviation
from the Nebraska Child Support Guidelines is permissible if total net
income exceeds $20,000 per month.
13. ____: ____. Neb. Ct. R. § 4-203 (rev. 2020) requires either an explana-
tion for an upward deviation from the Nebraska Child Support Guidelines
or the completion and filing of worksheet 5 from the guidelines.
14. Divorce: Property Division. Equitable division of property is a three-
step process. The district court (1) classifies the parties’ property as
marital or nonmarital, setting aside nonmarital property to the party
who brought the property to the marriage; (2) values the marital assets
and marital liabilities of the parties; and (3) calculates and divides the
net marital estate between the parties in accordance with the principles
contained in Neb. Rev. Stat. § 42-365 (Reissue 2016).
15. ____: ____. The extent to which property is marital versus nonmarital
presents a mixed issue of law and fact. The manner and method of
acquisition involve questions of fact, but the classification of the prop-
erty under those facts is a legal question and not a matter of the court’s
discretion.
16. ____: ____. All property accumulated and acquired by either spouse
during the marriage is part of the marital estate, unless it falls within an
exception to this general rule.
17. ____: ____. Any given property can constitute a mixture of marital and
nonmarital interests; a portion of an asset can be marital while another
portion can be separate property.
18. Divorce: Property Division: Real Estate: Proof. Whether apprecia-
tion in real estate is active or passive depends on the facts and circum-
stances of each case. In that regard, evidence relating to the cause of
appreciation is key, and the burden is on the owning spouse to prove

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
the extent to which marital contributions did not cause the appreciation
or income.
19. Evidence: Proof. Unless an exception applies, the burden of proof in
civil cases requires only a greater weight of the evidence. The greater
weight of the evidence means evidence sufficient to make a claim more
likely true than not true.
20. Property: Equity: Title. The acquisition of property can be an ongoing
process. It occurs only as it is paid for, as the real value of property is
the equity and not the mere legal title.
21. Divorce: Property Division. Under the “source of funds” rule, acqui-
sition of encumbered property only occurs when and to the extent it
becomes unencumbered by paying off the principal of an encumbering
loan during the marriage.
22. Divorce: Property Division: Mortgages. The use of marital funds to
pay down the mortgage on what was initially separate property acquires
the property during the marriage to the extent the principal is paid, cre-
ating a proportionate marital interest in that property.
23. Divorce: Property Division: Equity. Because the proportion of the
property’s equity created during the marriage with marital funds con-
stitutes marital property, the appreciation on that equity, whether it be
passive or active, is also marital property.
24. Divorce: Property Division. When acquisition occurs via payments
on the principal of encumbering debt, the marital estate receives not
just a refund of the monetary contribution toward the principal of the
loan, but also a fair return on its investment, which includes passive
appreciation.
25. Divorce: Property Division: Mortgages. A trial court is to divide the
passive appreciation proportionately between the marital and separate
interests if marital funds were used to pay down the principal of a mort-
gage for property that appreciates during the marriage due to passive
market forces.
Appeal from the District Court for Douglas County: Tressa
M. Alioth, Judge. Affirmed.
Liam K. Meehan, of Higgins Law, for appellant.
Benjamin M. Belmont and Mariah E. Shaffer, of Brodkey,
Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
AVERY v. WHITTLE
Cite as 34 Neb. App. 126
Moore, Bishop, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Justin Avery (Justin) appeals the Douglas County District
Court’s decree, as amended, that dissolved his marriage to
Amy Whittle (Amy). He challenges the district court’s deci-
sions relating to custody and parenting time of their three
children, child support, and certain determinations regarding
marital property. We affirm.
II. BACKGROUND
After obtaining an undergraduate degree, Amy joined the
U.S. Air Force and enrolled in its “health professional schol-
arship program.” She graduated from medical school in 2014
and began her “active duty service” at Offutt Air Force Base in
Nebraska for 3 years. She met Justin “online” in August 2016.
Justin was a “[c]onfiguration analyst” for a company when he
and Amy met.
In 2017, Amy became a “board certified” practitioner in
family medicine. After she received orders to a military base
in New Mexico, the couple married in June and moved there
together. Justin was able to keep his employment with the same
company. In 2021, they moved back to Nebraska when Amy
was honorably discharged from her military service. The par-
ties had three children: Holden Avery, born in 2019, and twins
Jude Avery and Eleanor Avery, born in 2021.
1. Pleadings
On May 16, 2023, Justin filed a complaint for dissolution
of marriage in the district court, seeking joint legal and physi-
cal custody of the parties’ children, spousal support, and an
equitable division of property and debts. Amy filed an answer
denying Justin’s contentions regarding child custody and spou-
sal support. She also counterclaimed, seeking full custody of
their children.

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
AVERY v. WHITTLE
Cite as 34 Neb. App. 126
2. Temporary Order
In July 2023, the district court entered a temporary order
awarding the parties joint legal and physical custody of their
children. Justin had the children on Tuesdays and Wednesdays,
Amy had them on Mondays and Thursdays, and the par-
ties alternated parenting time on the weekends, beginning on
Fridays. Amy was later temporarily ordered to pay child sup-
port in the amount of $657 per month, and the court allocated
childcare costs and other expenditures “reasonable and neces-
sary” for the benefit of the children. Justin and Amy were also
prohibited from consuming alcohol during their respective
parenting times.
3. Trial
Trial began on October 30, 2024, continued on October 31,
and concluded on March 12, 2025. We summarize the evidence
pertinent to the issues on appeal.
(a) Child Custody
Justin requested joint legal and physical custody of the chil-
dren. He testified that he would be “okay” if the district court
adopted the terms of the temporary order but indicated that he
“prefer[ed] less handoffs,” suggesting a “typical 2-2-3 split.”
He believed this plan would be in the best interests of his chil-
dren because “[w]ith fewer handoffs, there’s fewer gaps,” and
the children’s personal items were less likely to be forgotten
or lost.
Amy opposed any joint custody arrangement and sought sole
legal and physical custody of the children. In support, she cited
Justin’s history of limited caregiving experience; his struggle
with substance abuse; his abusive language and behavior; and
his general unwillingness to agree on extracurricular activities,
schooling, and medical care for the children.
(i) Parenting History
Amy became pregnant with the parties’ first child after the
couple relocated to New Mexico. It was a “traumatic birth”

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
that left her in “a lot of pain,” which included a “massive post-
partum hemorrhage.” Although Justin had “somewhere around
six to eight weeks” of paternity leave, he used only “a few”
days of leave to assist with their new child.
Amy testified that Justin was “[v]ery little help” when
Holden was born. There was one instance where she “just
couldn’t get out of the bed” to nurse Holden due to postpartum
pain. When she asked Justin to retrieve their son, he “yelled”
at her and told her it “wasn’t his problem.” According to Amy,
Justin began to take sleeping pills at night, and he eventu-
ally moved into a guest bedroom to avoid being awakened
by the baby’s crying. When asked if Justin helped “at all,”
Amy responded that he would get “so frustrated” by being
awakened to help that she stopped requesting assistance, but
she acknowledged that he did bathe Holden “occasionally.”
Although Justin worked from home, Amy would drop Holden
off at daycare at 7 a.m., return to the facility at noon to nurse
him, and pick him up around 5 p.m. Upon arriving home, she
would “wear him” while preparing dinner. She “[s]ometimes”
asked Justin to watch Holden while she cooked but eventu-
ally stopped because Justin would put in earplugs and leave
Holden to cry.
Amy indicated that Justin did not “participat[e] in the fam-
ily.” Instead, he would stay at home, play video games, or
catch up on work. Amy’s father visited “several times” when
they lived in New Mexico. He testified that Justin “never was
very involved,” did not eat dinner with the family, and would
“stay[] to himself.”
Amy became pregnant with twins in December 2020. She
was honorably discharged from the U.S. Air Force in 2021,
and the parties moved back to Nebraska. Amy said that Justin
was “significantly less active” during her second pregnancy.
When she showed Justin a picture of the twins’ first ultra-
sound, he replied, “‘What does it matter? They’ll be dead in
a few weeks.’” Upon moving back to Nebraska, Amy was
placed on “bed rest,” but Justin demanded that she unpack,

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
stating “he didn’t care about [her] excuses.” After the twins’
birth, they were placed in the “NICU” for 22 days. Although
Justin was present for their birth and a “couple days after,”
he only visited the twins another “two or three times” during
the 22-day timespan. Amy was at the NICU “every day” from
“11 to 7” to nurse the twins. Her parents watched Holden
when she was at the hospital with the twins because “Justin
was working.”
When the twins were brought home, Justin “pretty much
stayed in the basement” and only came up “occasionally.”
Amy’s parents helped care for the parties’ three children until
the end of September 2021. Once her parents departed, Amy
“tried to get [Justin] to help a little bit more,” but she became
“worried” after he struggled to appropriately mix the twins’
“preemie” supplements. Justin continued to reside in the base-
ment “by his own choice.” Amy began working at a hospital
in December 2021 and continued her work as a healthcare
provider at the time of trial. Her daily routine consisted of
getting the children dressed, taking them to daycare, return-
ing at noon to nurse the twins over lunch, picking them up in
the afternoon, and going home to cook dinner. At first, Justin
helped Amy dress the twins in the mornings, but his aid even-
tually “trailed off.”
Once Justin filed the complaint for dissolution and the dis-
trict court entered the temporary order, he began to exercise
more consistent parenting functions. Justin explained that car-
ing for the children “was a challenge for everybody at first,”
but it had “gone really well since then.” While the children
were in his care, they would “do a lot of stuff outside,” “go to
the park,” and read bedtime stories together. On a typical day
under the temporary order, he got the children up at around
7 a.m., dressed them, dropped Holden off at school, took the
twins to daycare, and picked everyone up later in the after-
noon. Justin claimed that he had never been late picking up
the twins from daycare. Justin’s sister, Catherine Hutchinson
(Catherine), testified that Justin was “a good dad” and that the

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Nebraska Court of Appeals Advance Sheets
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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
children enjoyed being around him. Similarly, Justin’s brother
opined that he was a “very involved” father.
Amy, however, expressed various concerns about Justin’s
ability to provide proper care for the children. She noticed the
children would return from his custody with matted hair, with
unbrushed teeth, and without being washed or bathed. There
were also issues surrounding dressing the children in “appro-
priately sized clothing.” Amy indicated that Eleanor, in par-
ticular, “would come back in clothes that didn’t cover her belly
or pants that didn’t cover her ankles.” Amy admitted that nei-
ther daycare nor school staff ever contacted her about hygiene-
related issues, but “[a] couple” of daycare workers made com-
ments about how the children were dressed. According to Amy,
these workers remarked, “‘Oh, we know when it’s dad’s day.’”
Amy also expressed concerns about how Justin transported the
children in car seats that were not suitable for their height and
weight. When she sent him a message informing him of the
need to switch car seats, he responded, “‘Don’t send me mes-
sages like this.’”
Regarding medical care, Justin did not schedule any of the
children’s medical appointments prior to the dissolution pro-
ceedings. According to Amy, he only took an interest in attend-
ing appointments after the case was initiated. The district court
received a letter authored by the children’s Omaha, Nebraska,
pediatrician. The letter showed that as of June 26, 2023, Justin
had attended none of Holden’s 11 medical appointments. The
twins had a total of 17 visits between the two of them, and
Justin attended only 2 visits. However, according to the docu-
ment, there were a total of three appointments among the twins
where the pediatrician “didn’t have documentation [of] which
parent attended.”
Under 	the 	temporary 	order, 	the 	parties 	had 	difficulty
communicating about and agreeing on medical care. Justin
explained that Eleanor had an ear infection for the “entire
month” of December 2023. He took her to urgent care because
she was “in so much pain for so long.” The doctor prescribed

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
her an oral antibiotic, and Justin administered it “for a day-
and-a-half.” Justin admitted he did not inform Amy about
the appointment until 36 hours later and admitted that he
“made a mistake.” According to Amy, Eleanor had ear tubes,
so ear infections were to be treated with “Ciprodex drops.”
She stated oral antibiotics were to be avoided because they
caused “resistance,” especially when “a child [has] reoccur-
ring ear infections.” Justin, however, introduced a medical
note authored by Amy’s coworker. The note stated Amy had
“‘contacted [him] with concerns about antibiotics prescribed’”
during a recent doctor visit. He “[a]dvised” to take the oral
antibiotic “as prescribed,” along with the drops. When con-
fronted with this note during her testimony, Amy stated she
had talked to the coworker generally about Eleanor, was not
seeking a medical opinion, and “had no idea he was writ-
ing anything in the chart.” This coworker never saw Eleanor
as a patient.
Another situation in October 2023 involved a disagreement
about counseling for Holden. At that time, Justin and Amy met
with Holden’s pediatrician who suggested that he see an indi-
vidual counselor to address “difficult” “transitions.” According
to Amy, Justin agreed to counseling during the visit, but he sent
a subsequent message, saying, “‘I explicitly refuse to allow
you to have our son see a counselor.’” The record does not
disclose why Justin refused to consent. The district court also
received a document authored by Holden’s pediatrician outlin-
ing Holden’s “5 Year Well Care” visit that occurred in March
2024. The pediatrician wrote that Holden was “doing well”
and “adjusting” to time at two houses, but that he “sometimes”
becomes “a little sad to change houses” “at the end of [a] long
chunk of time.” The pediatrician suggested that a counselor
“could help” if adjustment challenges continued.
Justin and Amy also struggled to make mutual educational
decisions for Holden. Amy stated that she began to look for
homes in Elkhorn, Nebraska, prior to moving back from New
Mexico. The parties had been looking at Elkhorn because it

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
was “the top-rated school district” in Nebraska. Once Justin
initiated dissolution proceedings, however, the pair could not
agree on a school for Holden. According to Amy, Justin
wanted their son to attend “[t]he school where he live[d],”
while Amy sought to place Holden at an elementary school
in Elkhorn. This disagreement led Amy to file a motion and
obtain a court order granting her permission to register Holden
at the school in Elkhorn.
In a similar vein, prior to the filing of the complaint for dis-
solution, Justin and Amy disagreed on the educational future
of the twins. Amy wanted the twins to attend “transitional
kindergarten” or a “third year of preschool,” and Justin pre-
ferred they start kindergarten early to “save [the parties] a year
of daycare.” This troubled Amy “because statistics show[ed]
children do better when they are not pushed into elementary
school early.”
Amy called several witnesses who testified to her parental
capacity. A childhood friend stated that the children are “always
well-loved,” “well-fed,” “well-bonded,” and “very happy and
content” when they are with Amy. The friend described her
as “a very patient parent” who “really cares about the chil-
dren” and “goes above and beyond.” A former patient testified
that Amy is “really good” with the children, “attends to their
needs,” and “is able to calm them down when they’re upset.”
Justin said Amy was “a great mom most of the time.”
(ii) Justin’s Substance Abuse
Another major topic at trial was Justin’s purported strug-
gles with substance abuse. Amy testified that Justin “drank
[alcohol] nightly,” although she admitted the amount con-
sumed “varied” throughout the marriage. She claimed Justin’s
alcohol consumption increased “significantly” after the couple
moved to New Mexico. In a February 2018 text message,
Justin wrote to Amy: “I seriously need to stop getting drunk
every single night.” After the birth of Holden in 2019, Justin
continued to drink “nightly,” but Amy indicated that he “cut

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
back on how often he got drunk.” Amy’s father also observed
Justin consume alcohol “pretty much every evening” when he
and his wife visited the couple in New Mexico.
Amy offered exhibit 87, a 49-page compilation of photo-
graphs taken at the parties’ marital residence in the months
leading up to the commencement of dissolution proceed-
ings. The pictures show Justin performing various parenting
functions, such as bathing the children and changing their
diapers. Clear glasses of whiskey, which Amy called Justin’s
“drink of choice,” were either in his hand or nearby. Other
pictures depict alcoholic drinks around the home, including
on a child’s nightstand. Amy testified that Justin eventually
noticed her taking the photographs and began “hiding” his
alcohol and pouring drinks into opaque coffee cups. When
confronted with the photographs at trial, Justin explained
that the beverages illustrated were “daddy drinks,” which he
described as “[a]ny drink that the kids can’t drink.” Justin
claimed the photographs did not accurately demonstrate how
he parented his children, but he also “didn’t see anything
wrong with having a drink.” The “only time” he would have
alcohol was “right before bed.”
Throughout the marriage, Amy “begged” Justin to seek
treatment for alcohol abuse; she thought Justin was an alco-
holic. Amy “remain[ed] concerned” about Justin’s alcohol
use and indicated it “was a primary reason” for the par-
ties’ separation.
Amy also adduced evidence showing Justin attempted to
obtain unprescribed painkillers. She offered an October 2021
text message from Justin that asked, “Can I have an oxy?”
Justin stated he did not remember sending the message.
Amy’s father testified that while visiting the couple after the
twins’ birth, he observed Justin approach his daughter and
insist that she ask the doctor for a second prescription of
OxyContin. Although Amy refused, Justin “kept . . . bugging
her about it.”

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
Justin contested Amy’s characterization of his alcohol con-
sumption. He testified that he had no criminal convictions for
driving under the influence. Amy also conceded that daycare
employees never reached out with concerns about Justin’s
alcohol intake, but Justin did state that he used to keep a
“breathalyzer” in his car because he “was very responsible.”
During cross-examination, Justin’s sister, Catherine, initially
indicated that she never had concerns about Justin’s alcohol
consumption and denied ever discussing the topic with him.
However, the district court received, over a hearsay objection,
various text messages between Justin and Catherine. Amy
apparently accessed these messages one night after moving
back to Nebraska by searching through Justin’s phone after he
“passed out drunk.” In a text exchange between Catherine and
Justin that occurred in October 2020, Catherine recounted a
conversation she had with Amy:
[Amy] started out by saying that you were drinking a
lot and that you weren’t coming out of your room and
you weren’t eating for days and I sort of believed that.
Because I was worried that with Covid and you guys not
really knowing anybody down there that maybe you were
in fact like in a deep depression and needed help.
Justin, in reply, said the “first part . . . was true.” In another
unrelated message, Catherine encouraged Justin to “stop drink-
ing.” On redirect examination, Catherine provided context for
her October 2020 conversation with Justin, explaining that the
message was sent around the time that their “mother was very
sick and dying.” Catherine believed this contributed to Justin’s
“depression.” Justin’s younger brother testified that he had not
seen Justin ingest alcohol in “a couple years” and had never
been concerned about his use of alcohol.
(iii) Abusive Language and Behavior
Amy made passing references to Justin’s use of “abusive
language.” She said this language made it difficult to copar-
ent effectively under the temporary order. She also said that

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AVERY v. WHITTLE
Cite as 34 Neb. App. 126
their “son” reported “dad yell[ed] at him a lot.” While Amy
did not provide any concrete examples of the language used,
she identified it as one of the reasons why she believed joint
legal and physical custody of the children would not be in
their best interests.
Amy did, however, recount a December 2022 incident where
Justin attempted to “digitally penetrate” her in front of the
children. According to Amy, this occurred while she was play-
ing a board game with the children before bed. Justin entered
the room with “a drink in his hand” and tried to “move aside”
her robe:
[Amy:] I — well, the first time I said, “Stop, what are you
doing?” So he tried again. I yelled, “Stop.” I was trying
to, like, do it in a way that wasn’t super upsetting for the
kids. He did it a third time, and I said stop again, and I
grabbed his arm and moved it away, and he cursed at me
and stormed off.
After putting the children to bed, Amy went to the basement
and confronted Justin. She emphasized to him the importance
of “set[ting] boundaries regarding [her] body, especially in
front of the children.” Justin responded by “screaming.”
Holden heard the commotion and went to the basement.
Justin “grabbed” Holden, “picked him up by his head,” took
him to the basement bathroom, and locked himself and Holden
inside. Amy “begged” Justin to let Holden leave the bathroom
and threatened to call the police. Justin eventually let Holden
out, but Amy never contacted law enforcement. She “didn’t
want the kids to see that happen to their father.” The next day,
Justin sent Amy a text message, saying she could not “talk to
him like that again.” Amy identified this incident as a “turn-
ing point” that made her realize the marriage “wasn’t going to
be sustainable.”
(iv) Extracurriculars
A large portion of Justin’s testimony at trial concerned
Amy’s purported deception and general lack of communication

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AVERY v. WHITTLE
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surrounding the children’s extracurricular activities. In his
opinion, this behavior showed that Amy did not “prioritize[]
[the] children’s wellbeing above everything else.”
While operating under the temporary order, the parties
communicated through the parenting application “Our Family
Wizard.” Justin stated that he would “send a lot of messages”
to Amy through the application and frequently requested that
she add the children’s events to a “shared calendar.” However,
according to Justin, she failed to respond to messages in a
timely manner and described the shared calendar feature as
too “cumbersome.” This led to “a number of times” where
Justin showed up to an activity to find that Amy had canceled.
Justin also testified that Amy deceived him by taking the chil-
dren to activities after telling him they were canceled.
During her testimony, Amy disputed most of Justin’s claims.
She stated that Justin would not allow the children to partici-
pate in extracurriculars during his parenting time. Instead, he
used the activities as a bargaining chip to affect the outcome
of the dissolution proceedings. Amy provided one example
where she tried to enroll the children in swim lessons, but
Justin refused unless she “dismissed the custody case.” Amy
also believed Justin’s demands regarding Our Family Wizard
were excessive. Over a 15-month span, Amy received “nearly
900” messages from Justin. In her opinion, messages through
the application “need[ed] to only pertain to the children,” and
her conversations with Justin often “deviate[d]” from that
subject. Amy did not believe the shared calendar was “par-
ticularly helpful” because Justin expected her to put all events
on the calendar.
(b) Castelar Circle Home
Prior to the marriage, Justin purchased a home on Castelar
Circle (Castelar) in Omaha. The parties lived in the Castelar
residence for “a few months” before moving to New Mexico.
During the couple’s 4-year stay in New Mexico, Justin rented
out the Castelar property. According to Justin, rental income

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AVERY v. WHITTLE
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was deposited into his checking account, and he continued to
make mortgage payments on the property. When Justin and
Amy eventually moved back to Nebraska in 2021, they lived
together in the Castelar residence until dissolution proceed-
ings were initiated in 2023.
Both parties agreed that improvements were made to the
Castelar home during their marriage. According to Amy,
the Castelar residence received new windows, a garage door,
a heating and cooling system, a new roof, a shed, and carpet.
Justin agreed that new windows and a shed were installed,
along 	with 	“other 	improvements.” 	When 	asked 	if 	these
improvements increased the value of the residence, Justin
refused to answer, stating he would “defer to the appraiser.”
He did not identify when these improvements occurred nor
disclose the amount of money spent on them.
The district court received three separate appraisals of the
Castelar residence without objection. According to the docu-
ments, the home was valued at $178,000 at the time of the
parties’ marriage in 2017, $230,000 at the time the parties
moved back from New Mexico in 2021, and $285,000 a few
months after dissolution proceedings were initiated in 2023.
Justin also offered corresponding mortgage statements to cal-
culate the amount of home equity. The first, dated July 2, 2017,
listed the outstanding mortgage balance as $87,098.65. The
second, dated July 1, 2021, showed an outstanding balance of
$57,963.24. The last, dated August 1, 2023, reflected an out-
standing balance of $41,534.18.
(c) Escrow Funds
Justin testified that Amy received $2,364.37 in an escrow
overpayment. At trial, Justin offered a June 2023 “Escrow
Review Statement.” Under a section labeled “Escrow account
history,” the same amount was reflected next to a description
titled “USAA” from May 2023. According to Justin, Amy had
promised to reimburse him in a text message but had not done
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Amy admitted that she “received some money from USAA”
in August 2023, but due to multiple insurance refunds at the
time, she “didn’t realize what they were for” until the follow-
ing June when Justin “realized he was short in escrow.” She
could not remember the amount received. The parties had a
conference call with USAA, but the issue was not resolved.
Amy conceded that the escrow money was accumulated dur-
ing the marriage and agreed that she had “no problem” with
paying Justin half.
4. District Court’s Decree
On April 18, 2025, the district court entered a decree dissolv-
ing the parties’ marriage. The court awarded Amy sole legal
and physical custody of the parties’ three children. Regarding
legal custody, the court specifically cited the parties’ inability
to agree on a school for Holden, the parties’ disagreements
over whether Holden should see a counselor, Justin’s refusal
to allow the children to participate in certain extracurricular
activities, and his lack of transparency in communications
surrounding the children’s medical care. Regarding physical
custody, the court found Justin returned the children to Amy
in an “unke[m]pt” condition, found the medical care provided
by him was “concerning,” and noted his failure to appreciate
the necessity of putting the children in appropriately sized
car seats. Justin was granted parenting time every Thursday
from 9 a.m. to Friday at 9 a.m. and every other weekend from
Thursday at 9 a.m. to Monday at 9 a.m. The court also ordered
Justin to pay $1,159 per month for child support. The court
used two worksheets to calculate this amount: “Worksheet 1 –
Basic Income and Support Calculation” and “Section 4-203(C)
Additional Support Calculation (Optional).”
The district court also divided the various assets and debts of
the marital estate. Relevant to this appeal, the court determined
there was a total of $243,466 in equity in the Castelar prop-
erty. It allocated $90,901 to Justin for his premarital equity,
which involved using the 2017 appraised value ($178,000 at

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time of marriage) and subtracting the mortgage balance at that
time ($87,099). This left $152,565 in marital equity. According
to the court, Justin “failed to meet his burden of proof” that
“any appreciation to the real estate was not the result of active
appreciation.” The court’s decree did not include any mention
of the escrow funds discussed at trial.
Justin filed two motions seeking to alter or amend the
decree. The district court entered an order altering some of
the language of its original decree; none of those amendments
are pertinent to the issues presented to us for disposition.
Justin appeals.
III. ASSIGNMENTS OF ERROR
Justin assigns, restated and consolidated, that the district
court erred (1) in its decision on custody and parenting time,
(2) in its calculation of child support, (3) in its determination
of marital equity in the Castelar property, and (4) in failing
to include the escrow refund received by Amy in the marital
estate and assigning it a value.
IV. STANDARD OF REVIEW
[1,2] 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.
Seemann v. Seemann, 318 Neb. 643, 18 N.W.3d 118 (2025).
This standard of review applies to the trial court’s determina-
tions regarding custody, child support, division of property,
alimony, and attorney fees. Id.
[3] A judicial abuse of discretion exists if the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
V. ANALYSIS
1. Child Custody and Parenting Time
Justin first takes issue with the district court’s custody
and parenting time decisions. He asserts the court erred in

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changing the “50-50 custody” under the temporary orders to
a “nine to five custody share” and in “removing joint legal
custody.” Brief for appellant at 25. For the following reasons,
we cannot say that the court abused its discretion in deciding
these issues.
(a) General Principles of Law
[4,5] When deciding custody issues, the court’s paramount
concern is the child’s best interests. Kee v. Gilbert, 32 Neb.
App. 1, 992 N.W.2d 486 (2023). A Nebraska statute provides
that in determining custody and parenting arrangements,
the court shall consider the best interests of the minor
child, which shall include, but not be limited to, consid-
eration of . . . :
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subsequent
hearing;
(b) The desires and wishes of the minor child, if of
an age of comprehension but regardless of chronological
age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member. . . .; and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse.
Neb. Rev. Stat. § 43-2923(6) (Reissue 2016). A trial court
must consider the above statutory factors, at a minimum, when
making determinations about the best interests of a child, in
the context of custody. See Jones v. Jones, 305 Neb. 615, 941
N.W.2d 501 (2020).
[6,7] Other pertinent factors include the moral fitness of
the child’s parents, including sexual conduct; respective envi-
ronments offered by each parent; the age, sex, and health
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of continuing or disrupting an existing relationship; the atti-
tude and stability of each parent’s character; and parental
capacity to provide physical care and satisfy educational needs
of the child. See Kee v. Gilbert, supra. No single factor is
determinative, and different factors may weigh more heavily
in the court’s analysis depending on the evidence presented in
each case. Jones v. Jones, supra.
(b) Physical Custody and Parenting Time
Justin claims the district court “abused [its] discretion in
failing to properly weigh best interest factors in favor of an
award of joint physical custody.” Brief for appellant at 25. He
points to evidence in the trial record that, in his opinion, sup-
ports an award of joint physical custody. However, the crux
of Justin’s argument centers on the fact that the court, in its
decree, marginally reduced his parenting time when compared
to the temporary order. According to Justin, his “parenting
proposal would have awarded him one more week day [sic]
every week than the current order” and allowing him an addi-
tional day per week would “not detrimentally affect the minor
children’s best interests.” Id. at 27.
Under the district court’s temporary order, the parties were
awarded joint physical custody. However, in the decree, the
court accepted Amy’s proposed parenting plan and awarded
Justin parenting time every Thursday from 9 a.m. to Friday at
9 a.m. and every other weekend from Thursday at 9 a.m. to
Monday at 9 a.m. It explained:
The Court granted joint physical custody on a temporary
basis during which time [Justin] returned the minor chil-
dren to [Amy] unke[m]pt. [Amy] testified the children
would return smelly, not having been bathed, not having
brushed their teeth and being dressed in inappropriate
size [sic] clothing. These are essential basic needs for all
children. In addition, the medical care for the children
while in [Justin’s] care is concerning. Lastly, [Justin]

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does not find it necessary to put the minor children in
appropriate sized car seats.
Justin contends that Amy’s testimony regarding the chil-
dren’s hygiene was “not corroborated by third parties” and
that neither daycare nor school employees ever voiced any
concerns about the issue. Brief for appellant at 26. He also
cites “medical notes” offered at trial that contradict Amy’s
allegations regarding deficient medical care. Id. However, the
district court clearly found Amy’s testimony credible regarding
the children’s hygiene while in Justin’s care, and we, accord-
ingly, give weight to its assessment. See Scott v. Scott, 319
Neb. 877, 25 N.W.3d 439 (2025) (when evidence is in conflict,
appellate court considers and may give weight to fact that trial
court heard and observed witnesses and accepted one version
of facts rather than another). Likewise, for reasons elucidated
later in our discussion on legal custody, we cannot say the
court abused its discretion in factoring this evidence in its
decision regarding custody and parenting time.
Justin also takes issue with the district court’s reduction of
his parenting time. He claims it is not justifiable or supported
by the evidence. However, the record reflects that Amy had
taken on most of the parenting responsibilities for the chil-
dren throughout the parties’ marriage. Despite largely working
remotely during the marriage and having a “pretty flexible”
work schedule, Justin did not assist in transporting the children
to and from daycare, nor did he meaningfully care for them
at home in the evenings. After Holden’s birth, Justin watched
him on a few occasions but simply put in earplugs and let him
cry. Similarly, when the twins were born, Justin, “by his own
choice,” segregated himself from the family and moved to the
basement. This left Amy to exclusively care for their three
children. Justin counters, pointing to the fact that he provided
a stable housing environment for the children and tended to
their educational needs. However, this change in behavior only
occurred after the complaint for dissolution was filed and Amy
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The trial record also raises concerns related to Justin’s
struggle with substance abuse. Amy testified that Justin con-
sumed alcohol nightly, which frequently caused intoxication.
A compilation of photographs received by the district court
depicts Justin performing parenting functions with a clear
glass of whiskey either in his hand or nearby. One picture
even shows an unattended glass on a child’s nightstand. These
photographs were taken over the months leading up to the
couple’s separation. Text messages received by the court also
demonstrated Justin pressured Amy to obtain unprescribed
painkillers for him. While not mentioned by the court in its
decree, Amy testified to a disturbing December 2022 inci-
dent where Justin, with “a drink in his hand,” attempted to
“digitally penetrate” her in front of the children. When she
confronted him about it later in the evening, he responded
by “screaming.” This attracted the attention of Holden, and
Justin “picked him up by his head,” took him to the basement
bathroom, and temporarily locked himself and Holden inside.
Although the district court did not make specific findings
regarding Justin’s struggle with substance abuse or the inci-
dent with Amy in front of the children, the court found Amy’s
testimony to be credible and afforded it considerable weight,
and upon our de novo review, we do the same.
Notwithstanding the concerning behavior recounted above,
the district court only minimally reduced Justin’s parenting
time compared to the temporary order. Upon our de novo
review of the trial record, we cannot say the court abused its
discretion regarding physical custody or parenting time.
(c) Legal Custody
Justin next argues the district court erred “in removing joint
legal custody from the parties.” Brief for appellant at 28.
We first observe that Justin’s main contention regarding
legal custody is that the district court “misplaced” its reliance
on this court’s decision in Janda v. Janda, 32 Neb. App. 953,
9 N.W.3d 212 (2024) (coparenting problems included acts of

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deception). Brief for appellant at 29. However, in its decree,
the court cited Janda only twice, each time to articulate gen-
eral principles of law common to all cases touching upon
child custody. It was not comparing the facts in Janda to those
present here. We therefore disagree with Justin’s assertion that
the “trial court’s reliance on Janda [was] misplaced.” Brief
for appellant at 29.
[8] Insofar as Justin claims the district court abused its
discretion in weighing the various best interests factors rel-
evant to a determination of legal custody, we again disagree.
Under the Parenting Act, adopted by the Nebraska Legislature,
the concept of child custody encompasses both physical cus-
tody and legal custody, with legal custody focusing entirely
on decisionmaking authority. Vyhlidal v. Vyhlidal, 309 Neb.
376, 960 N.W.2d 309 (2021). The Parenting Act defines the
term “[j]oint legal custody” as meaning “mutual authority and
responsibility of the parents for making mutual fundamen-
tal decisions regarding the child’s welfare, including choices
regarding education and health.” Neb. Rev. Stat. § 43-2922(11)
(Cum. Supp. 2024). Thus, a trial court’s award of sole legal
custody essentially establishes that one party will have the
final say in such fundamental decisions. See § 43-2922(13).
Under the district court’s temporary order of joint legal
custody, neither Justin nor Amy had final decisionmaking
authority. As such, the other could effectively veto medi-
cal and educational decisions. The trial record is replete
with such occurrences. As the trial court pointed out in its
decree, Justin and Amy failed to agree on and communicate
about several decisions affecting their children’s education
and health. Notably, the parties were unable to reach an
agreement on a school for Holden, and as a result, the court
was forced to make the determination. Amy wanted their son
to attend a highly rated school located in Elkhorn, but Justin
refused, implying he had insufficient time to reach a resolu-
tion. However, testimony elicited from Amy showed that
multiple mediations on the issue were conducted, and Justin

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even admitted that the Elkhorn school was only “[a]bout 10
minutes” from his house. It is inexplicable why Justin with-
held his consent, especially since the parties had previously
discussed moving to the Elkhorn school district before mov-
ing back to Nebraska.
Evidence adduced at trial also showed that Justin was mini-
mally involved in his children’s medical care. Prior to the com-
mencement of dissolution proceedings, Justin was rarely pres-
ent for medical appointments. Even after Justin became more
involved under the temporary order, he failed to effectively
communicate with Amy about medical care. This resulted in
the administration of an oral antibiotic to Eleanor despite other
care she was receiving from her treating physician. Justin read-
ily admitted at trial that this was a “mistake.” The court found
that the “potential harm to the child was due to [Justin’s] fail-
ure to communicate.”
Justin takes issues with these findings, pointing to the medi-
cal note authored by one of Amy’s coworkers who “[a]dvised”
to take the oral antibiotic “as prescribed,” along with the ear-
drops. However, Amy, a board-certified practitioner in family
medicine, contradicted the contents of this note. She testified
that she was not seeking a medical opinion from the coworker,
that she spoke to him only generally, and that Eleanor had
never seen him as a patient. She further opined that eardrops
were the proper way to treat Eleanor’s infection because oral
antibiotics caused “resistance.” We cannot say the district
court abused its discretion by resolving these conflicts in the
evidence and making the aforementioned findings. See Scott
v. Scott, 319 Neb. 877, 25 N.W.3d 439 (2025) (when evidence
is in conflict, appellate court considers and may give weight
to fact that trial court heard and observed witnesses and
accepted one version of facts rather than another). We also
find it important to note that Justin refused to let Holden see
a counselor. Despite initially agreeing to it upon the pediatri-
cian’s recommendation, he later, without explanation, with-
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Upon our de novo review of the record, we cannot say that
the district court abused its discretion in awarding Amy the
sole legal custody of the children. The evidence, as outlined
above, demonstrates that the parties had difficulty making fun-
damental educational and medical decisions for their children,
and Justin’s refusal to sign off on certain proposals or unwill-
ingness to properly communicate was contrary to his children’s
best interests. It was reasonable for the court to conclude that
the children’s best interests would be served by awarding sole
legal custody to Amy.
2. Child Support
Justin assigns two errors related to the district court’s child
support calculation. He first asserts that the court should
have used the joint physical custody worksheet in calculating
child support based on his number of days of parenting time,
regardless of whether this court finds the district court abused
its discretion regarding physical custody. Second, he argues
the court erred in ordering an upward deviation based on the
parties’ total monthly net income. We address each argument
in turn.
(a) Joint Custody Worksheet
Justin contends that when determining his child support
obligation, the district court erred in using the basic income
and support calculation (worksheet 1), rather than the joint
physical custody support calculation (worksheet 3). See Neb.
Ct. R. ch. 4, art. 2, worksheet 1 (rev. 2016) and worksheet 3
(rev. 2007). He argues that a joint custody calculation is proper
despite the court’s award of sole physical custody to Amy,
“because he exercises more than 142 days of parenting time
per year.” Brief for appellant at 29.
[9] 	In 	general, 	child 	support 	payments 	should 	be 	set
according to the guidelines established pursuant to Neb. Rev.
Stat. § 42-364.16 (Reissue 2016). Larson v. Larson, 33 Neb.
App. 609, 23 N.W.3d 670 (2025). Although the guidelines
are not to be applied with blind rigidity, child support shall

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be established in accordance with the guidelines, unless the
court finds that one or both parties have produced sufficient
evidence to rebut the presumption that the application of the
guidelines will result in a fair and equitable child support
order. See § 42-364.16.
[10,11] Neb. Ct. R. § 4-212 (rev. 2011) states, in part:
“When a specific provision for joint physical custody is
ordered and each party’s parenting time exceeds 142 days per
year, it is a rebuttable presumption that support shall be cal-
culated using worksheet 3.” A “‘day’” is defined “as includ-
ing an overnight period.” Id. Although the plain language
of § 4-212 may suggest otherwise, this court has held that
the joint physical custody worksheet may be proper “when
the threshold amount of parenting time is met, even if no
specific provision for joint physical custody is ordered.” Hill
v. Hill, 20 Neb. App. 528, 539, 827 N.W.2d 304, 313 (2013),
disapproved on other grounds, State on behalf of Kaaden S.
v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019). This is
because “the Nebraska Child Support Guidelines offer flex-
ibility and guidance, with the understanding that not every
child support scenario will fit neatly into the calculation struc-
ture.” Patton v. Patton, 20 Neb. App. 51, 63, 818 N.W.2d 624,
635 (2012).
For example, in Hill v. Hill, supra, we concluded that a trial
court abused its discretion by calculating child support based
on the basic custody worksheet where a father exercised 156
days of parenting time, not including summer parenting time
and holidays. We reasoned that while the mother was awarded
sole physical custody of the parties’ children, the father’s
parenting time exceeded the 142-day threshold described in
§ 4-212 and created a rebuttable presumption that support
should be calculated based on joint physical custody. See,
also, Patton v. Patton, supra (no abuse of discretion where
trial court used joint physical custody worksheet when father
had children at least 160 days per year, despite award of sole
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However, our jurisprudence has long distinguished between
continuous alternating custody schedules and more “‘typical’”
weekend, holiday, and summer parenting time schedules. Hill
v. Hill, 20 Neb. App. at 535, 827 N.W.2d at 311. For instance,
in McDonald v. McDonald, 21 Neb. App. 535, 840 N.W.2d
573 (2013), disapproved in part on other grounds, Fichtl v.
Fichtl, 28 Neb. App. 380, 944 N.W.2d 516 (2020), we found
no abuse of discretion where the trial court utilized the basic
custody worksheet to calculate a father’s child support, despite
the fact that he had parenting time with the children for 163 to
166 days per year, or 44 to 45 percent of the time. Although
we acknowledged the father’s parenting time “raise[d] the pre-
sumption that he exercise[d] joint custody” under § 4-212, we
observed that his parenting schedule “consist[ed] of alternat-
ing weekends, one weekday night, alternating holidays, and an
extended time period in the summer.” McDonald v. McDonald,
21 Neb. App. at 546, 840 N.W.2d at 585. We concluded his
parenting time “constitute[d] a typical visitation schedule” that
“rebutted the presumption of joint custody.” Id.
Justin is afforded parenting time every Thursday night,
every other weekend, and on rotating holidays, and he is given
7 days of “vacation time.” Based on our calculations, exclud-
ing holidays and vacation time, he would have the children
for a minimum of 130 days each year. However, the holiday
schedule and vacation time could theoretically push him past
the 142-day threshold contained in § 4-212. According to
Justin, in “odd years,” brief for appellant at 30, he would exer-
cise “anywhere between 144 and 147 days” of parenting time
but readily concedes that in “even years,” he would only be
guaranteed “at least 139 days,” id. at 31.
Although the holiday split and allotted vacation time cre-
ate the possibility that Justin’s parenting time may exceed the
142 days in certain years, his parenting schedule is largely
analogous to the one in McDonald. Just like that case, Justin’s
parenting time consists of alternating weekends, one weekday
night, and alternating holidays. Since this is more akin to a

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“typical” parenting time schedule that “rebut[s] the presump-
tion of [a] joint custody” child support calculation, we cannot
say that the district court abused its discretion in using work-
sheet 1 rather than worksheet 3. See McDonald v. McDonald,
21 Neb. App. at 546, 840 N.W.2d at 585.
Further, it is worth pointing out that while the fixed monthly
child support obligation is less when using a joint physi-
cal custody calculation, the financial responsibility for other
child-related expenses may increase. Section 4-212 of the
guidelines states that when child support is determined using
worksheet 3, “all reasonable and necessary direct expenditures
made solely for the child(ren) such as clothing and extracur-
ricular activities shall be allocated between the parents.” Thus,
a higher monthly child support obligation under worksheet
1 may be preferable to a lower amount under worksheet 3,
because the latter would require the parties to discuss and
agree on what qualifies as “reasonable and necessary direct
expenditures.” Given the parties’ difficulty in communications
and their disagreements regarding extracurricular activities,
the district court properly exercised its discretion in electing to
use worksheet 1, rather than worksheet 3.
(b) Deviation
[12] Justin next argues the district court abused its discre-
tion by ordering an upward deviation from the Nebraska Child
Support Guidelines based upon the parties’ combined monthly
net income exceeding $20,000 per month. The child support
calculation attached to the decree reflects a combined monthly
net income of $23,612.76, of which $17,245.70 is attribut-
able to Amy’s income and $6,367.06 is attributable to Justin’s
income. Neb. Ct. R. § 4-203(C) (rev. 2020) of the guidelines
expressly provides that a deviation from the guidelines is
permissible when the total net income exceeds $20,000 per
month. Section 4-203(C) states:
[I]f total net income exceeds $20,000 monthly, child sup-
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more but shall not be less than the amount which would
be computed using the $20,000 monthly income unless
other permissible deviations exist. To assist the court and
not as a rebuttable presumption, the court may use the
amount at $20,000 plus: 10 percent of net income above
$20,000 for one, two, and three children; 12 percent of
net income above $20,000 for four children; 13 percent
of net income for five children; and 14 percent of net
income for six children.
Section 4-203 of the child support guidelines also states, in
relevant part:
The child support guidelines shall be applied as a
rebuttable presumption. . . . All stipulated agreements for
child support must be reviewed against the guidelines and
if a deviation exists and is approved by the court, specific
findings giving the reason for the deviation must be made.
Findings must state the amount of support that would
have been required under the guidelines and include a
justification of why the order varies from the guidelines.
Deviations must take into consideration the best interests
of the child. In the event of a deviation, the reason for
the deviation shall be contained in the findings portion of
the decree or order, or worksheet 5 should be completed
by the court and filed in the court file.
Section 4-203 then goes on to list permissible deviations in
subsections (A) through (E), with subsection (C), as set forth
above, at issue here.
[13] The Nebraska Supreme Court has stated that the “trial
court is required to state the amount of support that would
have been required under the guidelines absent the devia-
tion[,]” and “[a]lthough either stating the reason for the
deviation in the decree or order or completing worksheet 5
is sufficient, we encourage trial courts to do both.” Brooks
v. Brooks, 261 Neb. 289, 293, 622 N.W.2d 670, 674 (2001).
Brooks did not involve the higher income deviation found in
§ 4-203(C). However, this court has previously concluded

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that § 4-203 requires either an explanation for an upward
deviation or the completion and filing of a worksheet 5. See
Roberts v. Roberts, 25 Neb. App. 192, 903 N.W.2d 267 (2017)
(finding abuse of discretion when district court order found
upward deviation was in children’s best interests but did not
specifically explain its reasoning, nor attach worksheet 5 to
its order).
In the present case, the district court provided no expla-
nation for deviating upwards from the child support obliga-
tion set forth in worksheet 1. There is also no worksheet 5
attached to the child support calculation. Worksheet 5 is titled
“Deviations to Child Support Guidelines.” See Neb. Ct. R. ch.
4, art. 2, worksheet 5 (rev. 2020). However, there is an attach-
ment titled “Section 4-203(C) Additional Support Calculation
(Optional),” which presents information equivalent to a work-
sheet 5. This court has previously accepted a similarly titled
worksheet when considering the requirements under the guide-
lines for an upward deviation. See Furstenfeld v. Pepin, 23
Neb. App. 155, 869 N.W.2d 353 (2015). Further, Justin states
in his brief that the “court did create a worksheet 5 with the
higher amount but the decree is silent as to that deviation.”
Brief for appellant at 31.
Accordingly, Justin does not challenge the form or sub-
stance of the deviation attachment; rather, he asserts the
district court’s deviation was “antithetical to the purpose” of
the Nebraska Child Support Guidelines because it “results in
the less economically advantaged spouse paying even more
in support.” Brief for appellant at 32-33. He contends that this
upward deviation should apply only when the party obligated
to pay child support earns more than $20,000 per month.
There is certainly some merit to Justin’s argument, particu-
larly that it draws attention to the fact that the rule does not
account for any disparity in the parties’ incomes, such as the
situation here where the party receiving child support earns
significantly more income than the party paying it. Section
4-203(C) permits an upward deviation when the combined

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monthly net income exceeds $20,000, regardless of whose
income may be primarily or even solely responsible for trigger-
ing the potential deviation.
In circumstances such as these, it would have been helpful
if the district court had provided an explanation for why a
deviation from worksheet 1 was appropriate and in the chil-
dren’s best interests, given the financial circumstances of the
parties. However, based on the plain language of § 4-203, so
long as a worksheet 5 (or a sufficiently equivalent form, as
in this case) is attached to the decree or order, § 4-203 does
not require the trial court to provide any justification for the
deviation. Worksheet 5 itself does not require any explana-
tion, just the identification of which subsection of § 4-203
applies. Therefore, although this court may not agree that an
upward deviation was justified given the financial circum-
stances of the parties in this case, we cannot say it was an
abuse of discretion for the trial court to order the deviation,
because it complied with the requirement of § 4-203 that the
court either state its “reason for the deviation” in its decree
or complete a worksheet 5. Although encouraged to do both,
see Brooks v. Brooks, supra, the trial court was not required
to do so.
3. Castelar Home
Justin next argues that the district court erred when it failed
to set aside more of the home equity accumulated during the
marriage as his separate property. From the time the parties
moved to New Mexico in 2017 to the time they returned to
Nebraska in 2021, equity in the Castelar home increased by
$81,135.41. Justin argues this equity is properly categorized
as separate property because the increase was caused by “pas-
sive” appreciation of the residence and therefore not subject
to equitable division. Brief for appellant at 34. He takes no
issue, however, with the court’s classification of the growth
in home equity from 2021 onward as marital property. For the
reasons explained below, we find no abuse of discretion.

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(a) General Principles of Law
[14-16] Under Nebraska’s dissolution statutes, “[t]he pur-
pose of a property division is to distribute the marital assets
equitably between the parties.” Neb. Rev. Stat. § 42-365
(Reissue 2016). The equitable division of property is a three-
step process. The district court (1) classifies the parties’ prop-
erty as marital or nonmarital, setting aside nonmarital property
to the party who brought that property to the marriage; (2) val-
ues the marital assets and marital liabilities of the parties; and
(3) calculates and divides the net marital estate between the
parties in accordance with the principles contained in § 42-365.
Dibuono-Gonzalez v. Gonzalez, 32 Neb. App. 881, 7 N.W.3d
672 (2024). Justin’s argument concerns the first step. The
extent to which property is marital versus nonmarital presents
a mixed issue of law and fact. Stava v. Stava, 318 Neb. 32, 13
N.W.3d 184 (2024). The manner and method of acquisition
involve questions of fact, but the classification of the property
under those facts is a legal question and not a matter of the
court’s discretion. Id. All property accumulated and acquired
by either spouse during the marriage is part of the marital
estate, unless it falls within an exception to this general rule.
Dibuono-Gonzalez v. Gonzalez, supra.
[17] Relevant to this appeal, however, any given property
can constitute a mixture of marital and nonmarital interests;
a portion of an asset can be marital while another portion can
be separate property. Stava v. Stava, supra. This includes real
estate brought into the marriage by one party. While equity in
property at the time of marriage is a nonmarital asset which,
if established should be set aside as separate property, any
active appreciation (i.e., the increase in a nonmarital asset’s
value due to a contribution of marital funds or efforts) will be
deemed marital. See id. But passive appreciation of property
(i.e., the increase in a nonmarital asset’s value due to separate
contributions and nonmarital forces) is not subject to equitable
division. See id.

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[18,19] The Nebraska Supreme Court has observed that real
estate, by its nature, is more prone to passive appreciation.
See Parde v. Parde, 313 Neb. 779, 986 N.W.2d 504 (2023).
This is because real estate tends to rise and fall in value for
reasons beyond the parties’ control. Id. Ultimately, whether
appreciation in real estate is active or passive depends on
the facts and circumstances of each case. Id. In that regard,
evidence relating to the cause of appreciation is key, and the
burden is on the owning spouse to prove the extent to which
marital contributions did not cause the appreciation or income.
Id. Unless an exception applies, the burden of proof in civil
cases requires only a greater weight of the evidence. Backhaus
v. Backhaus, 318 Neb. 891, 20 N.W.3d 81 (2025). The greater
weight of the evidence means evidence sufficient to make a
claim more likely true than not true. Id. Thus, at trial, Justin
had to show by a greater weight of the evidence that the cause
of any appreciation of his home was not the result of marital
contributions or efforts.
[20-23] The acquisition of property in the first instance can
be an ongoing process. Stava v. Stava, supra. It occurs only
as it is paid for, as the real value of property is the equity and
not the mere legal title. Id. Under the “‘source of funds’ rule,
acquisition of encumbered property only occurs when and to
the extent it becomes unencumbered by paying off the princi-
pal of an encumbering loan.” Id. at 43-44, 13 N.W.3d at 194.
Thus, the use of marital funds to pay down the mortgage on
what was initially separate property acquires the property dur-
ing the marriage to the extent the principal is paid, creating a
proportionate marital interest in that property. Id. Because the
proportion of the property’s equity created during the marriage
with marital funds constitutes marital property, the appre-
ciation on that equity, whether it be passive or active, is also
marital property. Id.
With these general principles in mind, we address Justin’s
arguments.

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(b) No Abuse of Discretion
On appeal, it is undisputed that Justin purchased the Castelar
residence before his marriage to Amy. At trial, Justin offered,
without objection, a retroactive appraisal of the home at the
time of the parties’ marriage, along with a corresponding
mortgage statement. These documents showed $90,901.35 in
premarital equity ($178,000 home value minus $87,098.65
mortgage). The district court set this equity aside as Justin’s
separate property.
Shortly after their marriage in 2017, the parties moved to
New Mexico. During this time, Justin rented out the Castelar
residence and continued to pay down the mortgage on the
home. Justin and Amy returned to Nebraska in 2021, moved
into the home, and lived there together until shortly after the
commencement of dissolution proceedings in 2023. Another
retroactive appraisal offered by Justin at trial showed equity
in the home increased to $172,036.76 ($230,000 home value
minus $57,963.24 mortgage) as of the time the parties moved
back to Nebraska in 2021. Justin argues this $81,135.41
increase in equity from 2017 to 2021 is nonmarital and not
subject to equitable division because it was not the result of
active appreciation.
In its decree, the district court concluded that Justin “failed
to meet his burden of proof” that “any appreciation to the
real estate was not the result of active appreciation.” It calcu-
lated the marital interest in the Castelar home to be $152,565
($243,466 equity at time of separation minus $90,901 premari-
tal equity). In reaching this determination, the court reasoned:
There is no dispute that marital contributions had been
made to the real estate. Both parties testified that the
improvements were made to the real estate and at least
[Amy] testified those improvements increased the value
of the real estate while [Justin] simply deferred to his
appraiser.
According to the court, these “improvements” included “a
new roof, carpeting, HVAC, windows and a shed.” Justin

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takes issue with the court’s findings, claiming the evidence
at trial showed no improvements to the property were made
between 2017 and 2021. He argues that the increase of the
home’s market value was the result of nonmarital forces (i.e.,
market forces). He does concede, however, that “[active]
appreciation” began in 2021 “when the parties removed the
renters and lived at the Castelar house.” Brief for appellant
at 34-35.
However, equity can accumulate in two ways: (1) through
the appreciation of the property’s market value via market
forces or capital improvements and (2) by paying down
encumbrances on the property. At trial, Justin testified that he
continued to “pay[] the mortgage” on the residence while the
parties were in New Mexico. No evidence was introduced by
Justin to suggest the funds used to pay on the mortgage were
nonmarital. See White v. White, 320 Neb. 256, 26 N.W.3d
924 (2025) (burden of proof rests with party claiming that
property is nonmarital). As mentioned previously, under the
source of funds rule, this created a marital interest in any
appreciation on equity in the Castelar home, whether passive
or active, to the extent that its equity increased due to mari-
tal funds being used to pay down the mortgage. See Stava
v. Stava, 318 Neb. 32, 13 N.W.3d 184 (2024). Justin claims
the source of funds rule does not apply in this case “[d]ue
to the fact the entire mortgage was not paid” off during the
marriage. Brief for appellant at 35. However, the Nebraska
Supreme Court has been clear that acquisition of property
“occurs only as it is paid for, as the real value of property is
the equity and not the mere legal title.” Stava v. Stava, 318
Neb. at 43, 13 N.W.3d at 194. There is no requirement that
the mortgage be fully paid off during the marriage in order for
marital equity to be determined.
[24,25] When acquisition occurs via payments on the prin-
cipal of encumbering debt, the marital estate receives not just
a refund of the monetary contribution toward the principal
of the loan, but also a fair return on its investment, which

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includes passive appreciation. Id. A trial court “is to divide
the passive appreciation proportionately between the marital
and separate interests if marital funds were used to pay down
the principal of a mortgage for property that appreciates dur-
ing the marriage due to passive market forces.” Id. at 44, 13
N.W.3d at 194-95.
Further, we agree with the district court that Justin failed
to prove that any appreciation from 2017 to 2021 was not
the result of marital contributions or efforts. Both parties
agreed at trial that several improvements were made to the
home during the marriage. Although Justin acknowledges
some post-2021 improvements, he argues that there was no
testimony of any repairs between 2017 and 2021. However,
other evidence indicated that repairs and improvements did
take place over those years. The retroactive appraisals show
that a “new” water heater was installed in August 2019 and
“new” carpet was installed in May 2021, both before the
parties moved back to Nebraska the following month. Also,
Justin acknowledged that he “managed” the property while
living in New Mexico and that his leases had a clause where
he was responsible for fixing damages $500 or more. He did
not remember whether any tenants called to complain about
any repairs or improvements.
It was Justin’s burden to prove by a greater weight of
the evidence that the appreciation in equity of the Castelar
residence was not the result of marital contributions or efforts.
See Parde v. Parde, 313 Neb. 779, 986 N.W.2d 504 (2023).
There was evidence in the record to suggest that at least some
improvements were made between 2017 and 2021 and that
Justin remained involved in managing the property while the
parties lived in New Mexico. Justin offered no evidence to
rebut the presumption that these improvements and his efforts
contributed to the appreciation of the home. Thus, we cannot
say the district court abused its discretion in determining the
amount of marital equity in the Castelar property.

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4. Escrow Funds
In his last assignment of error, Justin argues the district
court abused its discretion by “failing to assign a value to the
escrow refund received by [Amy] in August of 2023.” Brief for
appellant at 36. He requests that the “entire escrow amount be
returned . . . in a separate judgment.” Id. at 37.
There was no evidence tracing the funds from Justin’s
mortgage company to Amy’s personal account. Although the
trial record regarding the escrow funds is scarce, Justin testi-
fied that Amy received $2,364.37 in an escrow overpayment
after she canceled insurance for the Castelar home. According
to Justin, this amount was “sent to her checking account.”
To support these contentions, he offered an “Escrow Review
Statement” from June 2023 that showed $2,364.37 was paid
to “USAA” in May 2023. However, Justin conceded at trial
that he had no documentation tracing the funds from USAA
to Amy’s personal account. When asked if he ever requested
those documents, he simply “defer[red] to [his] attorney.”
During her testimony, Amy stated “a reimbursement [was]
paid out at some point” but “there were multiple things paid”
because of “multiple cancellations.” She “wasn’t sure what
belonged to what.” While Amy agreed that Justin’s escrow
money was marital, she could not recall an exact figure that
was paid to her. Thus, while there was evidence that a refund
may have been received among other insurance payouts, there
was no evidence tracing the escrow payment to Amy or reveal-
ing the amount paid.
Due to this lack of evidence, we cannot say the district
court abused its discretion by not including the escrow refund
in the marital estate and assigning it a value.
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s
decree of dissolution of marriage and its amendments.
Affirmed.