The NSBA’s Family Law Section presents:
2020 Family Law Seminar Caselaw Update
Friday, July 24, 2020 PM Session WEBCAST
Adam Astley, Astley Putnam, PC, LLO This page intentionally left blank. SPEAKER BIO
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. This page intentionally left blank. Case Law Update
Nebraska Supreme Court Opinions April 26, 2019 to June 26, 2020
Nebraska Court of Appeals Opinions April 23, 2019 to May 19, 2020
NSBA Family Law Update July 24, 2020
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 April 26, 2019 to June 26, 2020
Page 2 of 57 D.W. v. A.G. 303 Neb. 42 (2019)
TL;DR: If the Court believes the evidence is insufficient to support the type of protection order sought, but perhaps might support a different type of protection order, the Court should explain the requirements of each, allow the Petitioner to elect their legal theory, and grant the Respondent a continuance, if requested, all before submitting the case for decision.
Facts
D.W. sought an Ex Parte Sexual Assault Protection Order against A.G. based on the allegation that A.G. had sex with her when D.W. was incapacitated and not able to give consent. The Trial Court issued an Ex Parte Order and A.G. requested a hearing.
At the hearing, the evidence was that D.W. had turned 21 the day before, had engaged in extensive drinking with several friends and acquaintances including A.G. at her apartment, then at a bar, then back at her apartment. D.W. testified that at a certain point, she had no further memory of being at the bar and the next thing she remembered was having sex with A.G. She did not recall giving consent.
D.W.’s Petition (which she did not offer into evidence at the hearing) also claimed that since the alleged incident, A.G. had violated contact restrictions imposed by the university where they both attended, and his presence on campus was “interfering with her educational experience,” and that he had not “shown consideration for her feelings or what he did,” and she feared that “he will continue to harass her by his actions.”
A.G. testified that D.W. flirted with him aggressively, she held his hand while riding home from the bar, appeared coherent, invited him in, took him to her room, and asked if he wanted to “hook up.” He testified that D.W. never appeared incoherent, didn’t stumble or fall, and he had no reason to believe she was incapable of giving consent. A third-party witness saw the two entering the apartment building, and testified that D.W. appeared coherent, steady on her feet, wasn’t slurring words, and didn’t seem tired or about to pass out.
The Trial Court found the third-party witness’ testimony to be most credible, and determined that based on that testimony, it could not find a lack of consent. Nonetheless, the Trial Court indicated that it would enter some kind of Protection Order.
Two days later, on its own Motion, the Trial Court refiled D.W.’s original Petition under a new case number, it dismissed the original Petition stating that it wasn’t supported by sufficient evidence, but there was sufficient evidence to justify a harassment protection order, and it entered an Order in the new action stating that the parties
Page 3 of 57 appeared with counsel, and the Court found a harassment protection order should be issued. A.G. appealed both Orders.
D.W. filed an improperly formatted cross appeal of the Trial Court’s denial of her original Petition.
Holdings
The Court reversed the Harassment Protection Order, holding that it was a violation of A.G.’s due process rights to allow the Trial Court to switch legal theories after the close of evidence and at such time when A.G. would not have the opportunity to present a case to refute the new theory.
The Court noted that D.W. did not assign errors in her Brief on Cross Appeal, and instead, included a heading in her Brief which stated that the Trial Court erred by dismissing her Petition for a Sexual Assault Protection Order (this, of course, is not a proper substitute for a separate heading with separately numbered assignments of error). It held that, because the evidence of whether a sexual assault actually occurred was conflicting at best, it was not plain error for the Trial Court to make credibility determinations, find that there wasn’t sufficient evidence that a sexual assault had occurred, and vacate the Ex Parte Order.
Legal Principles
Procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice which is reasonably calculated to inform them of the subject and issues involved in the proceeding, and a reasonable opportunity to refute or defend against a charge or accusation. Zahl v. Zahl, 273 Neb. 1043 (2007).
If a Petitioner seeks one type of protection order, but the evidence would only support another type of order, the Court should explain the requirements for both types of protection orders, allow the Petitioner to choose which theory to pursue, and grant the Respondent a continuance, if requested. Sherman v. Sherman, 18 Neb.App. 342 (2010).
Page 4 of 57 Rohde v. Rohde 303 Neb. 85 (2019)
TL;DR: District Court is not required to pick a single valuation date, nor is it required to use the coverture fraction to determine the premarital value to a business interest.
Facts
Sharon and Keith were married in 1995 and Sharon filed for divorce in 2016. Keith had operated an excavating business since 1989, and he purchased land before marriage which he later developed into a self-storage facility.
At trial, the parties had different appraisals of the different assets, each using different valuation dates. The District Court valued some assets on the date of filing, some on the date of trial, and some on an unrelated date.
On appeal, Keith argued that (1) the District Court should have used a single valuation date to value the entire marital estate, and (2) the District Court should have used a coverture fraction to determine a non-marital value to his premarital business interests.
Holdings
The Supreme Court rejected both arguments, calling them novel.
First, the Supreme Court extended the existing jurisprudence that the valuation date must be rationally related to the property being divided. This legal proposition now holds that the valuation date for each item of property must be rationally related to that respective item of property.
The Court acknowledged that a single valuation date could be helpful and appropriate in some cases, but it declined to impose such a requirement for all cases. It reasoned that a particular date may be fair and reasonable for one asset, but not for another. It further pointed out that a strict requirement for one single date could have pragmatic problems, for example, if it was not easy to value every asset as of any particular date. Finally, the Court pointed out the irony that even Keith’s evidence at trial used inconsistent valuation dates.
In this case, the Court noted that the District Court valued the marital home, commercial bank accounts, and business properties as of the date of separation, because once the parties separated, these assets no longer benefited them both. Other assets, such as a rental home, jewelry, household goods, and vehicles were valued as of trial because they had relatively constant values, or (in the case of the joint accounts), the parties continued to use the accounts jointly until the time of trial.
Page 5 of 57 The Court found the use of a coverture formula to be inappropriate to determine the premarital value of Keith’s businesses in this case. It reasoned that variations in revenue and business cycles would reduce a coverture formula to mere speculation or conjecture. While not completely foreclosing the use in a future case, the Court indicated it would only be useful in very unusual circumstances.
And since Keith offered no other method for determining the premarital value of his business, the District Court’s determination that the entire business was marital is affirmed.
Legal Principles
1. Trial Courts should have the flexibility to choose valuation dates (including multiple dates) for the property comprising the marital estate, so long as each valuation date is rationally related to the property to be valued as of that date, with the polestar being fairness and reasonableness.
2. The Coverture method is generally not an effective way to value a premarital interest in a closely held corporation.
Page 6 of 57 Hollomon v. Taylor 303 Neb. 121 (2019)
TL;DR: A Court can register a foreign custody order even if it lacks jurisdiction to modify the Order.
Facts
Jami and Alex were never married, and had a child together in 2016. In 2018, they agreed to entry of a judgment in Texas which included a Parenting Plan and support obligation. The Texas judgment did not require either parent to continue to live in Texas, and it contained two divisions of time, depending on whether the parents lived within 100 miles of each other.
Two months after the Texas Order was issued, Jami filed a Petition to register it in Nebraska under Neb. Rev. Stat. § 43-1252. The Petition sought registration only, and did not seek enforcement or modification of the Order. The Clerk sent notice to Alex, who filed a Voluntary Appearance, appeared, and objected to the registration.
The District Court held a hearing, where it found that, after adducing evidence, Jami had unlawfully removed the child from Texas, and the Texas Court had continuing jurisdiction over the child. On this basis, the District Court denied the request to register the Order. Jami appealed.
Holdings
The Supreme Court reversed, holding that registration under the UCCJEA was a ministerial act, and that a Nebraska Court can register a foreign Order even if some other Court maintains continuing exclusive jurisdiction to modify it.
Legal Principles
Registration under the UCCJEA is a ministerial act, and does not require the Registering Court to have jurisdiction to modify the Order.
Page 7 of 57 State o.b.o. State of Florida o.b.o. Mia G. v. Julio G. 303 Neb. 42 (2019)
TL;DR: An indigent party challenging a notarized acknowledgment is entitled to court- appointed counsel at public expense.
Facts
Mia was born in 2016. At that time, Julio and Mia’s mother signed a Notarized Acknowledgment of Paterntiy. As a result, Julio was named as the Father on Mia’s birth certificate.
In 2017, the State of Nebraska brought a case against Julio for child support, attaching a copy of the signed Acknowledgment. Julio (speaking through an interpreter) admitted he signed the acknowledgment at the hospital, but said he doesn’t read or speak English, that he didn’t know what he was signing, that he was led to believe the acknowledgment had something to do with the child’s medical care, that he didn’t believe he was able to have children, and that he would not have signed an acknowledgment of paternity without a DNA test.
The Referee found that Julio was indigent, and appointed him counsel over the State’s objection. Counsel filed appropriate Motions to challenge the acknowledgment, and DNA testing confirmed Julio was the father. At that point, Julio stipulated to paternity, the Court entered a final Order, and approved of Julio’s counsel’s application for attorney’s fees. The State appealed.
On appeal, the State argued that because paternity was presumed under the notarized acknowledgment, it was not at issue in the case, and the Court therefore erred in appointing counsel.
Holdings
The Supreme Court held that the issue of paternity was properly at issue when Julio sought to challenge the Notarized Acknowledgment. It found that Julio’s oral statement to the referee that he didn’t think the document was an acknowledgment satisfied the requirements of § 43-1409 to allege a material mistake of fact, or fraud.
Legal Principles
Due Process requires that an indigent Defendant in a paternity proceeding be furnished appointed counsel at public expense. Carroll v. Moore, 228 Neb. 561 (1988).
Page 8 of 57 Christine W. v. Trevor W. 303 Neb. 245 (2019)
TL;DR: The Juvenile Court does not have the authority to reject a case transferred to it to adjudicate termination of parental rights; only the District Court can decide which Court is the more appropriate forum.
Facts
Christine and Trevor are the biological parents of a child who was born in 2019, and they were divorced in 2012. The original Decree awarded Christine legal and physical custody of the child, and awarded Trevor parenting time.
In 2018, Trevor filed a “Motion” to modify the Parenting Plan, indicating he was incarcerated, and requesting a 30-minute phone call once per week and two visits per month. Christine counterclaimed to terminate Trevor’s parental rights, or alternatively to modify the Parenting Plan to strip him of all parenting time and contact with the child. Christine alleged that Trevor had been convicted of four counts of first degree sexual assault and sentenced to 25 to 35 years’ incarceration.
Christine moved to transfer the proceedings to the County Court which was sitting as a Juvenile Court. Trevor did not object, and the District Court signed a transfer Order, which recited that the Juvenile Court had consented to the transfer.
Two months later, the Juvenile Court judge filed an Order in the District Court file which acknowledged that it had originally consented to the transfer, but upon further review, believed it lacked subject-matter jurisdiction under § 43-292.02. Christine appealed.
Holdings
The Supreme Court held that the Juvenile Court had jurisdiction to accept the transfer, noting that § 43-292.02 stated when the State was required to, prohibited from, and had discretion to file its own Complaint to Terminate Parental Rights.
The Supreme Court explained that under §§ 43-246.01(3)(b) and 43-247(6), the Juvenile Court had concurrent original jurisdiction over proceedings involving termination of parental rights. Since the District Court had subject-matter jurisdiction over the case and personal jurisdiction over the parties (both had voluntarily appeared), the Juvenile Court also had jurisdiction.
Furthermore, the Supreme Court held that the Juvenile Court did not have the authority under § 42-364(5) to decline the case, and once the District Court determined the Juvenile Court was the more appropriate forum, the Juvenile Court was required to adjudicate the claim of Termination of Parental Rights.
Page 9 of 57
Legal Principles
1. The Juvenile Court has concurrent original jurisdiction over all matters involving Termination of Parental Rights. Neb. Rev. Stat. §§ 43-246.01(3)(b) and 43- 247(6).
2. The District Court must determine, under Neb. Rev. Stat. § 42-364(5) whether it or the juvenile Court is the more appropriate forum to adjudicate a Petition to Terminate Parental Rights. If the District Court determines that the Juvenile Court is a more appropriate forum, the Juvenile Court must accept the transfer and adjudicate the claim.
Page 10 of 57 Robert M. o.b.o. Bella O. v. Danielle O. 303 Neb. 268 (2019)
TL;DR: Domestic Abuse Protection Order brought on behalf of a child-victim is affirmed when the Respondent’s conduct was directed at other members of the household, but in the child’s presence, and the other adults feared for the child’s safety.
Facts
Robert and Danielle are the parents of Bella, who was born in 2007. In 2013, a North Dakota Court issued a custody order effectively granting the parties joint legal custody of Bella, physical custody to Robert, and unsupervised parenting time to Danielle. The Order provided that Danielle’s parenting time would be supervised if she “had a relapse with regard to alcohol abuse.”
Robert then moved to Nebraska, and Danielle moved to Minnesota, staying with her mother and brother, and at some point, relapsed, triggering a belief by her family that her time should be supervised.
There was an incident in Minnesota where Danielle took Bella from 6:00 p.m. to midnight from her brother’s and mother’s home, would not return phone calls, and was evasive. When she returned home, she assaulted both her brother and mother, injuring her brother’s face and body, kicked a door off of the frame, and entered into a scuffle which resulted in an overturned coffee table. Bella was present for, and witnessed the brawl.
Robert filed a Petition for a Domestic Abuse Protection Order on Bella’s behalf, against Danielle. Danielle requested a hearing, at which she argued that Bella was not a victim of domestic abuse because her actions were targeted at her mother and brother, and because they did not constitute a pattern. The County Court allowed the Protection Order to remain in force, and Danielle appealed.
Holdings
The Supreme Court affirmed, finding that Bella was a victim, as defined by § 42- 903(1)(b). That section states that abuse is defined as placing, by means of credible threat, another person in fear of bodily injury, and defines credible threat to include conduct which causes the target of the threat to reasonably fear for his or her safety or the safety of his or her family. Thus, the Court reasoned that so long as Danielle’s mother and brother reasonably feared for Bella’s safety, Bella was also a victim of domestic abuse.
The Court also rejected Danielle’s argument that her offense was a single incident, and not a pattern of conduct. Here, the Court reasoned that Danielle’s conduct affected multiple victims, in multiple places on the property. Furthermore, the Court reasoned
Page 11 of 57 that the “pattern” requirement in the domestic abuse protection order statute should be read more liberally than the “pattern” requirement in the harassment statute, because the harassment statute is specifically targeted at stalking-related offenses.
Legal Principles
1. Under § 42-903(1)(b), a “victim” of domestic abuse includes a family member of an individual who is targeted by the Respondent’s behavior.
2. A “pattern” of conduct under the Domestic Abuse statute does not require separate incidents at separate times.
Page 12 of 57 Sabino v. Ozuna 303 Neb. 318 (2019)
TL;DR: The Court should grant an application to proceed in forma pauperis if it appears that the party has no present ability to pay the costs of the action.
Facts
Ariana sought and received a divorce from Juan, however, the District Court declined to make findings of fact regarding abuse, abandonment, and neglect of her children by Juan. Ariana appealed, and filed a Motion to proceed in forma pauperis on appeal.
At a hearing, Ariana testified that she had less than $200, she had monthly expenses of $2,800, she had just started a job earning $9.75 per hour, she lived with her “partner” who provided her a car, helped pay her expenses, and worked three jobs totaling 80 hours per week to handle it all. She shared one child with her partner (she had three other children of her own), and she was hoping that her partner could quit one of this three jobs once she started to get paid for her new job. The District Court denied that Motion, and Ariana appealed the denial.
Holdings
The Supreme Court reversed, finding that Ariana lacked a present ability to pay the cost of the appeal. It reasoned that it was appropriate for the District Court to impute some of the partner’s income to Ariana because he was paying expenses for which there was no legal obligation, however, the imputed income was offset by the expenses themselves.
It further reasoned that an in forma pauperis analysis is merely a snapshot in time, and that the Court should not have considered Ariana’s future earning potential. If circumstances change in the future such that in forma pauperis status would no longer be appropriate, the State could bring a Motion to review that status.
Legal Principles
1. In forma pauperis status is examined using a snapshot in time, and the Court must determine whether the party has the ability to pay the costs of the action.
2. A Court should not consider a party’s future income potential when considering an application to proceed in forma pauperis, but if circumstances change, that determination can be reviewed at a later point in the proceeding.
Page 13 of 57 Bramble v. Bramble 303 Neb. 380 (2019)
TL;DR: A contemnor’s full compliance with a purge plan in a civil contempt case renders the finding of contempt moot, and precludes a subsequent appeal.
Facts
James and Lori were divorced in 2016 after a contested trial. The Decree required Lori to vacate the home, to leave it in good condition, that the fixtures an appliances should remain, and that the home would be awarded to James. James filed an Application for Contempt which alleged that Lori had removed fixtures and appliances.
After a contested trial, the Court found Lori in contempt, ordered her to appear at a date certain for sentencing, or that she could purge the finding by paying $5,073 into the Clerk of the District Court by three days prior to the date of her sentencing. Lori filed a Motion to Alter or Amend, arguing that it was wrong to impose a purge plan without a sanction. The Court denied the Motion, and Lori appealed.
In an unpublished opinion, the Court of Appeals dismissed the appeal, holding that it lacked a final appealable order because Lori had not been sanctioned. It recognized the District Court’s Order had put Lori in a difficult position: she would have to reject the purge plan and risk a harsher sanction in order to get to a final Order for appeal purposes. Nonetheless, the Court of Appeals dismissed the appeal.
On remand, the District Court sentenced Lori to 10 days in jail, but provided she could purge herself by paying the $5,073 by the close of business the day prior to her self- surrender date. Lori paid the purge amount, and appealed again.
Holdings
The Supreme Court dismissed the appeal, finding that the payment of the purge plan rendered the issue moot. Citing to a variety of state and federal opinions from other jurisdictions, the Court reasoned that the purpose of civil contempt is to coerce compliance with a Decree, and once a finding of contempt has been fully purged, and compliance has been accomplished, there is no remaining controversy between the parties, and no effective relief that can be afforded on appeal.
Lori tried to argue that she still had a legally cognizable interest in overturning the finding of contempt because it may be used against her at a later stage of the proceedings. The Court was not persuaded, holding that such an opinion would be only advisory. Finally, the Court declined to apply the public interest exception to mootness.
Page 14 of 57 The Court pointed out that if Lori wanted to secure appellate review, she should have declined to purge herself, filed an appeal, and moved to stay her sentence pending appeal.
Legal Principles
Full compliance with a purge plan renders an appeal of the underlying finding of contempt moot.
Page 15 of 57 Dooling v. Dooling 303 Neb. 494 (2019)
TL;DR: After a scattershot appeal, the Nebraska Supreme Court held that vacation, sick, and comp time are divisible in a divorce.
Facts
Kristina and Shawn were married in 2001, Kristina filed for divorce in 2015, and the couple was divorced in 2018. This case was tried in different times over three years, the trial judge issued a letter ruling, then retired, then one party’s lawyer withdrew, and new counsel and a new judge had to try to figure out how to enter a Decree. Shawn appealed, assigning as error a scattershot of issues, and Kristina cross appealed.
Holdings
The Supreme Court held that:
a. It was acceptable to determine Shawn’s income based on an annualized calculation of his pay from a five-month sample of his pay stubs which were offered into evidence.
b. The District Court should have included $763 per month that Shawn received as disability benefits as non-taxable income on the child support worksheet.
c. The District Court should have given Shawn credit for the premiums he pays for health insurance for himself and the children.
d. The District Court should have given Shawn credit for the full amount of retirement contributions he is required to make as a city police officer, at 7% of his gross income.
e. The number of days on the child support worksheet should have been set to Shawn receiving 172 and Kristina receiving 193, to reflect holiday and summer time.
f. The child support worksheet should have allocated the tax exemptions for the children in the same way that the Decree allocated them, with Shawn receiving two and Kristina receiving one.
g. The District Court should consider and decide, on remand, the parties’ responsibilities for out-of-pocket expenses in light of its use of Worksheet 3 to calculate child support. h. The District Court should not have credited Kristina for the cost of an air conditioner she installed on one house against the sales proceeds of a different house.
Page 16 of 57 i. The use of the date of filing (instead of the date of physical separation, a year earlier) was an acceptable valuation date, because the parties continued to share expenses until around the time of filing.
j. To the extent that employment benefits such as unused sick time, vacation time, and comp time have been earned during the marriage, they should be considered deferred compensation under § 42-366(8) and are subject to equitable division.
k. It was acceptable to order Shawn to pay Kristina for ½ of his vacation and comp time within 90 days because, although vacation time can only be sold when leaving employment, comp time can be cashed out at any time, and Shawn had sufficient cash from other sources to make the payment.
l. The District Court did not abuse its discretion in refusing to award Kristina ½ of the value of Shawn’s sick time, as it was a minimal amount and did not greatly sway the overall division of the marital estate.
m. The District Court’s award of $500 per month of alimony for 5 years was affirmed.
n. Shawn’s counterclaim (which was not part of the appellate record, but which the Court apparently found) put Kristina on notice that he was seeking joint physical custody, and the award of joint physical custody was affirmed.
Legal Principles
Vacation, comp, and sick time are considered deferred compensation under § 42- 366(8), and divisible in a divorce.
Page 17 of 57 Gomez v. Gomez 303 Neb. 539 (2019)
TL;DR: District Court Order which interpreted language in a Decree requiring the children to be raised in the Catholic faith is reversed.
Facts
Patrick and Elizabeth were married in 2010, and divorced in 2015. At the time of the divorce, the children were young. They stipulated to a Parenting Plan which afforded them joint legal and joint physical custody, and included a provision that the children “will be enrolled and be participants in the Catholic religion,” mentioning several specific activities in which the children would participate. The Plan was silent concerning Catholic Mass.
Approximately two years later, Patrick filed a Motion which was styled as a Motion to Enforce the Parenting Plan. In the Motion, Patrick alleged Elizabeth was violating the Parenting Plan by taking the children to Lutheran church services and activities during her parenting time. He sought an Order allowing himself to take the children to Catholic Mass on Elizabeth’s parenting time and prohibiting her from allowing the children to participate in activities associated with any other religious faith.
After a hearing, the District Court entered an Order which required Elizabeth to take the children to Catholic Mass every weekend, and on every Holy Day of Obligation, and if she did not wish to do so, to allow Patrick to take them on her parenting time. The Order also required the children to attend Mass on these days if it occurred during vacation or holiday parenting time “if it is otherwise feasible to do so.” Elizabeth appealed.
Holdings
The Supreme Court reversed the Order. First, it reasoned that the District Court treated the Motion as a request to grant Declaratory Relief, and that Carlson v. Carlson, 299 Neb. 526 (2018) permits this practice.1
Against this backdrop, Patrick argued that the Decree required the children to be raised in the Catholic faith and to observe all of its tenets, which would include weekly Mass. The Court strongly cautioned against taking a position where it was required to interpret religious doctrine to determine what was and wasn’t required to be Catholic. Instead, it focused on the language that the children “be enrolled and be participants” in the Catholic religion. The Court found this language merely meant that they must
1 Carlson assumed without deciding that this practice was appropriate, which is hardly a ringing endorsement.
Page 18 of 57 be registered as Catholic, and they need to participate to some degree, which would be met if Elizabeth took them to the activities which were enumerated in the Decree.
Legal Principles
1. Courts are extremely reluctant to resolve disputes which turn on the resolution of conflicting interpretations of religious doctrine.
2. Declaratory Relief is now available for a Court to interpret a disputed portion of a Decree.
3. When interpreting a Decree, the agreement of the parties is subsumed into the judgment of the Court, and the documents’ meaning has to be found within its four corners.
Page 19 of 57 Blank v. Blank 303 Neb. 602 (2019)
TL;DR: Due Process notice for joint custody can come in many forms; domestic abuse finding requires injury or fear of injury and probably multiple incidents; tie-breaking in joint legal custody is now common.
Facts
Caleb and Marissa were married in 2011, had a son born in 2014, and Marissa filed for divorce in 2017. Marissa’s Complaint sought joint legal custody, but during the case she and Caleb signed two “parent-created” Parenting Plans, one of which afforded her sole legal and physical custody, and one which afforded them joint legal and physical custody.
The Court entered a Temporary Order which awarded Marissa legal and physical custody. At trial, Marissa testified she was the children’s primary caregiver, that Caleb had punched a couple of holes in the wall of the basement of the marital home, and that he slapped her once. Caleb testified that Marissa kicked a hole in a door once and was more physical with the children than he was.
Marissa testified that she didn’t think Caleb should have joint custody because he rushed into a relationship with another woman who has other children. She admitted, however, that she had started a new relationship and moved in with her significant other before Caleb started his new relationship.
Caleb testified that he was seeking sole custody, but he would agree to joint custody if that’s what the Court ordered.
The Court awarded the parties joint legal and physical custody with a week-on-week- off schedule, and granted Caleb tie-breaking authority on health and religion and Marissa tie-breaking authority on education. The Court found the case was not a domestic abuse case, and the parties had the ability to co-parent.
Marissa appealed, arguing that she was required to advance notice that the Court would consider joint custody, that the Court should have found it was a domestic abuse case, and the Court should have found joint custody was not in the best interest of the child.
Holdings
The Supreme Court rejected Marissa’s argument that she didn’t receive notice that joint custody would be at issue. It reasoned that her original Complaint (which sought joint legal custody and stated they could work together), one of the two Parenting Plans she signed (which provided for joint custody), Caleb’s Motion for Temporary Relief (which sought joint custody) and her testimony at trial (which indicated she knew joint custody was on the table) demonstrated she was put on notice sufficient to satisfy her
Page 20 of 57 rights to due process. The Court distinguished the case from Zahl v. Zahl and Hill v. Hill where the complaining party received no advance warning that joint custody would be considered.
Similarly, the Court rejected Marissa’s claim that this should be considered a domestic abuse case under the Parenting Act. The Court observed that § 43-2922(8) is poorly written because it is not clear whether one single act will suffice or if multiple acts are required. It suggested that multiple acts might be required without deciding the issue. Ultimately, the Court dismissed this argument for failure of proof: none of the evidence indicated that Marissa was ever in fear of injury or that she was actually injured when Caleb punched the wall or slapped her once.
Finally, the Court held that there was sufficient evidence that joint physical custody was in the children’s best interests because there was sufficient evidence that the parties managed to care for the children and share responsibilities.
Finally, the Court observed that the District Court acted within its authority when it divided the final decisionmaking duties between the parties, reasoning that it was common for courts to give tie-breaking authority to avoid future conflict.
Legal Principles
1. The due process notice requirement under Zahl and Hill can be met by something other than a formal pleading, and need only inform the parent that the Court may consider joint custody in its final determination.
2. A finding of domestic abuse requires injury or fear of injury, and probably requires a pattern of several acts.
3. Tie-breaking authority is now a “common occurrence” to avoid future impasses which could negatively affect the child, while maintaining both parents’ rights to consultation and participation in important decisions.
Page 21 of 57 VanSkiver v. VanSkiver 303 Neb. 664 (2019)
TL;DR: A change in circumstances can be found in a worsening of a trait that existed at the time of the Decree; allowing children to choose to exercise parenting time is not necessarily an unlawful delegation of judicial authority.
Facts
Anne and Todd married in 2000 and Anne filed for divorce in 2009. They settled their divorce in 2015. Anne received legal and physical custody of the children, and Todd received two evenings per week, one weekend per month, and holidays.
In 2017, Anne filed a Complaint to modify Todd’s parenting time. She alleged that Todd had become increasingly angry, threatening, harassing, and erratic to her, the children, and others. She requested his parenting time be suspended pending family therapy.
At trial, Anne presented evidence that she had received a protection order against Todd for a pattern of threatening statements suggesting that he was going to kill or harm her, that Todd had been convicted of violating the protection order, that he was sentenced to probation, and there was a pending Motion to Revoke his probation. The Motion to Revoke was based on Todd being kicked out of a 36-week education class and for possessing a firearm when he was prohibited from doing so.
The school counselor and an independent counselor both testified that the children were having a very difficult time with their father. The older child (15) testified about his difficulties, that he wanted minimal parenting time, and that he was apprehensive that he may have to defend his younger brother (11).
The District Court made the following observations in its Order:
[T]he Court observed the conduct and demeanor of [Anne] and [Todd] during the modification hearing. [Anne] is clearly afraid of [Todd]. She is distressed to be in the same room with him. As to [Todd], he has total disrespect for [Anne], the Court and anyone in a position of authority. During [Anne’s] testimony the Court observed his mocking behavior, laughing during testimony and general contemptuous attitude. . . .
The Court has consistently forced children to go on visitations with non custodial parents when they did not want to go and the children were not at risk for mental or physical harm. This case is different. These children have been and are at risk for mental abuse from their father. [Todd] has consistently shown signs of extreme anger, contempt for authority, a total disregard of the rules functioning citizens are required to live by and a pattern of threats and intimidation to his children and former wife. . . . The Court will therefore enter an order to allow the
Page 22 of 57 boys to see their father at their discretion. Hopefully [Todd] will seek mental health counseling to help him repair his relationship with his boys.
The District Court suspended Todd’s parenting time unless the boys wanted to see him, and even so, provided there would be no overnights until Todd engaged in individual mental health counseling and counseling with the boys.
Todd appealed, arguing first that there was no material change in circumstances since the Decree (because he was awful back then too), and that allowing the boys to choose whether to attend visitation was an unlawful delegation of judicial authority.
Holdings
The Supreme Court was unpersuaded by Todd’s argument that he is no worse now than he was at the time of the Decree. It observed that his behavior escalated, his relationship with the children deteriorated, and the children were having a very hard time with it.
The Court held that, on these facts, no decisionmaking authority is being delegated to the children because the order amounts to an effective elimination of Todd’s parenting time, but it allows the boys to see him if they choose. It reasoned that this was the only way to craft an enforceable order in light of the unique facts of the case.
Legal Principles
1. A change of circumstances can be found if a fundamental problem with a parent deteriorates after entry of the Decree, even if the trait was present at some level at the time of the Decree.
2. An Order which effectively eliminates parenting time, but allows the children to choose to see the affected parent is not necessarily an unlawful delegation of judicial authority.
Page 23 of 57 State o.b.o. Kaaden S. v. Jeffrey T. and Mandy S. 303 Neb. 933 (2019)
TL;DR: The prior rule disfavoring joint physical custody is disapproved, and the Court has finally clarified that Nebraska law neither favors nor disfavors any particular custody arrangement, and instead requires that all such determinations be based on the best interests of the child.
Facts
We covered the facts more extensively in last year’s update. Jeffery and Mandy did not have a relationship before or after Kaaden’s birth. Mandy sought child support, and Jeffery sought parenting time. Mandy interfered with practically every aspect of the Court’s Temporary Order, and an experienced court-appointed Guardian Ad-Litem recommended in the strongest possible terms that Jeffrey receive custody.
The District Court awarded Jeffrey custody in name, but allocated Mandy parenting time on alternating weeks. Jeffrey appealed, arguing that the District Court erred in awarding joint custody in substance. The Court of Appeals agreed, and reversed and remanded to the District Court to construct a Parenting Plan which awarded Jeffrey physical custody in substance, and Mandy parenting time.
Mandy petitioned for further review, taking issue with the Court of Appeals’ decisions on physical custody and parenting time.
Holdings
The Supreme Court agreed with the Court of Appeals that the District Court’s order was effectively an award of joint physical custody, and held that the Decree should be modified to accurately reflect that fact.
The Court next observed that the Court of Appeals reversed the de facto award of joint physical custody based on Nebraska’s prior jurisprudence which disfavored joint physical custody. It then went on to explicitly disfavor that prior line of cases, reasoning that there is no current justification to continue to apply such a blanket rule, it is not consistent with the Parenting Act, and that joint custody is not disfavored by the procedural requirements of a hearing in open court under § 42-364(3).
Having just abolished the rule disfavoring joint custody, the Court went on to find that equal parenting time was in the child’s best interest.
Legal Principles
Nebraska law neither favors nor disfavors joint custody; prior cases which prefer one particular regime are overruled, however, the factors for deciding custody remain in effect.
Page 24 of 57 Green v. Seiffert 304 Neb. 212 (2019)
TL;DR: An untimely Motion to Vacate is not subject to its own appeal independent of the appeal of the original Order sought to be vacated.
Facts
Aubrie filed for and received a Domestic Abuse Protection Order against Bryce in 2017, predicated on physical abuse. Shortly before the original Order’s expiration, Aubrie filed a sparsely worded Petition to renew it, where she claimed she was in ongoing custody litigation, and afraid for her safety. The same day, the District Court entered an Order dismissing her Petition without a hearing.
Twenty-seven (27) days later, Aubrie (now represented by counsel) filed a Motion to Vacate the dismissal. At a hearing, she argued that the Court should have extended the Protection Order, or at a minimum, it should have held a hearing on the matter. Forty (40) days after that, the District Court denied the Motion to Vacate in a written Order. Twenty-three (23) days after that, and ninety (90) days after the original dismissal, Aubrie appealed the denial of her Motion to Vacate.
Holdings
The Supreme Court held that it lacked jurisdiction to hear the appeal because the appeal of the Order denying the Motion to Vacate was really an untimely appeal of the dismissal itself. Because the Motion to Vacate argued only that the original dismissal was incorrect, the appeal was untimely.
Legal Principles
A Motion to Vacate, filed more than 10 days after entry of the original judgment does not toll the time limit to appeal, and if it asserts only that the judgment was in error, a denial of the Motion made after 30 days cannot be appealed.
Page 25 of 57 Krejci v. Krejci 304 Neb. 302 (2019)
TL;DR: Finding of “no contempt” is affirmed when only one day of parenting time was missed under unusual circumstances; modification of grandparent visitation decree was reversed when that matter was not properly before the Court.
Facts
Christina was the biological mother of two children, 11 and 15. The children’s father was deceased. Mark, the children’s paternal grandfather, lives in Florida. Mark sought and received a Decree of grandparent visitation in 2016. The Decree afforded him 17 consecutive days of grandparent time in the summer, and part of a weekend every three months, to be worked out between the parties.
This arrangement worked until may of 2018, when Mark wanted to exercise his partial weekend on the anniversary of his son’s (and the children’s father’s) death. Christina told Mark the children didn’t want to go. Mark flew to Omaha, did not get to exercise his parenting time, and filed an Application for Contempt. Christina filed a Counterclaim to modify the Order.
The District Court dismissed Christina’s Counterclaim without a hearing, reasoning that it lacked jurisdiction to hear it. Then, at trial, the daughter testified that Christina had not directed her to refuse the parenting time, and that the 17 days over the summer was interfering with her working and participating in activities.
Following trial, the District Court did not hold Christina in contempt, and modified its Order to provide that the summer time was reduced from 17 to 8 days, and no weekend time could occur on the anniversary of the children’s father’s death.
Mark appealed, assigning as error the finding that Christina was not in contempt, and in modifying the Decree of Grandparent Visitation.
Christina attempted to cross appeal, but the Court found her brief was defective because it omitted a separate, mid-Brief Title Page and separate Table of Contents. On this basis, the Court refused to consider the merits of Christina’s cross appeal.
Holdings
The Court affirmed the finding that Christina was not in contempt, finding that the children’s refusal to go on the anniversary their father’s presented a single incident under unusual circumstances, and visitation had gone smoothly up to that point.
However, the Court reversed the modification of the Decree, because the District Court had dismissed the Complaint to Modify before it took evidence, and Mark was therefore entitled to assume that modification was not going to be considered at the hearing.
Page 26 of 57
Legal Principles
1. A brief on cross appeal must have all components of an appellate brief, including a Cover Page and its own Table of Contents.
2. A District Court cannot dismiss an application, then conduct a trial solely on the other side’s application, then grant the relief sought in the application that it dismissed before the start of evidence.
Page 27 of 57 Burgardt v. Burgardt. 304 Neb. 356 (2019)
TL;DR: Documentary evidence is not strictly required to prove a non-marital asset.
Facts
This is a Petition for Further Review from a Court of Appeals case we covered in last year’s update. Harland and Shirley were married in 1992 and divorced in 2017.
Harland testified at trial that he was certain his 401k account had $130,000 in it on the date of marriage. He had no documentary evidence because his employer did not retain records that old. Shirley testified that she was not aware of Harland’s 401k being worth $130,000 but she had no evidence to dispute that he did in fact contribute prior to marriage. Similarly, Harland testified that he inherited $60,000 and used that, combined with marital money, in the purchase of his family’s “home farm” from his siblings.
The District Court set off $130,000 in the 401k and $60,000 from the home farm, and the Court of Appeals reversed for lack of documentary evidence. Harland filed a Petition for Further Review challenging this decision.
Holdings
The Supreme Court reversed the Court of Appeals, holding that credible testimony, by itself, is enough to establish a non-marital interest in property. The Trial Court can always reject evidence that is inherently improbable, unreasonable, self-contradictory, or inconsistent with the facts and circumstances otherwise in evidence, but testimony alone is enough to meet one’s burden of proof.
In this regard, the Court also cautioned that the party opting to rely upon his or her testimony alone does so at the risk of nonpersuasion.
Legal Principles
Documentary evidence, while certainly helpful, is not essential to prove up on a claimed non-marital asset.
Page 28 of 57 White v. White 304 Neb. 945 (2020)
TL;DR: This case provides the legal framework for determining whether appreciation in a managed investment account is active or passive; tracing in a different account failed for lack of proof.
Facts
Ann and Tim were married in 1990 and Ann filed for divorce in 2017. Tim was an investment advisor. Tim’s father was a retired ConAgra executive who periodically gifted the family highly appreciated shares of stock. Most of those gifts were spent on marital purposes. But a few years before the divorce, Tim funded two separate accounts with gifts from his father.
The first account, which the parties call the “6300” account was funded with $100,000 of assets from Tim’s father, and Ann conceded that fact. Tim invested the money from his father in mutual funds, which more than tripled in value between the date he received them and the valuation date used by the Court. Ann argued, and the District Court accepted, that Tim’s active efforts maintaining the account led to its growth. The District Court thus set off $100,000 to Tim as non-marital but awarded Ann ½ of the appreciation.
The second account, which the parties called the “Schwab” account was funded with far more money, deposited at different times. Tim occasionally withdrew from the account and occasionally deposited into the account, and he actively traded in it. By the time of trial, only 6,500 of the original ConAgra shares remained in the account, and the rest of the shares had been sold and the proceeds used to purchase stocks and ETF’s. The District Court found the entire account to be marital and awarded Ann ½ of its value, as of its valuation date.
Ann had pressed for a valuation date one year after Tim’s proposed date, and the one year made a significant difference in the market. The Court chose Tim’s date. Tim appealed the marital characterization of both accounts and Ann cross appealed the valuation date.
Holdings
The Supreme Court reasoned that the factors articulated in a North Carolina case of O’Brien v. O’Brien, 131 N.C. App. 411, 508 S.E.2d 300 (1998) would be helpful in determining whether investment growth is active or passive. That Court suggested the following be considered: (1) the nature of the investment; (2) the extent to which the investment decisions are made only by the party or parties, made by the party or parties in consultation with their investment broker, or solely made by the investment broker; (3) the frequency of contact between the investment broker and the parties; (4) whether
Page 29 of 57 the parties routinely made investment decisions in accordance with the recommendation of the investment broker, and the frequency with which the spouses made investment decisions contrary to the advice of the investment broker; (5) whether the spouses conducted their own research and regularly monitored the investments in their accounts, or whether they primarily relied on information supplied by the investment broker; and (6) whether the decisions or other activities, if any, made solely by the parties directly contributed to the increased value of the investment account.
Applying that calculation to the facts, the Court reasoned that the record did not contain sufficient evidence about market performance during the same time, and it found that Tim failed to meet his burden of proof.
Regarding the larger account, the Court reversed the District Court’s decision that the entire account was marital, and it set off the 6,500 shares of ConAgra which had remained in the account until the end.
Legal Principles
Whether investment growth is active or passive depends on several factors allocating the work between the parties and their investment advisors.
Page 30 of 57 Sabino v. Ozuna 305 Neb. 176 (2020)
TL;DR: District Court has authority to make findings which would support Special Immigrant Juvenile (SIJ) status under federal law.
Facts
Ariana met Juan in Mexico when she was 13 years old. Ariana became pregnant and married Juan when she was 16 years old. She left the relationship because of abuse and lived with her mother. She then came to the United States without her child to work and send money home. Her mother and child later joined her.
Ariana filed for divorce, Juan entered a Voluntary Appearance but did not participate in the proceedings, and a trial occurred. Ariana asked the District Court to make specific findings to aid her in obtaining SIJ status for her child. The District Court declined to do so, reasoning it lacked the authority.
Holdings
The Supreme Court reversed, holding that under both § 43-1238(b) and 8 U.S.C. § 1101(a)(27)(J)(iii), the District Court had the authority to make abuse determinations.
Legal Principles
District Courts are empowered to make findings of abuse that may ultimately aid in the requesting party receiving SIJ status, however, ultimately, it is not up to the District Court whether the child and parent will be permitted to remain in the United States.
Page 31 of 57 Reveiz v. El-Kasaby 305 Neb. 440 (2020)
TL;DR: A Decree is presumed conclusively valid against any defect if not challenged within two (2) years after entry.
Facts
The published opinion contained no facts.
From the Transcript, we can determine that on Marcy 9, 2018, Elena sued Bassel for declaratory relief, seeking an Order that a Decree of Dissolution of Marriage entered by the District Court on May 8, 2015 was void.
The District Court found that Bassel filed a Complaint for Dissolution on May 8, 2015, and Elena filed a Voluntary Appearance the same day. Then, the District Court entered a Decree of Dissolution on July 7, 2015, which was the 60th day following the date the voluntary appearance was signed.
Under Wymore v. Wymore, 239 Neb. 940 (1992), the District Court reasoned that the full 60th day had to pass, and the Decree therefore could not be entered until after midnight on the 60th day. However, under Neb. Rev. Stat. § 42-346, the Decree is presumed conclusively valid unless an action was brought within two (2) years to challenge its validity, and this action was not brought within two years.
The District Court dismissed the Complaint, and Elena appealed.
Holdings
An equally divided Supreme Court affirmed the decision of the District Court without further comment.
Legal Principles
A Decree is presumed conclusively valid against any defect, even if apparent in the record, or if there is a lack of a record, if not challenged within two (2) years after entry.
- OR -
A void Decree is a void Decree is a void Decree, and no statute of limitations on attacking it negates the fact that it is a void Decree.
Page 32 of 57 Jones v. Jones 305 Neb. 615 (2020)
TL;DR: Court of Appeals’ reversal of award of sole physical custody to father in a modification is reversed; evidence of behavior in the one year leading up to a hearing is most relevant.
Facts
Mary and Curtis married in 2003, had a child in 2004, and divorced in 2005. In 2011, they stipulated to a modification of custody where they would share their child, Kasey, equally. Curtis filed a Complaint seeking a modification of legal and physical custody.
Both parties had histories of alcohol and substance abuse, but neither party consumed in the years leading up to this modification, and both tested negative in court-ordered testing.
After trial, the District Court found that Mary could not maintain stable housing, had moved five (5) times, and lived with thirteen (13) different people since the last modification, some of whom were physically violent and many of whom were a bad influence. In the two years leading up to the trial, she lived with her son who had substance abuse issues, exhibited violent and abusive behavior, and associated with people engaged in criminal activity. The District Court also found that Mary had difficulty maintaining employment, and had seven (7) employers and several years where she was nearly continuously unemployed. Finally, the District Court found that Mary had significant debt, was constantly being sued and evicted, and had no ability to contribute to Kasey’s expenses. Curtis did not pursue her for those expenses.
The District Court adopted Curtis’ suggestion of a 10/4 parenting plan, awarding him physical custody, leaving joint legal custody intact, but granting Curtis the final say. It ordered Mary to pay child support of $10 per month.
The Court of Appeals affirmed the change to legal custody but reversed the change to physical custody, finding there was insufficient evidence to do so. Curtis petitioned for further review.
Holdings
The Supreme Court reversed the Court of Appeals, finding that there was ample evidence to show a significant deterioration in Mary’s condition since the last Order, and particularly in the one year leading up to the trial.
The Supreme Court further ordered that, on remand, a child support worksheet should be attached to the Decree, even though only a nominal amount is being ordered. The Worksheet should contain a Deviation Worksheet which explains the reasons for the deviation, especially if the award is set below the minimum level of Neb. Ct. R. § 4-209.
Page 33 of 57 State o.b.o Ryley G. v. Ryan G. v. Rashell K. 306 Neb. 63 (2020)
TL;DR: A Court can only grant a custodial parent permission to move to one destination, and cannot give permission in advance for a subsequent move.
Facts
Rashell and Ryan are the parents of Ryley, born in 2007. The State obtained a support Order in 2009, and Ryan sought custody order which was granted in 2016. In that Order, Rashell received physical custody, and Ryan received alternating weekends and most of the summer.
In 2018, Rashell sought a modification, contending she was now married, had a newborn child, her husband was active in the National Guard and would deploy to Washington DC for about one year, and then be stationed somewhere outside of Nebraska. She sought permission to move to Washington DC, and then wherever else her husband’s military assignment might take them.
Rashell’s husband testified that he was a Blackhawk helicopter instructor pilot, he would be assigned to a base near Washington DC for one year, where the family would live in base housing, and thereafter, he would be assigned in Missouri or Alabama. Both parties presented significant evidence on the Farnsworth factors, and the District Court ultimately approved of the move without restrictions on where Rashell could live. Ryan appealed.
Holdings
The Supreme Court affirmed the District Court’s decision to allow Rashell to move to a military installation near Washington DC, but it reversed that holding to the extent that it would have been open ended and permitted a subsequent move.
The Court observed that, even if the application of the Order was limited to permitting a subsequent move to Missouri or Alabama, that would be an improper delegation of judicial authority.
Legal Principles
1. The authority to determine custody and visitation cannot be delegated because it is a judicial function.
2. A court cannot delegate to a custodial parent, who has obtained permission only for removal of a child from Nebraska to one state, the authority to move the child to yet another state without permission.
Page 34 of 57 Nebraska Court of Appeals Opinions April 23, 2019 to May 19, 2020
Page 35 of 57 Wolter v, Fortuna 27 Neb.App. 166 (2019)
TL;DR: The UCCJEA, and not § 43-1411, controls subject-matter jurisdiction for paternity cases which have a custody component.
Facts
Christina gave birth to a child in Nebraska, then four months later moved with the child to Florida. Two months after that, DHHS determined that Heath was the child’s father and sent him some sort of notice. Less than one month later, Heath filed a Complaint to establish paternity and custody.
Christina moved to dismiss the Complaint or to decline jurisdiction under the UCCJEA. The Court overruled the Motion and ordered Christina to return to Nebraska with the child, which she eventually did. After a trial, the Court awarded the parties joint legal and joint physical custody of the child. Christina appealed, assigning as error each of the incremental procedural steps where the District Court ruled against her.
Holdings
First, the Court of Appeals found that because Heath’s Complaint sought to establish custody, not just paternity and support, the UCCJEA, and not § 43-1411, controlled which State had jurisdiction. Because the UCCJEA controlled, the proceeding wasn’t limited to being filed only where the child was currently domiciled, and Nebraska had jurisdiction under the UCCJEA’s “last resort” provision.
Second, having established that Nebraska had jurisdiction, the Court affirmed the District Court’s decision not to dismiss this case under the UCCJEA’s “inconvenient forum” rule.
Thirdly, the Court ruled that Christina’s argument that no temporary hearing should have been scheduled until paternity was established had become moot.
Fourthly, the Court passed on the question of whether the District Court had the authority to order Christina to return to Nebraska, as that issue had not been properly preserved before the District Court in the form of some kind of Motion or Objection.
Finally, the Court affirmed the District Court’s award of joint physical custody and denial of Christina’s request for attorney’s fees.
Legal Principles
If a case involves custody in addition to the establishment of paternity, the UCCJEA, and not § 43-1411 controls which State has subject-matter jurisdiction.
Page 36 of 57 Pearrow v. Pearrow 27 Neb.App. 209 (2019)
TL;DR: The Court of Appeals affirmed a District Court which used a “joint/split” calculation for child support. We will now call this a “Pearrow” calculation.
Facts
Wendy and Marcus were divorced, and Wendy filed a Complaint to Modify less than one year later. Prior to trial, the parties agreed that Wendy would have physical custody of two children, and the other two children would be shared equally. They disagreed on child support, and that issue was tried.
The Court adopted Marcus’ suggestion which is to average a sole-custody (Worksheet 1) calculation for four children with a joint custody (Worksheet 3) calculation for four children. Wendy appealed.
Holdings
The Court of Appeals affirmed the District Court’s decision, noting that this case does not fall squarely into a “sole,” “joint,” or “split” custody category, and some sort of hybrid calculation was therefore appropriate.
The Court of Appeals also rejected Wendy’s argument that, if the two older children were under joint custody, there should be expense sharing for them. The Court reasoned that there wasn’t a specific delineation between methods and the District Court simply used a hybrid approach when it calculated support.
Legal Principles
It is acceptable to use an average of a joint and sole custody calculations when two children will be in the sole custody of one parent and the other two will be under joint custody.
Page 37 of 57 Rickert v. Rickert 27 Neb.App. 533 (2019)
TL;DR: Denial of Application for Stay under the Servicemembers Civil Relief Act is affirmed.
Facts
Kregg and Melissa were married in 2010, had one child in 2013, and separated in 2015 under an agreement. The District Court adopted their agreement and divorced them in 2016. Both parties were active duty member of the military.
In 2017, Melissa filed a Complaint to Modify, alleging that Kregg was being relocated to Virginia and she to California. At some point, trial was scheduled for June 25, 2018. Melissa’s counsel served a deposition notice on Kregg’s counsel, who apparently wasn’t aware of the trial date, and who filed a variety of Motions to dismiss the case and quash the deposition subpoenas.
After jockeying over whether Kregg’s deposition would be on a Saturday or a Sunday before trial, Kregg’s counsel filed a Motion for Stay under the Servicemembers’ Civil Relief Act at 10:14 p.m. The Application attached a letter purportedly from Kregg’s commanding officer stating that his ship was to be underway for the entire month of June, and Kregg was to be on it. But Kregg had offered to show up at a deposition that very day, and had engaged in a FaceTime call with his child, and allowed the child to talk to his girlfriend’s dog, and it was obvious that neither he, nor the girlfriend, nor her dog were on the ship.
The District Court denied the Application for a Stay and granted Melissa temporary legal and physical custody of the child. Kregg appealed.
Holdings
The Court of Appeals affirmed the denial of the SCRA stay because the application did not meet the requirements of the SCRA. Specifically, the Court of Appeals found that the letter from Kregg’s commanding officer did not specifically state that his military duty would prevent him from attending the hearing, and that military leave was not authorized.
The Court of Appeals declined to address Kregg’s claim that he was deprived of due process in the Court’s order for Temporary Custody, finding that it wasn’t a final appealable order.
Legal Principles
To be eligible for a stay under the Servicemembers Civil Relief Act, the movant must be in the military service or within 90 days after termination of or release from military
Page 38 of 57 service, must include a letter or other communication setting forth facts describing the manner in which current military duty requirements materially affect their ability to appear, and stating a date when they will be available to appear. They must also include a letter or other communication from their 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.
Page 39 of 57 Anderson v. Anderson 27 Neb.App. 547 (2019)
TL;DR: $20,000 withdrawal from an IRA was not dissipation because it was not during the irretrievable breakdown of the marriage; payment of premarital debt would be chargeable in a divorce but failed here for lack of proof.
Facts
Brandi and Donald were married in 1999 and Brandi filed for divorce in 2016. The couple had three children, but one of their sons had special needs. That son was eventually diagnosed with Asperger’s syndrome, developed violent tendencies, and was prone to outbursts if unexpected or unplanned events occurred. Brandi believed that inconsistent application of rules and consequences triggered him, as well as jealousy of seeing his siblings getting parental attention. At one point he was suicidal.
The District Court entered a Decree which gave Brandi legal and physical custody of all three children, assigned child support based on what it determined to be Donald’s earning capacity, not his actual earnings, and added $20,000 back into the marital estate that Donald withdrew from an IRA to pay debts. Donald appealed, and Brandi cross-appealed.
Holdings
The Court of Appeals reversed the $20,000 add-back from Donald’s IRA because (1) there was no evidence that he actually lost a total of $20,000 gambling, and (2) there was no evidence that the marriage was going through the irretrievable breakdown when the withdrawal occurred – 7 or 8 years prior to separation. The Court observed that, despite gambling being a persistent issue in the marriage, the irretrievable breakdown didn’t start until later.
The Court of Appeals affirmed the District Court’s decision not to charge Brandi with payments of her premarital student debt out of marital funds. While it re-iterated the rule that the reduction of pre-marital debt should be counted in a divorce, Donald’s claim failed for lack of proof.
The Court of Appeals affirmed the District Court’s use of a five-year income average when Donald switched jobs often, and the job he had at the time of the divorce paid significantly less than his historical earnings, and when Donald tended to earn substantially more if he was able to maintain the same job for more than one year (through commissions and incentives).
The Court of Appeals affirmed the award of alimony, allocation of parenting time, and District Court’s declination to award attorney’s fees.
Page 40 of 57 Schnackel v. Schnackel 27 Neb.App. 789 (2019)
TL;DR: division of a corporate asset in kind is affirmed; $3.5 million dissipation finding is affirmed; $7,500 alimony award is affirmed
Facts
Greg and Laura were married in 1985 and Laura filed for divorce in 2016. Greg was an engineer and worked for his father’s company. His father transferred ½ of the shares to Greg in 1994, and the other half in 2000. The District Court accepted Laura’s expert’s valuation of the Company at about $3.2 million. The District Court found that about $100,000 of the value of Greg’s company was non-marital and the rest was marital.
Greg’s company had a subsidiary which developed proprietary software, which had no current value, but in which Greg had invested about $7.5 million. The District Court awarded Laura ½ of the shares in the subsidiary, required Greg to pay all future R&D costs, and awarded Laura ½ of all profits after all R&D costs were repaid to Greg.
The District Court also found that Greg had dissipated about $3.5 million from the marital estate, having spent it on a girlfriend in New York City, where he had been living up to ½ of the time. The District Court ordered property to be sold to pay debts, and that Greg pay Laura property equalization of about $1.6 million over 16 years and alimony of $7,500 per month for 10 years.
Greg appealed and Laura cross-appealed.
Holdings
The Court of Appeals affirmed the award of ½ of the stock in the subsidiary to Laura, reasoning that, while it is disfavored under Gangwish, it is not prohibited. It also reasoned that this was a fair and equitable way to resolve a difficult issue, where $7.5 million had been invested in an entity with no currently ascertainable value.
The Court of Appeals also affirmed the District Court’s finding that the second transfer of company stock was a purchase, not a gift, based on Greg’s testimony.
The Court of Appeals affirmed the District Court’s finding that, for dissipation purposes, the marriage began its irretrievable breakdown when Greg started a sexual affair which he intended to maintain despite the fact that he was married.
The Court of Appeals also affirmed the length and amount of alimony, finding both to be appropriate given the economic circumstances of the parties.
Finally, the Court of Appeals reversed the District Court’s determination that the appreciation on Laura’s inherited funds was marital. It reasoned that Laura made a
Page 41 of 57 one-time investment decision each time she inherited funds, and that did not satisfy the active appreciation rule in Stephens.
Legal Principles
1. Although discouraged, it is permissible for a Court to award one spouse a portion of a closely held corporation controlled by the other spouse.
2. For dissipation purposes, the irretrievable breakdown of a marriage can begin when one spouse begins a sexual relationship that they do not intend to end, regardless of whether the other spouse knew of it.
3. A one-time investment decision is not enough effort to constitute active appreciation of non-marital funds in an investment account (but see White v. White from the Supreme Court which was released two months later).
Page 42 of 57 Olson v. Olson 27 Neb.App. 869 (2019)
TL;DR: Award of custody to a non-resident father is affirmed.
Facts
Kristi and Andrew married in 2003 and separated in 2007 or 2008. They had one child who was born in 2004. Around the time of separation, Kristi moved to Nebraska with their child. Andrew continued to live in Minnesota and filed for divorce in Nebraska 2017.
Andrew sought sole legal and physical custody of the child, and there was significant evidence about the child’s history and each party’s respective living conditions. While in Nebraska, Kristi had lived with family, on her own, and had moved several times. The child had attended several schools. The child testified that he preferred to be with his father during the school year, that his mother bad-mouthed his father and it made him uncomfortable, that she was a hoarder, that the house was unsanitary, and that she interfered with him having telephone contact with his father sometimes.
The District Court awarded Andrew physical custody and adopted Andrew’s proposed parenting plan, except it modified that Plan to be less favorable to Kristi over the summer. Kristi appealed the award of custody, the removal, and the modification of the proposed plan.
Holdings
The Court of Appeals affirmed the District Court’s award of custody to Andrew. To the extent that a Farnsworth analysis was required, the Court of Appeals held that the analysis done by the District Court was adequate, and that the record demonstrated that the child was of an age and maturity level that his wishes should be given substantial consideration.
The Court of Appeals reversed, however, the District Court’s modification of Andrew’s proposed parenting plan, noting that both parties agreed that the Court should not have modified it without explanation.
Legal Principles
Under § 43-2923(4), the District Court should provide written findings as to why a parenting plan is not in the best interest of a child if it rejects the plan.
Page 43 of 57 State o.b.o. Waters v. Bentley, Waters, and Waters 27 Neb.App. 945 (2020)
TL;DR: Parental Preference doctrine applies unless and until a parent abandons their preferential status.
Facts
Pamela gave birth to Maci in 2011 when Maci’s father, Mark, was deployed in Iraq. Maci lived with Pamela until she was around 3, then with Pamela’s adoptive mother, Debra because Pamela was having seizures.
When Maci was 5 or 6 years old, the State initiated a child support case against Mark, and Mark counterclaimed for custody. Debra was not a party to the case, but the District Court nonetheless was reluctant to remove Maci from Debra’s care. It awarded mark seven hours of parenting time, every other weekend, and ordered him to work with Debra to secure more time.
Debra intervened, claiming she stood in loco parentis to Maci, and asked for custody.
After a trial, the District Court found Pamela to be unfit, Mark to be fit, but it declined to find a parental preference to Mark because of his “long absence” in Maci’s life. It found this was not an abandonment of his parental rights, but that giving Mark custody at that time was problematic because Maci hadn’t yet bonded with him. It granted custody to Debra, alternating weekends and holidays to Mark (and 8 weeks over the summer) and no time to Pamela. Mark appealed, arguing that the Court failed to apply the parental preference doctrine to him.
Holdings
The Court of Appeals held that the parental preference doctrine applies until a parent has abandoned it, and here, Mark had not abandoned it. Although Mark did not have contact with Maci for nearly 6 years, there was significant doubt at the time of Pamela’s pregnancy as to who was the father, Pamela never clearly communicated to Mark that she thought he was the father, and Mark deployed to Iraq shortly thereafter. The Court also found it significant that once Mark was formally notified that he might be the father, he immediately took a paternity test, and as soon as the results confirmed he was the father, he discharged his parental duties.
Legal Principles
The parental superior right to child custody protects not only the parent’s right to companionship, care, custody and management of her child, but also protects the child’s reciprocal right to be raised and nurtured by a biological or adoptive parent.
Page 44 of 57 Allowing a third party to take custody of a child, even for a significant period of time, is not an abandonment of one’s parental rights, but abandonment can be had by substantial, continuous, and repeated neglect of a child, and a failure to discharge the duties of parental care and protection.
Page 45 of 57 De Mateo v. Mateo-Cristobal 27 Neb.App. 969 (2020)
TL;DR: A Court must make findings affirmatively or negatively if requested by a parent for SIJ status
Facts
Maura and Mateo were married in 2010 in Guatemala, and Maura filed a Complaint for Divorce in 2018. She obtained service on Mateo by publication. She asked the District Court to give her specific findings to allow her children to petition for SIJ status, and the District Court denied the request, reasoning that the children were in no immediate danger because they were being awarded to a fit and proper parent. Maura appealed.
Holdings
The Court of Appeals reversed and remanded, finding that the District Court exercised jurisdiction to make a child custody determination, and it was therefore required to make findings (affirmatively or negatively) under § 43-1238(b) for SIJ status.
The Court of Appeals did not opine whether those findings should be favorable to Maura, only that the Court could not escape having to adjudicate the request by finding that the children are in the care of a fit parent.
Legal Principles
A Court having jurisdiction to make a custody determination must make, if requested, factual findings regarding (1) the abuse, abandonment, or neglect of the child, (2) the nonviability of reunification with at least one of the child’s parents due to such abuse, abandonment, neglect, or a similar basis under state law, and (3) whether it would be in the best interests of such child to be removed from the United States to a foreign country, including the child’s country of origin or last habitual residence.
Page 46 of 57 Oswald v. Oswald 28 Neb.App. 1 (2020)
TL;DR: A Motion for Attorney’s Fees must contain an itemized listing of the time spent on the appeal; a Motion brought after the denial of a Petition for Further Review can only recover fees expended defending against the Petititon for Further Review.
Facts
After a divorce between John and Tammy, John requested the District Court to reduce his child support and alimony obligations. The District Court declined to do so, and John appealed. The Court of Appeals affirmed in an opinion which was suitable for publication to their website, but apparently not suitable for publication in the Nebraska Appellate Reports.
Two days after the release of the unpublished opinion, Tammy’s counsel filed a Motion for Attorney’s Fees where he claimed he charged a “flat fee” of $7,500 on the appeal. In a minute entry, the Court of Appeals denied the Motion, stating that it could not tell how many hours of time were actually devoted to the appeal. John then filed a Petition for Further Review, which the Supreme Court denied.
Two days later, Tammy’s counsel filed a second Motion for Attorney’s Fees which requested fees for defending the Petition for Further Review, as well as a review of the Court’s previous denial of her Motion for Attorney’s Fees. This Motion included an itemized bill, and was captioned as if it was filed in the Nebraska Supreme Court.
Holdings
The Court of Appeals held that it, and not the Supreme Court, would rule on Tammy’s second Motion for Fees because the Supreme Court’s denial of the Petition for Further Review meant it never obtained jurisdiction over the case.
Turning to the merits, the Court of Appeals declined to revisit its previous determination that fees could not be awarded on the original appeal for lack of proof. It further reasoned that, under State obo Keegan M. v. Joshua M. 21 Neb.App. 71 (2013) the filing of a Petition for Further Review does not render an otherwise untimely motion for attorneys fees timely.
Thus, the Court of Appeals reasoned that it could only consider Tammy’s Motion to the extent it sought fees for defending the Petition for Further Review. On this basis, it awarded Tammy $960 of fees which is the full amount expended by her counsel.
Legal Principles
See TL;DR, above.
Page 47 of 57 Westerhold v. Dutton 28 Neb.App. 17 (2019)
TL;DR: Award of custody and relocation to mother in a paternity case is affirmed.
Facts
Jeremy and Jessica are the parents of Ledger. They moved in, became engaged, Jessica became pregnant, and they ended the relationship. Each party sought sole legal and physical custody of Ledger.
The parties agreed to a temporary order which provided Jeremy with very minimal parenting time, supervised by his parents. Jessica claimed that Jeremy had issues with alcohol, and left him because he wouldn’t quit drinking. Jeremy claims to have quit drinking since that time, and third-party witnesses generally supported that claim.
At some point, Jessica amended her Counterclaim, and sought removal to Carthage Illinois to pursue her dream of coordinating merchandising and logistics for a hog company, earning $13.50 per hour. She testified that this best corresponds with her education in business administration, though it is not clear she ever earned a degree. She testified this job offers a consistent workday of 8:00 a.m. to 5:00 p.m., health insurance, and retirement. She touted her overtime rate of $20.50 per hour but it is unclear that she would ever earn any overtime with the consistent 8 to 5 work schedule. Her brother apparently lived in Carthage, Illinois, but other family members lived more than an hour away. Her evidence about the Farnsworth factors was generally weak.
Jessica filed a Motion for temporary removal, which was denied. She then relocated to Illinois, and left Ledger with friends in Nebraska, who facilitated Jeremy’s parenting time. She did not want to leave Ledger with Jeremy’s parents, and only did so for a couple of weeks.
Holdings
The Court of Appeals affirmed the award of custody and removal, noting that this was not a strict Farnsworth analysis because this is not a divorce, and no prior custody order had been entered. Therefore, this is purely a best interest analysis where the Farnsworth factors are relevant, but not to be strictly used.
Under that umbrella, the Court observed that Jeremy had not demonstrated he was capable of parenting on his own, though he was not unfit, the District Court’s concerns about his alcohol use were entitled to some deference, and keeping Jessica’s other child together with Ledger was important.
The Court of Appeals also affirmed the District Court’s decision not to change Ledger’s surname.
Page 48 of 57 Legal Principles
1. Coleman v. Kahler’s relaxed Farnsworth analysis applies in an original action for paternity, even if there has been an order for temporary custody before removal is sought.
2. To determine whether a change of surname is in the child’s best interest, Courts should consider: (1) misconduct by one of the child’s parents; (2) a parent’s failure to support the child; (3) parental failure to maintain contact with the child; (4) the length of time that a surname has been used for or by the child; (5) whether the child’s surname is different from the surname of the child’s custodial parent; (6) a child’s reasonable preference for one of the surnames; (7) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; (8) the degree of com- munity respect associated with the child’s present surname and the proposed surname; (9) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (10) the identification of the child as a part of a family unit. In re Change of Name of Slingsby, 276 Neb. 114 (2008); In re Change of Name of Andrews, 235 Neb. 170 (1990)
Page 49 of 57 Guthard v. Guthard 28 Neb.App 156 (2019)
TL;DR: District Court ruling that there was insufficient evidence to consider the retained earnings of a closely held corporation in a party’s income for child support purposes was affirmed.
Facts
Jennifer and Joel were divorced in 2004. Jennifer received custody and Joel paid support based on an earning capacity of $69,000 per year. Joel sought a modification of custody, which the parties resolved, and Jennifer sought an increase of child support, which was tried to the Court.
Joel owns a 50% share of two S corporations, one of which reported significant pass- through income to him on his K-1. That corporation, a gas contractor for ethanol plants, also provided him with a vehicle, cell phone, and company credit card. In addition to his salary, Joel and his partner would also take cash distributions which were intended to cover the tax liability associated with the pass-through income.
Most of Joel’s K-1’s were offered, but nobody offered copies of the corporate income tax returns.
The District Court found that, without the corporate returns or other evidence, it was impossible for it to determine if the retained earnings of the corporation were excessive, to the extent necessary to include them in Joel’s income for child support purposes. Similarly, because two K-1’s were missing, income averaging was impossible. The Court denied Jennifer’s request, and she appealed.
Holdings
The Court of Appeals affirmed the ruling of the District Court, because (1) there was no evidence of why the earnings were being retained by the corporation from which the Court could determine that they were excessive or inappropriate, and (2) the evidence indicated that the bulk of the retained earnings occurred in an exceptional year.
Further, under Bornhorst, released the same day, and discussed next, the Court declined to include distributions to Joel to pay his taxes in his income.
Finally, the Court affirmed the District Court’s declination to include the value of Joel’s employee perks such as vehicle and cell phone because there was no evidence of their value to him.
Legal Principles
Whether retained earnings are excessive or inappropriate necessarily implies that such earnings are not being retained for legitimate business purposes and could otherwise
Page 50 of 57 reasonably be expected to be distributed to a parent-shareholder for inclusion as income.
The relevant factors to weigh in determining whether retained earnings should count as income for child support purposes are: (1) the share- holder’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.
Page 51 of 57 Bornhorst v. Bornhorst 28 Neb.App. 182 (2020)
TL;DR: The portion of a distribution from an S corporation that is for the payment of taxes on pass-through income should not be included in the income of the shareholder for child support purposes.
Facts
Jennifer and Matthew were married in 2010 and separated in 2016. Jennifer filed for divorce in 2017. They had two children, born in 2013 and 2014. Jennifer sought sole or joint custody and Matthew sought joint custody.
The District Court awarded the parties joint legal and joint physical custody of the children, and adopted a 50-50 time sharing schedule. Jennifer was ordered to pay Matthew child support, but the Court did not include distributions that Jennifer received from her 8% ownership in a nonmarital family business. The District Court reasoned this income was speculative and Jennifer had no control over it.
The Court considered the increase in the retained earnings of the closely held corporation to be a marital asset, and it found that Jennifer had contributed $50,000 of premarital assets towards the home. Jennifer appealed, assigning as error the award of joint physical custody, and the finding that appreciation on her family business was active. Matthew cross-appealed the District Court’s decision not to include Jennifer’s distributions from her family corporation in her income.
Holdings
The Court of Appeals affirmed the award of joint physical custody, finding that it was not an abuse of discretion, and citing a number of cases where awards of joint custody were affirmed despite issues with the parents getting along.
The Court of Appeals also affirmed the District Court’s decision that the retained earnings evidenced an increase in the equity position of Jennifer’s stock in the company by at least their face amount. And based on the fact that Jennifer was an officer (vice president) of the Company and ran the administrative side of the business, it reasoned that she was actively involved in that growth.
Finally, citing to a long string of cases from other jurisdictions, the Court of Appeals denied Matthew’s cross appeal, and affirmed the finding that Jennifer’s tax distributions from the corporation should not be includable in her income for child support purposes. The Court of Appeals held out some hope that in a future case, with evidence showing that the distributions were well in excess of tax liability when considering multiple years, they may be includable in income. But that failed in this case for lack of proof.
Page 52 of 57 Legal Principles
1. An increase in retained earnings of a corporation during the marriage is an acceptable way to show appreciation on an otherwise non-marital asset.
2. Distributions from an S Corporation to pay income taxes should not be included in the income of the recipient for child support purposes.
Page 53 of 57 Ybarra v. Ybarra 28 Neb.App 216 (2020)
TL;DR: Withholding of $200 per month from obligor’s social security payments to pay 1980’s child support arrearage is affirmed.
Facts
Frank and Mickey were divorced in 1980. Frank’s child support obligation terminated in 2000, and he made some small voluntary payments. In 2018, he owed $12,862 in back child support, and $55,900 in interest.
The State initiated income withholding from Frank’s social security payments of $870 per month. The Social Security Administration approved withholding $200 per month. Frank filed a Motion to reduce the amount being withheld or alternatively to waive the interest accumulated on it. The District Court denied the Motion and Frank appealed.
Holdings
The Court of Appeals affirmed, reasoning that the withholding amount was permitted under federal law, 15 U.S.C. § 1673(b), and that the poverty line applicable in establishing a child support obligation was not applicable to cases seeking to enforce that obligation.
Legal Principles
The amount that can be withheld from an obligor’s social security for child support is determined by federal law, not by the Child Support Guidelines.
Page 54 of 57 Bryant v. Bryant 28 Neb.App 362 (2019)
TL;DR: Nebraska Court accepting jurisdiction under the UCCJEA for mid-move breakup is affirmed.
Facts
Patrick and Stephanie were married in 2009 when Patrick was an active duty member of the US Coast Guard. The couple had moved to Nebraska from Illinois on July 7, 2017, and Stephanie had significant issues with the move. Although she sent Christmas cards and made social media posts discussing the move months in advance, she apparently bit her tongue until the movers arrived in Illinois, at which point she had a meltdown. The move was contemplated because Patrick was retiring from the Coast Guard, the military would pay for one final move, and both parties had family in the Omaha area.
With the involvement of police and paramedics, Patrick and the children got in the car and drove to Nebraska. Stephanie stayed behind, and the following day claimed she was going to drive to Nebraska, pick up the children, and take them to Michigan or Massachusetts. Several months later, Stephanie moved to Nebraska, and threatened to remove the children from school and the State. This triggered Patrick’s filing.
Patrick filed a Complaint for Legal Separation about three (3) months after he had established residence in Nebraska. Stephanie filed a Complaint for custody in Illinois. Patrick secured Illinois counsel, who filed a Motion to Decline Jurisdiction because of Inconvenient Forum. The Nebraska and Illinois Courts held a joint hearing via telephone with counsel appearing in both courtrooms, and the Illinois Court granted the Motion, finding that the children and household had moved, and Stephanie hid her resentment towards the move until the last possible minute. With the Illinois Court declining jurisdiction, the Nebraska Court assumed it.
The Nebraska Court conducted a two day trial and awarded Patrick physical custody of the children. Stephanie appealed.
Holdings
The Court of Appeals affirmed.
Page 55 of 57 Fichtl v. Fichtl 28 Neb.App 380 (2020)
TL;DR: Denial of custody modification and award of child support are affirmed as modified; detrimental reliance on a promise to ignore a court order is not actionable.
Facts
Joey and Jared were married in 2003 and divorced in 2012. They entered into a consent Decree which granted Jared physical custody and final decision making authority over their three children in the event of a disagreement. Joey was afforded limited parenting time. Jared’s counsel prepared the parenting plan, but Jared had told Joey they could “split a lawyer,” and she shouldn’t worry about what is in the parenting plan because they would “never follow it.”
Joey moved to Grenada to pursue her education, and Jared called her an “idiot” for signing the parenting plan, saying that he would start strictly following it. Joey came back to Nebraska for months at a time to see the children, but Jared held her to only the time allotted in the Decree. When Joey moved back to Nebraska permanently, she sought more parenting time, and Jared denied it. She filed to modify the Decree, and Jared counterclaimed to establish child support, which had been waived in the original Decree, contemplating Joey’s pursuit of education abroad.
After two trial days which were approximately 11 months apart, the District Court denied Joey’s Complaint to Modify and granted Jared’s, assessing a child support arrearage against Joey which spanned retroactively for approximately three (3) years. The District Court believed that the change of circumstances which Joey sought was “within the contemplation of the parties” at the time of the original Decree, and as a result, could not be considered. With different counsel, Joey appealed.
Holdings
The Court of Appeals affirmed in nearly all respects. It held that even if Joey detrimentally relied on Jared’s promise of more time, his breach of that promise cannot be a material change in circumstances, particularly because the Decree (which Jared said they would not follow) contained default rules in the event of a disagreement. Despite rejecting the language upon which the District Court relied, it found Joey had not met her burden of proof.
Against a number of assignments of error over the child support calculation, the Court of Appeals affirmed the use of a four-year income average for Jared’s income, the use of “Married Filing Jointly” filing status for both parties, and the declination of the trial court to give Joey credit for her duty to support a subsequently-born child. It also affirmed the retroactive support award.
Page 56 of 57 The Court modified the District Court’s child support calculation to remove Jared’s depreciation deductions because he did not provide sufficient tax returns, and did not re-calculate depreciation using the straight-line method.
Legal Principles
1. This case rejects prior cases which applied the doctrine “changes in circumstances which were within the contemplation of the parties at the time of the Decree are not material changes in circumstances for the purposes of modifying a divorce decree” to custody modifications, and limits the application of that language to support modifications only.
2. To claim depreciation deductions, a party must first prove that each asset is ordinary and necessary, then recompute depreciation using the Straight-Line method, and provide five (5) years of tax returns.
Page 57 of 57