The NSBA’s Family Law Section presents: 2021 Family Law Seminar
Friday, July 9, 2021 Embassy Suites – La Vista, NE IN-PERSON/WEBCAST
Professor Elizabeth M. Fraley, Baylor University Chris Aupperle, Nebraska Lawyers Assistance Program Tim Hruza, Esq., Mueller Robak LLC Hon. Stefanie A. Martinez, District Court Judge Hon. Rachel A. Daugherty, Judge of the District Court Hon. Riko Bishop, Judge of the Court of Appeals Adam Astley, Esq., Astley Putnam, PC, LLO
Sponsored by This page intentionally left blank. AGENDA The 2021 Family Law Seminar will provide an overview of the best practices relating to family law and caselaw currently impacting families. While this seminar will provide family law lawyers with an update on recently passed legislation and case law, it will also provide an opportunity to explore the lessons learned from the COVID-19 pandemic, how COVID- 19 impacted trials, best practices from the bench, and compassion fatigue and how to combat it.
9:00 AM – 10:30 AM Virtual Advocacy – A Wave of the Future? Professor Elizabeth M. Fraley, Baylor University This seminar will discuss how we can use the lessons learned during COVID-19 as an opportunity to improve our advocacy and the practice of divorce law.
10:30 AM – 11:30 AM A Lawyer’s Guide to Compassion Fatigue Awareness Chris Aupperle, Nebraska Lawyers Assistance Program Compassion fatigue is the cumulative physical, emotional and psychological effect of exposure to traumatic stories or events when working in a helping capacity, combined with the strain and stress of everyday life. This condition can be a particular concern for lawyers practicing family law. Repeated exposure to the emotions, trauma and difficulties of your clients on a daily basis can have a negative impact on your perception of the world, relationships, ability to understand your clients needs and work satisfaction. Compassion fatigue is also treatable. This program will explore causes and symptoms of compassion fatigue, discuss the warning signs and how this condition can be successfully treated.
11:30 AM – 12:00 PM Legislative Update Tim Hruza, Esq., Mueller Robak LLC This session will provide family practice lawyers with an update on legislation introduced during the 2021 Legislative Session.
12:00 PM – 1:00 PM Lunch Break 1:00 PM - 2:00 PM Family Law Judge’s Panel: Best Practices Hon. Stefanie A. Martinez; Hon. Rachel A. Daugherty; Hon. Riko Bishop COVID-19 changed so many things, which is especially true for the family law practice. Our panel of judges will discuss the best practices in preserving the record in difficult circumstances, what judges are looking for during virtual arguments, and future effects of COVID-19 on family law trials.
2:00 PM – 2:15 PM Discussion about the status of proposed uniform temporary custody order (No CLE requested for this portion) Hon. Riko Bishop
2:15 PM – 2:30 PM Break
2:30 PM – 4:00 PM Family Law Case Law Update Adam Astley, Esq., Astley Putnam, PC, LLO This session will provide family law lawyers with an update on recent cases that impact the practice of family law. SPEAKER BIOS
Professor Elizabeth M. Fraley, Baylor University Elizabeth M. Fraley is a Professor at Baylor Law School, teaching Practice Court and serving as co-director of the Executive LL.M. in Litigation Management. She serves as faculty at the Academy of the Advocate in St. Andrews, Scotland. Liz is an actively practicing attorney with more than 30 years of trial and mediation experin e ce representing health care providers and businesses. She has been named a Texas Super Lawyer every year starting in 2004 and has been a D Magazine “Best Lawyers in Dallas” annually since 2011. She is a member of the American Board of Trial Advocates (ABOTA), is president of the Waco Chapter and a national board member. She acted as faculty in the ABOTA Masters in Trial series. She serves as faculty for the Judicial Education Conference, teaching evidence to sitting judges. She is a member of the Abner McCall Inn of Court, the McLennan County Bar Association and is chair of the State Bar Advanced Medical Torts Course. She is a co-author of Texas Commercial Causes of Action, author of the updated Powell and Kinkeade’s Practical Guide to Texas Evidence and co-author of Fundamentals of Lawyer Leadership. Liz is a frequent author and speaker on trial skills, virtual advocacy, leadership civil procedure and evidence. An avid runner and traveler, she is the mother of three children.
Chris Aupperle, Nebraska Lawyers Assistance Program Chris Aupperle has spent the past four years as Director of the Nebraska Lawyers Assistance Program (NLAP). He is a graduate of Creighton University, earning his undergraduate degree in 1989 and his JD in 1992. Chris began his law career in private practice in Omaha, NE and eventually transitioned to in-house counsel for a national food company where he spent fourteen years practicing in the areas of property, environmental and contract law. Chris started volunteering on the NLAP Committee in 2001 and served as chair of the NLAP Committee in 2015-17. As NLAP Director, Chris coordinates NLAP outreach, education and services to all Nebraska lawyers, judges and law students who may be affected by stress, mental health, cognitive or substance use disorders. He also serves on the Advisory Committee for the Independence Center at the Bryan Medical Center in Lincoln.
Tim Hruza, Esq., Mueller Robak LLC Tim Hruza joined the government relations team at Mueller Robak LLC after having earned experience practicing law in a variety of contexts. After graduating from the University of Nebraska College of Law, Tim spent three years in private practice at Leininger Smith law firm advocating for their interests before elected officials on both local and state levels. Tim then served as legal counsel to the Nebraska Legislature’s Judiciary Committee, where he advi sed Senators on the legal aspects of bills presented to them for consideration, before joining the firm.
Tim received his juris doctor degree with distinction from the University of Nebraska College of Law in 2012, where he was a member of the Moot Court Board and received awards for his oral advocacy skills. Before attending law school, Tim was an honors graduate of the University of Nebraska at Kearney, receiving his in Grand Island, Nebraska, where he worked with clients on a number of different legal issues, from litigating contract and property boundary disputes, to developing estate plans and facilitating business transactions. Following his time in private practice, Tim worked as legal counsel to a Lincoln business association, providing advice and counsel to local business owners.
Hon. Stefanie A. Martinez - Judgeship: 2017 – present - District Court Judge, 2nd Judicial District; Cass, Otoe, and Sarpy Counties
Hon. Rachel A. Daugherty - Judgeship: 2014 – Present - Judge of the District Court, 5th Judicial District; Boone, Butler, Colfax, Hamilton, Merrick, Nance, Platte, Polk, Saunders, Seward, & York counties
Hon. Riko Bishop - Judgeship: 2013 – Present - Judge of the Court of Appeals, 1st Judicial District; Lancaster and Seward counties
Adam Astley, Esq., Astley Putnam, PC, LLO Adam Astley has been in private practice since 2004 and specializes in difficult divorce cases. He represents parents, business owners and high-net-worth individuals in personal divorces, business dissociations, and post-judgment litigation. He is a founder of Astley Putnam, PC, LLO in Omaha, and he created the Nebraska Child Support Calculator software, which is used by most Nebraska lawyers and judges. Adam received his Juris Doctor from the Creighton University School of Law. 2021 Family Law Seminar
Virtual Advocacy – A Wave of the Future?
Professor Elizabeth M. Fraley Baylor University
Friday, July 9, 2021 Embassy Suites – La Vista, NE In-person/Webcast This page intentionally left blank. VIRTUAL ADVOCACY: WAVE OF THE FUTURE?
PROFESSOR ELIZABETH M. FRALEY – BAYLOR LAW SCHOOL
CO-DIRECTOR, EXECUTIVE LL.M. IN LITIGATION MANAGEMENT TENURED PROFESSOR – PROCEDURE AND EVIDENCE TRIAL LAWYER ABOTA MEMBER TECHNOPHOBE BIG GEEK! 1. The Lawyer Brain WHERE HAVE WE 2. Technological Competence BEEN? 3. COVID-19
THE LAWYER BRAIN
WHAT DO WE KNOW ABOUT HOW LAWYERS THINK AND REACT? 100
90
80
70 LAWYER TRAITS
60 COMPARED TO THE
50 GENERAL
40 POPULATION
30 FROM RESEARCH BY DR LARRY 20 RICHARD’S “THE LAWYER BRAIN” 10
0 Skepticism Urgency Sociability Ambition
LAWYERS AND RESILIENCE
“90% of lawyers score in the bottom half of the scale on the psychological trait called ‘Resilience’.
Low Resilience people tend to be relatively thin-skinned, defensive, and easily wounded by criticism, rejection or other setbacks. They don’t bounce back well from adversity.” • - Dr. Larry Richard WHY DO LAWYERS GENERALLY RESIST TECHNOLOGY? There are several explanations: legal culture; lawyer hubris; conservatism; an economic model that has historically rewarded input (labor intensity), not output (results); lack of investment in new resources (both human and machine); and resistance to melding the practice of law with the business of delivering legal services.
LIKE GARTH, WE FEAR CHANGE! WHY MUST WE CHANGE?
ABA MODEL “To maintain the requisite knowledge and skill [to be competent], a lawyer should RULE 1.1, keep abreast of changes in the law and its COMMENT 8’S practice, including the benefits and risks ETHICAL associated with relevant technology, engage in continuing study and education REQUIREMENTS and comply with all continuing legal education requirements to which the lawyer is subject.” NEBRASKA’S TECHNOLOGY COMPETENCE REQUIREMENTS
§ 3-501.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation and judgment reasonably necessary for the representation.
Maintaining Competence [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. § 3-501.1 Comment 6 amended June 28, 2017
COVID-19 AND SHELTER technology IN PLACE: DRINKING FROM A FIREHOSE WORK FROM HOME REMOTE HEARINGS, ONLINE CLE REMOTE/VIRTUAL OFFICE DEPOSITIONS AND MEDIATIONS
COVID-ERA ADAPTATIONS
1. Cyber security, or safeguarding electronically stored client information
2. Electronic Discovery, including the preservation review and production of electronic information
3. Leveraging technology to deliver legal services, such as automated IN WHAT AREAS document assembly, electronic court scheduling and file share technologies SHOULD WE BE 4. Understanding how technology is used by clients to offer services or COMPETENT? manufacture products
5. Technology used to present information and/or evidence in the courtroom
6. Internet-based investigations through simple Internet searches and other research tools available online TOP 3 TECH OPTIONS FOR FAMILY LAWYERS:
Effective virtual advocacy
Internet based investigations
Leveraging tech to deliver services
Social media clause in your employment contract • NOTE: ETHICALLY, YOU CANNOT DELETE CONTENT! INTERNET BASED INVESTIGATIONS Social media sweeps of clients, witnesses and experts
Expert witness verification of credentials/impeachment materials SOCIAL MEDIA GEMS
EXPERT CHECKS: THE BLIND LEADING THE BLIND? COMPETENCY DOES NOT MEAN DYI! YOU CAN HIRE OUTSIDE EXPERTISE
ZOOM AND FAMILY LAW: A MARRIAGE MADE IN
Zoom Family HEAVEN? Law 1. Domestic violence issues
2. Temporary Orders/Emergency Orders WHY FAMILY LAW NEEDS A 3. Child witnesses/childcare issues VIRTUAL ADVOCACY 4. Less downtime for clients and witnesses OPTION 5. Lower costs
6. Greater witness compliance with subpoenas
Internet inequity
Inability to present evidence digitally POTENTIAL ISSUES Impact on nonverbal communication
Zoom fatigue HOW TO BE A BETTER ADVOCATE ON ZOOM
MAXIMIZE YOUR APPEARANCE
Position yourself in the frame Good lighting (overhead and in front) CONSIDER THE OPTICS OF YOUR ZOOM IMAGE
How do you and your space look? Can you digitally clean up?
GETTING A BETTER BACKGROUND – HOW TO DO IT
Background and studio effects Virtual background options DIFFERENT BACKGROUNDS MAY REQUIRE SETTING CHANGES
Blur your background Use a virtual background
ALTER YOUR APPEARANCE
Studio effects=digital make up and hair Suddenly, the situation gets hairy! Organize and save as individual PDFs
Bates label each exhibit
Save to your desktop – cloud-based storage may drop out while on Zoom
Index your PDFs
Pre-mark with exhibit stickers (if the court permits) using ADOBE
ORGANIZE YOUR EVIDENCE BEFORE THE HEARING
POLISH YOUR PRESENTATION: SHARING YOUR SCREEN BASICS FOR SCREEN SHARING
POLISH YOUR PRESENTATION
*POWERPOINT *WORD FILES *PHOTOS *CLIP ART * VIDEOS ADD AN ELMO OR DOCUMENT CAMERA
On Share Screen – choose “Advanced” Select “Second camera”
TRY BROADCAST EFFECTS FOR PRESENTATIONS:
SELECT POWERPOINT AS VIRTUAL BACKGROUND CRISP AND PROFESSIONAL LOOKING STYLE
PROCESS AUTOMATION: SAVE 13-23% OF YOUR TIME!
This Photo by Unknown Author is licensed under CC BY-SA WHY AUTOMATE PROCESSES?
• Removes room for human error related to duplicate data entry. • Creates a better client experience when processes they interact with directly are automated or self-service (such as filling out forms). • Increases attorney satisfaction because they can spend more time on billable work and other revenue- producing activities. • Improves communication and transparency between your law firm’s staff and clients. • Decreases the overhead costs of staffing and other fees associated with a conventional law office. • If you’re a solo or small firm, automation levels the playing field by enabling you to stay competitive on a smaller budget.
WHAT CAN YOU AUTOMATE? CLIENT INTAKE
Standard data collection from client: Firm internal information for each case: Client’s name • Practice area Spouses name • Responsible attorney(s) • Other staff working on the case Date of marriage • Billing method Date of separation • Filing dates Number of children • Retainer agreements Children’s names • Conflict checks Billing information SCHEDULING AUTOMATION
DOCUMENT AUTOMATION
Process automation uses the information gathered during client intake to pre-populate a divorce petition or other document. Notification options
CLIENT Chatbot functions (using AI) COMMUNICATION
Billing functions
HOW TO AUTOMATE
CUSTOM SOFTWARE OPTIONS A Zap links software programs to If this… then this… automate certain functionality. functions.
USING ZAPIER – HOW TO MAKE A ZAP
When this happens… (Choose your trigger event)
Do this… “Send an email”
Customize the email (your account), including recipients (client) and subject (Alert to a client)
Create the body of the email
Send a test email.
NOTIFY A CLIENT OF A HEARING AND FOLLOW UP So, the email told the client you’d follow.
“I hope you are well. I wanted to let you know I will be attending a hearing for you on (pull from calendar dynamically). You do not need to take any action at this time. I will contact you after within two business days.”
You can then set another alert on you.r calendar two days after the hearing to follow up with the client
MORE YOU CAN DO WITH YOUR ZAP
USING INTERNET RESEARCH ON WITNESSES AND CLIENTS
WHICH ONE OF THESE WOMEN CLAIMS A DEVASTATING INJURY TO HER LEFT HAND? GET READY TO CATCH THE WAVE!
ANY QUESTIONS?
Elizabeth M. Fraley Professor of Law Baylor Law. [email protected] THANK YOU
ELIZABETH M. FRALEY PROFESSOR OF LAW This page intentionally left blank. 2021 Family Law Seminar
A Lawyer’s Guide to Compassion Fatigue Awareness
Chris Aupperle Nebraska Lawyers Assistance Program
Friday, July 9, 2021 Embassy Suites – La Vista, NE In-person/Webcast This page intentionally left blank. 7/8/2021
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COMPASSION FATIGUE
“It is impossible to listen and bear witness to the traumatic experiences of trauma survivors and not be changed. ’’ Karen Saakvitne and Laurie Ann Pearlman Transforming Pain: A Workbook on Vicarious Traumatization
“There is a cost to caring. Professionals who listen to clients' stories of fear, pain, and suffering may feel similar fear, pain, and suffering because they care. Sometimes we feel we are losing our sense of self to the clients we serve ...“ Charles R. Figley, PhD Compassion Fatigue: Coping with Secondary Traumatic Stress Disorder in those who treat the traumatized
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COMPASSION FATIGUE PRESENTATION ROADMAP
What we will cover today…
What it compassion fatigue?
How does it affect us?
What are the symptoms and treatment.
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What . Lawyers . Judges . Law Students does NLAP
do? . Confidential support 24/7 . Participation is voluntary . Calls can be anonymous IT JUST . Referrals to Health Professionals: TAKES Licensed professionals THE WILLINGNESS Group support TO . Peer support – through NLAP Volunteers ASK . Advice on helping a colleague FOR HELP . Educating the profession
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NLAP CAN . Stress/Burnout HELP . Work-life balance
. Anxiety
. Depression
. Alcohol/Drug Addiction
. Gambling Addiction
. Compassion Fatigue
. Cognitive Decline
. Other Mental Health Issues
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CONFIDENTIAL HELP
§ 3-501.6. Confidentiality of information.
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime or to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (4) to comply with other law or a court order. (c) The relationship between a member of the Nebraska State Bar Association Committee on the Nebraska Lawyers Assistance Program or an employee of the Nebraska Lawyers Assistance Program and a lawyer, judge, law student, or prospective lawyer who seeks or receives assistance through that committee or that program shall be the same as that of lawyer and client for the purposes of the application of Rule 1.6.
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CONFIDENTIAL HELP
§ 3-508.3. Reporting professional misconduct.
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
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NLAP – WHO & WHY
Lawyers 68 Male 62% Law Students 14 Female 38% Judges 2 84
Substance Use Disorder 37% Mental Health 30% Stress/Life Balance 27% Cognitive Decline 8% Physical Illness/Death 4%
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MENTAL HEALTH DISORDERS
Contemplated Depression Anxiety Suicide Lawyers 28% 19% 12% Law Students 17% 37% 6%
Problem Drinking 40 32% General U.S. Population 30
21% 20 All Attorneys
10 7% Attorneys under 30 years old 0
References: Current Rates of Substance Use, Depression and Anxiety within the Legal Profession, (2016); Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns (2016).
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COMPASSION FATIGUE WHAT IS IT?
Compassion Fatigue: the cumulative physical, emotional and psychological effect of exposure to traumatic stories or events when working in a helping capacity, combined with the strain and stress of everyday life. Source: ABA Commission on Lawyer Assistance Programs
Results from indirect exposure to trauma. May also be know as vicarious trauma, secondary trauma, or empathy fatigue. Differs from chronic stress or burnout. Untreated compassion fatigue may be a precursor to other mental health disorders.
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COMPASSION FATIGUE RISK FACTORS
Who is at Greatest Risk?
Nature of Work Please working in helping professions. Serving clients with high levels of distress. When your work exposes you to repeated stories and evidence of traumatic events. Evidence may come in the form of client and witness stories, photographs, audio and video recordings, and testimony of medical or mental health experts.
Organizational Factors Perceived lack of resources and inability to meet client needs. Little diversity in type of cases/areas of law. High caseloads; long work hours; Little support from peers – isolation. Lawyers working in the areas of criminal, family, juvenile and immigration law.
Personal Factors Prior personal trauma experienced by attorney.
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COMPASSION FATIGUE WARNING SIGNS
S Impacts on how we feel Feeling overwhelmed and physically and emotionally exhausted. y Having disturbing images from cases intrude into thoughts and dreams. m Affecting our perception of the world p Becoming pessimistic, cynical, irritable, and prone to anger. Viewing the world as inherently dangerous and becoming increasingly t vigilant about personal and family safety. o How we relate to others Becoming emotionally detached and numb in professional and personal m life; experiencing increased problems in personal relationships. Withdrawing socially and becoming emotionally disconnected from s others.
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COMPASSION FATIGUE WARNING SIGNS
S Affects the way we practice law Becoming demoralized and questioning one’s professional y competence and effectiveness. Perceiving the resources and support available for work as chronically m outweighed by the demands. Having client/work demands regularly encroach on personal time. p Affects our Physical Health
t Sleep disturbance (too much, too little, restlessness) o Headaches and unexplained aches/pains. Gastrointestinal difficulties.
m Secretive self-medication/addiction (alcohol, drugs, work, sex, food, s gambling, etc.) to cope with life.
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COMPASSION FATIGUE RESEARCH
What Research has been conducted?
Levin, Albert, et al (2011) – Examined the Jaffee, Peter, et al (2003) – studied occurrence of vicarious or secondary trauma vicarious trauma in judges. in lawyers working with traumatized clients. 63% of Judges reported one or more Distress significantly correlated with symptoms of vicarious trauma. hours worked per week and number of Female judge and judges of both genders trauma-exposed clients. experienced more symptoms. 39.5% demonstrating significant Female judges tended to internalize symptoms of depression. difficulties while Judges with more experience tended to externalize 11% with clinically significant PTSD difficulties. symptoms. More than 1/3 were experiencing significant levels of secondary trauma stress and burnout. 75% experiencing some level of
functional impairment.
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COMPASSION FATIGUE TREATMENT & PREVENTION
Compassion Fatigue – Self Care
How we How we take How we approach care of process our our work ourselves experiences
Healthy Stress Mindfulness & Awareness Management Meditation
Know your Sleep, Diet, Debriefing limits Exercise
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COMPASSION FATIGUE PREVENTION AND TREATMENT
Employer/Organizational Solutions: Diversity of cases. Working on a team – Avoiding isolation. Supervision/support/resources. Acknowledge and Discuss. Trauma Informed Training. Don’t forget staff.
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COMPASSION FATIGUE RISK FACTORS
Compassion Fatigue – Getting Professional Help
When self-care isn’t enough, seek professional help through a licensed mental health practitioner who has experience in treating compassion fatigue and related conditions.
Don’t know where to go for help? Call NLAP and we will help identify ! " # $ ! % professional resources for you. $ # $ ! &
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COMPASSION FATIGUE PREVENTION AND TREATMENT
Helping Advice
1. Ask 2. Listen • Do not argue or cross examine • Don’t assume you know the • Focus on signs and symptoms problem • Pause to allow them to speak • Nonverbal is important too
3. Refer 4. Encourage • Identify help resources • It’s a process, be patient • Do not diagnose but refer to • Balance accountability and professional for assessment support
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PANDEMIC LEARNINGS
Pandemic Impact on our legal professionals
Changes to the way we live, work and relate to others.
Pandemic impacts on mental health. What does the emerging research tell us?
What will be the linger impacts and positive changes?
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Confidential • 24/7 Helpline Lawyers, Judges and Law Students
Chris Aupperle, Director (402) 475-6527 [email protected]
visit www.nebar.com/NLAP
Help for Yourself, Get Help for Someone Else
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Legislative Update
Tim Hruza Mueller Robak LLC
Friday, July 9, 2021 Embassy Suites – La Vista, NE In-person/Webcast This page intentionally left blank. 7/13/2021
NSBA FAMILY LAW SEMINAR 2021 LEGISLATIVE SESSION REVIEW
Timothy G. Hruza, J.D.
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NSBA Process
• Taking Positions on Bills • Mueller Robak team reviews ALL bills introduced • NSBA Legislation Committee reviews and proposes positions • Executive Council reviews proposed positions • House of Delegates considers and establishes final NSBA positions
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NSBA Process
• Introducing Legislation • NSBA Practice Sections and Members Prepare Proposals • Submitted to the Legislation Committee in the Fall • Reviewed by Executive Council • Forwarded to the House of Delegates • Mueller Robak prepares the bill and solicits a Senator to introduce
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107th Legislature, First Session
•90-day Budget Session •COVID-19 • Committee Chairs asked for limited bill introduction
•Senators introduced 684 bills • Last 90-day session saw a total of 739 bills introduced
•All-Day Committee Hearings and new methods of submitting testimony
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NSBA Priority Bills
• Four Bills Introduced
• Three Passed • LB 248 – Uniform Directed Trusts – Scrivener’s Errors • LB 348 – Small Estate Affidavits – Included in LB 501 • LB 403 – Medicaid Liens – Included in LB 501
• One Advanced and Carried Over • LB 377 – Inheritance Tax for Step Relatives – General File
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Bills of Interest Affecting Family Law
• LB 296 – M. Hansen – DHHS Patient Records • Allows the mental health board and treatment providers for coordination of care access to patient records at DHHS facilities • Passed and Signed • Effective Aug. 28, 2021
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Bills of Interest Affecting Family Law • LB 57 – Lathrop – Present Sense Impression Hearsay Exclusion • Adds to the list of items excluded from the rule against hearsay a statement of present sense impression • 27-803(1) – “A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” • Federal Rules allow for this as do all other states • No opposition testimony. Creighton Professor Mangrum testified in support.
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Bills of Interest Affecting Family Law
• LB 260 – Hunt – Unemployment Benefits if Leaving for Family Care • Good cause for voluntarily leaving employment to care for a family member with a serious health condition • Eligible for unemployment benefits • Introduced previously by former Sen. Sue Crawford and almost passed • Amended version that removed references to partners was successful this year
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Bills of Interest Affecting Family Law – Carryover
• LB 13 – Blood – Domestic Violence Protection Order Firearms (General File) • Would include a foreign protection order in definition of a domestic violence protection order for purposes of prohibiting possession of a weapon
• LB 118 – Morfeld – Protection Order Amendments • Would remove notary requirement for an affidavit for a protection order and would extend length to 5 years
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Bills of Interest Affecting Family Law – Carryover • LB 47 – M. Hansen – Child Support Notice (General File w/ AM) • Would require a notice be included in child support orders and known obligees be joined in paternity or modification action • Committee Amendment would remove requirement that county attorney join any party and would instead provide that a legal parent may be joined in the action
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Bills of Interest Affecting Family Law – Carryover • LB 47 – M. Hansen – Child Support Notice (General File w/ AM)
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Bills of Interest Affecting Family Law – Carryover
• LB 155 – Wayne – Changes to Paternity Proceedings (General File w/ AM) • As introduced would have allowed a biological father ability to intervene in juvenile court regardless of marital status of the parents • Amended version would provide a list of factors for the court to consider and would change definition of a child to include a person under the age of 18 regardless of whether the child was born out of wedlock
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Bills of Interest Affecting Family Law – Carryover • LB 155 – Wayne – Changes to Paternity Proceedings (General File w/ AM) • Factors for genetic testing – court may consider • Age, relationship w/ presumptive parent, relationship w/ established parent, relationship w/ intervenor, whether child would be harmed by establishing the intervenor’s paternity, and any other factor the court deems relevant
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Bills of Interest Affecting Family Law – Carryover
• Adoption Updates – DeBoer – General File • Two Bills – Developed w/ help of Susan Sapp and Other Attorneys, Judges, and Advocates • LB 97 – “Second Parent Adoption” and Marital Status • Opposition Testimony Received • LB 245 – Comprehensive “Clean Up” of Statutes • No Opposition Received
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Bills of Interest Affecting Family Law – Carryover
• LB 97 – Marital Status and Adult Child Adoption
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Bills of Interest Affecting Family Law – Carryover
• LB 97 – Marital Status and Adult Child Adoption
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Bills of Interest Affecting Family Law – Carryover • LB 48 – M. Hansen – Updates to Marriages and Annulments
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Interim Studies of Interest to the NSBA
• LR 76 – M. Hansen – Study of Court fees as a funding source for the court system and judicial branch • LB 352 – Lathrop – Court fees for training, mediation center, and technology • LB 150 – Morfeld – Court fees for indigent defense fund (Commission on Public Advocacy)
• LR 97 – M. Hansen – Study to determine whether further revision is needed to Nebraska grand jury laws
• LR 164 – Wishart – Study to examine problem solving courts
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Timothy G. Hruza, J.D. [email protected] 530 S. 13th Street, Suite 110 Lincoln, NE 68508 (402) 434-3399 www.MuellerRobak.com
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Family Law Judge’s Panel: Best Practices
Hon. Stefanie A. Martinez District Court Judge Hon. Rachel A. Daugherty Judge of the District Court Hon. Riko Bishop Judge of the Court of Appeals
Friday, July 9, 2021 Embassy Suites – La Vista, NE In-person/Webcast This page intentionally left blank. NOTES ______
______NOTES ______
______2021 Family Law Seminar
Family Law Case Law Update
Adam Astley Astley Putnam, PC, LLO
Friday, July 9, 2021 Embassy Suites – La Vista, NE In-person/Webcast This page intentionally left blank. Case Law Update
Nebraska Supreme Court Opinions July 2, 2020 to May 14, 2021
Nebraska Court of Appeals Opinions May 26, 2020 to May 18, 2021
NSBA Family Law Update July 9, 2021
Adam E. Astley Astley Putnam, P.C., L.L.O. 1412 Howard Street, #200 Omaha, NE 68102 (402) 932-7900 [email protected] Nebraska Supreme Court Opinions July 2, 2020 to May 14, 2021
Page 2 of 75 Doerr v. Doerr 306 Neb. 350 (2020)
TL;DR: Division of property which failed to recognize significant nonmarital contributions after a short-term marriage is affirmed.
Facts
Tammy and Brian married in 2012, Tammy filed for divorce in 2016, and a Decree was entered in 2019. During their marriage, the parties accumulated a house, some bank accounts, and some debt.
Brian testified he funded the down payment for the marital home with his premarital assets, then he paid down the mortgage on the marital home with the proceeds of his premarital home. He also claimed that his premarital assets funded a joint money market account. Tammy, using some of the very same evidence Brian used, claimed that $40,000 of the down payment for the marital home came from her premarital money, notwithstanding her prior bankruptcy, and she claimed she hid the $40,000 from the bankruptcy court.
On the brink of separation, Tammy withdrew $108,600 from the joint money market account.
At trial, neither party presented a formal appraisal of the marital home, but instead, they each provided a “market analysis” from a local real estate agent (the published opinion refers to this as a “value determined by a real estate professional”). According to his Brief, Brian admitted that his report was too low, and the District Court used a value in the middle of the various figures in Tammy’s “market analysis.”
The District Court declined to give Brian credit for the full down payment, and instead found that Brian contributed $50,000 and Tammy contributed $40,000. The District Court also found that the entire $108,600 that Tammy transferred from the joint account was marital property, and ordered her to repay ½ to Brian.
Brian appealed, assigning as error (1) the value of the marital home, (2) the determination of his nonmarital contributions, (3) the determination that the money market account was marital, and (4) the District Court’s failure to specifically value and divide certain debts.
Holdings
The Supreme Court affirmed the District Court’s $350,000 valuation of the marital home, and couched the District Court’s findings on his claims of premarital assets as credibility findings, despite the fact that Brian had some documentary evidence to back them up.
Page 3 of 75 Similarly, the Supreme Court affirmed the finding that the money market account was marital, and accordingly, the District Court was correct to only order Tammy to pay ½ of the balance.
Finally, the Supreme Court observed that the other debts that the District Court declined to separately itemize and value were comparatively small (approximately $8,000) and it was not an abuse of discretion to order that each party pay their own debts.
Legal Principles
A party’s testimony alone may sustain their burden of proof that their assets are traceable to nonmarital sources, however, the Court is not bound to accept it, and is able to assess the credibility of evidence presented to it and determine to what evidence to give weight. Burgardt v. Burgardt, 304 Neb. 356 (2019).
Page 4 of 75 State o.b.o. Miah S. v. Ian K. and Aaron S. 306 Neb. 372 (2020)
TL;DR: The State of Nebraska does not have the statutory authority to seek disestablishment of paternity under § 43-1412.01.
Facts
Cameo and Aaron were married in 2018. Ten months later, Cameo gave birth to Miah. A genetic test revealed that Ian, and not Aaron, was Miah’s biological father.
The State filed an abuse/neglect Juvenile Petition against Cameo, but not against Aaron. As part of that case, the State sought and received an Order from the Separate Juvenile Court disestablishing Aaron as Miah’s legal father, despite Aaron’s express desire to remain her father. The State’s goal was to dis-establish Aaron and establish Ian so that Ian could relinquish his rights to Miah.
Aaron appealed, arguing that the State lacked the authority to disestablish paternity when it was created by the marital presumption.
Holdings
The Supreme Court reversed the Juvenile Court, holding that the State lacked the legal authority to disestablish paternity of a child born during a marriage.
Legal Principles
Under Neb. Rev. Stat. § 43-1411, an action to establish paternity may be brought by the mother or alleged father of a child, the guardian or next friend of a child, or by the State. However, under Neb. Rev. Stat. § 43-1412.01, only an individual can file a Complaint to set aside a determination of paternity.
The right to disestablish paternity found under § 43-1412.01 extends to disestablishing a legal presumption of paternity based on marriage. Alisha C. v. Jeremy C., 283 Neb. 340 (2012).
The State’s right to establish paternity is limited to a child born out of wedlock, as described in § 43-1401.
Page 5 of 75 Tyler F. v. Sara P. Geoffrey V. obo J.F. v. Sara P. and Tyler F. 306 Neb. 397 (2020)
TL;DR: A District Court cannot entertain a third-party claim for custody without first setting aside a prior determination of paternity; a mother who is on notice that there may be multiple fathers has a duty to exercise diligence before signing a Notarized Acknowledgment.
Facts
This is the continuation of Tyler F. v. Sara P., 24 Neb.App. 370 (2016), which we covered in 2007.
Sara gave birth to J.F. in August of 2008. She had been dating Tyler since late 2007. Sara continuously represented to Tyler that he was the father, and Tyler signed a Notarized Acknowledgment of Paternity at the hospital.
Sara had also had sex with Geoffrey around the time she started dating Tyler. Based on her physician’s estimate of her due date, Sara assumed that Tyler must be the father, however, she had a “gut feeling” at various times that Geoffrey was the father and she shared this information with Geoffrey. Sara never told Tyler of the possibility that he was not the father.
Sara moved to Oklahoma in 2013. Based on a disagreement over where the child should attend school, Tyler sought a determination of paternity and joint legal and physical custody in District Court. Sara filed an Answer and Counterclaim, alleging that Tyler was not the child’s biological father, and he therefore had no standing to seek custody. Her initial Counterclaim sought a determination that Tyler was not the child’s biological father.
The District Court ordered genetic testing, which revealed Tyler was not the father. Sara then amended her Answer, seeking to rescind Tyler’s Notarized Acknowledgment on the ground of a mutual mistake of fact. Sara then informed Geoffrey.
Geoffrey moved to intervene, and the District Court denied that Motion because Geoffrey failed to show how he could avoid the four-year statute of limitations in § 43- 1411. Geoffrey then filed his own Complaint against Sara and Tyler, which requested that Sara receive legal and physical custody of the child, subject to his and Tyler’s visitation rights. Geoffrey captioned the Complaint as being brought as the child’s “next friend,” but his attorney’s signature block was styled as if it was brought in his own name. Geoffrey’s Complaint claimed that the Notarized Acknowledgment was the result of a material mistake of fact, and that genetic testing rebutted the presumption of the Acknowledgment, though it did not explicitly seek to set aside the Acknowledgment.
Page 6 of 75 Tyler filed an Answer which did not raise the statute of limitations as a defense.
The District Court consolidated the two cases, then determined that Geoffrey had standing to act as the child’s “next friend,” declined to invalidate the Notarized Acknowledgment, and ordered a three-way parenting plan. The Court of Appeals reversed, finding that Gregory did not demonstrate a significant relationship with the child (who is the real party in interest), but remanded for the District Court to consider whether Geoffrey could bring the action in his own name, and if so, determine whether that was barred by the statute of limitations.
On remand, the District Court determined that Geoffrey had brought the action in his own name, and as the child’s “next friend,” that the individual claim was not time- barred (because Tyler did not raise that as a defense), or alternatively that the statute of limitations was tolled because Geoffrey was not aware he was the biological father until 2014, and it reinstated its previous three-way parenting plan with the caveat that it applies to Geoffrey in his individual capacity, rather than as “next friend.”
Tyler appealed, assigning a number of errors, but he did not argue that the District Court was powerless to enter any Order if it didn’t set aside the Notarized Acknowledgment of Paternity. Apparently seeing this issue coming, Gregory filed a Cross Appeal, which assigned the failure to set aside the Acknowledgment as error (in the event that the Supreme Court found plain error in the District Court’s taking action without setting the acknowledgment aside).
Holdings
The Supreme Court found the District Court did not err in finding that Sara failed to meet her burden to set aside the Notarized Acknowledgment of Paternity.
Because the Notarized Acknowledgment was a previous determination of paternity, the Supreme Court ruled that the District Court committed plain error when it entertained Geoffrey’s complaint without giving proper legal effect to the prior finding, and without setting it aside.
Legal Principles
A party who knows of the possibility that multiple men could be the father of a child has a duty to exercise reasonable diligence before signing a Notarized Acknowledgment to ensure it is grounded in fact. Alisha C. v. Jeremy C., 283 Neb. 340 (2012).
Nebraska’s paternity statutes and Parenting Act contemplate two parents, and after one determination of paternity becomes final, there cannot be another determination without first setting aside the first determination or acknowledgment. Cesar C. v. Alicia L., 281 Neb. 979 (2011).
Page 7 of 75 Braun v. Braun 306 Neb. 890 (2020)
TL;DR: A “hold harmless” clause in a divorce decree includes avoiding harm to the other spouse’s credit rating; ordering a home to be sold or the debt refinanced is a reasonable purge requirement in a contempt for nonpayment of the original obligation.
Facts
Corey and Jennifer were married in 2005 and Jennifer filed for divorce in 2012. The divorce became final in 2013. The Decree awarded Corey the marital home and required him to pay the mortgage and indemnify Jennifer from it. The Decree did not require Corey to refinance the mortgage.
Jennifer filed a Complaint in 2019, claiming that Corey had missed mortgage payments sporadically and “danced around” foreclosure. Jennifer claimed her credit rating had fallen from 780-800 to 620-640, and she was denied a credit application.
Corey admitted missing some mortgage payments, but at the time of trial, he was current on a workout plan with his lender, though the mortgage was still thousands in arrears. Even though he could sell the home for far more than the debt, he did not want to sell the home, and did not agree that the missed payments had harmed Jennifer.
The District Court, citing to decisions from other states, found that the “hold harmless” clause in the Decree extended beyond making mortgage payments, and also required Corey to fulfil all obligations under the note so that Jennifer didn’t suffer fiscal injury or damage to her credit. It found Corey in willful contempt because he failed to hold Jennifer harmless on the debt. It sentenced Corey to 10 days in jail, suspended for four (4) months, and permitted Corey to purge himself if he refinanced the debt or sold the home before that time.
Corey appealed the contempt finding and purge plan.
Holdings
The Supreme Court rejected Corey’s argument that the lender was an indispensable party, because the lender’s rights would not be affected by the District Court’s decision.
The Supreme Court affirmed the District Court’s interpretation of the “hold harmless” provision in an issue of first impression in Nebraska, holding that those standard provisions require the obligor to protect the other spouse from financial harm or damage related to a joint debt, including harm to their credit rating resulting from the failure to pay the debt as ordered.
Page 8 of 75 The Supreme Court also rejected Corey’s assertion that, because this was a case of first impression, he could not have possibly known the extent of his obligations under the “hold harmless” clause; however, Corey’s trial testimony indicated that he understood the scope.
Finally, the Supreme Court upheld the sanction and purge plan, finding it was not a modification of the Decree, it was both remedial and coercive in nature, and it was not an abuse of discretion.
Legal Principles
A “hold harmless” clause in a divorce decree means that the paying spouse must hold the other spouse completely harmless from all consequences of the debt, including damage to the non-paying spouse’s credit rating.
It is not a modification of a divorce decree to order a home sold or refinanced as part of a contempt sentence, even if the home is not ordered to be sold or refinanced in the original Decree.
Page 9 of 75 State o.b.o. Tina K. v. Adam B. 307 Neb. 1 (2020)
TL;DR: To negate the Parental Preference of a legal parent, the challenging parent must offer proof of serious physical or psychological harm to the child, or a substantial likelihood of such harm.
Facts
Tina and Adam gave birth to Destiny in 2003. The State obtained a default child support Order in 2006, and Adam obtained a stipulated custody order in 2007. Tina had demonstrated a long history of selling and using illegal drugs and engaging in other inappropriate behavior. Although there were some disputes as to the timeframes, either Adam, or a friend of Tina’s, Jo, took care of Destiny for long periods of time.
Tina filed a Complaint to Modify in 2017. She sought sole physical custody of Destiny. Adam admitted that he was not the best person to be awarded custody, and Jo was given permission to intervene, and argued that she stood In Loco Parentis.
The District Court found that Tina was fit, but also found that the Parental Preference was negated by a demonstration that the best interests of the child lie elsewhere, and this was “one of those rare instances” when the best interests of a child defeat the parent’s preference. Tina appealed. Neither Adam nor Jo cross-appealed the finding that Tina was a fit parent.
Holdings
The Supreme Court observed that its opinion in Windham v. Griffin, 295 Neb. 279 (2016) opened the door to a situation where the best interest of a child could defeat the Parental Preference Doctrine, however, it called those cases “exceptional.” It extended Windham’s holding to require proof of serious physical or psychological harm to the child or a substantial likelihood of such harm.
The Court remanded the case to the District Court to apply its expanded standard, noting that the District Court did not have the benefit of such a standard when it made its ruling.
Two of the Justices wrote a concurring opinion, expressing their belief that Tina was not fit, but the issue was not before the Court because neither party had cross-appealed it.
Legal Principles
Parental rights under the Parental Preference doctrine may only be forfeited by substantial, continuous, and repeated neglect of a child and failure to discharge the duties of parental care and protection, proven by clear and convincing evidence. It is not enough to allow a third party to take custody, even for a significant period of time.
Page 10 of 75 Windham v. Griffin, 295 Neb. 279 (2016); Farnsworth v. Farnsworth, 276 Neb. 653 (2008).
A District Court may only find an “exceptional” case where the best interest of a child negates the Parental Preference doctrine when there is proof of serious physical or psychological harm to the child or a substantial likelihood of such harm. Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (2000).
Page 11 of 75 Tilson v. Tilson 307 Neb. 275 (2020)
TL;DR: District Court Order modifying Decree to restrict unfit father’s parenting time and expand maternal grandmother’s time is affirmed.
Facts
Jayson was previously married to Erica. He filed a Complaint for Dissolution of Marriage in 2014, and shortly thereafter the District Court awarded temporary custody of the couple’s three children to Kimberly, who is the children’s maternal grandmother. Kimberly was then permitted to intervene, and she filed a Third-Party Complaint seeking custody or parenting time.
The day before his scheduled trial, Jayson filed a Motion to Dismiss his Complaint. The District Court conducted a hearing, as scheduled, on its trial day, and filed a Decree a couple of weeks later. The Decree stated that Jayson’s counsel had withdrawn his “Motion to Dismiss,” and it granted a dissolution, awarded Kimberly legal and physical custody of the children, and placed conditions on Jayson’s parenting time.
In 2017, Jayson filed a Complaint seeking to set aside the Decree as void (because he claimed his dismissal was self-executing) and alternatively seeking a modification of the Decree to award him custody. After a premature appeal, trial was held, and the District Court amended its Decree to increase the parenting time afforded to Kimberly. The District Court explicitly found that Jayson was an unfit parent. Jason appealed, arguing that the District Court erred in refusing to vacate the Decree, or alternatively (1) in denying his Motion for disqualification, (2) receiving children’s statements made to therapists into evidence, (3) not modifying the Decree to award him custody, (4) modifying the Decree as to his parenting time and support, and (5) not awarding him attorney’s fees.
Holdings
The Supreme Court affirmed the District Court in all respects, namely:
The Decree was not void because Jayson’s “Motion to Dismiss” was not styled as a self- executing voluntary dismissal, but rather, asked the Court to take a particular action, and even if it was self-executing, his “Motion to Withdraw” his Motion to Dismiss was in effect a Motion to Vacate the dismissal, which is permitted. Further, Kimberly’s Third-Party Complaint was not dismissed by Jayson’s Motion.
The District Court did not abuse its discretion by denying the Motion to Recuse because the rulings that Jayson complained of were procedural and evidentiary and did not demonstrate bias.
Page 12 of 75 The District Court did not err in refusing to award Jayson custody because there was plenty of evidence to support its ruling that he was unfit. Similarly, there was plenty of evidence to support the modifications of his parenting time
Finally, the District Court did not eff in ordering Jayson to pay child support for the first time because there had been a material change in circumstances in that Kimberly was exercising significantly more parenting time than at the time of the original Decree.
Legal Principles
Although a dismissal is sometimes self-executing, it too can be withdrawn but parties can also move to reinstate a dismissed action, and a motion to withdraw another motion will be viewed as a motion to vacate a dismissal if that is the substantive relief that the second Motion seeks. Molczyk v. Molczyk, 285 Neb. 96 (2013); Gerber v. P & L Finance Co., 301 Neb. 463 (2018).
Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a trial judge. Huber v. Rohrig, 280 Neb. 868 (2010).
In order for statements to be admissible under the medical purpose exception, the proponent must demonstrate (1) the circumstances under which they were made was such that the declarant’s purpose in making them was to assist in the provision of medical diagnosis or treatment, and (2) the statements were of a ntarue reasonably pertinent to medical diagnosis or treatment by a medical professional. State v. Mora, 298 Neb. 185 (2017).
Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child’s well-being. In re Guardianship of K.R., 304 Neb. 1 (2019).
Evidence of unfitness should be focused upon a parent’s ability to care for a child, and not any other moral failings the parent may have. In re Interest of Lakota Z., 282 Neb. 584 (2011).
Page 13 of 75 Yori v. Helms 307 Neb. 375 (2020)
TL;DR: Finding of Contempt and Purge Plan which change provisions relating to transportation and decision making are affirmed.
Facts
Connie and Kirk were married in 1996 and divorced in 2017 under a mediated consent Decree. Six months later, Connie filed an Application for Contempt which she amended on several occasions. The final operative Application alleged over sixty (60) violations of the Decree relating to payment of expenses, medical appointments, cooperation, and consumption of alcohol.
After several days of trial, the District Court entered an Order finding Kirk in contempt, and sentenced Kirk to 21 days in jail, suspended for as long as Kirk complied with several terms: (1) refrained from consuming alcohol for about 3.5 years, (2) refrained from attending any practices for the child, (3) allowing Connie or her designee to pick up the child during his parenting time for various events or reasons, and (4) gave Connie the final say on a variety of issues.
Kirk appealed. While the first appeal was pending, Connie filed a Motion seeking a Commitment. The Court conducted a further hearing, and entered an Order for Commitment which directed Kirk to serve 21 days, but it entered a purge order the following day, allowing him to be released so long as he paid past due expenses, paid $5,000 in attorney’s fees, and abide by additional terms. Either the Commitment Order or the Purge Order also reduced Kirk’s parenting time, and scheduled a review hearing for 4.5 months later, giving Kirk the opportunity to show compliance, at which time his parenting time would likely be restored. Kirk appealed the second Order and the appeals were consolidated.
Holdings
The Supreme Court affirmed the finding of contempt, noting that Kirk didn’t mount a serious challenge to it, and the Purge Plan, finding it was not punitivie, and was reasonably tied to the violations of the Decree.
The Supreme Court dismissed the second appeal for lack of a final Order. It found that, while a 4.5 month period of time is perhaps on the outer cusp of what can be considered “temporary,” it does not rise to the level of affecting a substantial right to make it subject to appeal.
Legal Principles
The sanction in a civil con- tempt proceeding is both remedial and coercive. 5 In a civil con- tempt proceeding, for the sanction to retain its civil character, the contemnor
Page 14 of 75 must, at the time the sanction is imposed, have the ability to purge the contempt by compliance and either avert punishment or, at any time, bring it to an end. Braun v. Braun, 306 Neb. 890 (2020).
Neb. Rev. Stat. § 42-364.15(1) empowers a Court to use its contempt power to fashion a remedy to solve the problem, and does not require the Court to employ the “least restrictive” measure available.
Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. State v. Frederickson, 306 Neb. 81 (2020).
Page 15 of 75 Dycus v. Dycus 307 Neb. 426 (2020)
TL;DR: Nebraska’s “no fault” divorce statute is not unconstitutional.
Facts
Debra and Michael were married for more than thirty (30) years. Debra filed a Complaint for Dissolution of Marriage. Michael filed a Motion to Dismiss, putting at issue the sufficiency of process and service of process and several other things. After the Motion was overruled, Michael filed an Answer first denying that the parties were validly married, but in the alternative, alleging that the marriage was not irretrievably broken, and the “no fault” divorce statute was unconstitutional. The District Court granted the divorce and Michael appealed.
Holdings
The Supreme Court rejected each of Michael’s challenges, finding that the no-fault statute affords sufficient due process by giving both parties notice and the opportunity to be heard, and the recent U.S. Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015) does not expand the amount of process that is due. It also found that the no-fault statute was not special legislation.
Legal Principles
Due process, in this context, requires notice and the opportunity to be heard.
Page 16 of 75 Benjamin M. v. Jeri S. 307 Neb. 733 (2020)
TL;DR: The four-year statute of limitations in the paternity statute does not apply to actions for custody or support when a Notarized Acknowledgment has been signed and not rescinded or set aside.
Facts
Benjamin and Jeri are both unmarried and are the parents of two children, born in 2010 and 2012. Within one or two days after each child’s birth, they signed Notarized Acknowledgments of Paternity. Benjamin filed a Complaint to establish paternity, custody, parenting time, and support in 2019. Jeri filed a Motion to Dismiss, citing to the four-year statute of limitations. Benjamin then filed an Amended Complaint which made reference to the Acknowledgments. The Court held an evidentiary hearing where it received certified copies of the acknowledgments, then with the parties’ consent, it converted the Motion to Dismiss into a Motion for Summary Judgment and dismissed Benjamin’s Complaint. The Court reasoned that Benjamin knew he was the father for the entire time (and the Notarized Acknowledgment was evidence of this fact) and he failed to timely exercise his parental rights. Benjamin appealed.
Holdings
The Supreme Court reversed the District Court, finding that the Notarized Acknowledgments were by themselves the equivalent to judicial findings of paternity, that as a result, the statute of limitations was never at issue, and the action should be treated as one to establish custody and support.
Legal Principles
§ 43-1411 is not a limitation on subject-matter jurisdiction, but it is a statute of limitations which must be raised by the Defendant, and statute of limitations challenges are really challenges for failure to state a claim. Anthony K. v. Nebraska Dept. of Health & Human Services, 289 Neb. 540 (2014). In re Estat of Hockemeier, 280 Neb. 420 (2010).
When an action to establish paternity is filed after a Notarized Acknowledgment has been signed, the Court should treat it as an action for custody and support only. Tyler F. v. Sara P., 306 Neb. 397 (2020).
Page 17 of 75 Higgins v. Currier 307 Neb. 748 (2020)
TL;DR: A spouse claiming growth on a premarital account is passive bears the burden of proof.
Facts
Billy and Rashell were married in 2016. Following their marriage, Rashell and her son (from a prior relationship) moved from Washington to live with Billy. Fourteen (14) months later, they moved back to Washington. The couple remained in contact and took occasional trips to see each other before ending their relationship in March of 2018.
Billy filed for legal separation, then divorce, and the District Court held a trial several months later. Billy was represented by counsel and Rashell represented herself. At trial, the parties presented evidence of Billy’s investment and retirement accounts, including a TD Ameritrade account which increased in value from $218,000 at the time of the marriage to $359,000 shortly before filing. Both parties testified that Billy contributed $1,500 per month to this account. The statements showed that securities were purchased and sold periodically and that the account received income from its holdings.
The District Court found the entire account to be nonmarital, except for $21,000 worth of contributions ($1,500 per month times the 14 months the parties lived together). In effect, the District Court found the growth to be nonmarital. Rashell appealed, and the Court of Appeals affirmed. Rashell then filed a Petition for Further Review, which the Supreme Court granted.
Holdings
The Supreme Court partially reversed the Court of Appeals, holding that, under Stephens and White, it was Billy’s burden to show that the growth was passive, he had to meet that burden, and he could not rely on a presumption to do so. It remanded for a determination of the amount of growth on the account, and that the growth should be divided as a marital asset.
Legal Principles
It is the proponent’s burden to show that market growth is passive, either by showing it was consistent with “some recognized benchmark of general market growth,” that the annual rate of return was guaranteed or statutorily prescribed, or that he or she relied on the recommendations or management of his or her account by a third party. White v. White, 304 Neb. 945 (2020).
Page 18 of 75 Weiland v. Weiland 307 Neb. 882 (2020)
TL;DR: On the specific language used in this Decree, the Supreme Court reversed a District Court decision which applied a coverture fraction to divide military retirement as of the date of retirement, and instead held the fraction should be applied as of the date of the Decree.
Facts
Timothy and Ann were married in 1984 and divorced in 1996. Timothy served in the U.S. Marine Corps from 1982 through 2005. The Decree granted Ann:
“one-half of the points accumulated during the marriage by [Timothy] up to the time of the decree, and shall receive the credits for those points and the equivalent amount of money in the event that [Timothy’s] retirement benefits vest.”
Both parties had differing interpretations of this language because, at the time of the Decree, the operative federal law permitted a state court to express the division of the retired pay as a fraction or ratio determined either at the time of retirement, or at the time of divorce. But in 2016 (20 years after the divorce decree took effect in this case), Congress amended federal law to provide that, for divorce decrees signed after January 1, 2017, the division must be determined as of the date of divorce.
The District Court awarded Ann a specific dollar amount from Timothy’s military retired pay, and both parties appealed, claiming that the District Court misinterpreted the Decree.
Holdings
The Supreme Court interpreted the language in the Decree to require a division of Timothy’s retirement using the “date of divorce” convention, meaning that Ann should receive ½ of the retirement that Timothy would have received had he retired at the time of the divorce. This has the effect of cutting her award nearly in half. The Court, however, reasoned that rather than awarding Ann a fixed dollar amount, the District Court should have expressed the award as a fraction, as of the date of the Decree, so that Ann will benefit from cost-of-living adjustments over time.
This distinction is important. Consider a divorce where the Servicemember holds the rank of Captain at the time of the divorce after ten (10) years of service during the marriage. The Servicemember will then go on to serve another ten (10) years and retire at the rank of Lt. Colonel. Under the old rule, the former spouse would receive 25% of a Lt. Colonel’s retirement after 20 years of service, but under the new rule, the former spouse would receive 50% of a Captain’s retirement after 10 years of service (and disregarding the fact that no retirement would vest until 20 years). Because all retired
Page 19 of 75 pay is expressed as a percentage of base pay, this vastly reduces the former spouse’s share.
marriage that terminates when the Servicemember is a major
Legal Principles
In this case, the outcome turned on the exact wording used in the Decree, as it is contrary to the convention that most lawyers have used prior to 2017. That said, this holding is helpful for post-2017 divorces, which is that the former spouse should be awarded ½ of the retirement, determined as of the date of the Decree, and the award should not be based in any part on post-divorce service or rank.
When a Decree is entered prior to retirement of one of the parties who is a military service member, a clarifying order may later be necessary to determine the rights of the parties. Schwartz v. Schwartz, 275 Neb. 492 (2008).
Page 20 of 75 Jaeger v. Jaeger 307 Neb. 910 (2020)
TL;DR: District Court Order changing custody which relied on the testimony of a 14 year-old child expressing a preference, and coupled with other supporting evidence and alienating behavior by one parent is affirmed
Facts
Stacey and Duke married in 2004 and divorced in 2007. The original Decree granted the parties joint legal custody of their two sons and Stacey physical custody. In 2008, Stacey petitioned to modify the 2007 Decree, alleging Duke had physically abused the children. While that Petition was pending, she moved 300 miles away to Waverly. She amended her Petition to seek a further reduction in Duke’s time because of the move.
Between 2007 and 2010, Stacey constantly accused Duke of abusing the children, and none of the allegations were substantiated by DHHS, the local police department, the Nebraska State Patrol, medical personnel, or the court-appointed Guardian Ad-Litem. The Court modified the Decree in 2011 to re-allocate Duke’s visits in light of the move, but did not order that they be supervised. Stacey appealed, and the Court of Appeals affirmed in an unpublished opinion.
In 2018, Duke filed a Complaint to Modify, alleging that in the seven (7) years since the last order, the youngest child had grown, was now 14, and had expressed a mature desire to live with him. The District Court interviewed the child in camera, and found his testimony persuasive. It did not find Stacey’s testimony persuasive, and believed she made coparenting difficult for Duke.
In addition, the District Court found that Stacey had engaged in a pattern of alienating behavior over an extended period of time, and that she had successfully alienated the parties’ older child from Duke. The Court found that several other factors complimented the child’s testimony including the evolving relationship with his father, and his shared interests with his father, and the father’s superior ability to provide for the needs of the son.
The District Court changed custody and required Stacey to pay child support. After post-trial motions, Stacey appealed.
Holdings
The Supreme Court affirmed the District Court’s decision in all respects, finding that it did not unduly rely on the child’s testimony, and that there was ample evidence in the record to support its finding of a material change in circumstances.
Page 21 of 75 Legal Principles
The wishes of a child are not controlling in determinations of child custody, and trial courts are required to consider a variety of factors that bear on the best interests of the child. However, if a child is of sufficient age and has expressed an intelligent preference, that preference is entitled to consideration. And more consideration will be afforded where additional factors that bear on the child’s best interests undergird the child’s stated preference and reasoning. Leners v. Leners, 302 Neb. 904 (2019) (disapproved on other grounds); State o.b.o. Slingsby v. Slingsby, 25 Neb.App. 239 (2017).
Page 22 of 75 Windham v. Kroll 307 Neb. 947 (2020)
TL;DR: District Court’s decision modifying an in loco parentis individual’s responsibility to contribute to private school tuition and college savings accounts is affirmed; those obligations can be modified alongside child support upon a material change in circumstances.
Facts
Alyssa and Rebecca were never married but were in a relationship for seventeen (17) years. Rebecca gave birth to two children during the relationship, and both parties shared parenting responsibilities. Alyssa did not adopt either child. They separated in 2011, with Alyssa moving out of their shared home, but they continued to share parenting responsibilities.
In 2012, Alyssa filed a Complaint alleging she stood in loco parentis and asked for an Order establishing custody, parenting time, support, and expenses. Rebecca denied that Alyssa stood in loco parentis. The parties eventually settled the case, agreeing to a Decree affording them joint legal and physical custody and providing for expense sharing. They modified their stipulation by agreement in 2015.
In 2017, Rebecca filed a Complaint to Modify, seeking sole legal and physical custody of the children, and child support. She alleged Alyssa had been charged with abusing the children and had consumed alcohol in their presence in violation of the 2015 stipulated modification. Alyssa denied the allegations.
Before trial, the parties resolved the custody modification and agreed Rebecca would have physical custody. But they were unable to agree on support, which they tried to the District Court. Both parties agreed that Alyssa should pay child support to Rebecca, but Rebecca argued that Alyssa should continue to be responsible for, among other things, 50% of each child’s school tuition (which was about to quadruple), and required contributions to college savings accounts.
The District Court ordered Alyssa to pay child support, terminated her obligation to contribute to the children’s college savings accounts, and reduced her share of the school tuition from 50% to 33.33%. Rebecca appealed, assigning as error the District Court’s modification of the financial obligations outside of child support.
Holdings
Calling this a case of first impression, the Supreme Court held that the standard of modification in an in loco parentis case is different than the standard of modification in a dissolution or paternity/custody case. It reasoned that one of the factors to be considered when modifying an in loco parentis arrangement is whether the in local parentis status has changed, and the effect of that change on application of the
Page 23 of 75 parental preference doctrine. However, this standard governed the portion of the case that the parties settled, not the part that they tried to the District Court.
The Supreme Court affirmed the District Court’s modification of the school tuition and college savings plan provisions in the Decree. It reasoned that under its holdings in Caniglia v. Caniglia and Lenz v. Lenz, provisions related to child-related expenses could be modified alongside child support if there was a material change in circumstances. In reaching this holding, the Court rejected Rebecca’s argument that under Carlson v. Carlson, they could only be modified in a case of fraud or gross inequity.
Legal Principles
A District Court has equitable jurisdiction to determine the rights and responsibilities of one who stands in loco parentis to a child, including custody, visitation, and support, and once those rights and responsibilities have been established, they can be modified. State o.b.o. Tina K. v. Adam B., 307 Neb. 1 (2020).
When modifying custody rights of a person who stands in local parentis, the Court must consider whether the in local parentis status itself has changed, and in all circumstances, the parental preference doctrine applies. Whilde v. Whilde 298 Neb. 473 (2017); State o.b.o. Tina K. v. Adam B., 307 Neb. 1 (2020).
Provisions of a Decree of Dissolution (or Decree conferring in loco parentis status on a person) addressing child-related expenses are always modifiable upon a showing of a material change in circumstances, provided that they concern expenses owed while the children are minors. Compare Caniglia v. Caniglia, 285 Neb. 930 (2013) with Carlson v. Carlson, 299 Neb. 626 (2018).
Page 24 of 75 Carroll v. Gould 308 Neb. 12 (2020)
TL;DR: District Court’s denial of a grandfather’s Complaint in Intervention is reversed because the Complaint alleged the requisite interest in the litigation.
Facts
In March of 2019, the District Court entered an Order establishing that Gabriel was the father of a minor child and Arleene was the child’s mother. Later in 2019, Arleene filed a Complaint to establish custody and parenting time with the child.
Arleene sought and received an Ex Parte Order for temporary custody, claiming that the child had been in her care since birth. This prompted both Gabriel and James (Gabriel’s father) to challenge Arleene’s factual allegations. Gabriel claimed that the mailing address provided by Arleene was actually James’ address, and James claimed that he (James) had been the one caring for the child since birth.
The District Court awarded temporary custody to Gabriel, then James filed a Complaint to Intervene. Arleene then disappeared.
James’ Complaint asserted the child has resided with him since birth, and that at all times he had assumed the obligations incident to the parental relationship. He asserted that he desired and intended to remain in an in loco parentis relationship with the child, that he was a fit and proper person to be awarded custody, and that it was in the child’s best interest that he be awarded custody of her. In a separate Motion, James sought temporary legal and physical custody of the child.
Gabriel filed a “response” to the Complaint and Motion, generally objecting to it. The Court then held a hearing where it indicated it would only decide whether James would be permitted to intervene. It received James’ Affidavit and marked it as an exhibit. It permitted Gabriel to submit an Affidavit after-the-fact, but Gabriel’s Affidavit was file stamped by the Clerk, not received as an Exhibit, and not included in the Bill of Exceptions.
After taking the matter under advisement, the District Court denied James’ Complaint to Intervene, reasoning that his Complaint and Motion lacked “temporal proximity with the current action between Arleene and Gabriel, and that it doubted the statements James made in his Affidavit in light of the Court’s other orders and the companion child support case. James appealed.
Holdings
The Supreme Court reversed the Order denying James’ Complaint to intervene. In doing so, it emphasized that intervention under Neb. Rev. Stat. § 25-328 is a matter of
Page 25 of 75 right, however, the Court may make a preliminary determination of whether the Complaint in Intervention sufficiently alleges an interest in the matter in litigation.
The Court treated Gabriel’s “objection” as a Rule 12(b)(6) Motion to Dismiss or Motion for Judgment on the Pleadings (which it noted were now the only proper ways to attack a Complaint in Intervention), but emphasized that the Court should assume the truth of the allegations in the pleading to determine whether the Intervenor has a colorable right or interest in the outcome of the litigation. Here, it found that James had such a right.
Legal Principles
Intervention is a matter of right, however, a District Court may make a preliminary inquiry into whether the Intervenor has alleged facts which, if true, successfully allege the requisite interest. Kirchner v. Gast, 169 Neb. 404 (1959).
To intervene, an Intervenor must have such a direct and legal interest of such a character that they will lose or gain by the direct operation and legal effect of the judgment which the Court may render in the action. In re Interest of Enyce J. & Eternity M., 291 Neb. 965 (2015).
The proper way to challenge a Complaint in Intervention is a Motion to Dismiss, or a Motion for Judgment on the Pleadings. Kirchner v. Gast, 169 Neb. 404 (1959).
Page 26 of 75 Grothen v. Grothen 308 Neb. 28 (2020)
TL;DR: Alimony can still be modified for “good cause shown” meaning a material change in circumstances, and Carlson doesn’t change that; District Court can consider the overall financial circumstances of the parties to determine whether to modify alimony, and the inquiry is not limited solely to a party’s income.
Facts
Timothy and Martha settled their divorce case in 2012 in a Decree which provided that he would receive farmland making up the bulk of the marital estate, he would pay Martha $600,000 in cash, and he would pay alimony of $2,500 per month for 15 years.
Timothy filed an Application to Modify his alimony obligation in April of 2018, alleging a significant decrease in his income. At trial, he claimed that crop prices were cut in half since the divorce, his rent was doubled, and he was only farming two of the four quarter sections he had been renting at the time of the Decree.
Timothy’s tax returns showed farm income of $168,000 in 2011 (the figures used in the Decree) and a loss of $3,900 in 2018 (the year immediately before trial). Conversely, his annual financial statements showed his net worth increased from $1.553 million in 2012 to $1.82 million in 2018, mostly due to the value of his farmland.
The District Court denied Timothy’s request, reasoning (1) the change was within the contemplation of the parties at the time of the Decree, (2) an overall comparison of the parties’ financial circumstances does not warrant it, and (3) the fact that one of the parties was awarded all of the income-producing property from the marriage should weigh against the change. Timothy appealed, the the Court of Appeals affirmed, citing to Carlson v. Carlson, and holding that modification of the alimony provisions of a consent Decree now required fraud or a gross inequity. The Supreme Court granted Timothy’s Petition for Further Review.
Holdings
The Supreme Court held that the Court of Appeals misread Carlson to require fraud or gross inequity to modify alimony in a consent Decree, and instead limited the holding in Carlson to post-majority child support when the Decree does not establish its own standard for modification. It re-affirmed that alimony awards in consent Decrees are subject to modification under § 42-365.
The Court further distanced itself from its holding in Desjardins, where it had held that a consent Decree is usually treated as an agreement between the parties and is accorded greater force than ordinary judgments and ordinarily will not be modified over the objection of one of the parties. Although not explicitly overruling that narrative, it re- affirmed that the “good cause shown” standard under § 42-365 applies.
Page 27 of 75 Nonetheless, the Supreme Court found that the Court of Appeals reached the correct result, albeit for the wrong reasons, so it affirmed the judgment which affirmed the District Court.
Legal Principles
Where the parties have not expressly precluded or limited modification of alimony in a consent Decree, the alimony provision may be modified in accordance with § 42-365, which permits modification “for good cause shown,” meaning a material and substantial change in circumstances, which depends upon the circumstances of each case. Metcalf v. Metcalf, 278 Neb. 258 (2009).
Economic circumstances other than income are relevant to the determination and modification of alimony. Neb. Rev. Stat. § 42-365
Page 28 of 75 Hawkins v. Delgado 308 Neb. 301 (2021)
TL;DR: Harassment Protection Order is affirmed when the Respondent sent messages every few days for a month despite attempts by Petitioner to block him and obtain a military no-contact order against him.
Facts
Keeley and Erick were both in the U.S. Air Force; Keeley was living in Nebraska and Erick was living in Arizona. They had dated for several years. Every time Keeley tried to end the relationship, Erick would threaten to commit suicide or to ruin Hawkins’ career.
Over the course of a month, Erick sent a series of messages and emails to Keeley, even after she told him to stop, and even after she tried blocking him on her accounts, devices, and phone number. He sent a message to an older email account, contacted her via a “burner” phone, and stated that if she blocked that number, he would continue to get new numbers. He contacted her via a form of video chat while she was deployed, and he showed himself in a closet with a noose around his neck. When she obtained a no-contact order through the military, Erick said that was a “nice try,” and he would be moving to Omaha.
Keeley sought and received an Ex Parte Harassment Restraining Order against Erick. After a hearing, the County Court (sitting as a District Court) found the Order should remain in effect for one year. Erick appealed.
Holdings
The Supreme Court affirmed the District Court’s Order extending the Ex Parte Order for one year. It found that Erick’s conduct met the statutory definition of harassment, because the messages occurred every few days for a month, and because he went out of his way to continue to contact Keeley even after she tried to block him. Further, the Court noted that the content of the messages met the definition of “harass” because it seriously terrified and/or intimidated Keeley, and several of the messages contained veiled threats of physical harm.
The Supreme Court also found that the District Court did not abuse its discretion declining to grant Erick a stay under the Servicemembers Civil Relief Act because Erick had not filed the required written Motion, and had not provided a letter from his commander attesting that military duties will make him unavailable to appear and providing a date upon which he will be free from such restrictions in the future.
Legal Principles
Harass means to engage in a knowing and willful course of conduct directed at a specific person which seriously terrifies, threatens, or intimidates the person and which serves
Page 29 of 75 no legitimate purpose. A course of conduct is a pattern of conduct composed of a series of acts of a period of time, however short, evidencing a continuity of purpose, including a series of acts of following, detaining, restraining the personal liberty of, or stalking the person or telephoning, contacting, or otherwise communicating with the person. Neb. Rev. Stat. § 28-311.02 (a) - (b).
An application for stay under the SCRA must include a letter or other communication from the servicemember’s commanding officer stating that their current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter. It must also include a statement from the servicemember setting forth the date they will be able to appear. 50 U.S.C. § 3932.
Page 30 of 75 Mahlendorf v. Mahlendorf 308 Neb. 202 (2021)
TL;DR: Appeal from a consent Order is dismissed for lack of a justiciable issue.
Facts
Jennifer and Brian were divorced in 2010. The parties agreed to a modification of their Decree in 2013 to permit Jennifer to move to Tennessee with their children. The 2013 modification included a downward deviation of Brian’s child support obligation because of his anticipated travel costs to exercise parenting time.
In 2016, Jennifer sought to eliminate the downward deviation, because Brian had not traveled to see the children in Tennessee. The parties agreed to a further modification of the Decree, which increased Brian’s support, but maintained the deviation for travel expenses Brian “may” incur in the future.
In 2019, Jennifer sought another modification, again to eliminate the downward deviation because again, Brian had incurred no travel expenses. After one day of trial, the parties invited the Court to comment, and after it did, they signed a stipulated Order of Modification. Jennifer then appealed, arguing that the District Court erroneously determined that the downward deviation in Brian’s child support could not be modified.
Holdings
The Supreme Court declined to reach the merits of the appeal, finding that the Order from which the appeal was taken was a consent judgment, from which no appeal could be taken. It affirmed the District Court’s Order.
Legal Principles
The fact that a judgment is rendered by consent gives it neither less nor greater force or effect than it would have had had it been rendered after protracted litigation, except to the extent that the consent excuses error and operates to end all controversy between the parties. In this connection, it has been declared that a judgment by con- sent estops the parties from denying the facts it purports to establish. McArthur v. Thompson, 140 Neb. 408 (1941).
A party is not entitled to prosecute error upon the granting of an order or the rendition of a judgment when the same was made with his or her consent, or upon his or her application. 9 Similarly, Nebraska follows the rule that on appeal, a party cannot com- plain of error which the party has invited the court to commit. In re Estate of Karmazin, 299 Neb. 315 (2018).
Page 31 of 75
Weaver v. Weaver 308 Neb. 373 (2021)
TL;DR: Court of Appeals’ determination that the parties can, by agreement, eliminate the threshold requirement of a change in circumstances to modify custody is reversed; Supreme Court found a change in circumstances when Father’s work responsibilities decreased and he had difficulty visiting the child at daycare.
Facts
Glen and Meaghann had one child who was born in 2015. They were divorced in Washington, D.C., in 2016. They both moved to Omaha and registered their Decree in Nebraska in 2017.
Their consent Decree provided that Meaghann would have sole physical custody of the child, and the parties would share joint legal custody. Their agreement explicitly stated that Meaghann was moving to Omaha, and Glen (who was in the U.S. Air Force) was trying to get stationed at Omaha. It provided Glen with limited parenting time, but that time included the ability to visit the child while in daycare on a reasonable number of occasions. The Decree also contained language allowing for the parties to request each other consider a modification if it was consistent with the best interests of the child (the Decree did not expressly require a change in circumstances). However, after going through two to three levels of mandatory dispute resolution, the Decree provided that either party who was dissatisfied could petition a Court of competent jurisdiction for relief, at which time modification of the Decree would be controlled by the “then- governing legal standard.”
At trial, Glen testified that he had far more flexibility in his new job (in his old job he supported the Chairman of the Joint Chiefs, had to work all of the time, and deployed frequently; the new job was far less intense). Further, Glen testified that he had experienced frequent difficulty trying to exercise his additional parenting time while the child was in daycare.
The District Court found that no material change in circumstances had occurred, but at the same time, the best interest of the child would be improved if Glen had more parenting time. Finding the material change to be a threshold requirement, it overruled Glen’s Complaint to Modify and Glen appealed.
The Court of Appeals reversed, holding that the parties had, by agreement, dispensed with the requirement for a material change in circumstances. The Court of Appeals affirmed the District Court’s “best interest” finding, and remanded the case for a change of parenting time consistent with that opinion. The Supreme Court granted Meaghann’s Petition for Further Review.
Page 32 of 75 Holdings
The Supreme Court reversed the Court of Appeals’ conclusion that Glen was not required to prove a material change in circumstances. It re-affirmed that the change in circumstances is a necessary threshold issue in all child custody modifications, and it was not modified by the language in this Decree. It reasoned that the language in this Decree did not require a change in circumstances for the parties to engage in dispute resolution with each other, but if the dispute resolution failed, the “then-governing legal standard” would apply, and in Nebraska, that means a requirement that Glen show a material change in circumstances.
The Supreme Court, however, found that Glen had shown a change in circumstances by demonstrating that his current job had fewer responsibilities than his last one, and that he had difficulty seeing the child in daycare. It remanded to the District Court for an Order increasing Glen’s parenting time consistent with its prior findings.
Legal Principles
Proof of a change of circumstances is not an optional element to a modification proceeding. Proof of a material change of circumstances is the threshold inquiry in a proceeding on a complaint to modify, because issues determined in the prior custody order are deemed preclusive in the absence of proof of new facts and circumstances. Furthermore, limiting custody changes to material changes in circumstances avoids extensive and repetitive litigation and unnecessary, potentially harmful fluctuations in the child’s life. A custody order will not be modified absent proof of new facts and circumstances arising since it was entered. Eric H. v. Ashley H., 302 Neb. 786 (2019).
Page 33 of 75 Hogan v. Hogan 308 Neb. 397 (2021)
TL;DR: District Court is affirmed in terminating continuing UCCJEA jurisdiction when both parents and children had moved out of state before the Complaint was filed.
Facts
Brooke and Nicholas were divorced in 2019. Two months later, they agreed to a modification of their Decree to permit both of them to move with their children to Arizona. By August of 2019, both parents and the children had moved to Arizona. In October of 2019, Brooke filed a Complaint to modify the Decree, in Douglas County, seeking permission to move back to Nebraska with the children.
Nicholas filed a Motion to Dismiss, arguing that under § 43-1239(a)(2) that the District Court lacked subject-matter jurisdiction because the children and parents all ceased residing in Nebraska prior to the date Brooke filed her operative Complaint. Brooke responded that Nebraska retained jurisdiction because the children had been domiciled here in the six (6) months leading up to her filing her Complaint.
After consulting with the appropriate Judge in Maricopa County, Arizona, the District Court determined that it should relinquish its continuing exclusive jurisdiction because the parties had stipulated to an Order permitting the move five (5) months earlier, and the move had occurred before the operative Complaint was filed. Brooke appealed, arguing that under § 43-1239(a)(1) the District Court should have maintained its continuing exclusive jurisdiction, or alternatively, Nicholas consented to such jurisdiction by filing a Voluntary Appearance.
Holdings
The Supreme Court affirmed the District Court and rejected both of Brooke’s arguments. It found that §§ 43-1239(a)(1) and (2) operated disjunctively, meaning that either could serve as grounds for a Nebraska Court to terminate its jurisdiction. And in rejecting the argument that the voluntary appearance did not confer jurisdiction, the Court observed that the voluntary appearance is the equivalent of service of process, and does not confer subject-matter jurisdiction where that jurisdiction is otherwise lacking.
Legal Principles
Jurisdiction over interstate custody cases is governed by the UCCJEA. Watson v. Watson, 272 Neb. 647 (2006).
Either of the terminating events found in § 43-1239 (a) are sufficient, by themselves, for a District Court to find it has lost continuing exclusive jurisdiction to modify its own child custody determination.
Page 34 of 75 Johnson v. Johnson 308 Neb. 623 (2021)
TL;DR: District Court Order finding a party in contempt and ordering remedial relief for college account and auto expenses is affirmed.
Facts
Matthew and Elicia were married in 1995 and divorced in 2011. The Decree required Matthew to establish college funds for each of the children. Matthew had discretion over how much to contribute, so long as each account had enough to pay for four (4) years of tuition, books, fees, and room and board at UNL in the year following each child’s graduation. The Decree also required Matthew to provide each child with an automobile upon their turning 16 years old, and was to pay for registration, insurance, and repairs.
In late 2019, Matthew filed an application for contempt against Elicia, claiming that she had consistently denied him parenting time with his daughter. One month later, Elicia filed an application for contempt against Matthew because Matthew refused to pay for the child’s automobile expenses or college tuition and refused to confirm the college savings account had been fully funded as required by the Decree.
At the hearing, both Matthew and child testified that they had not had a functioning relationship for one and one-half years. Matthew testified that, as a result of the estranged relationship, he no longer agreed to pay for his child’s car and tuition. Matthew confirmed that he had the available funds to pay for the expenses, and admitted he had not provided the required documentation to Elicia.
The District Court found that Matthew owed the automobile expenses, but was not in contempt for failing to pay them, because he was presented with them shortly before the hearing, and because he was deprived of the opportunity to help pick out the car. The Court also found that Matthew had funded the college accounts, as required by the Decree, but he was in contempt for failing to provide Elicia with the required documentation. Although the District Court declined to find Matthew in contempt for failing to pay the college expenses, it ordered him to pay them, along with the automobile expenses, within five (5) business days, and to provide Elicia with the required documentation. Finally, the Court found Elicia in contempt for denying Matthew his parenting time. Matthew appealed and Elicia did not.
Holdings
The Supreme Court held that, by requiring Matthew to pay the automobile and college expenses, the District Court was not levying an unconditional fine or awarding damages, but rather, simply enforcing its Decree.
Page 35 of 75 The Supreme Court also declined to adopt a “repudiation” doctrine in Nebraska which Matthew urged would relieve him of the obligation to pay for his children’s automobiles and college expense. Citing to Carlson, the Supreme Court held that the obligations in this Decree were the result of an agreement with Elicia, and are enforceable in Nebraska. The Court also cited to a Pennsylvania case, Cook v. Cook, which explained that the agreement between the parties provides that the child is a third-party beneficiary, but the estrangement with the beneficiary doesn’t negate the agreement between the parties.
Legal Principles
A district court, in the exercise of its broad discretion over marriage dissolutions, retains jurisdiction to enforce all terms of approved property settlement agreements. Whitesides v. Whitesides, 290 Neb. 116 (2015). A court that has jurisdiction to make a decision also has the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect. Id.
Page 36 of 75 Davis v. Moats 308 Neb. 757 (2021)
TL;DR: A biological parent of a child is an indispensable party to a petition for grandparent visitation, and must be both named as a defendant and served with process for the Court to have subject-matter jurisdiction over the case.
Facts
Victoria and Tate were never married and had a minor child together. Tate’s mother, Latonne, filed a petition for grandparent visitation with the child. The petition named Victoria as the only defendant, and only Victoria was served, despite everyone acknowledging that Tate was the child’s legal father.
Latonne testified to having a loving bond with the child, and that they enjoy activities together. Victoria testified she didn’t want Latonne to have any visitation because Tate lived with Latonne, and Tate was the subject of a pending charge involving sexual assault of another child. Latonne testified that Tate would move out if he was not sentenced to prison for the pending criminal charge.
The Court granted Latonne’s petition, and Victoria refused to allow the visitation. The District Court found Victoria in contempt. Victoria filed a Motion to vacate the grandparent visitation order and the finding of contempt because they were void for lack of subject-matter jurisdiction. Among other things, Victoria argued that Tate was an indiepensible party, and that failure to join him in the action deprived the Court of subject-matter jurisdiction.
At a hearing, the Court received an Affidavit of Tate which stated that he was aware of the petition and did not object to it. The District Court overruled Victoria’s Motion, noting that she had not complied with any provision of the Orders which she sought to set aside. Victoria appealed, arguing that the District Court’s Orders were void, because the Court lacked subject-matter jurisdiction.
Holdings
The Supreme Court held that both parents were indispensable parties to the suit, and it was necessary for them to be joined in order for the Court to have subject-matter jurisdiction. Independently, Neb. Rev. Stat. § 43-1803 (2) requires a copy of the petition to be served on both the custodial and noncustodial parent. The fact that Tate was aware of the suit was not a substitute for his being a party and being personally served, so the District Court lacked subject-matter jurisdiction to enter the Decree of grandparent visitation.
Page 37 of 75 Because the District Court lacked subject-matter jurisdiction over the case, the Decree was void. And because the Decree was void, the order finding Victoria in contempt was also void, because one cannot be in contempt for violating a void order.
Legal Principles
Necessary parties are parties who have an interest in the controversy, and should ordinarily be joined unless their interests are separable so that the court can, without injustice, proceed in their absence. The inclusion of a necessary party is within the trial court’s discretion. Indispensable parties are parties whose interest is such that a final decree cannot be entered without affecting them, or that termination of controversy in their absence would be inconsistent with equity. However, there is no discretion as to the inclusion of an indispensable party. Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73 (2017).
A noncustodial parent is an indispensable party to an action for grandparent visitation due to his constitutionally protected parental rights. Morse v. Olmer, 29 Neb.App. 346 (2021).
Both parents have a statutory right to be served with a copy of a petition for grandparent visitation. Neb. Rev. Stat. § 43-1803 (2).
Where a Court has no jurisdiction over the subject-matter of an action, all proceedings in such action are void. Similarly, refusal to obey a void order or judgment is not contempt. Wolski v. Lippincott, 147 Neb. 944 (1947).
Page 38 of 75 In re Adoption of Yasmin S., Kelly H. and Maria V. v. State 308 Neb. 771 (2021)
TL;DR: Same sex couples can adopt under Nebraska’s current adoption statute.
Facts
Kelly and Maria married in California in 2008, and later moved to Nebraska. Maria’s sister gave birth to Yasmin, and she signed a Consent and Relinquishment to facilitate an adoption. The putative father abandoned the child and failed to file the required notice of objection and intent to claim custody.
In 2020, Kelly and Maria filed a petition to adopt Yasmin. The County Court expressed concern that the petition referenced two parties designated as “wife,” and ultimately determined it could not grant the adoption because § 43-101 requires a party’s husband or wife to be joined in the petition. Kelly and Maria appealed.
Holdings
The Supreme Court held that the statute permitted adoption by same sex couples, and that interpretation was supported by the plain meaning of the statute, and also by the absurd definitions used by the County Court.
The Court invited the legislature to clean up the wording of the statute if it felt that doing so was necessary to be respectful to same sex couples, but found that it wasn’t necessary to permit the adoption to proceed.
Legal Principles
Nebraska’s adoption statutes permit adoption by same sex couples; § 43-101 extends the same basic requirement that if one petitioner is married, the petition must be filed by both spouses jointly.
Page 39 of 75 Korth v. Korth 309 Neb. 115 (2021)
TL;DR: In a case that presents a nice summary of Nebraska removal jurisprudence, a District Court’s Order denying a Mother’s petition for removal and changing custody to the father is affirmed.
Facts
Cammy and Joel married in 2001 and divorced in 2019 under a consent Decree. They had three children. In their Decree, the parties agreed to joint legal custody, Cammy to have physical custody, that they would live within 20 minutes of each other, and of Amherst Public Schools, where they agreed the children would attend (Amherst is a small district near Kearney).
In February of 2020, Cammy remarried, and ten days later she filed a Complaint to Modify the Decree, seeking permission to move to Westfield, Indiana, where her new husband lived. Westfield is in the Indianapolis area, and about 750 miles or an 11-hour drive from Kearney. Joel filed an Answer where he denied there was a change in circumstances and affirmatively alleged that Cammy had been communicating with the man she later married at the time she negotiated the parenting plan, and at all times she knew he resided in Indiana.
At trial, Cammy presented evidence that her husband was remodeling his home in anticipating that she and the children would move there, that he made approximately three (3) times what she made, and he would be able to support her, and the local school district had more activities available and at higher levels than Amherst Public Schools. The oldest child (14) also testified that he supported the move, and the District Court found the child had an intellectual preference, supported by sound reasoning, despite the fact that the child’s impressions were based entirely on statements by his mother. Cammy testified that she would move even if the children were to remain in Nebraska.
The District Court denied the request to move, granted Joel physical custody of the children, and ordered a new parenting plan. Cammy appealed.
Holdings
The Supreme Court affirmed the District Court’s decision in all respects. Like the District Court, it found that, despite Cammy having a legitimate reason to move, the District Court was within its discretion to determine that the move was not in the children’s best interests, and that it was not possible for Joel to maintain a reasonable relationship with them compared to the relationship he had at the time of trial.
Page 40 of 75 Legal Principles
A custodial parent’s desire to form a new family unit through remarriage is a legitimate reason for removing his or her child to another jurisdiction. Daniels v. Maldonado- Morin, 288 Neb. 240 (2014).
To determine whether removal to another jurisdiction is in the child’s best interests, a trial court should consider (1) each parent’s motive for seeking or opposing the move, (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent, and (3) the impact such a move will have on contact between the child and noncustodial parent when viewed in the light of reasonable visitation. Farnsworth v. Farnsworth, 257 Neb. 242 (1999).
A child’s intelligently stated preference regarding custody is only one consideration among many when determining the child’s best interests. State o.b.o. Ryley G. v. Ryan G., 306 Neb. 63 (2020).
A reduction in parenting time alone does not necessarily prevent relocation for a legitimate reason (Hicks v. Hicks, 223 Neb. 189 (1986)), however, the closeness of the parent-child relationship can mean that a move would have a particularly acute negative impact on the parent’s ability to visit the children and be a part of their lives, and that should weigh against removal.
Page 41 of 75 Cornwell v. Cornwell 309 Neb. 156 (2021)
TL;DR: District Court’s use of the “immediate offset” method to divide a pension is affirmed.
Facts
Daniel and Melanie were married in 1999, and separated in 2017. Daniel worked for the Maryland State Police for eleven (11) years during the marriage, retiring after a workplace accident. He received a “disability pension” which is a defined-benefit pension, part of which is tax free because it is on account of his disability. The parties stipulated that the pension was 49% marital.
Melanie hired an economist who valued the marital portion of the pension at $1.255 million, and requested that the Court award the entire pension to Daniel, and order him to pay her a property judgment based, in part, on its present value. Daniel hired an economist who challenged the accuracy of Melanie’s valuation and noted several areas where it was speculative. The District Court accepted Melanie’s valuation and her suggestion that Daniel be awarded the entire pension, and it ordered Daniel to pay an equalization payment of about $400,000 in annual installments. The District Court ordered each party to pay their own attorneys fees. Daniel appealed the Court’s treatment of his pension and Melanie cross-appealed the denial of her request for attorney’s fees.
Holdings
In its opinion, the Supreme Court adopted terminology from Brett Turner’s treatise on Equitable Distribution of Property. It refers to a traditional division of a pension using a QDRO (or in this case, DRO) as the “deferred distribution” method, where an alternate payee receives benefits over time, and the division Melanie sought as the “immediate offset” method, where she is compensated now for the present value of the future payments.
The Court echoed prior Nebraska precedent that the “deferred distribution” method is more widely used, but the “immediate offset” remains a viable method under Nebraska law. It held that, merely because “deferred distribution” is used more often, that does not make it the “preferred” method of division of retirement benefits.
The Court found that the immediate offset method was useful in this case because there was an allegation that Daniel made changes to his pension without notifying Melanie, the case was relatively contentious, there was evidence of present value in the record (so the benefits were not unusually speculative), the parties’ other property limited Melanie’s need for retirement income, and the parties had sufficient marital assets so that the division could be effectuated without undue hardship.
Page 42 of 75 The Court also affirmed the decision regarding attorney’s fees.
Legal Principles
Both the “immediate offset” and “deferred distribution” methods of pension division in a divorce are viable in Nebraska, notwithstanding the fact that the “deferred distribution” method is used more often.
Page 43 of 75 Porter v. Porter 309 Neb. 167 (2021)
TL;DR: Appeal dismissed because the Order vacating a default judgment did not affect a substantial right, and was therefore not a final appealable order in this case.
Facts
Sybil and Dustin were divorced in 2012 and are the parents of two children. Dustin was injured in a workplace accident, and in 2017, the District Court suspended his child support payments, pending receipt of a Social Security disability award. In 2020, Sybil filed a Complaint to Modify support, alleging that Dustin’s income had increased and seeking child support. The Sheriff served Dustin with legal process. When Dustin didn’t answer, Sybil filed a Motion for Default.
Dustin appeared at a hearing, requested and received a continuance, then did not appear at the rescheduled hearing. The Court entered a default judgment after receiving evidence of Dustin’s Workers’ Compensation award. Dustin filed a Motion to Vacate less than two weeks later, and the District Court sustained the Motion. Sybil appealed.
Holdings
In a surprisingly complicated opinion, a 4-3 majority of the Supreme Court held that, in this case, the Order vacating a default judgment was not a final appealable order because it did not affect a substantial right. Justices Papik, Miller-Lerman, and Chief Justice Heavican dissented.
Legal Principles
An Order vacating a default judgment is somewhat akin to an order vacating a dismissal and reinstating a case, and in that situation, the question is whether the Order affects a substantial right of the parties in the subject action. An Order affects a substantial right if it affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the Order from which he or she is appealing. Fidler v. Life Care Centers for America, 301 Neb. 724 (2018).
Page 44 of 75
Nebraska Court of Appeals Opinions May 26, 2020 to May 18, 2021
Page 45 of 75 Lasu v. Lasu 28 Neb.App. 478 (2020)
TL;DR: District Court dissolution and custody decision affirmed despite a challenge to Plaintiff’s residence and personal jurisdiction.
Facts
Emanuel and Naomi had a child, Jacob, in 2015, out of wedlock. Naomi lived in Lincoln, and Emanual lived in California. Emanuel saw Jacob three times between Jacob’s birth and December, 2016, when Naomi and Jacob briefly moved into his California home. They were married in December of 2016, however, by March of 2017, Naomi relocated back to Nebraska with Jacob.
Naomi filed for divorce in Nebraska in April of 2017. She had Emanuel served with process in California, and he filed a Motion challenging subject-matter jurisdiction and personal jurisdiction, claiming that Naomi had not continuously been a Nebraska resident for one year prior to the filing, and Jacob had not lived in Nebraska for the four (4) months prior to filing. Emanuel filed his own custody action in California, and the two Courts communicated.
The California Court found that Jacob had never met the UCCJEA’s 6-month requirement and was prepared to dismiss the case if Nebraska would assert jurisdiction over child custody. The Nebraska Court indicated it felt it could exercise jurisdiction over both the divorce and the child, because Naomi had moved to California with “some intent,” but it didn’t work out. As part of this hearing, Emanuel personally “agreed” to litigate the divorce in Nebraska given that custody would be decided here. Emmanuel then filed an Answer admitting she had been a resident of Nebraska for one year, and a cross-complaint which sought a dissolution and custody of Jacob.
After a trial, the District Court awarded Naomi legal and physical custody of Jacob, parenting time to Emmanuel, and ordered Emanuel to pay child support, with a downward deviation due to his expected travel costs. Emmanuel appealed, assigning as error the failure to dismiss the case, awarding custody to Naomi, and the manner in which child support was calculated.
Holdings
The Court of Appeals held that Naomi satisfied the one-year residency requirement because, when she moved to California, she did not intend to make California her permanent home, nor did she intend to abandon her Nebraska domicile. The Court seemed to find it significant that Naomi’s move was facilitated and paid for by Emmanuel, that they hadn’t discussed marriage before she left Nebraska, and that she failed to take several actions upon arrival in California that one would expect when moving there, such as searching for work.
Page 46 of 75 And, by filing a Counterclaim which requested affirmative relief, Emmanuel waived his objection to personal jurisdiction, and arguably did so during the UCCJEA hearing when he personally agreed to litigate the divorce in Nebraska.
The Court of Appeals affirmed the District Court’s decisions on legal and physical custody. And on child support, it found the District Court’s decision to grant a deviation of $327 per month for transportation costs to be reasonable.
Legal Principles
Testimony as to one’s own intent regarding his or her domicile, although subjective, is entitled to great weight in domicile determinations. State ex rel. Rittenhouse v. Newman, 189 Neb. 657 (1973); Catlett v. Catlett, 23 Neb. App. 136 (2015)
A brief move to another location to see if living with one’s spouse will succeed may not indicate a present intent to change one’s domicile. Wray v. Wray, 149 Neb. 376 (1948)
A defense of lack of personal jurisdiction is waived if, after the Court overrules, it the asserting party then seeks affirmative relief in a Counterclaim. Neb. Rev. Stat. § 25- 516.01 (2).
Only reasonable transportation expenses may reduce or abate a child support obligation. Allowing unlimited abatement of child support, to the point where the custodial parent receives substantially reduced or no child support, is contrary to the children’s best interests. Pearson v. Pearson, 285 Neb. 686 (2013).
Page 47 of 75 Grothen v. Grothen 28 Neb.App. 505 (2020)
TL;DR: The Court of Appeals affirmed denial of a Complaint to Modify Alimony, but it applied the incorrect standard, and was later overruled by the Nebraska Supreme Court; see p. 27-28.
Page 48 of 75 Olander v. McPhillips 28 Neb.App. 559 (2020)
TL;DR: District Court is affirmed in part, and reversed in part in a messy modification.
Facts
After some intervention by the District Court, Shaun and Brandy agreed to a consent Decree of Paternity in 2014, which gave them joint legal and physical custody of their child, Macklin. In 2018, Shaun filed a Complaint to Modify, indicating that Macklin needed health insurance, and he sought more parenting time with a more consistent schedule. Brandy counterclaimed, seeking more parenting time and an adjustment to child support.
Before trial, the parties reached several stipulations which were read into the record. After trial, the District Court pronounced that it would adjust Shaun’s parenting time to run from Tuesday evening to Thursday morning every week. Following that, there was significant contention over counsel’s preparation of a proposed Order.
Following written objections and at least one hearing, the District Court entered an Order Modifying Decree. Brandy filed a Motion to vacate the Order, claiming irregularity at the previous hearing, and that certain provisions were included in the Order without agreement. The Court stated that it would afford Brandy an additional evidentiary hearing to present evidence on those issues. The hearing was apparently had, and following that hearing, the Court denied Brandy’s Motion. Brandy appealed, (1) the change to parenting time, (2) the child support calculation, (3) a change to the transportation clause, and (4) a change to the first right of refusal. Despite Brandy’s request, the Bill of Exceptions did not contain a record of the final hearing.
Holdings
The Court of Appeals affirmed the District Court’s modification of parenting time, finding there was sufficient evidence to support the need for additional consistency in the schedule.
The Court of Appeals found the record was insufficient to support the change in child support, because evidence was offered at the hearing on the Motion to vacate, and that evidence was not included in the appellate record. It therefore reversed that portion of the Order and remanded for a new evidentiary hearing on the record.
The Court of Appeals reversed the District Court’s change to the transportation provision, finding that the parties had not agreed to it, and there was no evidence to support it in the record.
Finally, the Court of Appeals affirmed the District Court’s change to the first right of refusal.
Page 49 of 75 Weaver v. Weaver 28 Neb.App. 716 (2020)
TL;DR: The Court of Appeals reversed a District Court’s decision denying a Complaint to Modify, but this opinion was later modified by the Nebraska Supreme Court; see p. 32-33.
Page 50 of 75 State o.b.o. Elijah K. v. Marceline K. and John T. 28 Neb.App. 772 (2020)
TL;DR: District Court decision limiting retroactive support in a IV-D case to the first of the month after filing by the State is affirmed because the appellant-mother did not assert a cause of action as the child’s “next friend.”
Facts
Marceline and John dated in 2010 and Elijah was born in 2011. Elijah has lived with Marceline for his entire life. John was incarcerated from Elijah’s birth until he was 6 months old.
Marceline and John tried to date off and on until sometime in 2013. After that, they ended their relationship, and John had no contact with Elijah for at least four (4) years.
The State filed a Complaint to establish support in 2017, and Marceline and John each filed Cross-Complaints seeking custody, and Marceline sought retroactive child support. By the time of trial, all issues were settled except retroactive support. The State took no position, as Marceline had not received public assistance “for some time.” The District Court ordered retroactive support to the first of the month after the State filed its Complaint, which was about six (6) years after the child was born. In reaching this decision, the District Court reasoned that the cause of action belonged to the child, and it was brought through the State, but the State only had an interest to the extent it had paid public assistance for the child. Marceline appealed.
Holdings
The Court of Appeals rejected the District Court’s analysis that the State only had standing to seek retroactive support to the extent that it had paid benefits to the child. Instead, it found that under § 43-1412(3), the State may seek retroactive support regardless of whether it pays public assistance benefits to the mother or child.
However, because Marceline filed her Cross-Complaint styled as “her” cause of action against John, and not as Elijah’s “next friend,” the Court of Appeals found that Marceline’s claim in her own right was time-barred by the four-year statute of limitations in § 43-1411 (though John did not plead this as an affirmative defense). And, as the party who has standing to bring the claim, the State did not appeal the retroactive determination from 2017. Thus, the District Court’s determination was affirmed.
Page 51 of 75 Legal Principles
The State may bring an action on behalf of a child under § 43-1411, and as part of that action, may seek retroactive support under § 43-1412 (3). State o.b.o. Hopkins v. Batt, 253 Neb. 852 (1998).
A parent’s right to sue in their own right expires after four (4) years under § 43-1411, and thereafter, a person filing suit as “next friend” does so only on behalf of the child. State o.b.o. S.M. v. Oglesby, 244 Neb. 880 (1994).
Page 52 of 75 Harrison v. Harrison 28 Neb.App. 837 (2020)
TL;DR: Child support determination is remanded for findings consistent with Bornhorst and Guthard; on these facts, depreciation should be allowed, retained earnings should not be included in income, and the District Court is to consider what portion of the distributions are for taxes on K-1 income (the excess distributions should be considered income for child support purposes).
Facts
Dennis and Cantrell were married in 2002 and Cantrell filed for divorce in 2016. They each were 50% owners of two businesses, and Dennis owned 50% of a third business with Cantrell’s father. Of the two businesses that the parties owned, Dennis did the work and Cantrell kept the books.
While the case was pending, Cantrell accused Dennis of locking her out of the business accounts and manipulating the books. The Court appointed a receiver, and ordered the business to pay the receiver’s retainer and the cost of the receiver’s bond. The Court also awarded Cantrell $5,000 of temporary attorney’s fees.
The parties then settled the division of their property and had a trial on child support and some other minor issues. After trial, the District Court made findings concerning each party’s income, and ordered child support accordingly. Dennis appealed.
Holdings
The District Court included all of the “phantom” K-1 earnings from each company in Dennis’ income, despite the fact that he took smaller distributions in most years. Because Cantrell conceded that the earnings not distributed were retained to pay for future expenses or buy equipment, the Court of Appeals reversed this decision, and held that the retained earnings should not be counted.
The Court of Appeals further observed that neither the trial court nor the parties (during briefing) had the benefit of its recent opinions in Bornhorst v. Bornhorst, 28 Neb.App. 182 (2020) or Guthard v. Guthard, 28 Neb.App. 156 (2020), so it remanded the case to the District Court to determine what portion of Dennis’ distributions from each company were to pay for taxes on the phantom income; any excess distributions should be included in his income.
The Court of Appeals further reversed the District Court’s determination that Dennis should receive no depreciation deduction; it reasoned that most of the tax returns in evidence were joint returns, when each party was a 50% shareholder, so any manipulation benefited both parties, and neither party claimed that the returns were fraudulent or otherwise improperly filed.
Page 53 of 75 Finally, the Court of Appeals found plain error in the District Court’s determination of Dennis’ salary, and held that his salary should be consistent with his testimony that he had recently given himself a raise (in doing so, it rejected Cantrell’s argument that her salary which she no longer receives should now be attributable to Dennis).
Legal Principles
The retained earnings of a closely held corporation are only includable in an owner- parent’s income if they are “excessive or inappropriate.” A fact-specific inquiry is necessary to balance considerations that a well-managed corporation may be required to retain a portion of its earnings to maintain corporate operations and survive fluctuations in income, but corporate structures should not be used to shield available income that could and should serve as available sources of child sup- port funds. Id. Relevant factors to weigh in determining what portion of undistributed corporate earnings may be available to a shareholder for child support purposes should include the following considerations: (1) the shareholder’s level of control over the corporation’s distributions—as measured by the shareholder’s ownership interest, (2) the legitimate business interests justifying the retained corporate earnings, and (3) the corporation’s history of retained earnings and distributions to determine whether there is any affirmative evidence of an attempt to shield income by means of retained earnings. Guthard v. Guthard, 28 Neb.App. 156 (2020)
The key to determining whether depreciation deductions should be included as income for child support purposes is to show to the court that “the deduction does not represent artificial treatment of assets for the purpose of avoiding child support obligations.” Gress v. Gress, 271 Neb. 122, 128, 710 N.W.2d 318, 326 (2006).
Page 54 of 75 State o.b.o. Emery W. v. Michael W. 28 Neb.App. 956 (2020)
TL;DR: “equal time” order that labeled mother as having “sole physical custody” is modified to reflect the substance of the time sharing arrangement.
Facts
Michael and Mallory had two children together, born in 2017 and 2018. The State obtained a support order for the first child, and Michael filed a Complaint to modify that Order when the second child was born. At the time, Michael was living with his parents in Omaha and Mallory was living with her parents in Fremont. The parties were 25 and 24 years old, respectively.
After a trial, the District Court entered an Order which afforded Michael parenting time for two days one week, and five days the next week, for a total of seven (7) days out of every fourteen (14) days. It ordered Michael to pay child support consistent with Worksheet One, and it ordered Michael to continue paying cash medical support despite the fact that Mallory had private health insurance for the children. Michael appealed.
Holdings
The Court of Appeals modified the District Court’s Order to provide that the parenting schedule is, in substance, joint physical custody, so the Order should reflect that. It modified child support to use Worksheet Three, and it eliminated cash medical support.
Legal Principles
“Joint physical custody” is defined as “mutual authority and responsibility of the parents regarding the child’s place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time.” § 43- 2922 (12).
The Parenting Act does not require any particular parenting time schedule to accompany an award of either sole or joint physical custody, and there exists a broad continuum of possible parenting time schedules that can be in a child’s best interests. State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933 (2019).
Page 55 of 75 Gandara-Moore v. Moore 29 Neb.App. 101 (2020)
TL;DR: District Court decision is affirmed as modified, with minor adjustments to transportation (for safety purposes), child support (for lack of proof of health insurance premium) and division of the marital estate (because proponent had not proven dissipation).
Facts
Tracy and Michael were married in 2012, and Tracy filed for divorce in 2017 following a domestic violence incident. Michael moved out of state and had difficulty communicating with the children. The difficulty was precipitated, in part, by a criminal no contact order relating to the domestic assault. Michael was convicted of the assault and sentenced to probation.
After a trial, the District Court awarded Tracy legal and physical custody of the children, granted Michael parenting time one weekend per month in Lincoln, and alternating spring or winter breaks in Maryland, Virginia, or Washington, DC, and two consecutive weeks of parenting time over the summer. It found Tracy in contempt for denying Michael’s parenting time and ordered her to pay $2,500 in attorney’s fees, and it accepted Michael’s proposed division of the marital estate.
Tracy appealed, challenging (1) the District Court’s decision to allow an “undisclosed” expert to testify, (2) the parenting plan, (3) child support, (4) the division of the marital estate, (5) the District Court’s Order finding her in contempt, and (6) the District Court’s decision not to award her attorney’s fees.
Holdings
The Court of Appeals affirmed the District Court’s decision to let Michael’s expert testify, reasoning that the report had been delivered six (6) months prior to trial, that the failure to disclose him hadn’t hampered Tracy’s trial preparation, and that Tracy had failed to deliver the children to an appointment where the expert was to meet them.
Likewise, the Court of Appeals affirmed the District Court’s parenting plan, finding that the District Court’s decision to accept Michael’s expert over Tracy’s was a credibility and fact-finding determination, which is entitled to deference, and that District Courts have broad discretion to fashion a parenting plan in the best interest of the children.
However, the Court of Appeals found that the District Court abused its discretion when it failed to make findings as required by Neb. Rev. Stat. § 43-2932 because Michael had admitted to assaulting Tracy. However, that section requires limits reasonably calculated to protect the child or the child’s parent from harm. The Court of Appeals
Page 56 of 75 modified the transportation provisions to provide that the parties will meet in an agreed-upon public location, or absent an agreement, at the Lancaster County Sheriff’s Office on 10th Street, for all exchanges.
The Court of Appeals affirmed the District Court’s determination of Tracy’s income, but it found that Michael presented insufficient evidence of his health insurance cost (he presented pay stubs which did not allocate the cost between himself and the children). Thus, the Court of Appeals modified the child support calculation to remove both the deduction for Michael’s coverage for himself, and the pro-rated cost for the children.
The Court of Appeals modified the division of property, finding that there was no evidence Tracy spent $5,800 of Michael’s inheritance on a “selfish” purpose unrelated to the marriage, so it was not dissipated.
Finally, the Court of Appeals affirmed the findings that Tracy was in contempt for withholding Michael’s video parenting time, and directing each party to pay their own attorney’s fees.
Legal Principles
In appropriate circumstances where no injustice would result, a district court may exercise its inherent power to waive its own rules. Kibler v. Kibler, 287 Neb. 1027 (2014).
The trial court is the sole judge of the credibility of a witness and the opinion of any given expert witness is not binding on the trier of fact. Way v. Hendricks Sodding & Landscaping, Inc., 236 Neb. 519 (1990).
The trial court has discretion to set a reasonable parenting time schedule. The determination of reasonableness is to be made on a case-by-case basis. Parenting time relates to continuing and fostering the normal parental relationship of the noncustodial parent. The best interests of the children are the primary and paramount considerations in determining and modifying visitation rights. Thompson v. Thompson, 24 Neb. App. 349 (2016).
When there is a finding of domestic abuse, the obligations of § 43-2932 are mandatory. Fales v. Fales, 25 Neb.App. 868 (2018).
In determining income, the court may use earning capacity in lieu of a parent’s actual, present income. Child support may be based on a parent’s earning capacity when a parent voluntarily leaves employment and a reduction in that parent’s support obligation would seriously impair the needs of the children. Claborn v. Claborn, 267 Neb. 201 (2004); Neb. Ct. R. § 4-204(E) (rev. 2016).
A party claiming a deduction for the children’s health insurance premium must prove how much of the premium is for the children and how much is for themselves. Noonan v. Noonan, 261 Neb. 552 (2001).
Page 57 of 75 Smith v. King 29 Neb.App. 152 (2020)
TL;DR: District Court’s custody, parenting time, support and attorney fee award is affirmed, except if an obligor pays Worksheet One support, they should not be required to purchase ½ of the child’s clothing.
Facts
This forty-six (46) page opinion describes a basic child custody case that went seriously out of control. Ashley and Gerald were in a relationship for 11 years, never married, and Ashley gave birth to two children. They tried to parent on their own for a couple of years after they broke up, and Ashley filed a Complaint to establish paternity, custody, and support in 2017. Gerald represented himself, then hired a lawyer.
At trial, Ashley introduced evidence that Gerald had some serious issues. Gerald would aggressively claim in text messages that he did not recognize the authority of any judge, lawyer, or court order, and he could do whatever he wanted. Then in Court, he would claim he didn’t understand the temporary order. There were a few episodes of physical abuse. And he told the children that if they testified they wanted more time with him, and if he received more time, he would be able to take them on fun trips to places they wanted to go. On more than a few occasions, Gerald would pick the children up early or keep the children late, and tell Ashley there was nothing she could do about it.
After one and one-half days of trial, and before either party rested, the District Court visited with counsel in chambers, and shared its thoughts on what it was inclined to do based on the evidence heard thus far. Counsel both felt they could work out a proposed Decree consistent with the District Court’s thoughts. They were not able to reach an agreement, and a series of Motions followed. Gerald’s lawyer insisted that a deal had been made, while Ashley’s lawyer insisted he had no authority to make a deal, but was trying to negotiate a resolution with the input of the Court. Gerald tried to compel entry of a Decree which contained additional terms which everyone agreed were never discussed in chambers. Ultimately, the District Court declared there was no enforceable agreement, and trial resumed. After both parties rested, the District Court granted Ashley legal and physical custody and Gerald parenting time three days every other weekend, and one evening on his “off” weeks. Gerald appealed. His assignments of error are discussed below.
Holdings
Gerald argued that, during the closed-door meeting with the Judge, the parties reached an agreement, which should have been enforced. However, at the mid-trial hearings, he adduced no evidence that Ashley’s counsel had the authority to enter into any agreement. The Court of Appeals found there was not sufficient evidence of a meeting
Page 58 of 75 of the minds, nor was there evidence that Ashley’s counsel had the authority to bind his client, so there was no agreement to enforce.
Gerald also took issues with the Court’s decision not to amend its Temporary Order, however, the Court of Appeals found that largely became moot upon entry of the final Decree.
Gerald claimed that the District Court erred when it refused to allow the children to testify, but Gerald’s counsel never actually called them in the proper way. Instead, his counsel said, on several occasions, that if the District Court was going to award Gerald less than six days out of fourteen, then she wanted the Court to interview the children. Gerald tried to conditionally rest subject to this caveat, but later, Gerald unequivocally rested. Both the District Court and the Court of Appeals felt this was inappropriate, with the Court of Appeals observing that the District Court was not required to “tip its hand” regarding its ruling to help Gerald’s counsel decide whether to offer more evidence before resting.
Gerald claimed the District Court was required to make specific findings of fact, but he didn’t file his Motion under § 25-1127 until after the Court reached a decision, and the statute requires the Motion to be filed before the case is submitted to the Court.
Gerald claimed the District Court erred when it required him to purchase approximately ½ of the children’s clothing, and the Court of Appeals agreed, reasoning (and citing to its own opinion, discussed next) that clothing are “basic necessities” that should be paid for out of child support, and should not be divided when someone pays support on Worksheet One.
Gerald claimed that the District Court erred in ordering him to pay a portion of Ashley’s attorney’s fees, and the Court of Appeals disagreed.
Finally, Gerald claimed that the District Court erred when it refused to grant him IFP status so that he could obtain a free transcript to assist in arguing his post-trial motions (or alternatively, that it failed to order Ashley to pay for the transcript). Setting aside the question of whether Gerald was actually impoverished (the District Court found he was not), the Court of Appeals reasoned that a transcript of proceedings was not an essential litigation expense, and the county would not have been required to pay for it even if Gerald was impoverished.
Page 59 of 75 Kelly v. Kelly 29 Neb.App. 198 (2020)
TL;DR: Step-up parenting plan is clarified to avoid a non-delegation problem; Worksheet One child support obligor cannot be also obligated to contribute to expenses which would be considered “necessities.”
Facts
Gary and Kirsten married in 2007, and Kristen filed for divorce in 2018. At the same time she filed, Kirsten sought and obtained a protection order against Gary based on allegations of domestic abuse against her and the children for which he was cited, convicted, and sentenced to probation.
After a trial, the District Court divided the parties’ property, granted Kirsten legal and physical custody of the children, provided for a four-phase “step up” parenting plan for Gary, ordered Gary to pay child support, spousal support, school tuition, and a handful of other expenses, and allocated all of the income tax dependency exemptions to Kirsten. Gary appealed, assigning the errors discussed below.
Holdings
Gary first took issue with the District Court’s step-up parenting plan. Under a temporary order, he had supervised therapeutic visits with the older child. The step- up plan provided for (1) therapeutic visits, then (2) supervised visits, then (3) unsupervised visits, then (4) regular parenting time which included holidays and other provisions. Gary did not take issue with the phased approach in concept, but rather, with the amount of time that would need to pass to graduate between phases. The Court of Appeals noted that time-based restrictions were necessary to steer clear of a “non-delegation doctrine” problem (i.e., the Court, not a therapist must determine a parenting plan). The Court found plain error and modified one of the phases so that all three preliminary phases were subject to a 6-month timeframe, which could be accelerated with the recommendation of the therapist and only delayed if there was a safety concern.
Gary next complained that the District Court required him to contribute to private school tuition, school lunches and supplies, clothing, activities, haircuts, and other expenses. The Court of Appeals believed that private school tuition and extracurricular activities were properly allocable under § 42-364.17, however, clothing, school lunches, school supplies, and haircuts should all be considered “necessities” and not “extraordinary expenses,” and should not be allocable when a parent pays support under Worksheet One.
Gary next claimed that the District Court should have allocated him ½ of the income tax exemptions for the children. Although the Court of Appeals noted that it is routine
Page 60 of 75 for courts to divide exemptions, and that such a division was permissible because they are “identical to an award of child support or alimony,” it was not an abuse of discretion not to equally divide the exemptions.
Finally, the Court of Appeals found Gary’s issue with the division of marital property to be persuasive. Kirsten’s counsel had prepared, and the District Court had adopted a spreadsheet that paid Kirsten for Gary’s overdue temporary obligations out of Gary’s ½ of the proceeds of the marital home. That much was fine. But then the District Court did not attribute Kirsten’s half of the proceeds to her as an asset, meaning that she received her half of the house for free. The Court of Appeals corrected this arithmetic error and recomputed Gary’s property equalization payment.
Legal Principles
It is the responsibility of the trial court to determine questions related to custody and parenting time according to the best interests of the minor children. This is an independent responsibility and cannot be controlled by the agreement or stipulation of the parties themselves or by third parties. Gibilisco v. Gibilisco, 263 Neb. 27 (2002).
A party paying child support based on Worksheet One can also be ordered to pay only those expenses enumerated in § 42-364.17, and not expenses that are considered “necessities.”
Page 61 of 75 Chmelka v. Chmelka 29 Neb.App 265 (2020)
TL;DR: District Court Decree awarding joint legal and physical custody and setting off premarital stored grain, seed, and fertilizer is affirmed.
Facts
Michelle and Kyle married in 2014, and Michelle filed for divorce in 2018. They have two children together. The District Court entered a temporary order for joint legal and physical custody, giving each parent primary decision making authority in certain areas. The parties were able to follow this Order for one year without significant problems. Trial followed.
At trial, Michelle introduced evidence of two incidents: (1) in 2016, Kyle pushed her against a wall with his forearm when she tried to block him from entering the master bedroom, and (2) in 2018, Kyle climbed through a window when Michelle had blocked him from going up the stairs and he rolled towards her in bed, telling her she was “going to get screwed.” Michelle introduced other evidence of indiscretions while Kyle was drinking, but acknowledged some indiscretions herself.
The District Court awarded the parties joint legal and physical custody, set off to Kyle the value of $312,000 of premarital grain and farm inputs, and divided the rest of the marital property. It did not explicitly make findings under § 43-2932 (the domestic abuse provision in the Parenting Act) as Michelle had requested. Michelle appealed, assigning as error (1) failing to make a finding under § 43-2932, (2) awarding joint legal and physical custody, (3) awarding equal parenting time, and (4) offsetting $312,000 from the marital estate.
Holdings
The Court of Appeals found that silence in a Decree concerning § 43-2932 implicitly means the District Court rejected the claim and declined to make such findings, and there was not enough evidence in the record to determine that decision was an abuse of discretion.
The Court of Appeals rejected Michelle’s argument that she was not provided with notice that the Court might award joint legal and physical custody, because Kyle never filed an Answer or responsive pleading. It reasoned that Michelle’s own pleadings put custody at issue, the temporary order put her on notice that the Court would consider joint physical custody, and Kyle’s proposed parenting plan and testimony should have put her on notice.
Similarly, the Court of Appeals found that the District Court did not abuse its discretion finding that joint legal and physical custody was in the best interest of the children.
Page 62 of 75 Finally, the Court of Appeals found it was not an abuse of discretion to credit Kyle with his stored grain, pre-paid seed, and fertilizer that he owned on the date of the marriage. It reasoned that this case was more like Osantowski than Brozek, in that the marriage was short-term in nature, and the value of the premarital holdings were precisely known. The Court of Appeals also noted that the District Court did not deduct the full amount of the premarital holdings, but only used them to negate the value of stored grain owned at the time of divorce.
Legal Principles
Where a district court does not impose limitations or make special findings, the appellate court will presume it declined to do so because it found that § 43-2932 did not apply. Randy S. v. Nicolette G., 302 Neb. 465 (2019).
Page 63 of 75 Morse v. Olmer 29 Neb.App. 346 (2021)
TL;DR: This case presents nearly the same facts, and the same holding as Davis v. Moats, p. 37-38: a known biological parent is in indispensable party for a petition for grandparent visitation.
Page 64 of 75 Burton v. Schlegel 29 Neb.App 216 (2021)
TL;DR: District Court Order changing custody and permitting move to Utah (where father had lived for several years) is affirmed.
Facts
Alexandra and Dwayne gave birth to a child in 2013. She moved from Wyoming to Utah, with her three other children, then with Dwayne to New Mexico, then she gave birth. Only a few months after the child was born, the relationship ended and Alexandra moved to Lincoln to live with her sister.
Dwayne filed a Complaint in Lancaster County District Court, and after a trial, the District Court awarded him parenting time for four months out of the year, and indicated that the parenting schedule likely wouldn’t work when the child started school, at which time the Court would consider the start of school to be a material change in circumstances. Both parties appealed and the Court of Appeals affirmed in an unpublished opinion.
In 2019, Dwayne filed a Complaint to Modify, which alleged the child was starting school, and there were a host of communication and cooperation problems with Alexandra, including that she routinely refused to answer basic questions and instead told Dwayne to contact her attorney. As discovery progressed, more problems surfaced including frequent behavioral problems at school and daycare, and serious medical problems that Alexandra had not shared with Dwayne, as well as an accident that had knocked out several of the child’s teeth.
After a trial, the District Court found it was in the child’s best interest for Dwayne to be awarded custody, and for the child to be permitted to relocate to Utah to live with Dwayne. Alexandra appealed.
Holdings
The Court of Appeals affirmed the District Court’s decision, holding that it was not an abuse of discretion under the three-part analysis explained below.
Legal Principles
When a noncustodial parent seeks sole custody of a minor child and seeks to remove the child from the jurisdiction, a court should first consider whether a material change in circumstances has occurred and, if so, whether a change in custody is in the child’s best interests. If this burden is met, then the court must determine whether removal from the jurisdiction is appropriate. State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb. App. 409 (2013).
Page 65 of 75 Peterson v. Jacobitz 29 Neb.App 486 (2021)
TL;DR: The requirement that a Notice of Objection to Adoption and Intent to Claim Custody be filed in the county of the child’s birth is a curable venue requirement, not a limit on subject-matter jurisdiction.
Facts
Austin and Jodi dated until Jodi became pregnant. Austin denied he was the father, and broke contact with Jodi, blocking her phone and social media accounts. Jodi tried, unsuccessfully, to contact Austin for years to inform him of the birth of his child.
Six years later, Jodi’s attorney sent Austin a certified letter informing him that Jodi and her husband intended to adopt the child. 27 days later, Austin filed a Complaint to Establish Paternity and Objection to Proposed Adoption in Phelps County Court. The problem was, the child was born in Buffalo County. The Phelps County Court transferred the case to Buffalo County, and Jodi filed a Motion to Dismiss. The Buffalo County Court ruled that § 43-104.05(4)(a) required the Complaint be filed in the proper county, or the Court would lack subject-matter jurisdiction. It reasoned that because the Phelps County Court lacked subject-matter jurisdiction over the case, it also lacked the authority to transfer the case to Buffalo County Court. The County Court dismissed Austin’s Complaint. Austin appealed.
Holdings
The Court of Appeals held that the requirement to file in the county where the child was born was a venue requirement, not a jurisdictional requirement. Because venue refers to where a case should be filed, and subject-matter jurisdiction relates to the power of a court to hear a case (and although not mentioned in the opinion, venue is also a waivable defect), a Court with subject-matter jurisdiction but sitting in an improper venue does have the aurhority to transfer the case to the proper venue. The Court of Appeals reversed the County Court’s decision.
Note: after we selected the cases for this year’s update, the Supreme Court granted a Petition for Further Review, and affirmed the judgment of the Court of Appeals in Peterson v. Jacobitz, 309 Neb. 486 (2021).
Page 66 of 75 Mann v. Mann 29 Neb.App 548 (2021)
TL;DR: District Court Order which voided a prior determination of custody due to lack of subject-matter jurisdiction under the UCCJEA is affirmed.
Facts
Asia and Patrick gave birth to Maleah, out of wedlock, in 2009. When their relationship ended, Asia sought and received a custody order in California granting her legal and physical custody over Maleah, and affording Patrick reasonable rights of parenting time.
Asia married Brian in 2011, and Asia filed for divorce in 2016. While their divorce was pending, Patrick filed a Complaint seeking to register the California judgment in Douglas County. The District Court confirmed the registration in 2018. Later that year, Brian and Asia settled their divorce with a Consent Decree, which stated that Brian stood in loco parentis to Maleah, which granted Brian and Asia joint physical custody of Maleah, and granted Asia Sole physical custody over Maleah, except that Asia agreed she could not change Maleah’s school district without Brian’s consent or the Court’s approval.
Brian filed a Complaint to Modify the Decree in 2019, and Asia filed a Counterclaim, asserting that Maleah was not Brian’s legal or biological child, and that she should receive custody. Shortly thereafter, Asia filed a Motion for Partial Summary Judgment which put at issue the propriety of the 2018 Decree and its treatment of Maleah.
The District Court granted Partial Summary Judgment for Asia after a hearing, finding that the California Decree was an initial child custody determination under the UCCJEA, and that California retained, and had not terminated its continuing exclusive jurisdiction to modify the Order. Because of this, the District Court found its award of joint physical custody of Maleah in the Decree to be void, and it voided all provisions pertaining to Maleah in the Decree. Brian appealed.
Holdings
The Court of Appeals first examined whether Brian had appealed from a “final” order, because the Order granting Partial Summary Judgment did not resolve all of the issues between all of the parties. It reasoned that the District Court’s Order voiding all custody provisions concerning Maleah permanently diminished Brian’s right to custody under the prior order, and his rights would be significantly undermined by postponing appellate review. Because of this, the Court found that the Order affected a substantial right, and was appealable.
Turning to the merits, the Court of Appeals explained that all parties agreed that California, having exercised jurisdiction over Maleah originally, also maintained
Page 67 of 75 continuing exclusive jurisdiction at the time of the 2018 Decree. The dispute is over what is the effect of California’s continuing exclusive jurisdiction: did it deprive a Nebraska Court of subject-matter jurisdiction, meaning that any action a Nebraska Court took would be void at the outset? Or did it have jurisdictional priority, meaning that a Nebraska Court had the power to act, but it shouldn’t exercise the power it possessed.
Brian argued that the UCCJEA was a scheme of jurisdictional priority, that Nebraska Courts had subject-matter jurisdiction over Maleah in 2018, but that the UCCJEA simply held that Nebraska Courts shouldn’t exercise that jurisdiction. In Brian’s view, the 2018 Decree was voidable, but not void at the outset. And because it was voidable, it was only subject to a challenge on direct appeal, not a collateral attack.
The Court of Appeals assumed, without deciding, that Brian was partially correct, and that the UCCJEA was merely a scheme of jurisdictional priority. It reasoned that even if that was true, the District Court had the authority to correct its mistake under § 25- 2001(4)(a) once it became aware of it, and that an error in the exercise of jurisdiction was an “irregularity in obtaining a judgment or order.”
Legal Principles
Except as otherwise provided in section 43-1241, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivision (a)(1) or (a)(2) of section 43-1238 and:
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 43-1239 or that a court of this state would be a more convenient forum under section 43-1244; or
(2) a court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state. Neb. Rev. Stat. § 43-1240.
Note: The Nebraska Supreme Court has granted a Petition for Further Review, which is currently pending in this case.
Page 68 of 75 Ramsey v. Ramsey 29 Neb.App 688 (2021)
TL;DR: Judgment of the District Court is affirmed because the District Court committed a series of errors, some not appealed, that mostly cancelled each other out.
Facts
Sarah and Kyle married in 2011 and Sarah filed for divorce in 2018. Trial was held in 2019. The evidence at trial demonstrated that Kyle had premarital balances in his checking and savings account, and he owned a home prior to marriage. The parties paid off about $43,000 of Sarah’s premarital student loans during the marriage with marital funds.
Kyle testified that he purchased the home in 2002 for $103,000, that he did extensive renovations prior to marriage, but very little work during the marriage, and that 8 months into the marriage, it appraised for $157,000. He offered a statement showing the debt at the time of the marriage was about $86,000. From these figures, he claimed his nonmarital equity at the time of the marriage was about $71,000.
Sarah disputed that all renovations were done prior to marriage, and she claims the couple built a detached garage and replaced a shed during the marriage. The appraisal referenced these items, did not indicate when they were built, and did not separately attribute value to them, or to the home without them. The District Court did not find Kyle’s testimony credible as to when these improvements were made.
The parties sold this home, deposited the $125,000 proceeds into a joint account, then shortly thereafter, transferred $95,000 to a title company as the down payment on their new home. The District Court found that the funds had been excessively commingled, and Kyle should receive no credit for his premarital home. It also sought to add back “half” of the funds the marriage spent on Sarah’s premarital student loans. Kyle appealed, assigning both of these issues as error.
Holdings
The Court of Appeals first rejected the District Court’s finding that the funds in the joint accounts were too badly commingled to be traced. It reasoned that Kyle had some premarital interest in his premarital home, but the question was how much he could prove he had. And it found that the sale of the prior home was close enough in time to the down payment on the new home that the tracing link could be established. The Court deferred to the District Court’s credibility determination and found that the 2012 appraisal (from 8 months into the marriage) was not useful, so it subtracted the debt value at the marriage from the purchase price 9 years earlier, and found that Kyle had demonstrated “at least” $16,055 of premarital equity in the home.
Page 69 of 75 The Court of Appeals also re-affirmed the rule that when marital funds are spent to pay off nonmarital debt, the marital estate ought to be reimbursed. It then engaged in a painstaking demonstration of flaws in the District Court’s calculation which (1) improperly credited Kyle with premarital assets after calculating the equalization payment (thus doubling their effective value) and then deducting ½ of the premarital debt from the equalization payment (thus negating the Court’s possible intentions). The Court reasoned that, after it credited Kyle with his $16,055 premarital interest in his home, and correctly adjusted the remaining spreadsheet for Kyle’s other premarital property, the result was that the Court’s equalization payment was still too low, and Kyle ended up with 52% of the marital assets. Since Sarah did not assign the miscalculation as error, and since awarding her 48% of the marital estate did not rise to the level of plain error, the judgment of the District Court was affirmed.
Despite this, the tables that the Court uses in its analysis ought to resolve some future disputes about when to subtract premarital assets, and how to apply credits for debt paid during the marriage.
Legal Principles
When one party’s nonmarital debt is repaid with marital funds, the value of the debt repayments ought to reduce that party’s property award upon dissolution. Anderson v. Anderson, 27 Neb. App. 547 (2019); Gangwish v. Gangwish, 267 Neb. 901 (2004).
Page 70 of 75 Bowen v. Bowen 29 Neb.App 726 (2021)
TL;DR: District Court Decree which ordered the sale of two houses is reversed with instructions to value them and award them to the Husband.
Facts
Melvin and Karen were married in 2010 and Melvin filed for divorce in 2018. Melvin owned a home prior to marriage which he had purchased with his first wife. One month after marriage, Melvin deeded the home to himself and Karen as tenants in common. Melvin testified that he did not intend to make a lifetime gift to Karen, which is odd, because the deed didn’t create a right of survivorship. During the marriage, the parties improved the house, and unbeknownst to Melvin, Karen deeded her undivided ½ interest to herself and her two daughters. Karen testified that she had told Melvin she did not want to live in the house he previously inhabited with his ex-wife, and she was uncomfortable with the property being titled solely in his name. She testified that Melvin told her the purpose of the deed was to allow each of them to do whatever they choose with their ½ of the house.
The parties owned another house in North Carolina. Both agreed that Melvin contributed $26,000 of premarital funds to the purchase.
After a trial, the District Court found that Melvin had converted his premarital home into marital property. It also decided that both properties should be sold (despite the fact that both parties agreed that Melvin should be awarded both properties), and Melvin should receive $26,000 from the proceeds of the North Carolina house before the remaining proceeds were divided equally. Melvin appealed.
Holdings
Melvin argued that the District Court’s decision violated the Nebraska Supreme Court’s rejection of the gift presumption in Schuman v. Schuman, 265 Neb. 459 (2003), because the District Court’s ruling determined that the property was marital solely based upon the deed Melvin signed. The Court of Appeals rejected this argument, finding that the totality of the circumstances: the deed, Karen’s refusal to live in the house occupied by Melvin’s ex-wife, Karen’s discomfort with Melvin being the only titleholder, Melvin’s statement that Karen’s ½ of the property was hers to do with what she liked, and the improvements after marriage all contributed to the conversion of the property to marital property. The Court also reasoned that Melvin could have offered evidence of the property’s value and mortgage balance at the time of marriage, but he chose not to do so, instead, arguing that the property was entirely non-marital, which was not supported by the facts.
Page 71 of 75 Melvin also argued that the District Court abused its discretion in ordering both properties to be sold, when both parties agreed he should be awarded them. The Court of Appeals agreed, and reversed the District Court, reasoning that the valuation disputes were not large compared to the overall value. The Court of Appeals remanded with instructions to value the properties, award them to Melvin, order Melvin to refinance the debt, and to pay Karen her equitable share of the value.
Legal Principles
A court in a dissolution action may provide for the sale of all or part of the parties’ assets in lieu of dividing them, if to do so is reasonable in the light of the facts, the circumstances of the parties, and the nature of their property. Such action, of course, must be within the statutory dictate that the division of the assets be reasonable, having regard for the circumstances of the parties as provided in § 42-365, and that it satisfy the ultimate test of fairness and reasonableness articulated by case law. Kellner v. Kellner, 8 Neb. App. 316 (1999).
Page 72 of 75 Langley v. Langley 29 Neb.App 780 (2021)
TL;DR: District Court Order which established a child support obligation is affirmed for different reasons than cited by the trial court.
Facts
Stacy and Christopher married in 1995 and divorced in 2015. The original Decree contained a Parenting Plan which afforded Stacy parenting time on the first, third, and fifth weekends of each month, certain holidays, and every other two weeks over the summer. Overall, this was short of 109 overnights in a calendar year. Nonetheless, the parties called this arrangement “joint physical custody” and filled out a child support worksheet which showed that Christopher would owe Stacy support. They deviated downwards to $0 because of the amount of time spent with each parent and “the financial situation of the parties.”
Stacy filed a Complaint to Modify in 2019, seeking a change of custody. Christopher Counterclaimed, alleging that Stacy’s income had increased, his income had decreased, and the children were in his de facto sole physical custody.
The District Court determined that the parties had faithfully followed the original Parenting Plan, and in doing so, Christopher had been exercising sole physical custody. It found this to be a material change in circumstances, and using the parties’ then- current incomes, ordered Stacy to pay support to Christopher. It denied Stacy’s request for a change of custody. Stacy appealed.
Holdings
The Court of Appeals affirmed the District Court’s decision, but for different reasons. It reasoned that the change of circumstances was not the parties continuously following the Decree which erroneously called the arrangement “joint physical custody.” The change in circumstances was the parties’ change in incomes. And once the incomes changed, child support must be recalculated using the parties’ current incomes and the correct worksheet. Because of the change of income, Christopher was entitled to request Worksheet One support from Stacy, and the judgment of the District Court was affirmed.
Page 73 of 75 Wright v. Wright 29 Neb.App 787 (2021)
TL;DR: District Court decision which suspended trial, and gave alienating father multiple chances over ten (10) months to improve his behavior before imposing therapeutic and then supervised time with no step-up schedule is affirmed.
Facts
Heather and Lucas had two sons, born in 2008 and 2009; they married in 2012, and Heather filed for divorce in 2018. Heather then sought and received a domestic abuse protection order. In the divorce case, she sought sole physical custody, but the Court awarded the parties temporary joint legal and physical custody.
At trial, the District Court interviewed the children. The Court verbally remarked that Lucas had engaged in behavior which had alienated the children, and that the Court understood the children were angry with Heather because of things Lucas had told them. It stated that the children were aware of the protection order and the criminal case against Lucas, that Lucas had orchestrated them placing a Valentine’s Day present to Heather (from Lucas) on her pillow in violation of the protection order, and that Lucas had engaged in a pattern of other conduct which made the children angry with their mother and made them feel as if they had to “pick sides.”
The Court reduced Lucas’ time to one evening per week and alternate weekends, and indicated that it was not going to enter a permanent order, and it wanted to give him the opportunity to demonstrate he can change his behavior. The Court also ordered the parties to have no contact with each other, and to work with Dr. Glenda Cottam for 60 days.
At a further hearing, the Court found Lucas in contempt for violating its prior orders concerning communications and failing to respect his restricted parenting time. It further restricted his parenting time to be only court-ordered therapeutic time, and prohibited him from otherwise communicating with the children. The District Court then entered another temporary order increasing Lucas’ support obligation. Finally, ten months after trial “started,” the Court entered a Decree which dissolved the marriage, and which restricted Lucas’ parenting time to initially therapeutic time, then (after he reaches maximum therapeutic improvement) supervised time. Lucas appealed.
Holdings
Lucas challenged the Court’s restrictive parenting plan as being too harsh compared to the evidence, and could not be justified under § 43-2932 because the children were not in any physical danger with him. But the Court of Appeals observed in addition to the incidents of domestic abuse between the parents, Lucas had engaged in a pattern of
Page 74 of 75 conduct which “interfered persistently with the other parent’s access to the child[ren]” and that was an independent justification for limitations under § 43- 2932(1)(a)(iv).
The Court of Appeals further rejected Lucas’ argument that the Court should have placed time limits on the therapeutic and then supervised visits, observing that the District Court specifically found that Lucas’ behavior was so out of control, and he completely failed to recognize the impact of it on the children such that no schedule would be able to adequately predict when – if ever – he would change. The District Court’s Order was affirmed.
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