Baratta v. Baratta, S-92-294
| Decision Date | 04 February 1994 |
| Docket Number | No. S-92-294,S-92-294 |
| Citation | 245 Neb. 103,511 N.W.2d 104 |
| Parties | John Patrick BARATTA, Appellant, v. Joeline Marie BARATTA, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Alimony: Child Support: Appeal and Error. The ultimate test in determining the appropriateness of awards of alimony and child support is reasonableness as determined by the facts of each case, and the trial court's determination normally will be affirmed in the absence of an abuse of discretion.
2. Divorce: Appeal and Error. An appellate court is required to conduct a de novo review of dissolution cases and when the evidence is in conflict, may consider, 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. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or to refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system.
Michael F. Pistillo, of Steier, Rogers & Pistillo, P.C., Omaha, for appellant.
Thomas R. Hickey, Omaha, for appellee.
Petitioner, John Patrick Baratta, appeals from the decree of dissolution of his marriage to respondent, Joeline Marie Baratta, assigning generally as error the awards against him for child support, alimony, and child-care expenses and the mandatory nature of the order relating to child visitations.
The parties were married on July 4, 1987, and have two children as a result of that marriage, Kylie Debra, born July 19, 1988, and Jaimee Katherine Louise, born October 6, 1990. Petitioner has four other children, born of a prior marriage and ranging in age from 17 to 11, for whom he is currently under court order to pay child support of $500 per month, of which $125 is to apply on an arrearage of "$30,000, something like that."
The trial court's decree granted the dissolution and awarded custody of the two children to respondent. The court ordered petitioner to pay the sum of $400 per month for the support of the two children, to be reduced to $235 if only one child is a subject of that award; 68 percent of the children's unreimbursed medical expense; $200 per month in alimony for 36 months; and $800 in attorney fees for respondent, payable $100 per month for 8 months. In addition, the court set forth a detailed and liberal visitation schedule for petitioner which was "not optional with the Petitioner."
It is difficult to determine just what the trial court found with reference to petitioner's income, but by combining the findings made and the evidence submitted by way of affidavit in the preliminary-order stage of these proceedings, along with the record from the hearing on final dissolution, the district court's award, as far as child support is concerned, can be divined. At this point, we take the opportunity to suggest that when using the Nebraska Child Support Guidelines, it would be extremely helpful to the reviewing court if the trial judge somehow would incorporate into the record his or her worksheet which was employed in arriving at a child support amount.
Petitioner is a 42-year-old man who has fathered six children and is in excess of $30,000 behind on payments previously ordered in his first dissolution. He now would have this court believe that his income will justify no award for alimony and no more than $235 per month for two children.
At the time of the hearing on temporary allowances, petitioner's affidavit dated September 3, 1991, recited that he had a total monthly income of $1,516.66 less $231.83 for income taxes, $117 for Federal Insurance Contributions Act (FICA) deductions, and $500 for child support from a previous marriage, leaving him a $667.83 net income. That amount, when combined with what he claimed the respondent earned, $570 per month, made a combined income for child support guidelines purposes of $1,237.83, of which his income contributed 54 percent.
During the trial on the merits, petitioner testified that he was the manager of the Stockade Restaurant, located at 13325 Millard Avenue in Omaha. He stated that he was paid wages of $350 per week, plus Blue Cross/Blue Shield insurance. Petitioner claimed that as of January 1992, at least, his employers, who for all practical purposes are his father and mother, began to charge him $400-per-month rental for the apartment which he and respondent formerly had rent free.
On cross-examination, petitioner admitted that he continued to play golf as often as he could, sometimes as many as five times per week. After having stated that respondent took almost everything out of their apartment, he admitted that she had left the washer and dryer, the microwave oven, the refrigerator, the stove, the bedroom set, the kitchen table and chairs, a couch and chair, and a television set, all of which he claimed belonged to his mother and father, and that they had only let them use those articles. Petitioner also claims that he used to have the free use of a motor vehicle owned by his parents, but that he now has to buy his own car. This arrangement was changed by his father some 2 or 3 months after the order on temporary allowances without any explanation by his father. Although at the time of the temporary-allowance hearing petitioner was receiving free food from his parents for himself and his family, he now claims to eat only 50 dollars' worth of food per month--"I don't eat every day." Petitioner contends that he was not paid in cash for any of his work in 1987 through 1990, but that "my father would give us, once in awhile, some money to go to the show or some money to do...
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