Lacy J. Donald, appellee,
Alex S. Donald, appellant.
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
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
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.
Numerous parenting times do not constitute joint physical
custody. 5. . The paramount consideration in determining
child custody is the best interests of the children.
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.
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.
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.
from the District Court for Lancaster County: Steven D.
Burns, Judge. Affirmed as modified.
M. Reagan and A. Bree Robbins, of Reagan, Melton &
Delaney, L.L.R, for appellant.
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.
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.
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.
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
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.
(a) Parties' Contentions Below
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
proposed that she receive joint legal custody and primary
physical custody of the minor children. Alex proposed joint
legal and physical custody.
District Court's Parenting Plan
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.
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.
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 ...