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McIver v. McIver

Court of Appeals of Nebraska

October 1, 2013

Amy McIver, appellee,
v.
Kevin McIver, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge.

Jerrad R. Ahrens, of Cordell & Cordell, P.C., for appellant.

Virginia A. Albers, of Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O., for appellee.

Moore, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

Kevin McIver appeals from the decree of dissolution entered by the district court for Douglas County, and Amy McIver cross-appeals. At issue in this appeal are the district court's award of sole legal custody of the parties' minor children to Amy and joint physical custody to both parties, the parties' holiday parenting time, and the property division. For the reasons set forth below, we affirm the district court's decree as modified by this opinion.

I. FACTUAL BACKGROUND

Kevin and Amy were married in Columbia, South Carolina, on June 20, 1998. After the marriage, Amy and Kevin lived in North Carolina and began a family. Three children were born of this marriage: a daughter born in 2002, a son born in 2003, and another son born in 2007. When Kevin accepted a new job in 2007, the family moved from Asheboro, North Carolina, to Omaha, Nebraska. At the time of trial, the children were 10, 8, and 5 years old, respectively, and were all in school.

On October 14, 2011, Amy filed a complaint for dissolution of marriage. In her complaint, Amy sought to be awarded primary physical custody of the children, but was willing to share legal custody with Kevin. Kevin filed an answer and counterclaim to Amy's complaint, requesting joint physical and legal custody of the children.

The district court entered a temporary order on December 29, 2011, granting Kevin and Amy joint legal custody of their three children, with Amy appointed as the physical custodian. Kevin was awarded overnight parenting time on one weekday night and every other weekend. The district court also gave Amy exclusive occupancy of the marital home and ordered Kevin to pay monthly child and spousal support in the respective amounts of $1, 920 and $1, 000.

Trial was held on September 24, 2012. The parties had entered into a partial parenting agreement through mediation before trial, but the issues of legal custody, division of parenting time, and the conclusion time for holiday visitation remained to be resolved. The parties also disagreed as to the amount of spousal support and to valuations of certain personal and real property. Both parties submitted evidence regarding these issues.

Kevin was 39 years old at the time of trial and was employed as a senior engineer at an energy company. Following the birth of the parties' first child, Kevin was the sole source of income for the family. Because his job often required him to travel from Omaha to the company plant in Lexington, Nebraska, Kevin was away from home a few days each week. At trial, however, Kevin testified that his schedule would become more flexible to permit a joint custody arrangement.

At the time of trial, Amy was 38 years old. After getting married and moving to North Carolina, Amy worked as a teacher until their first child was born in 2002. Since the birth of their children until her separation from Kevin, Amy had been a stay-at-home mother. During that time, Amy arranged the children's medical care and was the primary family contact person for the children's school. Amy was responsible for the day-to-day care of the children, including purchasing their clothing and supplies.

Amy has a current Nebraska teaching certificate. Following the separation, Amy began working as a substitute teacher in the Millard and Elkhorn school districts and had been pursuing a full-time teaching position in these districts. As of trial, she had not yet been able to obtain full-time employment and was continuing to substitute teach in both districts approximately 2 to 3 days per week.

In addition to their testimony, Kevin and Amy each submitted valuations of the personal property and the marital residence. To value the marital residence, each party commissioned a professional appraisal. Kevin's appraisal concluded the home was valued at $338, 000, and Amy's appraisal valued the home at $315, 000. In their proposed valuations for the personal property, including the various financial accounts, each used a different date of valuation. The trial testimony reveals that each party disagreed with the other's valuations. Further evidence will be discussed regarding the property issues as necessary in the analysis below.

The district court entered its decree of dissolution on November 9, 2012. Taking into consideration the best interests of the children, the district court granted the parties joint physical custody, but awarded Amy sole legal custody. To facilitate the joint physical custody arrangement, the court developed a visitation schedule. Amy was awarded parenting time beginning at 8 a.m. on Monday and ending at 8 a.m. on Wednesday. Kevin's parenting time starts at 8 a.m. on Wednesday and ends at 8 a.m. on Friday. The parties would also have parenting time on alternating weekends, which begins at 8 a.m. on Friday and ends at 8 a.m. on Monday. For holiday parenting time, the court adopted the holiday parenting schedule from the parties' partial parenting plan and determined that the holiday parenting time would end at 8 a.m. following the last day of the designated holiday.

Among its other rulings, the court ordered Kevin to pay alimony and child support and a portion of Amy's attorney fees. The court also awarded Amy the marital residence on the condition that she refinance the existing mortgage within 9 months of the decree and remove Kevin from any obligation relating to the residence or, in the alternative, that she list the home for sale. The court made further provisions for splitting the equity in the home between the parties upon the sale or refinancing. In granting the marital residence to Amy, the court adopted Amy's appraised valuation for the home. Kevin was awarded the home that he purchased separately during the temporary separation period. To divide the parties' personal property, including bank and retirement accounts, the court used January 31, 2012, as the valuation date. After dividing the marital estate, the court ordered Kevin to pay Amy an equalization payment totaling $69, 579.

Kevin appeals from this decree, and Amy cross-appeals.

II. ASSIGNMENTS OF ERROR

Kevin assigns and argues four errors in his brief. He asserts, restated, that the district court erred by (1) awarding Amy sole legal custody of the minor children, (2) awarding Amy parenting time every Thanksgiving and Christmas Eve and Christmas Day, (3) ordering Kevin to pay Amy an equalization payment in the amount of $69, 579, ...


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