Cushman v. Cushman, A-12-1162

• Decision Date: 29 July 2013
• Docket Number: No. A-12-1162,A-12-1162
• Parties: BRENT J. CUSHMAN, APPELLANT, v. RACHELLE L. CUSHMAN, APPELLEE.
• Court: Nebraska Court of Appeals

BRENT J. CUSHMAN, APPELLANT,
v.
RACHELLE L. CUSHMAN, APPELLEE.

No. A-12-1162

NEBRASKA COURT OF APPEALS

July 29, 2013

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Seward County: ALAN G. GLESS, Judge. Affirmed as modified.

Terrance A. Poppe and Benjamin D. Kramer, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellant.

Scott D. Grafton, of Svehla, Thomas, Rauert & Grafton, P.C., for appellee.

IRWIN, PIRTLE, and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Brent J. Cushman and Rachelle L. Cushman were married in 2002, and two children were born of the marriage, namely, a daughter born in 2003 and a son born in 2005. A decree dissolving the Cushmans' marriage was entered on November 30, 2012, by the district court for Seward County. Legal and physical custody of the children was awarded to Rachelle, and Brent was ordered to pay child support of $1,043 per month. The trial court also divided the marital estate. The court ordered Brent to pay Rachelle an equalization payment of $12,752, and $6,000 of Rachelle's attorney fees. Brent appeals the trial court's determinations with regard to custody, child support, division of the marital estate, and award of attorney fees. We affirm, as modified.

II. BACKGROUND

This divorce and custody trial took place over 3 days: September 5, 12, and 13, 2012. At that time, Brent was 35 years old and Rachelle was 33. Their daughter was in fourth grade, and

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their son was in second grade. Both children were attending school in Utica where both parties resided. Brent was in his ninth year of employment with a company in Lincoln as a "lead in the warehouse," earning $19.27 per hour (plus $1 per hour for "lead pay"), and working Monday through Friday, from 8:30 a.m. to 5 p.m. Rachelle had been employed as a cook in Waco since September 2011, earning $10 per hour, and working 1 to 7 p.m. on Mondays, Wednesdays, alternating Fridays, and then occasional 3-hour shifts on the weekends. Rachelle was also taking a 10-week class on Tuesday evenings at a community college in Lincoln, with plans to apply for jobs as a phlebotomist after completion of the class. A number of witnesses testified and numerous exhibits were received. We will address that evidence as necessary in our analysis section of each issue raised on appeal, namely: custody, child support, division of the marital estate, and attorney fees.

III. ASSIGNMENTS OF ERROR

Brent assigns that the district court erred in (1) awarding Rachelle custody of the minor children, (2) calculating child support, (3) dividing the marital estate, and (4) ordering Brent to pay $6,000 of Rachelle's attorney fees.

IV. STANDARD OF REVIEW

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 discretion. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).

In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. Id.

V. ANALYSIS
1. CHILD CUSTODY

The trial court awarded Rachelle legal and physical custody of the children. Brent argues that the trial court should have maintained the joint custody arrangement agreed upon by the parties during the pendency of the divorce or, alternatively, that the trial court should have awarded Brent primary physical custody.

Neb. Rev. Stat. §§ 42-364(3) and 43-2923 (Reissue 2008) require the district court to devise a parenting plan and to consider joint legal and physical custody. The statutes do not require the district court to grant equal parenting time to the parents if such is not in the child's best interests. Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009).

In determining the best interests of the child in a custody determination, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (2) the desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (3) the general health, welfare, and social behavior of the minor child; and (4) credible evidence of abuse inflicted on any family or household member.

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Other pertinent factors include the moral fitness of the child's parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and parental capacity to provide physical care and satisfy educational needs of the child. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004). See, also, §§ 42-364(2) and 43-2923.

Section 42-364 of the dissolution of marriage statutes requires that in dissolution cases, if the parties do not agree to joint custody in a parenting plan, the trial court can award joint custody if it specifically finds that it is in the best interests of the child or children. State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565 (2010). 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. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).

Keeping those legal propositions in mind, we now consider the evidence. In April 2011, Brent admitted to Rachelle that he had been unfaithful on multiple occasions and Rachelle admitted to Brent that she had been smoking marijuana for the past 4 years. After an argument in May, Rachelle moved from the family home in Utica (where they had lived since October 2006) and into a rental home in Utica. The children stayed with Brent in the family home. Brent filed a complaint to dissolve the marriage in June. From May to September, the children were primarily with Brent in the family home and Rachelle "would have them when she could," which on average was two to four times every 2 weeks, according to Brent. In August, Brent and Rachelle agreed to divide parenting time equally, with each parent having the children 7 days, with the exchange taking place on Tuesdays. Brent testified that the equal time did not actually commence until the end of September. We also note that a temporary order setting forth the joint custody stipulation and alternating week parenting schedule was not filed until January 12, 2012.

Beginning in the middle of May 2012 (about 1 year after moving from the family residence), Rachelle moved out of her rental home and started living with Kevin and Rose Garver and their two boys in a residence about six blocks from Brent's residence (family home). The Garver home had two bedrooms upstairs and two downstairs. Rachelle lived in the basement and paid no rent, but she contributed to utilities and chores, and helped with the Garver children. Rachelle had to leave her prior rental home because the landlord was redoing the basement and Rachelle was not able to pay rent. By May 2012, she was $2,100 behind on rent and $600 in utility bills (owed to the landlord). Rachelle was still living with the Garvers at the time of trial. Brent remained in the family home.

There was testimony by the parties and witnesses regarding the positive and negative aspects of each parent. Brent acknowledges that it was "clear from the testimony at trial that the children love both Brent and Rachelle and enjoy spending time with both of them." Brief for appellant at 24. Brent believes Rachelle "can be" a good mother, has told her she is "a great mother," and "absolutely" believes she loves the children. When asked what concerns he would have if custody was awarded to Rachelle, Brent responded, "I think the biggest thing is just attention - the attention they get," and Rachelle is not "dependable when it comes to the activities, their games, practices. A lot of times there is [sic] different things that come up, some

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legit, some I don't think are legit, whatever the reasons where she has to change activities, change times with them."

Brent also "can't stand" Rachelle's use of marijuana, and he had asked her to not use it, not have it in the home, and not have drug paraphernalia in the home. Brent did not believe the children were aware of Rachelle's marijuana usage. Rachelle admitted to using marijuana, commencing in 2007 initially for headaches, but at the time of trial was also using it for anxiety and other pain in her body (she had a workers' compensation injury in 2005 that resulted in permanent disability to her left hand, right hand, and arms and that causes her hands to ache and affects her ability to work long...