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Burcham v. Burcham

Court of Appeals of Nebraska

September 27, 2016

David Robert Burcham, appellee,
v.
Linda Jean Burcham, appellant.

         1. Divorce: Child Custody. When custody of minor children is an issue in a proceeding to dissolve the marriage of the children's parents, custody is determined by parental fitness and the children's best interests.

         2. Child Custody. When both parents are found to be fit, the inquiry for the court on the issue of custody is the best interests of the children.

         3. Parent and Child. The best interests of a child require a parenting arrangement for a child's safety, emotional growth, health, stability, and physical care and regular and continuous school attendance and progress.

         4. ___. The best interests of a child also require that the child's families and those serving in parenting roles remain appropriately active and involved in parenting with safe, appropriate, continuing quality contact between children and their families when they have shown the ability to act in the best interests of the child and have shared in the responsibilities of raising the child.

         5. Divorce: Child Custody: Public Policy. It is sound public policy to keep children together when possible, but considerations of public policy do not, in all cases, prevent the splitting of the custody of the children when a marriage is dissolved; rather, the ultimate standard is the best interests of the children.

         6. Child Support. The paramount concern and question in determining child support is the best interests of the child.

         7. Rules of the Supreme Court: Child Support: Presumptions. In general, child support payments should be set according to the Nebraska Child Support Guidelines, adopted by the Nebraska Supreme Court, which are presumed to be in the best interests of the child.

         8. Child Support. In calculating child support, the court must consider the total monthly income, defined as income of both parties derived from all sources.

         [24 Neb.App. 324] 9. Child Support: Presumptions. All income from employment must be included in the initial child support calculation, which then becomes a rebuttable presumption of appropriate support.

         10. Child Support. Copies of at least 2 years' tax returns, financial statements, and current wage stubs should be furnished to the court for purposes of determining the parents' income in order to calculate child support.

         11. ___. Income derived from farming is subject to fluctuations. The use of income averaging when dealing with farm income has been approved for purposes of calculating child support.

         12. Divorce: Appeal and Error. In a de novo review of a judgment in marriage dissolution proceedings, when the evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

         13. Records: Appeal and Error. It is incumbent upon the appellant to present a record supporting the errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors.

         14. Appeal and Error. Generally, a party cannot complain of error which the party has invited the court to commit.

         15. Divorce: Minors: Stipulations. Parties in a proceeding to dissolve a marriage cannot control the disposition of matters pertaining to minor children by agreement.

         16. Parent and Child: Social Security. Social Security benefits paid to children as a result of their parents' employment are not a mere gratuity from the federal government but have been earned through the parent's payment of Social Security taxes.

         17. Parent and Child: Child Support: Social Security. A request to apply Social Security benefits received as a result of a parent's employment to the parent's child support obligation is merely a request to identify the source of payment, and a Social Security benefit can serve as a substitute source of income.

         18. ___: ___: ___. Social Security benefits received on behalf of a parent's employment may be used to offset a portion of child support costs, but it is not appropriate to offset child support costs where the Social Security benefits are received due to the disability of the child and therefore intended to mitigate the additional costs accompanying disabilities.

         19. ___: ___: ___. Social Security disability benefits paid on behalf of a parent's disability can be considered income to the parent for child support purposes, because the benefits are received in lieu of the parent's income.

         [24 Neb.App. 325] 20. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         21. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365.

         22. ___: ___. Property which one party brings into the marriage is generally excluded from the marital estate.

         23. Divorce: Property Division: Proof. The burden of proof to show that property is nonmarital remains with the person making the claim in a dissolution proceeding.

         24. Divorce: Property Division. An exception to the general rule that property owned prior to the marriage is excluded from the marital estate exists where both of the spouses have contributed to the improvement or operation of the nonmarital property or where the spouse not owning the nonmarital property has significantly cared for the property during the marriage.

         25. ___: ___. When applying the exception to the general rule regarding premarital property, evidence of the value of the contributions and evidence that the contributions were significant are generally required.

         26. ___: ___. Generally, all property accumulated and acquired by either spouse during a marriage is part of the marital estate. Exceptions include property that a spouse acquired before the marriage, or by gift or inheritance.

         27. ___: ___. Setting aside nonmarital property is simple if the spouse possesses the original asset, but can be problematic if the original asset no longer exists.

         28. ___: ___. Separate property becomes marital property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse.

         29. ___: ___. If the separate property remains segregated or is traceable into its product, commingling does not occur.

         30. Property Division: Proof. The burden of proof rests with the party claiming that property is nonmarital.

         31. Property Division. Marital debt is defined as a debt incurred during the marriage and before the date of separation, by either spouse or both spouses, for the joint benefit of the parties.

         32. Divorce: Attorney Fees: Appeal and Error. In a dissolution of marriage case, an award of attorney fees is discretionary, is reviewed de [24 Neb.App. 326] novo on the record, and will be affirmed in the absence of an abuse of discretion. 33. Attorney Fees. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and general equities of the case.

         34. Divorce: Attorney Fees. Attorney fees incurred by the parties during the pendency of dissolution proceedings do not constitute marital debt.

         Appeal from the District Court for Dixon County: Paul J. Vaughan, Judge. Affirmed in part, and in part reversed and remanded with directions.

          Alice S. Horneber, of Horneber Law Firm, P.C., for appellant.

          Nancy R. Shannon, of Cordell Law, ...


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