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Donald v. Donald

Supreme Court of Nebraska

March 17, 2017

Lacy J. Donald, appellee,
Alex S. Donald, appellant.

         1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. 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.

         2. Evidence: Appeal and Error. When 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.

         3. Child Custody. Joint physical custody must be reserved for those cases where, in the judgment of the trial court, the parents are of such maturity that the arrangement will not operate to allow the child to manipulate the parents or confuse the child's sense of direction, and will provide a stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars.

         4. ___. Numerous parenting times do not constitute joint physical custody. 5. . The paramount consideration in determining child custody is the best interests of the children.

         6. Child Support: Rules of the Supreme Court: Presumptions. The Nebraska Child Support Guidelines are to be applied as a rebuttable presumption and offer flexibility and guidance rather than a stringent formula.

         7. Divorce: Jurisdiction: Armed Forces. Federal law precludes a state court, in a dissolution proceeding, from exercising subject matter jurisdiction over Department of Veterans Affairs disability benefits.

          [296 Neb. 124] 8. Divorce: Property Division: Armed Forces: Pensions: Waiver. Pursuant to federal law, a state court cannot include the amount of military retirement pay that a veteran waives in order to receive disability benefits as divisible marital property.

         Appeal from the District Court for Lancaster County: Steven D. Burns, Judge. Affirmed as modified.

          Sean M. Reagan and A. Bree Robbins, of Reagan, Melton & Delaney, L.L.R, for appellant.

          Tara L. Gardner and Joel Bacon, of Keating, O'Gara, Nedved & Peter, PC, L.L.O., for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.


         Alex S. Donald appeals from a decree dissolving his marriage to Lacy J. Donald. He presents two issues regarding child custody and support, urging that his additional daytime parenting time during Lacy's working hours required a joint physical custody classification and use of the joint custody child support worksheet. As we will explain, the relevant statutes and guidelines dictate otherwise. He presents a third issue regarding classification of his lump-sum disability payment from military service as marital property. Because federal law prevents a state court from doing so, we modify the decree to exclude the payment's proceeds. As so modified, we affirm the decree.


         1. Overview Approximately 2 years 1 month after Alex and Lacy were married, Lacy filed a complaint for dissolution. There were two minor children born to the parties. At the time of trial, both children were under 4 years of age.

          [296 Neb. 125] After a 2-day trial, the court awarded legal and physical custody of the children to Lacy, subject to Alex's parenting time, ordered Alex to pay child support, and divided the marital estate. During the marriage, Alex received a lump-sum disability benefit payment from the Department of Veterans Affairs (VA). In dividing the property, the court classified this payment as part of the marital estate and ordered that its proceeds be divided equally.

         Because Alex's appeal contests only the award of custody, the child support order, and the classification of the lump-sum disability benefit payment as marital property, we summarize only the facts that are relevant to those issues.

         2. Child Custody

(a) Parties' Contentions Below

         Both parties testified that prior to their separation, Lacy worked outside of the home while Alex cared for the children during the workday. Alex was injured serving in the military and throughout the marriage was unable to work. By the time of trial, the parties had not reached an agreement regarding the custody arrangement and instead both offered different parenting plans.

         Lacy proposed that she receive joint legal custody and primary physical custody of the minor children. Alex proposed joint legal and physical custody.

         (b) District Court's Parenting Plan

         The district court did not adopt either party's proposed parenting plan; instead, it incorporated one of its own creation into the decree. The court's plan provided that Alex would have parenting time on alternating weekends-beginning Friday at 5:15 p.m. and ending Sunday at 8:15 a.m.-and 5 weeks of summer parenting time. After the children began attending school, the alternating weekend parenting time would be adjusted to begin on Thursday at the conclusion of school and end on Monday morning at the commencement of school.

          [296 Neb. 126] The court also found that "[t]here [was] no reason why the daytime parenting time arrangement that occurred before the separation should not continue." Thus, before the children began school, and later during summertime school vacations, Alex would have parenting time every weekday from 7:45 a.m. until 5:15 p.m. Throughout each school year after the children began to attend, Alex's weekday parenting time would begin at the conclusion of school instead of 7:45 a.m.

         The parenting plan allocated Alex's parenting time. Alex will have approximately 80 parenting-time overnights a year before the children begin attending school. After that, Alex ...

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