Gibilisco v. Gibilisco
| Decision Date | 18 January 2002 |
| Docket Number | No. S-01-224.,S-01-224. |
| Citation | 637 N.W.2d 898,263 Neb. 27 |
| Parties | Tamara M. GIBILISCO, Appellee and Cross-Appellant, v. David A. GIBILISCO, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Tim J. Kielty, Omaha, for appellant.
Mark J. Milone, Omaha, of Govier, Milone & Streff, L.L.P., for appellee.
The trial of this marital dissolution action took place in two separate proceedings. At the first hearing, the parties agreed that the issues to be decided would be limited to the distribution of marital assets and debts because they were still working on parenting and custody issues through mediation. After that hearing, the district court sent a letter to counsel for both parties with its findings of fact and conclusions of law. The court divided the marital assets and debts, and to the surprise of appellant, David A. Gibilisco, the court, without taking evidence on the custody issue, awarded sole custody of the parties' child to appellee, Tamara M. Gibilisco. David then filed a motion to recuse the judge. The judge refused.
At the second hearing, the custody issues were addressed, after which the court again granted Tamara sole physical custody of the parties' child with reasonable visitation for David to be determined by the parties through mediation. We affirm that part of the district court's judgment which divided the marital assets and liabilities. Because the court's premature custody determinations would lead a reasonable person to question the judge's impartiality, we reverse that portion of the decree deciding issues of custody and support and remand the cause with directions to recuse.
David assigns that the district court erred in (1) failing to recuse herself, (2) finding that it was in the child's best interests that sole physical custody should be placed with Tamara and not David, and (3) failing to make an equitable distribution of property and debt.
Tamara and David were married on July 22, 1989, and a child was born on August 3, 1993. Both parties worked full time during the marriage. Tamara filed for dissolution in January 1999, alleging that it was in the child's best interests for her to have sole physical custody with reasonable and liberal visitation for David. After a hearing on the parties' motions for temporary orders, however, the court noted that the parties had reached an agreement and entered an order for joint physical custody. Tamara was given exclusive use of the home and was responsible for the mortgage and home equity loan payment, utilities, and maintenance. David was required to make the joint Visa card payments and the payments on his truck, and to maintain the family's health insurance through his employer. The record does not indicate the amount he paid on the Visa account during the separation.
In October 1999, the Douglas County conciliation court filed its disposition report with the district court, which contained the parenting plan that Tamara and David had agreed to through mediation. The plan called for the parties to continue the joint physical custody arrangement but included more details for holidays, special occasions, and vacations. The parties also agreed to enter remediation before seeking a solution in court in the event of future disagreements regarding the parenting plan.
The parties agreed that the only issue to be decided at the first hearing in April 2000 was the distribution of marital assets and debts because they had been referred back to mediation to resolve parenting issues. There was no evidence adduced on the custody or support issues, and neither party requested the court to incorporate the parenting plan into the decree. See Neb.Rev.Stat. § 43-2917 (Reissue 1998).
The evidence showed that the parties earned nearly equal salaries and had retirement accounts that were approximately equal in value. After Tamara filed for divorce in January 1999, David remained in the house until March 25, and Tamara paid for all of the household expenses thereafter. David lived with his mother from March 1999 until January 2000 and did not pay rent during this time.
The parties had taken out a home equity loan about a year before the divorce, and the balance was paid with the proceeds from the sale of the home. The home equity loan, approximately $15,000, was used to make purchases and pay debts, including the indebtedness on the loan obligation for Tamara's vehicle. Neither party, however, knew how much of the home equity loan had been applied on the balance of Tamara's car loan obligation, and there is no evidence in the record on this issue. Tamara also borrowed $6,500 against her 401K plan in order to pay for household expenses during the parties' separation. The parties agreed that the value of Tamara's vehicle at the time of the hearing was $14,600 and that the value of David's vehicle was $10,050, with an indebtedness of approximately $5,200.
Both parties offered, and the court received, suggestions related to the disposition of the financial issues. In addition, Tamara's suggestions included recommendations for sole custody for Tamara, a visitation schedule, and child support issues. Tamara's counsel, however, stated that the custody and support issues would need to be decided at a later time. Tamara also offered evidence of the parties' incomes, her expenses, and child support calculations based on her having sole physical custody. But her counsel again specified that the exhibits were offered with the understanding that the custody issues had not yet been resolved. On that basis, David's counsel did not object to the exhibits, and although Tamara's child support calculations were received, the court stated that they would not be considered.
After this hearing, the court sent a letter to each party's counsel setting out the court's findings of fact and conclusions of law. The letter included findings and conclusions related to the unsubmitted issues of custody, visitation, and support, and resolved these issues exactly as Tamara had requested in her suggestions to the court. The court found that Tamara should be granted sole physical custody subject to reasonable and liberal visitation by David, ordered David to pay $400 per month in child support, and set out the same visitation schedule that Tamara had submitted. The court also decided all of the financial issues in accordance with Tamara's suggestions. The court determined that the proceeds from the sale of the house would be used to pay the outstanding debt on the joint Visa card and that the balance of the proceeds would be divided equally. Tamara was also given the escrow refund of $1,100, and David was required to pay Tamara $369, half of the repair costs to prepare the residence for sale. Each party was awarded his or her vehicle, and David was required to pay the remaining loan obligation on his vehicle.
After this letter was sent, David filed a motion requesting that the judge recuse herself from further participation in the matter. He argued that the court's custody determinations deprived him of his right to present evidence on the issue and that the disclosure of the court's predisposition regarding custody interfered with his right to a fair trial. He also argued that the matter could not be resolved in a way that would give him a reasonable expectation of impartiality. At a hearing on the motion in October 2000, the judge explained that the inclusion of the custody award in her conclusions of law was inadvertent and would not keep her from having an open mind regarding the custody issues. The court denied the motion.
The second hearing was held in January 2001 to decide the issues of custody, child support, and visitation. David renewed his motion for recusal, which was again overruled. At this hearing, Tamara claimed that joint physical custody was not working because the arrangement was disruptive to the child and the parties were not communicating well. David conceded that the parties were not communicating well, but he claimed that their communication problems could be worked out and that there was not a substantial or material change in circumstance that would warrant a change in custody.
After this hearing, the court granted joint legal custody to the parties, ordered that Tamara would be the primary residential parent subject to reasonable visitation by David, and required the parties to return to mediation to determine the visitation schedule. The distribution of assets and debts was the same as the court's conclusions at the end of the first hearing.
In actions for dissolution of marriage, 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. Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and 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 a judicial system. Wagner v. Wagner, 262 Neb. 924, 636 N.W.2d 879 (2001).
David contends that the judge should have sustained his motion as she had demonstrated a bias against him and in favor of Tamara. Tamara counters that the court's denial of the motion was proper because the inclusion of custody issues in its letter after the first hearing was inadvertent and the judge assured the parties that she could keep an open mind. Alternatively, Tamara argues that the denial of David's motion for recusal is immaterial because the standard of review is de novo on the record.
It is correct that we have stated that a ruling of the trial court on a motion to disqualify the trial judge is immaterial on...
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