992 F.2d 1531
John R. DOOLITTLE, as a person participating in the affairsof Bay Gulf Federal Credit Union, Petitioner,v.NATIONAL CREDIT UNION ADMINISTRATION, Respondent.
No. 91-4075.
United States Court of Appeals,Eleventh Circuit.
June 14, 1993.

Steven R. Bisker, Annandale, VA, for petitioner.
Barbara C. Biddle and Christine N. Kohl, Appt.  Staff/Civ. Div., Dept. of Justice, Washington, DC, for respondent.
Petition for Review of an Order of the National Credit Union Association.
Before KRAVITCH and ANDERSON, Circuit Judges, and HILL, Senior Circuit Judge.
HILL, Senior Circuit Judge:

1
John R. Doolittle appeals an order of the National Credit Union Administration that prohibits him from participating in any manner in the affairs of any federally-insured institution and directs him to pay the sum of $42,857 to Bay Gulf Credit Union as restitution.   We vacate and remand the decision of the National Credit Union Administration.

I. Background

2
John R. Doolittle ("Doolittle") worked for Bay Gulf Credit Union ("Bay Gulf") for eighteen years, the last eight of which he served as president and was a member of the Board of Directors.   Bay Gulf is a federally insured credit union, and as such it falls under the auspices of the National Credit Union Administration ("NCUA") pursuant to the Federal Credit Union Act ("FCU Act"), 12 U.S.C. § 1751, et seq.   On April 19, 1990, Doolittle's employment with Bay Gulf was terminated by vote of the Board of Directors.   Doolittle subsequently brought suit against Bay Gulf for breach of contract and against David Becker, a consultant for the NCUA who succeeded Doolittle as president, for tortious interference with a business and contractual relationship.

3
On February 12, 1991, the NCUA filed a Notice of Intent to Prohibit and Impose Other Remedial Sanctions ("Notice of Intent") against Doolittle.   The Notice of Intent set forth five counts against Doolittle that charged him with violating the provisions of the FCU Act and accompanying regulations by engaging in unsafe and unsound practices, thus imperiling Bay Gulf and demonstrating Doolittle's unfitness to participate in the affairs of a federally insured credit union.   The Notice of Intent did not allege and the record does not indicate that Doolittle derived any personal gain from the conduct set forth in the charges.

4
A formal administrative hearing was held before an Administrative Law Judge ("ALJ") who issued a Recommended Decision proposing that Doolittle be prohibited from future participation in the conduct of the affairs of any federally insured credit union and that he also be ordered to make restitution to Bay Gulf in the amount of $42,857.   The NCUA Board adopted the ALJ's decision and recommended findings and conclusions in its October 15, 1991, Final Decision and Order after finding Doolittle's exceptions to the ALJ's decision non-meritorious.   Doolittle then filed the appeal now before us.

5
The Notice of Intent alleged five counts of wrongdoing by Doolittle.   Count I involved certain real estate, Priority One Learning Center ("Priority One"), owned by Bay Gulf.   Priority One was valued on the books at $459,243 as a commercial property because a day care center had been operated there.   This amount equaled the balance due on the outstanding loan on Priority One and was $30,000 less than a July 1989 appraisal.   Desiring to know more about the property and the operation of a day care center in order to sell Priority One, Doolittle had a local real estate firm do an analysis of the property.   The firm valued the property at $264,000 as residential property.   Priority One was a commercial property in a residential area, but its zoning reverted to residential use while Bay Gulf owned it.   The commercial zoning status could be renewed.   Despite the apparent drop in the value of Priority One, Doolittle neither changed the valuation on the books nor adjusted the loan loss reserves to reflect a probable loss on the outstanding loan due to the reduced value of the property.   Doolittle contended that he did not act on this market analysis because it failed to include the information he wanted about how to operate a day care center.   The ALJ found that, in light of the change of the zoning, Doolittle should have obtained another appraisal after finding this one unsatisfactory, and, at a minimum, should have informed the Board of Directors.   Before distributing any dividend, Bay Gulf was required to adjust its loan loss reserves to reflect any anticipated losses.   Because Bay Gulf had only $50,000 in undivided earnings for the first quarter of 1990, even a $50,000 transfer to the loan loss reserves would have wiped out the undivided earnings, and Bay Gulf would have been unable to pay a quarterly dividend without prior NCUA approval.

6
Counts II, III, and IV of the charges against Doolittle arise from certain accounting irregularities in Bay Gulf's books.   The NCUA concluded that Doolittle breached his duty to insure that all transactions were recorded in an accurate and timely manner and reflected the results of the operation of Bay Gulf, and that such failures violated regulations requiring full and fair disclosure.

7
Specifically, Count II alleges improper accounting for legal expenses, data processing expenses, and employee sick time.   The ALJ found that over $10,000 in legal expenses were invoiced in March, but recorded as an expense in April.   The insurance reimbursement check for the legal expenses was received in April, but pursuant to Doolittle's specific directions, the reimbursement was recorded as income for March after the end of that month.   Bay Gulf received a commitment from the insurer in March that it would pay $10,000.   This recording method did not comply with either accrual or modified cash basis accounting, which are the two authorized accounting methods for credit unions.

8
Bay Gulf had a recurring monthly data processing expense of which Doolittle was aware.   The ALJ found that the General Ledger indicated that a special entry was made so that the expense would appear in April rather than March.   The amount of this deferred expense ($22,000) was material because of the negligible net income for the first quarter ($2,500).   Doolittle testified without contradiction that the data processing expenses were recorded in the same manner from 1986 through March 1990 pursuant to an agreement between Bay Gulf and the data processing agent, and that there were always twelve bills recorded in each fiscal year.

9
The final violation alleged in Count II was that vested employee vacation, sick, and compensatory time was not recorded as a liability in the records of the Credit Union.   Thus, the financial records failed to disclose an almost $100,000 liability.   Doolittle testified without contradiction that employee leave time was recorded as an expense when taken rather than when it vested, and this practice had been consistently followed for several years.

10
Count III of the Notice of Intent charged Doolittle with improperly altering asset depreciation schedules to inflate income for the first quarter of 1990.   Doolittle changed the depreciation lives of certain fixed assets in March, but he contended that these changes were made in response to a NCUA directive to reduce expenses.   Doolittle checked with two board members who were IRS employees, and the changes complied with IRS guidelines.   Doolittle admitted that the reason for the changes was to increase income for the quarter.   The net effect of these changes for March alone was enough to determine whether the Credit Union showed a net profit or net loss for the first quarter of 1990.   The ALJ found that where there is a change in an accounting estimate, there should have been some justification (like new evidence) and disclosure of the impact on the profitability of the institution.

11
Count IV concerns alleged improprieties in recording Non-Sufficient Funds ("NSF") income and Automatic Teller Machine ("ATM") income.   Rather than being recorded as income, NSF and ATM fees were recorded as credits to the expense accounts.   The effect of this accounting procedure was to decrease gross income which reduced the requisite transfer to statutory reserves, which, in turn, left more money available for the undivided earnings dividend pool.   Doolittle testified without opposition that these fees were recorded in this manner since 1987 or 1988 without NCUA objection, and also contended that the accounting procedure had only a negligible impact on Bay Gulf's income and reserve transfers.

12
Count V involved certain unauthorized loans that Bay Gulf extended to one of its members, James Mims ("Mims").   In April 1989 Doolittle became aware that Bay Gulf had made commercial loans to Mims in violation of NCUA and Bay Gulf rules and regulations against commercial loans.   Doolittle called a meeting between Mims and Bay Gulf personnel at which he informed Mims that no more loans would be made.   Doolittle told the loan department supervisor who had handled Mims' file not to make any more loans to Mims and to mark the file accordingly.   The loans were current at that time, and Doolittle did not inform the Board of Directors or the NCUA of the unauthorized commercial loans until they later went into default.   Despite Doolittle's instructions to the contrary, Bay Gulf made four more loans to Mims before he defaulted and eventually suffered a $42,857 loss.   The ALJ concluded that Doolittle's failure to supervise his loan employees effectively and to inform the Board of Directors constituted a breach of his fiduciary duty and an unsafe and unsound practice.   The ALJ further found that by failing to take effective measures and inform the board, Doolittle demonstrated reckless disregard of the prohibition against commercial loans.

II. Discussion
A. Standard of Review

13
We review the NCUA Board's decision on a narrow standard.   Thus, we cannot reverse the NCUA Board's action unless the findings upon which it is based are not supported by substantial evidence, or unless the sanctions imposed by the Board constitute an abuse of discretion or are otherwise arbitrary and capricious.  5 U.S.C. § 706(2)(A), (E);  Sunshine State Bank v. Federal Deposit Ins. Corp., 783 F.2d 1580, 1584 (11th Cir.1986).

B. Prohibition Sanction

14
Section 1786(g)(1)1 of the FCU Act gives the NCUA authority to issue a prohibition order when it determines that a party has directly or indirectly violated any law or regulation, participated in an unsafe or unsound practice, or breached a fiduciary duty, and, by reason of such conduct, the financial interest of the credit union is imperiled.   The NCUA Board must also conclude that the person has engaged in practice constituting personal dishonesty or is otherwise unfit to participate in the conduct of the affairs of a federally insured credit union.

15
In the instant case, the NCUA Board based its prohibition order primarily on Doolittle's alleged violations of laws or regulations, except for the breach of fiduciary duty found in relation the Mims loans.   Specifically, the NCUA Board ruled, by adopting the ALJ's findings, that Doolittle violated 12 C.F.R. § 702.3(c)(2) by not making a proper allowance for loan losses with regard to the Priority One property involved in Count I.   With regard to the accounting irregularities alleged in Counts II, III, and IV, the NCUA Board found that Doolittle violated both 12 C.F.R. § 702.3(b)(1) which requires full and fair disclosure of "all income and expenses necessary to present fairly the results of operations for the period concerned" and § 702.3(d) which requires the president to declare that the financial statements are true and correct to the best of his knowledge and present "fairly the financial position and the results of operations for the period covered."   With regard to the Mims loans, the NCUA Board found that Doolittle breached his fiduciary duty and engaged in an unsafe and unsound practice, thereby satisfying 12 U.S.C. § 1786(g)(1)(A)(ii) and (iii).

16
Some of the accounting irregularities found by the NCUA Board support the conclusion that Doolittle violated NCUA regulations requiring adjustments to loan loss reserves and full and fair disclosure of the credit union's financial condition.   In particular, the evidence suggests that Doolittle did have notice that the value of Priority One had fallen because of the change in zoning but failed to act on this knowledge.   Also, Doolittle specifically directed that the insurance reimbursement check for legal services that was received in April be reported as income for March.   The bill for the legal services was received in March, but was not listed as an expense until April.   Doolittle's conduct in these matters implies intentional misrepresentation of the financial condition of Bay Gulf.   To a lesser extent, the change in asset depreciation schedules involved in Count III also demonstrates misrepresentation because even though the alterations were justified under IRS guidelines, Doolittle instituted these changes without justification, other than to increase income, and failed to disclose the impact on profitability to the Board of Directors or the NCUA.

17
At first glance, these accounting practices seem relatively insignificant, but Doolittle's conduct gains significance when viewed in light of the circumstances.   March 1990 was the end of the first quarter of Bay Gulf's fiscal year.   Dividends were payable on a quarterly basis, and, even with these accounting irregularities, Bay Gulf was only marginally profitable for the first quarter.   The record indicates that if Bay Gulf had shown a loss for the first quarter, it would have had to obtain special permission from the NCUA prior to declaring its quarterly dividend.   Furthermore, the NCUA had recently downgraded the competency rating of Bay Gulf's management due to its inability to improve the financial condition of the credit union.   Given these circumstances, Doolittle was probably under some pressure to show a profit for the first quarter of 1990 so that Bay Gulf could declare a dividend.   The NCUA Board found that each of the accounting violations it alleged was sufficient to change the outcome of the first quarter from loss to profit.   Therefore, Doolittle's misrepresentations of Bay Gulf's financial condition for the first quarter of 1990 support the NCUA Board's determination that Doolittle violated regulations requiring full and fair disclosure of Bay Gulf's financial condition.

18
The remaining accounting irregularities found by the NCUA Board do not give rise to the inference that Doolittle violated full and fair disclosure regulations.   Specifically, the improper accounting practices alleged in Count II, that data processing expenses were reported the month after the bill was received and that employee leave time was recorded as an expense when taken rather than when it vested, and in Count IV, netting NSF and ATM fee income against expenses, were, according to Doolittle's uncontroverted testimony, employed by Bay Gulf for several years.   Doolittle testified without opposition that these items were recorded in the same manner since at least 1988 and the NCUA regularly inspected Bay Gulf's books without objection.   Also, the data processing expenses recurred monthly, and Doolittle testified without contradiction that twelve such expenses were reported monthly in each fiscal year.   Given the consistency of these accounting practices, the record does not contain substantial evidence to support the conclusion that Doolittle violated full and fair disclosure regulations by manipulating the accounting of these items to inflate Bay Gulf's income for the first quarter of 1990.

19
Similarly, the NCUA Board's determination that Doolittle's handling of the Mims loans was an unsafe and unsound practice and a breach of his fiduciary duty is not supported by substantial evidence.   After Doolittle became aware of the problem loans, he took steps that he judged to be sufficient to prevent further escalation of the situation.   Hindsight reveals that he did not do enough, but he cannot be held to have breached his fiduciary duty simply because his underlings failed to follow his orders.   The loans were current at the time Doolittle took the actions for which he is now prosecuted.   When the loans defaulted, he informed the Board of Directors and took action to reduce Bay Gulf's losses.

20
This is not a case where a fiduciary engaged in imprudent lending activities or stood idle and allowed damage to increase.   Instead, Doolittle took what he mistakenly believed to be appropriate corrective actions.   Doolittle's behavior does not resemble that which is traditionally considered to be a breach of fiduciary duty.   See, e.g., Hoye v. Meek, 795 F.2d 893 (10th Cir.1986) (Bank director delegated too much authority to agent, failed to monitor agent, and failed to respond to bank's increasing exposure to risk);  Federal Deposit Ins. Corp. v. Butcher, 660 F.Supp. 1274 (E.D.Tenn.1987) (Director's failure to provide time and attention required by the corporation, surrender of control and power to officers, committing large, unsecured loans to insolvent entities and to companies affiliated with corporation and its president, and failure to carefully examine financial reports);  Federal Deposit Ins. Corp. v. Wise, 758 F.Supp. 1414 (D.Colo.1991) (Directors caused bank to extend large, imprudent loans to favored parties contrary to bank policies and federal regulations, commit excessive assets high risk loans despite repeated warnings from state and federal regulators, acquire loans without full and adequate investigation, and enter transactions with affiliated parties contrary to lending and underwriting policies).   Doolittle's response to the Mims loans does not reflect a breach of the sacred trust owed by a fiduciary, and therefore we cannot agree that Doolittle breached his fiduciary duty.

21
Neither can we agree that Doolittle engaged in an unsafe or unsound practice with regard to the Mims loans.  "Unsafe and unsound banking practices are defined as 'conduct deemed contrary to accepted standards of banking operations which might result in abnormal risk or loss to a banking institution or shareholder.' "  Northwest Nat'l Bank, Fayetteville, Ark. v. Department of the Treasury, 917 F.2d 1111, 1115 (8th Cir.1990), quoting First Nat'l Bank v. Department of the Treasury, 568 F.2d 610, 611 (8th Cir.1978).   Taking corrective actions to minimize the risk of loss on improvident loans is not conduct contrary to accepted standards of banking operations which might result in an abnormal risk to a banking institution.   Thus, Doolittle did not engage in unsafe and unsound banking practices.

22
The prohibition sanction adopted by the NCUA Board is harsh.   Doolittle is precluded from working in his chosen profession for the remainder of his career.   We must assume that the NCUA Board considered all of the accounting violations in fashioning this draconian sanction.   We hold that some of the violations relied upon by the NCUA, as described above, do not show that Doolittle breached the full and fair disclosure regulations in 12 C.F.R. § 702.3, and also that Doolittle's conduct with regard to the Mims loans did not breach his fiduciary duty or amount to unsafe or unsound practices.   We cannot assume that the NCUA Board would issue the same severe sanction without all of the violations upon which it previously relied.   Therefore, we vacate the prohibition order and remand this case to the NCUA Board for reconsideration in light of only those accounting practices which we find to be indicative of Doolittle's violating his obligation to full and fair disclosure of Bay Gulf's financial condition.

23
We must also explore the meaning of 12 U.S.C. § 1786(g)(1)(C), which provides that when the NCUA Board determines that a party has engaged in a violation, practice, or breach that satisfies subparagraph (A) (violation of law or regulation, unsafe or unsound practice, or breach of fiduciary duty) and subparagraph (B) (jeopardizes financial interests of credit union and members or inures to personal benefit of party), the Board may order prohibition if it also finds that such violation, practice, or breach involves personal dishonesty (1786(g)(1)(C)(i)) or "demonstrates such party's unfitness to serve as a director or officer of, or to otherwise participate in the conduct of the affairs of, an insured credit union."  (1786(g)(1)(C)(ii)).   Because there is no indication of personal dishonesty, the NCUA Board based the prohibition order on unfitness to serve.   The NCUA Board did not specify how Doolittle's conduct demonstrated his unfitness to serve as an officer and director, but, instead, the Board merely adopted the ALJ's cursory conclusion that all of the statutory requirements for a prohibition order had been met.   We conclude that this omission cannot stand.

24
When divining the meaning of a statute, we must bear in mind "the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative...."  Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985).   Applying this maxim to subsection 1786(g)(1)(C)(ii) leads to the conclusion that the NCUA Board must make some finding as to a party's fitness to participate in the conduct of the affairs of a credit union.   This finding must be more than a violation, practice, or breach sufficient to satisfy subparagraph (A) because otherwise subsection 1786(g)(1)(C)(ii) would be surplusage.   Thus, the NCUA must do more than find a subparagraph (A) violation, practice, or breach and recite such as the basis for concluding that subparagraph (C) is satisfied.

25
Subparagraph (C) provides that a prohibition order may be based either on a finding of personal dishonesty or on a finding of unfitness to serve.   We interpret this juxtaposition to mean that the NCUA Board's determination of unfitness must be supported by a finding of equal gravity to a finding of personal dishonesty.   This conclusion is supported by cases interpreting the analogous removal and prohibition section of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. § 1818(e)(1).   Subparagraphs 1818(e)(1)(A) and (B) contain nearly identical language to 12 U.S.C. §§ 1786(g)(1)(A) and (B).   Subparagraph 1818(e)(1)(C) of the FDI Act provides that a prohibition order may issue when the agency determines that a party has engaged in a violation, practice, or breach which:

26
(i) involves personal dishonesty on the part of such party;  or

27
(ii) demonstrates willful or continuing disregard by such party for the safety or soundness or such insured depository institution or business institution

28
12 U.S.C.A. § 1818(e)(1)(C) (West 1989).   Conduct sufficient to satisfy subsection 1818(e)(1)(C)(ii) must have the same magnitude as personal dishonesty.   See, e.g., Jameson v. Federal Deposit Ins. Corp., 931 F.2d 290 (5th Cir.1991) (falsification of bank records to conceal bonus from other bank officials);  Van Dyke v. Board of Gov. of the Fed.  Reserve Sys., 876 F.2d 1377 (8th Cir.1989) (bank officer participated in check-kiting scheme);  Brickner v. Federal Deposit Ins. Corp., 747 F.2d 1198 (8th Cir.1984) (continuing disregard evinced where bank officers knew cashier was engaging in unsafe and unsound banking practices for months, but failed to take suitable preventative action before substantial losses occurred);  [Anonymous] v. Federal Deposit Ins. Corp., 619 F.Supp. 866 (D.D.C.1985) (interim suspension order required allegations of dishonesty or habitually disastrous banking practices).   Enlightened by cases interpreting the FDI Act's prohibition section, we conclude that a prohibition order under the FCU Act which is based on a party's unfitness to serve must be supported by a finding of similar magnitude as personal dishonesty.

29
Therefore, we hold that the NCUA Board must provide some explanation of why Doolittle is unfit to serve as a director and officer of Bay Gulf beyond merely stating that he violated a law or regulation or breached his fiduciary duty.   This justification must have weight commensurate with a finding of personal dishonesty.

C. Restitution Sanction

30
The NCUA Board ordered Doolittle to make restitution to Bay Gulf in the amount of $42,857, which equals Bay Gulf's losses on the Mims loans.   The NCUA issued this order pursuant to 12 U.S.C. § 1786(e)(3)2 which grants authority to the NCUA to order restitution when it finds that a party has engaged in any violation or practice that involves a reckless disregard for the law or any applicable regulations.   Here, the NCUA Board determined that Doolittle's conduct in relation to the Mims loans displayed reckless disregard of NCUA regulations prohibiting credit unions from extending commercial loans to its members.  12 C.F.R. § 701.21(h) provides that a credit union shall not make business loans to its members unless the Board of Directors has adopted a written loan policy authorizing a commercial loan to that specific type of business.   Bay Gulf had no policy allowing loans to the type of business run by Mims;  thus, the Mims loans were made in violation of this regulation.

31
The NCUA Board determined that Doolittle demonstrated reckless disregard for 12 C.F.R. § 701.21(h) by failing "to take other reasonably prudent steps to insure that no further loans would be made" and by failing "to act effectively and diligently once he learned of the illegal loans."   In particular, the NCUA adopted the ALJ's conclusion that Doolittle should have informed the Board of Directors of the unauthorized loans much sooner.   Also, the NCUA Board found thatDoolittle should have done more than telling only one loan supervisor to make no further loans and mark the file accordingly.

32
We do not agree that Doolittle's behavior manifested reckless disregard for the regulation prohibiting commercial loans.   According to Doolittle's uncontroverted testimony, he took those actions which he honestly believed would remedy the problem.   Mims did not default on the loans until six months later after four more loans had been made contrary to Doolittle's orders.   Hindsight reveals that Doolittle could have done more to prevent Bay Gulf's exposure from increasing, but the clarity of ex post facto examination does not inform us as to Doolittle's mental state at the time of the alleged infraction.   Doolittle's judgment proved to be unwise, but he certainly did not disregard the commercial loan interdiction.

33
The NCUA argues that Brickner v. Federal Deposit Ins. Corp., supra, is on four squares with the present case and, accordingly, we should uphold the NCUA Board's determination that Doolittle showed reckless disregard.   In Brickner, the FDIC sought removal of bank officers pursuant to the FDI Act, 12 U.S.C. § 1818(e)(1)(C)(ii), which authorizes removal when an officer engages in an act or practice which demonstrates a continuing disregard for the soundness of the bank.   The conduct in question was the officers' failure to take appropriate steps to curtail unsafe and unsound activities of a bank cashier who repeatedly disobeyed their directions to cease the activities.   The officers did not disclose the continuing illicit activities of the cashier to the other directors or the FDIC until FDIC examiners discovered the activities.   After determining that "continuing disregard" is akin to "reckless disregard," the court found that the officers exhibited continuing disregard because they knew for months that the cashier was "engaging in unsafe and unsound banking practices, yet they failed to disclose this knowledge to the other directors or to take suitable action to prevent substantial losses to the Bank."  Brickner, 747 F.2d at 1203.

34
At first glance, this seems to be our case exactly, but there is a crucial distinction.   In Brickner the officers knew that their orders were disobeyed, whereas Doolittle did not know that his instructions were defied.   The Brickner officers knew their actions were ineffective, but failed to do more and were thus found liable for disregarding their duty to protect the bank from unsafe practices.   Doolittle, by contrast, took what he reasonably thought were effective steps to curtail the extension of unauthorized loans.   When he discovered that his actions were insufficient;  i.e., when the loans defaulted, he informed the board of directors and the NCUA and took immediate actions to limit Bay Gulf's losses.   While the Brickner officers disregarded their duty by knowingly failing to take effective remedial measurers, Doolittle responded to the Mims loans with actions that he believed were sufficient, even though the actions turned out to be not enough.   We do not agree that Doolittle demonstrated reckless disregard of the commercial loan prohibition.

35
Because we find that Doolittle did not act with reckless disregard, the restitution sanction cannot stand.   The legislative history of 12 U.S.C. § 1786(e)(3) supports this outcome in that it indicates that the restitution sanction is reserved for "serious misconduct."   H.R.Rep. No. 54, 101st Cong., 1st Sess., pt. 1, at 392 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 188.   Doolittle's poor judgment did not amount to his engaging in serious misconduct.   Due to the absence of reckless disregard, we reverse the NCUA Board's order that Doolittle pay restitution to Bay Gulf.

III. Conclusion

36
We VACATE the NCUA Board's prohibition order and REMAND for reconsideration in accordance with this opinion.   We REVERSE the NCUA Board's order that Doolittle make restitution to Bay Gulf in the amount of $42,857.

1
 This section states:
(g) Removal and prohibition authority
(1) Authority to issue order.   Whenever the Board determines that--
(A) any institution-affiliated party has, directly or indirectly--
(i) violated--
(I) any law or regulation;
(II) any cease-and-desist order which has become final;
(III) any condition imposed in writing by the Board in connection with the grant of any application or other request by such credit union;  or
(IV) any written agreement between such credit union and the Board;
(ii) engaged or participated in any unsafe or unsound practice in connection with any insured credit union or business institution;  or
(iii) committed or engaged in any act, omission, or practice which constitutes a breach of such party's fiduciary duty;
(B) by reason of the violation, practice, or breach described in any clause of subparagraph (A)--
(i) such insured credit union or business institution has suffered or will probably suffer financial loss or other damage;
(ii) the interests of the insured credit union's members have been or could be prejudiced;  or
(iii) such party has received financial gain or other benefit by reason of such violation, practice or breach;  and
(C) such violation, practice, or breach--
(i) involves personal dishonesty on the part of such party;  or
(ii) demonstrates such party's unfitness to serve as a director or officer of, or to otherwise participate in the conduct of the affairs of, an insured credit union,
the Board may serve upon such party a written notice of the Board's intention to remove such party from office or to prohibit any further participation, by such party, in any manner in the conduct of the affairs of any insured credit union.
12 U.S.C.A. § 1786(g)(1) (West 1989).

2
 This statute states:
(3) Affirmative action to correct conditions resulting from violations or practices.   The authority to issue an order under this subsection and subsection (f) of this section which requires an insured credit union or any institution-affiliated party to take affirmative action to correct any conditions resulting from any violation or practice with respect to which such order is issued includes the authority to require such insured credit union or such party to--
(A) make restitution or provide reimbursement, indemnification, or guarantee against loss if--
(i) such credit union or such party was unjustly enriched in connection with such violation or practice;  or
(ii) the violation or practice involved a reckless disregard for the law or any applicable regulations or prior order of the Board;
(B) restrict the growth of the institution;
(C) rescind agreements or contracts;
(D) dispose of any loan or asset involved;  and
(E) employ qualified officers or employees (who may be subject to approval by the Board at the direction of such Board);  and
(F) take such other action as the Board determines to be appropriate.
12 U.S.C.A. § 1786(e)(3) (West 1989).


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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                                                         - 904 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                  LENERS v. LENERS
                                                  Cite as 302 Neb. 904

                                        Sharon B. Leners, appellant, v.
                                          Stacy M. Leners, appellee.
                                                    ___ N.W.2d ___

                                          Filed April 19, 2019.    No. S-18-072.

                 1. Divorce: Child Custody: Child Support: Property Division:
                    Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
                    action, an appellate court reviews the case de novo on the record to
                    determine whether there has been an abuse of discretion by the trial
                    judge. This standard of review applies to the trial court’s determinations
                    regarding custody, child support, division of property, alimony, and
                    attorney fees.
                 2. Statutes: Appeal and Error. Statutory interpretation is a question of
                    law, which an appellate court resolves independently of the trial court.
                 3. Divorce: Property Division: Pensions. In dissolution proceedings, the
                    trial court has broad discretion in valuing and dividing pension rights
                    between the parties.
                 4. Child Custody. While the wishes of a child are not controlling in
                    the determination of custody, if a child is of sufficient age and has
                    expressed an intelligent preference, the child’s preference is entitled
                    to consideration.
                 5. Evidence: Appeal and Error. In a review de novo on the record, an
                    appellate court reappraises the evidence as presented by the record and
                    reaches its own independent conclusions with respect to the matters
                    at issue.
                 6. 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.
                 7. Courts: Attorney Fees. Courts have the inherent power to award attor-
                    ney fees in certain unusual circumstances amounting to conduct during
                    the course of litigation which is vexatious, unfounded, and dilatory, such
                    that it amounts to bad faith.
                             - 905 -
          Nebraska Supreme Court A dvance Sheets
                  302 Nebraska R eports
                       LENERS v. LENERS
                       Cite as 302 Neb. 904

  Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Affirmed.

  Philip B. Katz and Steven J. Riekes, of Marks, Clare &
Richards, L.L.C., for appellant.

  Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellee.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.

  Cassel, J.
                      INTRODUCTION
   Sharon B. Leners appeals from a decree dissolving her mar-
riage to Stacy M. Leners. Although the district court may have
overstated Sharon’s entitlement to a divorced spouse annuity
in connection with Stacy’s railroad pension, it did not abuse
its discretion in awarding Stacy his entire pension in equita-
bly dividing the marital estate. Having reviewed the record de
novo, we cannot say that the court’s determinations regarding
custody, parenting time, child expenses, and attorney fees were
untenable. We affirm the decree.

                        BACKGROUND
   The parties married in 1997. In 2016, Sharon filed a com-
plaint to dissolve the marriage. At that time, the parties had
two minor children, one born in 1998 and the other in 2002.
   On July 31, 2017, the court entered a temporary order
awarding the parties joint custody of the children. Because
Stacy’s employment takes him to different locations around the
country from the 1st through the 8th day of the month and then
the 16th to the 23d day of each month, the court provided him
parenting time every month on the 9th to the 15th day and on
the 24th to the last day of the month.
   Three weeks later, the court conducted a trial. We summa-
rize only the evidence relevant to the issues on appeal.
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                              Custody
   The custody issue focused on the 15-year-old child, because
the other child soon would be turning 19 years old (and did
shortly before entry of the decree). The 15-year-old child testi-
fied in camera, and the court sealed her testimony. We consider
this testimony in our de novo review, but decline to summa-
rize it.
   Both parties described a positive relationship with the child.
Stacy requested shared legal and physical custody of the child,
but Sharon asked for sole custody. According to Sharon, the
temporary custody and parenting time arrangement was not in
the child’s best interests, because it caused the child to cry and
to be irritable and argumentative. Sharon did not believe that
joint physical custody would work on a permanent basis. She
anticipated having difficulty obtaining the child’s compliance
and did not “feel [she] should have to force a 15[-]year-old” to
comply with the parenting plan. Stacy testified to a willingness
to put aside personal differences and work with Sharon even
though he had been unable to do so in the past.
   The parties offered different parenting time plans for the
court’s consideration. Sharon proposed that Stacy have parent-
ing time every other weekend from after school on Friday until
10 a.m. on Sunday and on Thursdays each week from after
school until 8 p.m. But Stacy testified that such a plan would
leave him little one-on-one time with the child due to the
child’s activities and Stacy’s work schedule. Stacy essentially
asked for an extension of the temporary plan.

                            Pensions
   Sharon is a registered nurse, and her proposed child support
worksheets show her monthly income to be $3,693. Through
her employer, she has a 401K account and a pension. She also
has a Nebraska Public Employees Retirement Systems account.
In Sharon’s proposed property division, she included the lat-
ter account and the 401K under her column at a total value of
$38,301.28. Stacy’s proposed property division additionally
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included Sharon’s pension from her employer at a value of
$250 per month.
   Stacy has worked for Union Pacific Railroad for nearly 12
years. He is a “system semi driver,” and his proposed child sup-
port worksheet showed his monthly income to be $5,208. Stacy
did not have a thorough understanding of his railroad pension,
but he believed that the tier I component was not divisible,
while the tier II component was. According to Stacy, Sharon
was eligible to receive a payment from his railroad pension and
she would receive some of his pension after they were divorced
even without any order from the court. Stacy’s proposed prop-
erty division suggested that Sharon receive a divorced spouse
benefit of unknown value and that he would receive his 401K
valued at $49,290. Sharon’s proposed property division showed
that the “Railroad Retirement Board Creditable Compensation”
of unknown value should be divided by a qualified domestic
relations order.
   The court received a “Statement of Railroad Employee’s
Actual or Estimated Railroad Retirement Benefits” dated
January 19, 2017, which was furnished for use in connection
with a divorce. The statement reflected an estimate of Stacy’s
current monthly benefit based upon employment with the rail-
road through December 1, 2015, assuming that he were now
retired and entitled to payment of benefits. It showed the fol-
lowing monthly railroad benefit amounts:
      Tier I railroad retirement benefit component . . .    	$956.00
      Divisible railroad retirement benefit components
      (Tier II, supplemental annuity, dual benefits) . . . $253.50
      Total monthly railroad retirement benefits . . . $1,209.50
         Caution: The Tier I benefit component is not subject
      to division, and the Railroad Retirement Board will not
      recognize any property division made with respect to it.
   The statement contained a section addressing the “Railroad
Retirement Divorced Spouse Benefit Estimate.” That section
provided: “Assuming current entitlement under the Railroad
Retirement Act, the divorced spouse benefit for the spouse
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of this railroad employee would be an estimated $441.00 per
month, effective May 1, 2037, minus any social security ben-
efits for the same month.”
                         Attorney Fees
   Sharon informed Stacy that she was “not going to deal with
him” and that any communications had to go through their
attorneys. According to Sharon, the parties cannot “get along”
and the police had been called five or six times to “keep the
peace.” Stacy testified that he had incurred significant attorney
fees to obtain parenting time and to obtain access to personal
property. He testified he incurred attorney fees unnecessarily,
and an exhibit showed his fees to be $14,982.50 prior to trial.
Sharon’s attorney fees amounted to $13,867.75.
                            Decree
   The court dissolved the parties’ marriage. It specifically
found Stacy’s testimony to be more credible than the testimony
of Sharon. The court characterized the matter as “extremely
contentious,” explaining:
     The parties have involved law enforcement multiple
     times, they have each requested temporary relief from the
     court including motions for temporary custody, parenting
     time, access to the marital home, possession of personal
     property, payment of expenses and support issues. They
     have each said and done things not becoming including
     but not being limited to name calling. The parties have
     made it very clear to one another, and to the Court, that
     they are not able to get along.
   The court awarded the parties shared legal and physical
custody of the children. It adopted the parenting time sched-
ule proposed by Stacy, which awarded Stacy regular parent-
ing time on the same days set forth in the temporary order.
The court ordered each party to be responsible for one-half
of the reasonable and necessary medical expenses of the
child and of any mutually agreed-upon expenses for the
child’s activities.
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   The court awarded Sharon as her sole and separate property
her 401K and pension and her Nebraska Public Employees
Retirement Systems account. It awarded Stacy as his sole and
separate property his Union Pacific Railroad pension and his
401K. The court entered judgment in favor of Sharon in the
amount of $50,019 and ordered that Sharon pay Stacy $9,000
for his attorney fees.
   Following the court’s denial of Sharon’s timely motion for
new trial and motion to alter or amend, she brought this timely
appeal. We moved the case to our docket.1
                 ASSIGNMENTS OF ERROR
  Sharon assigns that the court erred in (1) interpreting federal
law regarding retirement benefits that may be available for
equitable distribution, (2) awarding joint custody and equal
parenting time, (3) failing to allocate child expenses, and (4)
awarding attorney fees to Stacy.
                   STANDARD OF REVIEW
   [1] In a marital dissolution action, an appellate court reviews
the case de novo on the record to determine whether there has
been an abuse of discretion by the trial judge. This standard
of review applies to the trial court’s determinations regard-
ing custody, child support, division of property, alimony, and
attorney fees.2
   [2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.3
                          ANALYSIS
                     R etirement Benefits
  Retirement pensions for railroad employees are governed
by federal law. The Railroad Retirement Act of 19744 provides

1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
    Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 582 (2018).
3
    Gerber v. P & L Finance Co., 301 Neb. 463, 919 N.W.2d 116 (2018).
4
    45 U.S.C. § 231 et seq. (2012).
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two tiers of benefits.5 Tier I benefits correspond to those an
employee would receive if covered by the Social Security
Act.6 Tier II benefits are like a private pension, and the ben-
efits are tied to earnings and career service.7 “In the past,
courts were prohibited from awarding one spouse an interest
in benefits to which the other spouse became entitled under
the Railroad Retirement Act.”8 But Congress amended the act,
and the Railroad Retirement Board must “honor a decree of
divorce characterizing tier II benefits as property subject to
distribution.”9 Tier I benefits remain excluded from consider-
ation as divisible marital property.10
   [3] In dissolution proceedings, the trial court has broad
discretion in valuing and dividing pension rights between the
parties.11 Here, the court awarded each party his or her own
401K and pension as that party’s sole and separate property.
Sharon argues that the court erred in interpreting federal
law regarding retirement benefits available for equitable dis-
tribution and that the court should have equitably divided
Stacy’s tier II pension benefits. But it appears that the court’s
awarding each party his or her own pension was an effort to
equitably divide the entire marital estate: an effort unaided
by any evidence as to a present dollar value for either pen-
sion. The record does reflect that Sharon’s pension would
amount to approximately $250 per month, while the tier II
component of Stacy’s pension would be $253.50 per month
for “reduced age” or $360 per month for “full age and serv
ice annuity.” The record does not show whether Sharon’s

 5
     See Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1
     (1979).
 6
     See id.
 7
     See id.
 8
     Shearer v. Shearer, 270 Neb. 178, 181, 700 N.W.2d 580, 584 (2005).
 9
     Id., citing 45 U.S.C. § 231m(b)(2) (2000), and 20 C.F.R. § 295.1 (2005).
10
     See McGraw v. McGraw, 186 W. Va. 113, 411 S.E.2d 256 (1991).
11
     Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
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monthly pension amount is “reduced age.” Either way, we
find no abuse of discretion by the court in awarding Stacy
his railroad pension.
   Sharon also contends that the court erroneously assumed
she would receive a divorced spouse annuity. In connection
with awarding each party his or her own pension, the court
explained:
      In so ordering, the Court notes that as it currently stands,
      [Sharon] shall receive a substantial sum from Union
      Pacific as a divorced spouse pension. [Stacy’s] pension
      (employee annuity) amount shall be his and his alone. To
      allow [Sharon] to receive her entire share of the divorced
      spouse pension (ranging between $441 and $679), plus
      half of his pension ($1209 divided by 2 = $604.50 or
      $17[1]9 divided by 2 = $859.50) would result in her pen-
      sion payout being nearly 2/3s of the total. Such a result
      is inequitable. In reaching this conclusion, the Court has
      taken into account that [Sharon] shall receive all of her
      $250 monthly pension from [her employer].
   We agree with Sharon that there is no guarantee she will
receive “a substantial sum from Union Pacific as a divorced
spouse pension.” To be eligible, a divorced wife must not
be married12 and must not be entitled to Social Security ben-
efits greater than the divorced spouse annuity.13 This error
favored Stacy. But, on the other hand, the court’s calculation
of the divisible portion of Stacy’s pension erroneously favored
Sharon. Because federal law precludes marital division of tier I
benefits, the correct numbers for Stacy’s tier II pension would
have been between $253.50 and $360 instead of $1,209 and
$1,719. Thus, even assuming that Sharon would be entitled to
no divorced spouse annuity, we find no abuse of discretion in
the court’s equitable division of the marital estate.

12
     See 45 U.S.C. § 231a(c)(4)(ii).
13
     See, 45 U.S.C. § 231a(f)(2); 20 C.F.R. § 226.30(f) (2018).
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                   Custody and Parenting Time
    The court awarded the parties shared legal and physical cus-
tody and equal parenting time. Sharon argues that the arrange-
ment is not in the younger child’s best interests and that the
court should have awarded her primary custody and parent-
ing time.
    [4] Nebraska law explicitly provides that a court shall con-
sider “[t]he 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.”14 We
have held that while the wishes of a child are not controlling in
the determination of custody, if a child is of sufficient age and
has expressed an intelligent preference, the child’s preference
is entitled to consideration.15 In our de novo review, we have
considered the child’s age, her preference, and her reasoning.
Her testimony concerning her relationship with each parent and
custody preference did not contradict the parties’ testimony
that they each had a good relationship with the child.
    [5,6] In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches
its own independent conclusions with respect to the matters
at issue.16 In a marital dissolution action, we conduct such a
review to determine whether the trial judge abused its discre-
tion.17 A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition.18
    Here, both parties are fit and proper parents. The court
attempted to fashion a parenting time schedule that would

14
     Neb. Rev. Stat. § 43-2923(6)(b) (Reissue 2016).
15
     See Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).
16
     Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).
17
     See id.
18
     Id.
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accommodate Stacy’s rather unusual work schedule, minimize
the communication and coordination between the parties, and
still serve the child’s best interests. The court observed that
Sharon’s parenting plan—which would allow Stacy parenting
time on four overnights twice a month but would vary on days
of the week and days of the calendar—would require the par-
ties to frequently communicate and cooperate in order to avoid
conflict. The court reasoned:
      It is in the best interest of the minor children that they
      have a good, strong, positive relationship with each par-
      ent. To have the same, it is necessary for each parent to
      have significant periods of time with the minor children.
      The best way to ensure the fewest exchanges for the
      minor child and minimize the contact between the parties
      is to set a schedule based on the known factors including
      [Stacy’s] work schedule. By doing so, it is established
      exactly what the parenting time schedule is and eliminates
      the strong possibility of further conflict or disagreement
      between the parties.
Although the court referred to “children,” from the context,
it is clear that the court’s decree addressed only the younger
child.
   Here, the court decreed “shared” rather than “joint” cus-
tody. But, at least here, that seems to be a matter of semantics.
And we recognize that we have said joint physical custody
must be reserved for those cases where, in the judgment
of the trial court, the parents are of such maturity that the
arrangement will not operate to allow the child to manipu-
late the parents or confuse the child’s sense of direction,
and will provide a stable atmosphere for the child to adjust,
rather than perpetuating turmoil or custodial wars.19 While
generally sensible, this is not a hard-and-fast rule. A statute
specifically provides that a court may order joint custody “if

19
     See Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
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the court specifically finds, after a hearing in open court, that
joint physical custody or joint legal custody, or both, is in the
best interests of the minor child regardless of any parental
agreement or consent.”20 And we have affirmed a trial court’s
decision not to modify an award of joint legal custody even
though the evidence showed that the parties continued to have
difficulty communicating and cooperating with one another.21
In light of Stacy’s unusual work schedule, the court’s favor-
able contrast of his credibility and reasonableness to Sharon’s,
and the child’s relationship with both parents, we cannot say
that the court’s award of shared custody and parenting time
is untenable.

                     A llocation of Expenses
   Because we are affirming the award of shared custody, we
consider Sharon’s claim that the court erred in failing to allo-
cate expenses. Sharon argues that except for medical expenses
provided in the decree, the court did not require that “all rea-
sonable and necessary expenses of the child, including but not
limited to clothing and extracurricular activities, be equally
divided and not require any mutual agreement.”22
   A statute requires a decree to address the parties’ respon-
sibility for certain child expenses. “A decree of dissolution
. . . shall incorporate financial arrangements for each party’s
responsibility for reasonable and necessary medical, dental,
and eye care, medical reimbursements, day care, extracurricu-
lar activity, education, and other extraordinary expenses of the
child and calculation of child support obligations.”23 And Neb.
Ct. R. § 4-212 (rev. 2011) provides that when child support

20
     See Neb. Rev. Stat. § 42-364(3)(b) (Cum. Supp. 2018).
21
     See State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d
     230 (2015).
22
     Brief for appellant at 23 (emphasis in original).
23
     Neb. Rev. Stat. § 42-364.17 (Reissue 2016).
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is to be calculated using worksheet 3, “all reasonable and
necessary direct expenditures made solely for the [child] such
as clothing and extracurricular activities shall be allocated
between the parents.”
   The decree, together with attachments, allocated the neces-
sary expenses. As Sharon observes, the decree ordered the
parties to each be responsible for one-half of the reasonable
and necessary medical expenses. The parenting plan addition-
ally required the parties to each “be responsible for the cloth-
ing, personal property, food and entertainment of the children
during their own parenting time” and to “pay one-half of any
mutually agreed upon expenses for activities of the minor
children so long as the same is clearly stated and agreed to in
writing prior to such expense being incurred.”
   Although Sharon’s brief was not entirely clear, she con-
firmed that she was arguing that the district court should not
have made any of the expenses for extracurricular activities
subject to mutual agreement. Or, stated another way, that the
decree should have required one parent to pay one-half of the
child’s expenses for extracurricular activities authorized solely
by the other parent. We do not agree that § 4-212 requires a
trial judge to grant one parent carte blanche to compel the other
parent to pay (either wholly or partially) for every conceivable
extracurricular activity for a child. Certainly, the parties may
agree to divide extracurricular activities in that way.24 But here,
they did not agree.
   Section 4-212 contemplates allocation between the parents
of “all reasonable and necessary direct expenditures made
solely for the [child] such as . . . extracurricular activities.”
The record here does not establish that all of the child’s poten-
tial expenses for extracurricular activities met that standard.
And given the acrimonious dispute on virtually every issue
and the court’s assessment of Sharon’s credibility regarding an

24
     See Moore v. Moore, ante p. 588, 924 N.W.2d 314 (2019).
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extracurricular activity, the court could reasonably anticipate
that the reasonableness and necessity of such expenses would
be another source of contention—particularly if the court per-
mitted Sharon to unilaterally dictate which activities would be
permitted. Although Sharon filed a motion to alter or amend
the decree, her motion did not specify any particular expenses
to be so allocated. The tenor of the court’s decree shows that it
trusted Stacy, but not Sharon, to be reasonable. If subsequent
events show that Stacy responds unreasonably, the court has
the tools to compel an equitable solution. We conclude that the
court did not abuse its discretion in allocating reasonable and
necessary expenses of the child.
                         Attorney Fees
   Sharon contends that the court abused its discretion by order-
ing her to pay Stacy $9,000 in attorney fees. Stacy requested
such an award, but the decree did not specifically explain why
the court imposed these fees. Nonetheless, from the court’s
specific findings, we discern a legal rationale.
   [7] Courts have the inherent power to award attorney fees in
certain unusual circumstances amounting to conduct during the
course of litigation which is vexatious, unfounded, and dila-
tory, such that it amounts to bad faith.25 The decree set forth
specific findings identifying Sharon’s conduct.
   The court found that Sharon “doused in diesel fuel” some
of Stacy’s clothing and destroyed Stacy’s grandmother’s dishes
by “intentionally shooting [them] with a gun.” Sharon admitted
that at the beginning of the proceeding, she told Stacy repeat-
edly in text messages that because he was the one who left, he
was going to have to “pay for it.” Clearly, this conduct was,
and was intended to be, vexatious. There was evidence that
Stacy incurred attorney fees attempting to obtain parenting
time and access to personal property and relating to the filing
of tax returns.

25
     Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
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   The court’s decree provided a number of examples why
it found Stacy’s testimony to be more credible, recounting
numerous instances where Sharon’s testimony was unfounded.
According to the decree:
     [Sharon’s] testimony regarding the creation of the calen-
     dars she purported to have been created simultaneously
     with the events proved to be inaccurate in that the cal-
     endars were printed in March of 2017 and purported to
     reflect events dating back six months prior[, and] was
     not credible. [Sharon’s] testimony regarding her lack of
     knowledge of the birthdate, approximate age or address
     of the gentleman she had been dating for seven months
     prior was suspect. [Sharon’s] testimony that [the older
     child] lived in the marital home through the date of trial
     was admitted to be false on cross examination when she
     admitted that [the older child] had not stayed overnight
     in the home since May of 2017. [Sharon’s] testimony
     that [the older child] has never stayed overnight with
     [Stacy] since separation was admitted to be false on
     cross-examination. [Sharon’s] testimony that she did all
     of the transporting of [the younger child] during the mar-
     riage was also admitted to be false on cross examination
     when she admitted that when [Stacy] was not working,
     he picked [the child] up from school each day. [Sharon’s]
     testimony in her affidavit for temporary custody and her
     matching testimony at trial that [Stacy] promised to pay
     one-half of the current cheer bill of $260 a month was
     also admitted by her on cross examination to be false
     when she admitted that [Stacy] told her he could not
     afford to pay the increased fee of $260 a month (com-
     pared to the $110 a month) for [the cheer bill] and further
     she admitted that he had never agreed to pay it.
   The record supports Stacy’s testimony that the attorney
fees he incurred were often unnecessary and resulted from
Sharon’s vexatious, unfounded, and dilatory conduct. Having
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reviewed the record along with the parties’ arguments, we can-
not say that the court’s award of attorney fees was an abuse
of discretion.
                         CONCLUSION
   Having reviewed the record de novo, we conclude that the
court did not abuse its discretion in awarding Stacy his railroad
pension, ordering shared custody and parenting time, address-
ing reasonable and necessary child expenses, and awarding
attorney fees. We therefore affirm the decree.
                                                     A ffirmed.