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Schmeidler v. Schmeidler

Court of Appeals of Nebraska

April 17, 2018

Benjamin J. Schmeidler, appellant,
Jessica F. Schmeidler, appellee.

         1. Divorce: Child Custody: Child Support: Property Division: Alimony: Appeal and Error. An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court's determinations regarding custody, child support, division of property, and alimony.

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

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

         4. ___ .In determining a child's best interests under Neb. Rev. Stat. § 42-364 (Reissue 2016), courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and the parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; and many other factors relevant to the general health, welfare, and well-being of the child.

         5. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

         6. Child Custody: Appeal and Error. In contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and [25 Neb.App. 803] observed the witnesses testify, are often dispositive of whether the trial court's determination is affirmed or reversed on appeal.

         7. 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.

         8. ___. Courts typically do not award joint legal custody when the parties are unable to communicate effectively.

         9. ___. Where the parties are unable to communicate and trust one another, joint decisionmaking by the parents is not in the child's best interests.

         10. Visitation. The trial court has discretion to set a reasonable parenting time schedule.

         11. ___ . The determination of the reasonableness of a parenting plan is to be made on a case-by-case basis.

         12. ___ . Parenting time relates to continuing and fostering the normal parental relationship of the noncustodial parent.

         13. ___ . The best interests of the children are the primary and paramount considerations in determining and modifying visitation rights.

         14. ___ . Although limits on visitation are an extreme measure, they may be warranted where they are in the best interests of the children.

         15. Visitation: Courts: Stipulations. It is the responsibility of the trial court to determine questions of custody and visitation of minor children according to their best interests. This is an independent responsibility and cannot be controlled by the agreement or stipulation of the parties themselves or by third parties.

         16. Parent and Child. The best interests of a child require a parenting arrangement which provides for a child's safety, emotional growth, health, stability, and physical care.

         17. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), 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.

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

         19. 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.

         [25 Neb.App. 804] 20. Property Division. Marital debt includes only those obligations incurred during the marriage for the joint benefit of the parties.

          Appeal from the District Court for Clay County: Vicky L. Johnson, Judge. Affirmed as modified.

          Scott D. Grafton, of Grafton Law Office, P.C., L.L.O., for appellant.

          Benjamin H. Murray, of Germer, Murray & Johnson, for appellee.

          Moore, Chief Judge, and Riedmann, Judge, and ...

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