Donald v. Donald
| Decision Date | 17 March 2017 |
| Docket Number | No. S-16-547.,S-16-547. |
| Citation | 296 Neb. 123,892 N.W.2d 100 |
| Parties | Lacy J. DONALD, appellee, v. Alex S. DONALD, appellant. |
| Court | Nebraska Supreme Court |
Sean M. Reagan and A. Bree Robbins, of Reagan, Melton & Delaney, L.L.P., La Vista, for appellant.
Tara L. Gardner and Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Alex S. Donald appeals from a decree dissolving his marriage to Lacy J. Donald. He presents two issues regarding child custody and support, urging that his additional daytime parenting time during Lacy's working hours required a joint physical custody classification and use of the joint custody child support worksheet. As we will explain, the relevant statutes and guidelines dictate otherwise. He presents a third issue regarding classification of his lump-sum disability payment from military service as marital property. Because federal law prevents a state court from doing so, we modify the decree to exclude the payment's proceeds. As so modified, we affirm the decree.
Approximately 2 years 1 month after Alex and Lacy were married, Lacy filed a complaint for dissolution. There were two minor children born to the parties. At the time of trial, both children were under 4 years of age.
After a 2-day trial, the court awarded legal and physical custody of the children to Lacy, subject to Alex's parenting time, ordered Alex to pay child support, and divided the marital estate. During the marriage, Alex received a lump-sum disability benefit payment from the Department of Veterans Affairs (VA). In dividing the property, the court classified this payment as part of the marital estate and ordered that its proceeds be divided equally.
Because Alex's appeal contests only the award of custody, the child support order, and the classification of the lump-sum disability benefit payment as marital property, we summarize only the facts that are relevant to those issues.
Both parties testified that prior to their separation, Lacy worked outside of the home while Alex cared for the children during the workday. Alex was injured serving in the military and throughout the marriage was unable to work. By the time of trial, the parties had not reached an agreement regarding the custody arrangement and instead both offered different parenting plans.
Lacy proposed that she receive joint legal custody and primary physical custody of the minor children. Alex proposed joint legal and physical custody.
The district court did not adopt either party's proposed parenting plan; instead, it incorporated one of its own creation into the decree. The court's plan provided that Alex would have parenting time on alternating weekends—beginning Friday at 5:15 p.m. and ending Sunday at 8:15 a.m.—and 5 weeks of summer parenting time. After the children began attending school, the alternating weekend parenting time would be adjusted to begin on Thursday at the conclusion of school and end on Monday morning at the commencement of school.
The court also found that "[t]here [was] no reason why the daytime parenting time arrangement that occurred before the separation should not continue." Thus, before the children began school, and later during summertime school vacations, Alex would have parenting time every weekday from 7:45 a.m. until 5:15 p.m. Throughout each school year after the children began to attend, Alex's weekday parenting time would begin at the conclusion of school instead of 7:45 a.m.
The parenting plan allocated Alex's parenting time. Alex will have approximately 80 parenting-time overnights a year before the children begin attending school. After that, Alex will have approximately 120 parenting-time overnights a year.
Child support was largely calculated based upon the amount of parenting time allocated between the parties. Because the children would both be in school within 3 years of entry of the decree, the court found that Alex's parenting time would soon "reduce significantly" with the loss of the weekday parenting hours. Therefore, the district court elected to calculate child support based on the parenting-time allocation after the children were in school. The court recognized Alex's additional daytime parenting time prior to the time the children were in school by implementing a downward deviation from the guidelines.
The court calculated child support using a sole custody worksheet and determined Alex's share of child support to be $855 per month. But the court also attached a child support deviation worksheet showing a downward deviation of $200 per month for the time period beginning May 1, 2016, through August 31, 2019. The court did not specifically explain how it calculated the downward deviation but did note that the eldest child would be starting school within 1 year.
The parties disputed whether a lump-sum disability benefit payment was marital property subject to division. The lump-sum payment was for past-due disability benefits after Alex retroactively received an increase in monthly compensation.
Alex received a service-connected injury while deployed and serving in the U.S. Marine Corps in 2008. The VA initially assessed his injury and associated major depressive disorder
at 70 percent disability. This assessment entitled him to receive monthly disability benefit payments at a scheduled rate set by the VA.
In November 2015, after the parties had separated, the VA reevaluated Alex's disability. The VA determined that Alex was entitled to "individual unemployability" status because he was "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." This meant that although his disability was assessed as a 70-percent disability, the VA would compensate him at the 100-percent disability rate due to his individual unemployability.
The VA made the determination of individual unemployability retroactive to April 2013 and issued a lump-sum payment, totaling $41,906.47, for the disability benefits he should have received at this increased rate. After receiving the lump-sum payment, Alex deposited $30,000 of the payment into a health savings account and the remainder into a checking account.
No evidence or testimony was offered to establish whether Alex was also entitled to retirement benefits or whether the disability benefit payments included or otherwise waived retirement benefits. Nonetheless, the court concluded that the entire lump-sum payment was marital property. After including the lump sum in the marital estate, the court ordered Alex to pay an equalization payment to Lacy, totaling $37,000.
Alex assigns that the district court erred in (1) not awarding the parties joint physical and legal custody of the parties' minor children, "taking into consideration the significant amount of parenting time awarded"; (2) not deviating further in the child support calculation; and (3) including Alex's lump-sum disability benefit payment from the VA in the marital estate and dividing the payment equally between the parties.
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.1
When evidence is in conflict, an 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.2
Alex assigns that the district court erred by not awarding the parties joint physical and legal custody of their minor children, "taking into consideration the significant amount of parenting time awarded to [him]." Although he submits that his parenting plan should have been adopted, he focuses most of his argument on the proper characterization of the custody awarded.
Before turning to his primary arguments, we recall that a statute requires a court, in determining custody and parenting arrangements, to consider certain factors relevant to the best interests of the minor child.3 And we have summarized additional factors that a court may consider in making a child custody determination.4 We see nothing in the district court's decree to suggest that the court disregarded any appropriate factor.
To the extent that Alex argues for an alternating-week joint physical custody arrangement, we find no abuse of discretion by the district court. 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.5 In this regard, the district court's implicit assessment of witness credibility is particularly important. We now address Alex's primary arguments.
Alex's assignment of error and argument as it relates to joint physical custody is primarily one of definition. He contends that the significant amount of parenting time awarded warranted a characterization of joint physical custody.
Nebraska's Parenting Act6 defines joint physical custody as "mutual authority and responsibility of the parents regarding the child's place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of...
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