A-18-903, Jennifer E. Bornhorst n/k/a Jennifer E. Eriksen (Appellant) v. Matthew D. Bornhorst (Cross-Appellant)
Washington County, District Court, Judge Paul J. Vaughan
Attorney for Appellant/Cross-Appellee: Shane J. Placek (Sidner Law)
Attorneys for Appellee/Cross-Appellant: Philip B. Katz and Steven J. Riekes (Marks Clare & Richards, L.L.C.)
Civil Action: Dissolution of Marriage - Custody and Child Support
Action Taken by Trial Court: The district court determined the marriage of the parties was irretrievably broken and dissolved the marriage. The court awarded the parties the joint legal and physical custody of the two minor children, and adopted a 50/50 parenting time schedule. The court ordered Jennifer to pay Matthew child support in the amount of $283 per month for the parties’ two children; the district court utilized a worksheet 3 calculation based on its determination of joint physical custody and a 50/50 parenting time schedule, and the court did not include Jennifer’s K-1 distributions from her family’s company (Eriksen Construction) as income for child support purposes because it found the income was speculative and Jennifer had no control over the timing or amount of the distributions.
The district court also distributed the parties’ marital estate. The court awarded Jennifer the entirety of her stock and ownership interest in Eriksen Construction as her separate property. However, the court determined that the growth in value (which was “at least equivalent to the total retained earnings”) of Jennifer’s gifted non-marital stock in Eriksen Construction was marital, and that the accumulated retained earnings was part of the marital estate to be equitably divided.
Assignments of Error on Appeal: Jennifer assigns that the district court abused its discretion by (1) overruling her motion for new trial as to custody and parenting time because an award of joint legal and physical custody was contrary to the evidence, (2) allowing Matthew’s expert witness to provide testimony related to a custody evaluation when the expert was court ordered to perform a parenting assessment only, (3) allowing Matthew’s expert witnesses to interpret Nebraska case law and to read articles that were not relied upon in forming their opinions, and (4) applying the active appreciation rule in determining that the retained earnings of Jennifer’s gifted non-marital asset was part of the marital estate and should be equitably divided.
On cross-appeal, Matthew assigns that the district court abused its discretion by not including the distributions received by Jennifer from Eriksen Construction for purposes of determining her child support obligations.