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Dooling v. Dooling

Supreme Court of Nebraska

July 5, 2019

Krishna Michelle Dooling, appellee and cross-appellant,
v.
Shawn Allen Dooling. appellant and cross-appellee.

         1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, an appellate court reviews the case 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, alimony, and attorney fees.

         2. Evidence: Appeal and Error. In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, 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.

         3. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         4. Child Support: Rules of the Supreme Court. In general, child support payments should be set according to the Nebraska Child Support Guidelines.

         5. 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, setting aside the nonmarital property to the party who brought that property to the marriage. 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.

         [303 Neb. 495] 6. __: __ . The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case.

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

         8. Property Division: Appeal and Error. As a general principle, the date upon which a marital estate is valued should be rationally related to the property composing the marital estate. The date of valuation is reviewed for an abuse of the trial court's discretion.

         9. Property Division. The marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties.

         10. Property Division: Wages: Equity. To the extent that employment benefits such as unused sick time, vacation time, and compensatory time have been earned during the marriage, they constitute deferred compensation benefits under Neb. Rev. Stat. § 42-366(8) (Reissue 2016) and are considered part of the marital estate subject to equitable division.

         11. Property Division. As a general rule, a spouse should be awarded one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case.

         12. Divorce: Property Division: Alimony. In dividing property and considering alimony upon a dissolution of marriage, a court should consider four factors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.

         13. Divorce: Property Division. In addition to the specific criteria listed in Neb. Rev. Stat. § 42-365 (Reissue 2016), a court should consider the income and earning capacity of each party and the general equities of the situation.

         14. Alimony. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances make it appropriate.

         15. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result. The ultimate criterion is one of reasonableness.

         16. Modification of Decree: Divorce: Child Custody. If trial evidence establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.

         [303 Neb. 496] 17. Child Custody: Appeal and Error. Child custody 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.

         18. __: __. In child custody cases, where the 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 judge heard and observed the witnesses and accepted one version of the facts rather than another.

          Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed in part, affirmed in part as modified, and in part reversed and remanded with directions.

          Christopher Perrone, of Perrone Law, for appellant.

          Kathryn D. Putnam, of Astley Putnam, PC, L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Funke, J.

         Shawn Allen Dooling appeals from a decree of dissolution, assigning errors related to the issues of child support, division of the marital estate, and alimony. Kristina Michelle Dooling filed a cross-appeal which concerns the issues of child support, division of the marital estate, and the award of joint physical custody. We find error in the court's child support calculation and its division of certain marital assets and determine the parties' remaining arguments to be without merit. Therefore, we affirm in part, affirm in part as modified, and in part reverse and remand with directions.

         I. BACKGROUND

         Shawn and Kristina were married in May 2001 and divorced in January 2018. Three children were born of the marriage. During the marriage, Shawn was employed as a police officer for the city of La Vista, Nebraska; Kristina worked part time as a paraprofessional at a children's school. When the parties [303 Neb. 497] separated in July 2014, Shawn moved out of the family residence on South River Rock Drive in Papillion, Nebraska. The parties maintained a joint checking account and paid for family expenses from the account. Throughout their separation, the parties followed a shared parenting time schedule.

         In July 2015, Kristina filed a complaint for dissolution of marriage in the district court for Sarpy County which requested "the temporary and permanent care, physical custody and control of the minor [children]." Shawn filed an answer and counterclaim which requested joint legal and physical custody. Pursuant to temporary orders entered in August 2015, the parties were awarded joint legal custody and Kristina was awarded "primary possession" of the children. Shawn was awarded parenting time every Wednesday and every other weekend from Friday through Monday. Shawn was ordered to pay monthly child support in the amount of $1, 412, maintain all parties on health insurance, pay 72 percent of daycare if daycare was needed, and make the minimum monthly payment of $300 on the parties' Visa credit card. Kristina was awarded exclusive possession of the home and was ordered to pay the mortgage, taxes, and costs on the home, which totaled $1, 642 per month. Kristina was ordered to pay the first $480 per year of uninsured health costs for the children. The court did not award temporary alimony.

         The family home was sold in May 2016, and the court ordered that the $20, 857.44 in proceeds be held in trust pending trial. Trial was held on December 8, 2016, and June 21 and 23, 2017. The issues tried included custody and parenting time, child support, alimony, and division of the parties' assets and debts. The court heard testimony from two La Vista employees, Kristina, and Shawn.

         1. Trial

         (a) Evidence of Shawn's Employment Benefits

         The city clerk of La Vista testified regarding Shawn's employment contract and benefits. According to this witness, [303 Neb. 498] upon leaving employment, a city employee who has attained 10 years of service is paid for unused sick leave for the amount that exceeds 660 accumulated hours up to the maximum of 880 hours. The clerk testified that upon leaving employment, an employee is awarded 100 percent of compensatory (comp) time. The court also heard from La Vista's human resources manager, who stated that comp time is paid out at the end of every fiscal year on September 30, up to a maximum of 75 hours. She also testified that the city matches the police officers' mandatory 7-percent contribution to their pensions. Both witnesses testified that city employees are paid for their unused vacation time upon leaving employment, up to a maximum of 220 hours.

         (b) Kristina's Testimony

         Kristina testified that during the marriage, she worked part time when school was in session and earned about $10 or $11 an hour. In August 2015, Kristina obtained her first full-time job where she earns $13.50 an hour. She worked 40 hours a week with no 401K and no pension. She testified the parties' balance on their Visa credit card account was $17, 737.82 as of October 2015.

         Before the parties purchased their house on South River Rock Drive, they owned a house on South 79th Street in La Vista. Kristina asked to be compensated for paying $6, 880 to replace the air conditioner in the South 79th Street house in 2010. She claimed she paid for the air conditioner using premarital funds kept in a Canadian bank account. Kristina testified the account originally held approximately $30, 000 in Canadian dollars received from a personal injury settlement when she was 16 years old. She claimed she transferred $8, 000 out of the Canadian bank account to pay for the air conditioner. She produced a bank statement from February 2001 showing a Canadian bank account held by Kristina and her father contained $29, 580.95 in Canadian dollars and another statement from 2015 showing these funds had been depleted. On cross-examination, Kristina admitted that Shawn purchased [303 Neb. 499] a new air conditioner for the South River Rock Drive residence after the parties had separated.

         Kristina acknowledged the parties received a check for $20, 857.44 in proceeds from the sale of the home on South River Rock Drive. The parties received an additional check in the amount of $2, 848.93 from escrow for excess real estate taxes, which they agreed to divide equally. When the home was sold, the parties originally agreed to pay their marital debt from the sale proceeds, but Kristina later claimed that she should receive the majority of the sale proceeds, reasoning she was responsible for making house payments, cleaning the home, painting interior walls, and selling the home "without a realtor." In particular, she noted that to prepare the house for closing, she spent $810 to mudjack the front porch.

         Kristina testified that despite the temporary order giving Shawn parenting time every Wednesday and every other weekend, Friday through Monday, she allowed Shawn additional parenting time. At that time, Shawn was working as a detective and as a sniper on the SWAT team and held irregular hours. From approximately January to May 2016, Shawn's parenting time ranged between 5 and 11 overnight visits per month. In lieu of daycare, Shawn picked up the children and took them to school and saw them after school almost every day. Kristina requested the court award joint legal custody and a parenting plan schedule consistent with the temporary order.

         (c) Shawn's Testimony

         Shawn testified that at the time of trial, he had transferred to a road patrol position and that his hourly wage decreased from $36.04 to $34.54. He asked that the parenting schedule under the temporary order be adjusted to fit his new work schedule. He testified he now works 7 days in a 14-day period, consisting of workdays on Monday, Tuesday, Friday, Saturday, and Sunday during 1 week and Wednesday and Thursday the following week. He asked to be awarded parenting time for the 7 out of 14 days that he is not working.

         [303 Neb. 500] Shawn testified that during the marriage, Kristina did not express a desire to be repaid for premarital money spent for family purposes. Shawn stated that he knew Kristina sometimes received money from her father and that he did not know when or how much money was spent from the Canadian account. Shawn pointed out that Kristina purchased the air conditioner for the prior home in 2010. He asked that the court give him credit for making certain postseparation payments, including $7, 792 on the Visa credit card and about $4, 000 to pay off a loan for the new air conditioner in the most recent home.

         An exhibit introduced into evidence showed that Shawn received monthly Veterans Affairs disability payments in the amount of $763.36.

         2. Decree

         The court issued tentative written findings in August 2017 and asked Kristina's counsel to prepare a decree in conformity therewith, after which both parties filed motions for reconsideration. The court then issued supplemental findings which modified the previous findings in several respects. The trial judge retired from the bench shortly thereafter, and the case was reassigned. Kristina's trial counsel withdrew, filed an attorney lien, and was replaced with new counsel.

         The new judge entered a decree of dissolution on January 8, 2018. The decree incorporated the prior judge's tentative and supplemental findings and ordered the following:

• The parties were awarded joint legal custody. Kristina was awarded "primary possession" of the children, subject to Shawn's parenting time.
• The parenting plan awarded Shawn 6 of every 14 days and 4 additional weeks of summer parenting time for a total of 172 days of custody of the children.
• Kristina was not awarded any summer parenting time other than her regular parenting time.
• Shawn was ordered to maintain health insurance for the children; the parties were to equally share the costs of the [303 Neb. 501] children's uninsured health expenses; Shawn was ordered to maintain Kristina's health insurance for 6 months.
• Shawn was ordered to pay $882 in monthly child support.
• Shawn was ordered to pay monthly alimony of $500 for a period of 60 months.
• The court valued the marital assets as of August 1, 2015. The decree sometimes referred to this date as the date of separation, even though the parties separated in July 2014.
• The court awarded Kristina $7, 690.80 of the house proceeds "for monies expended to make the house marketable" and evenly divided the balance of the proceeds.
• The court equally divided Shawn's retirement, valued at $108, 468.41, pursuant to a qualified domestic relations order.
• The court equally divided Shawn's vacation and comp time and ordered Shawn to pay Kristina $5, 754.69 within 90 days. The court did not award ...

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