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Brown v. Brown

Court of Appeals of Nebraska

November 19, 2013

Edwin F. Brown, appellant,
v.
DeLana L. Brown, appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr, Judge.

Stephanie R. Hupp and Zachary L. Blackman, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., for appellant.

Terrance A. Poppe and Benjamin D. Kramer, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.

Moore, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, Judge.

I. INTRODUCTION

Edwin F. Brown appeals from the decree entered by the district court for Lancaster County, which decree dissolved his marriage to DeLana L. Brown. Edwin challenges numerous findings by the court, including custody, parenting time, child support, division of tax dependency exemptions, division of childcare expenses, division of the marital estate, and failure to award Edwin alimony and attorney fees. We find no merit to these assigned errors, and we affirm the decree.

II. BACKGROUND

Edwin and DeLana were married on May 8, 2004. The parties had two children during their marriage, Vicente Brown, born in 2006, and MariElena Brown, born in 2008. When the parties separated on January 29, 2012, DeLana and the children left the marital residence and lived with her parents. Edwin continued to live in the marital home until mid-April. On April 15, Edwin moved to a different residence, and DeLana and the children returned to the marital home, where they continued to reside at the time of trial. DeLana made the debt payments on the residence after the separation.

On February 13, 2012, Edwin filed the operative complaint for dissolution of marriage in the district court.

On March 16, 2012, the district court entered an order for temporary custody, child support, and parenting time. The court awarded DeLana temporary custody of the children, and it ordered Edwin to pay temporary child support of $170 per month. For purposes of calculating temporary child support, the court imputed monthly income to Edwin of $1, 257 ($7.25 per hour and 40 hours per week). The court awarded Edwin parenting time every other week from 7 a.m. Thursday to 5 p.m. Friday, and every other week from 6 p.m. on Sunday to 8 a.m. Wednesday.

Trial was held before the district court on July 17 and August 9, 2012. The court received various exhibits into evidence and heard testimony from the parties, several character witnesses, DeLana's supervisor, an individual who plays in a band with Edwin, and a district manager for the insurance company with which Edwin's business is affiliated. We have summarized the evidence below and have set forth additional details as necessary in the analysis section of this opinion.

DeLana was 33 years old at the time of trial. She obtained her bachelor of science degree in nursing in 2002 and expected to obtain her master of science in nursing in October 2012. DeLana works as a registered nurse in the neonatal intensive care unit at a hospital in Lincoln. DeLana earns approximately $28 an hour and generally works 36 hours a week. She works 4 days a week with varying hours each day. On Mondays, DeLana works either from 8 a.m. until 4 p.m. or from 7 a.m. until 3 p.m., depending on whether the children are with her. On Tuesdays, DeLana works from 7 a.m. until 7 p.m.; she occasionally attends meetings on Wednesdays from noon until 2 p.m.; and on Thursdays, she works from 7 p.m. until 7 a.m. At the time of trial, DeLana did not have daycare expenses. Since the parties' separation, DeLana has used her parents to help her with her daycare needs.

Edwin was 35 years old at the time of trial. He graduated from college in 2000 with a bachelor's degree in business administration. Thereafter, Edwin worked as team leader of guest relations at a discount department store from 2000 to 2002, where his annual salary was $34, 000 in his first year and $36, 000 in his final year. From 2002 to 2004, Edwin worked as a personal banker and earned an annual salary of $32, 000 in his first year and $34, 000 in his final year. In 2004, Edwin accepted a job at an insurance company as a senior recruiter where he worked until 2007, earning a salary of $42, 000 in his first year and $47, 000 in his final year. In 2007, Edwin began working in the human resources department of a developmental services company and worked there for 8 months, earning $62, 000 per year. At the same time, Edwin also worked for another insurance company in the district office, where he earned approximately $8, 000 in 2007.

In late 2007, Edwin started his own insurance agency, where he still worked as an insurance agent at the time of trial. At the time of trial, Edwin was the only employee of his insurance agency. When Edwin does not have parenting time with the children, his hours vary, but he generally works 5 days a week from 8 or 9 a.m. until 6 or 8 p.m. On weeks when Edwin has the children, he maintains a similar schedule, except that he works from home 2 days a week, so that he only has to send the children to daycare for 2 days. Edwin's monthly living expenses exhibit shows that his childcare expenses for the summer months were $738.36 per month and for the school year were $498.75 per month; however, it is not clear from the record whether the amounts listed were before or after he began working from home when he has the children.

Determining Edwin's actual income at his insurance agency was a major issue at trial. He does not receive a salary; rather, his income is based solely upon commissions from new policies and renewal premiums. At the time of the temporary custody hearing, Edwin represented to the district court that his income was $427 per month. The parties' tax returns show business losses attributable to Edwin's insurance business of $18, 845 in 2008; $20, 582 in 2009; and $99 in 2010. At the time of trial, Edwin had not yet filed his 2011 tax return. Edwin's district manager testified at trial that Edwin earned $48, 283.99 in commissions and bonuses in 2009; $53, 802.12 in 2010; and $44, 102.49 in 2011. Through July 2012, Edwin had earned $32, 525.12.

Edwin also is the lead singer of a local band. The band performs at least one or two nights on three weekends per month, usually on Friday and Saturday nights and only occasionally on Sunday. The parties' tax returns show that Edwin had business profits from the band of $1, 878 in 2008; $1, 670 in 2009; and $5, 134 in 2010. The band manager testified that Edwin's gross income for his participation in the band in 2011 was $10, 470, which was comparable to the other band members' gross income in previous years.

Edwin offered, and the district court received into evidence, an exhibit showing his monthly living expenses to be $4, 430.86. Edwin testified that this was a fair representation of his monthly living expenses. He testified that there was nothing reflected in the exhibit that he could not afford based on cashflow and that the exhibit reflected the bills he was actually paying at the time of trial.

The parties purchased the marital residence in 2004. There is no evidence in the record as to the purchase price. The value of the marital residence was an issue at trial. Edwin did not have the house appraised, but he valued it at $190, 000 based upon the amount of debt against the property. DeLana valued the house at $160, 000. She testified that the county assessor valued the house at approximately $154, 000 and that she had a Realtor tell her that with major home improvements, the most that the house could sell for would be $165, 000.

While DeLana was living at her parents' home after the parties separated, Edwin changed the locks on the doors of the marital residence after he lost his key and DeLana failed to respond to his request for a copy of her key. During this period, DeLana occasionally entered the house while Edwin was at work. On one of the occasions she accessed the house after Edwin changed the locks, DeLana climbed through a broken window. DeLana admitted that on one occasion, she tore up three pictures that had Edwin in them. One of the pictures DeLana tore up was from the parties' wedding. She also tore up a picture that had one of Edwin's deceased relatives in it. DeLana intentionally broke a pair of Edwin's earphones and destroyed a purse that Edwin had given to her. DeLana inadvertently broke a watchbox and some Christmas ornaments. On a separate occasion, DeLana removed the cable boxes from the house. Edwin valued the earphones at $213.95, the watchbox at $100, and the Christmas ornaments at $100. He also claimed that DeLana took a Big 10 Husker football signed by Tom Osborne and Bo Pelini, which he valued at $500. Edwin discovered the football was missing when he moved to his new residence in mid-April 2012 and went through all the boxes and checked his office. Edwin testified that while DeLana had never admitted to taking the football, because it was in the home, DeLana must have it. DeLana denied doing anything with the football and testified that she did not know what football Edwin was talking about.

There was evidence at trial about the parties' 2011 tax returns. DeLana provided her W-2 earnings to the parties' tax preparer prior to April 15, 2012, but she did not learn until June that the preparer had not filed a tax return. At that time, DeLana asked the preparer to file an individual return for her, but the preparer declined. DeLana then filed a separate individual return on her own for 2011. DeLana claimed both exemptions for the minor children and received a refund in the amount of $6, 227. As of the first day of trial, July 17, 2012, Edwin still had not filed his 2011 tax return. He testified that he learned DeLana had filed separately only a few hours before trial.

The issue of Edwin's punctuality was discussed extensively at trial. Edwin testified that punctuality is a challenge that he continues to work on. Edwin's temporary parenting time included overnights every other Thursday. Edwin testified that he did not get Vicente to school on time on six separate occasions between March 16 when the temporary order was entered and the end of the school year. Reference to a 2012 calendar shows that three of the six tardies occurred on a Friday. A separate incident of Edwin's tardiness occurred on the Saturday following the first day of trial when Edwin was late getting Vicente to certain events at the Cornhusker State Games. As a result, Vicente was only allowed to compete in two of the four long jump rounds.

There was evidence at trial about the parties' communication difficulties. Edwin testified that he and DeLana were not communicating at the time of trial with the exception of text messages informing DeLana when he was running late. Edwin testified further that the parties experienced issues relating to following the terms of the temporary order with respect to parenting time. DeLana testified that the limited communications she had with Edwin since their separation were not very amicable and that he would attack her faith and tell her that she is ruining the children's lives by dragging them through the divorce process.

On November 19, 2012, DeLana filed a motion seeking to withdraw her rest and adduce additional evidence with respect to tardies that Vicente had during the 2012-13 school year while in Edwin's care. Edwin filed an objection. The district court denied DeLana's motion following a hearing.

The district court entered a decree on February 5, 2013, dissolving the parties' marriage. The court attached and incorporated its findings made in a letter to the parties dated January 24, 2013. A nunc pro tunc decree was entered on February 12 to correct a scrivener's error.

The district court awarded physical and legal custody of the children to DeLana, subject to Edwin's rights of parenting time set forth in the attached parenting plan. The court ordered Edwin to pay child support of $931 per month for two children and $644 per month when child support is owed for one child, commencing February 1, 2013. For purposes of child support, the court assigned total monthly income to DeLana of $4, 467 and gave her credit of $131 for providing health insurance for the children. The court attributed to Edwin a gross annual income of $50, 000, which results in a gross monthly income of $4, 166.66.

The district court awarded Edwin parenting time every other week from Sunday at 2 p.m. to Thursday at 8 a.m. or the commencement of school, whichever is earlier. The court also set forth a schedule of holiday and summer parenting time. The district court ordered that, unless otherwise agreed by the parties, Edwin was to provide transportation for his parenting time and that if he was 15 or more minutes late to pick up the children for a scheduled parenting time, he would forfeit that parenting time. The court included a similar forfeiture provision if Edwin failed to return the children within 15 minutes of the conclusion of his parenting time and if he failed to deliver the children to school in a timely fashion.

The district court awarded DeLana the tax dependency exemptions for both children for 2012. The court awarded Edwin the exemption for Vicente beginning in 2013, and when Vicente can no longer be claimed, the court awarded Edwin the exemption for MariElena in even-numbered years.

The district court identified, valued, and divided the marital estate. The district court ordered the parties to pay their own attorney fees and declined to award spousal support to either party.

Edwin filed a motion for new trial. On February 25, 2013, after the district court clarified certain rulings, which we discuss as necessary below, it denied the motion.

Edwin subsequently perfected his appeal to this court.

III. ASSIGNMENTS OF ERROR

Edwin asserts that the district court erred in (1) awarding full custody to DeLana, (2) making certain orders with respect to parenting time, (3) setting child support, (4) allocating the 2012 tax dependency exemptions, (5) failing to allocate employment-related childcare expenses, (6) dividing the marital estate, (7) failing to grant Edwin alimony, and (8) failing to grant Edwin attorney fees.

IV. STANDARD OF REVIEW

In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012). Parenting time determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. Rosloniec v. Rosloniec, 18 Neb.App. 1, 773 N.W.2d 174 (2009).

An award of a dependency exemption is reviewed de novo to determine whether the trial court abused its discretion. Emery v. Moffett, ...


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