Consbruck v. Consbruck
| Decision Date | 29 March 2016 |
| Docket Number | No. A-15-507.,A-15-507. |
| Parties | KAYLA MARIE CONSBRUCK, APPELLEE, v. TODD EDWARD CONSBRUCK, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Cuming County: JAMES G. KUBE, Judge. Affirmed in part, and in part reversed and remanded with directions.
Donald A. Roberts and Britt H. Dudzinski, of Lustgarten & Roberts, P.C., L.L.O., for appellant.
Shane J. Placek, of Sidner Law, for appellee.
Todd Edward Consbruck appeals from orders entered by the district court for Cuming County dissolving his marriage to Kayla Marie Consbruck and overruling his motion for new trial or, in the alternative, motion to alter or amend. On appeal, Todd asserts that the district court erred in determining parenting time, child support, alimony, property division, and property equalization. For the reasons set forth below, we affirm in part and in part reverse and remand with directions.
Todd and Kayla were married in 1993 in Wisner, Cuming County, Nebraska. They are the parents of two minor children who were born in 2005 and 2008 respectively. Kayla filed a complaint for dissolution of marriage in the district court for Cuming County on December 2, 2013.
The court entered a temporary order on January 22, 2014 upon the oral stipulation of the parties. The court awarded temporary joint legal custody of the children to the parties and temporary physical custody to Kayla subject to Todd's parenting time, which consisted of every other week from Wednesday after school until Monday morning when Todd delivered the children to school. Additionally, during the weeks when Todd did not have his alternating weekend parenting time, he was granted parenting time on Wednesday evenings from after school until 8:00 p.m.
The court ordered Todd to pay child support in an amount of $1,000 per month. This amount was reached after considering the parties' respective child support worksheets and as a "negotiated average" between the two amounts proposed by the parties. Kayla's worksheet listed her total monthly income at $3,529.48 and Todd's total monthly income at $7,984. Todd's worksheet listed his total monthly income at $7,056 and Kayla's total monthly income at $4,077.
On November 3, 2014, a trial was held on the matters of legal and physical custody, parenting time, child support, alimony, and the division of the marital estate.
Both of the parties testified at trial. Witnesses testifying for Kayla included David Oelkers and Greta Roth. Oelkers, a certified public accountant, testified regarding Kayla's income and her involvement/ownership in several family entities. Roth, Kayla's mother, also testified regarding these matters. Kayla also presented the testimony of Julia Eckmann, a friend of Kayla's; Ann Kirchmann, the daycare provider for the minor children; and Joani Meier, a parent whose child has shared activities with one of Kayla and Todd's minor children.
Witnesses testifying for Todd included three of his co-workers, Rhett Eckmann, M.D., Sister Joy Rose, and Ronald O. Briggs. Todd also presented the testimony of Carol Kampschnieder, a longtime acquaintance of Kayla and Todd, and Thomas Logue, a friend of Todd's and a semi-professional fisherman with whom Todd has worked.
Various exhibits were received into evidence. These exhibits included a joint property and debt statement, Kayla's pay stubs, an insurance policy covering Kayla, documentation pertaining to Kayla's Edward Jones IRA accounts, checks to Kayla from the T.A.K.T. Cattle Company, Inc., Todd's travel schedule including his work as a semi-professional fisherman, a recent pay stub from Todd's employer, the parties' monthly living expenses, the parties' proposed parenting plans and child support calculations, a draft mediated parenting plan, copies of numerous texts and emails, tax returns, and other various financial and real estate documentation.
Todd testified that during the marriage he was the primary source of income, while Kayla also worked but for lesser pay, and that he always thought of their family as "a wonderful, traditional, intact family." He stated that while Kayla definitely did more for the children whenthey were infants, he has been very involved in the care of the children since. To various degrees prior and subsequent to the separation, Todd has helped the children with showers and their morning and evening routines, dropped them off at school and daycare, watched over the children at home while Kayla attended parent-teacher conferences, cooked and cleaned, purchased clothing and toys for the children, conducted outdoor activities with the children, disciplined the children, and otherwise has cared for the children and been involved in their lives. Todd indicated that the parties have different interests, with Kayla being more focused on athletics while Todd is interested in reading, learning, and the outdoors. Todd thought that this was a "wonderful mix" of traits for parents to have. Other witnesses generally confirmed that Todd has been an involved parent.
Todd asked the court to maintain joint legal custody and also to grant joint physical custody. Todd believes that a co-parenting arrangement would be best for the children moving forward. He asserts that both parents need to be able to communicate regarding major life events and disciplinary issues, and that the health and success of the children depends on both parties being able to do so. The parties generally do not disagree regarding issues of school choice, religion, and which doctors to visit. Both parties testified that the children have done well academically, and this did not change following the separation.
In line with his co-parenting stance, Todd proposed an alternating weekly parenting time schedule with each party having a middle of the week evening with the children during the other party's parenting time. The parties had already come to an agreement regarding holiday parenting time. The parties also agreed on a provision granting Kayla time with the children each year to attend the Cuming County Fair.
Kayla, on the other hand, requested that she be awarded both sole legal and physical custody, with a standard visitation schedule for Todd, which proposal reduced Todd's parenting time from that provided in the temporary order.
Kayla testified to being the primary caretaker of the children following their birth, taking care of their hygiene, feeding them, caring for them when sick, organizing their activities, etc., and having continued these duties since the separation. Further, Kayla asserted that she handled the family's finances, household chores, grocery shopping, and much of the outdoor maintenance of the family's acreage.
Kayla testified that after the children were born, Todd traveled often for work and as a semi-professional fisherman. These trips created marital conflict due in part to Todd not attending the children's activities. When Kayla expressed her dislike of Todd's absence from the children's lives, she claims that he would react negatively. Due to Todd's argumentative tone, over time Kayla quit complaining about his travels.
Since the separation, Kayla claims to have sent a detailed schedule of the children's activities to Todd every month so he knows when and where the children need to be during his parenting time, and that even prior to separation, Todd was always aware of what activities the children participated in. One purpose of these schedules is to decrease potential anxiety for the children. Kayla was unaware of any instances where the children missed a scheduled event during Todd's parenting time, with the exception of a swim meet. Kayla testified that Todd has never enrolled the children in activities or been involved in organizing their schedules. Kayla has offered to continue organizing the children's schedules and creating these calendars.
Kayla also specified that she communicates with Todd and provides him with an opportunity to give feedback prior to enrolling the children in activities and regarding the children's therapist appointments. Kayla testified that both parties have shared the responsibility of dropping off and picking up the children at school pursuant to the temporary order without difficulty and without the need for communication between the parties.
Kayla asserted that neither the parenting time schedule in the temporary order nor an equal co-parenting arrangement are in the best interests of the children. She claims that the current schedule is causing instability; specifically that she sees unrest, unruliness, and anxiety in the children when they return to her home on Mondays. Kayla feels that the children need a more regular routine. Kayla testified that the co-parenting schedule proposed by Todd would create additional scheduling difficulties and would be hard to orchestrate due to poor communication between the parties. Kayla feels that the parties' attempt to co-parent during the 10 months leading to trial was a failure because their "communication is terrible." It appears that the parties communicated mostly by e-mail and text messaging. Kayla proposed a schedule wherein Todd received parenting time every other weekend and 6 weeks during the summer with Kayla having physical custody for the remainder, together with the agreed upon holiday visitation time and annual visit to the Cuming County Fair.
Kayla has a college education. When Kayla was 23 years old, she relocated from Lincoln, Nebraska to West Point upon her engagement to Todd and his decision to take a job in that city. Todd had been offered several...
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