Hill v. Hill
| Citation | 827 N.W.2d 304,20 Neb.App. 528 |
| Decision Date | 12 February 2013 |
| Docket Number | No. A–11–1029.,A–11–1029. |
| Parties | Courtney R. HILL, appellant and cross-appellee, v. Tysha K. HILL, appellee and cross-appellant. |
| Court | Court of Appeals of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court
[20 Neb.App. 528]1. Modification of Decree: Divorce: Child Custody. If trial evidence establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.
2. Child Custody. Joint physical custody means 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 time.
3. Child Custody. The amount of time children spend with each parent is less important than how the time is allocated when determining whether joint physical custody exists.
4. Divorce: Child Custody.Neb.Rev.Stat. § 42–364(3)(b) (Cum.Supp.2012) 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, after a hearing in open court, that it is in the best interests of the child.
5. Child Custody. A district court abuses its discretion in ordering joint custody when it fails to specifically find that joint physical custody is in the child's best interests as required by Neb.Rev.Stat. § 42–364 (Cum.Supp.2012).
6. Child Custody. When a trial court determines at a general custody hearing that joint physical custody is, or may be, in a child's best interests, but neither party has requested joint custody, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody.
7. Child Custody. 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.
8. Judgments. Implicit findings cannot satisfy procedural rules requiring explicit findings.
9. Child Support: Appeal and Error. An appellate court reviews child support cases de novo on the record and will affirm the trial court's decision in the absence of an abuse of discretion.
10. Child Custody: Rules of the Supreme Court. Trial courts employ worksheet 3, the joint custody worksheet of the Nebraska Child Support Guidelines, in cases of joint physical custody unless a sound reason not to do so is established by the record.
11. Child Custody: Child Support: Rules of the Supreme Court: Time: Presumptions. When a specific provision for joint custody is ordered and each party's parenting time exceeds 142 days per year, a rebuttable presumption exists that support shall be calculated using worksheet 3, the joint custody worksheet of the Nebraska Child Support Guidelines.
[20 Neb.App. 529]12. Child Support: Rules of the Supreme Court. Neb. Ct. R. § 4–212 (rev.2011) is applicable when the threshold amount of parenting time is met, even if no specific provision for joint physical custody is ordered.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Christopher A. Vacanti, of Vacanti Shattuck, Omaha, for appellant.
Anthony W. Liakos, of Govier & Milone, L.L.P., Omaha, for appellee.
Courtney R. Hill appeals and Tysha K. Hill cross-appeals from the decision of the district court for Douglas County that awarded joint legal custody of the parties' children, but awarded Tysha sole physical custody and ordered Courtney to pay child support accordingly. Because we find that the trial court awarded what amounted to joint physical custody without following the statutory procedure, we conclude that the trial court abused its discretion and reverse, and remand with directions.
Courtney and Tysha married in 2003. Two children were born during the marriage: one born in 2006 and another born in 2008.
In 2010, Courtney filed a complaint for dissolution of marriage. Courtney sought “temporary and permanent care, custody and control” of the children and child support. Tysha filed an answer and “counter complaint.” She, too, sought “temporary and permanent care, custody and control” of the children and child support. The parties continued to reside together in the marital home until December 2010.
On December 27, 2010, the trial court entered a temporary order awarding joint legal custody to the parties and awarding sole physical custody to Tysha. The court order stated that Courtney would have parenting time “[e]very Tuesday from 5:00 p.m. until Wednesday at 8:00 a.m.” and “[a]lternating weekends from Friday at 5:00 p.m. until Sunday at 5:00 p.m.” The temporary order directed that Courtney pay $900 per month in child support.
On August 8, 2011, trial was held on the issues of sole physical custody and the parties' partial parenting plan. The trial court heard the parties on the above issues and received evidence pertaining to child support.
In general, both parties presented evidence that throughout the marriage, they shared day-to-day parenting responsibilities of the children, were each actively involved in the children's lives, and were each capable and affectionate parents, and that the children had thrived under each parent's care. At the time of trial, Tysha continued to reside in the family home and Courtney lived in a separate residence with similar accommodations.
Despite each party's request for sole custody, Courtney's attorney elicited testimony from Courtney regarding joint physical custody, without objection from Tysha's counsel. Courtney testified that he wanted “full custody,” or if not that, then he wanted joint custody with a “50/50 even split.” Courtney also offered evidence requesting sole physical custody. Courtney testified he was uncertain whether he and Tysha could communicate effectively to coparent their children. He testified,
In Tysha's testimony, she requested the court award the parties joint legal custody, but she wanted to retain sole physical custody. She testified that she did not think the equal division of time proposed by Courtney would be in the children's best interests, and she believed that the parenting time awarded in the temporary order was in the children's best interests. She stated:
[The older child] in particular, I'm concerned that there's a lot of back and forth, that he will not adjust well to that. He's a very structured child. He likes things in order. He likes to—likes to know exactly where he's going to be, and I'm concerned that by going back and forth frequently between two houses will create some problems with him adjusting.
Tysha further testified that the children are attached to their home and that she had concerns about them being away from home for long periods of time. She foresaw the older child's having “strong adjustment issues” trying to determine “whose day it is” with longer visitation periods. She admitted that the children had not had problems adjusting to the Tuesday overnight visits with Courtney.
Tysha's brother, mother, and father all testified that they had observed the children under the parenting time schedule set in place by the temporary order and that the children seemed to be doing well. Tysha's brother reiterated that the older child needed “a lot of structure.” Her mother testified that the children seemed more calm and content and less anxious since December 2010. Tysha's friend and neighbor testified that the children seemed to have adjusted well since the separation and seemed happy. According to Tysha's mother and Tysha's neighbor, Tysha had been the children's primary caregiver.
Following trial, the judge met with the parties' attorneys in private, but the discussion is not part of the record. Afterward, the judge announced from the bench that it was in the children's best interests that Tysha receive sole physical custody. The trial court approved the parenting plan filed by the parties, which essentially divided holiday, summer, and school break parenting time equally between the parties, and further awarded Courtney “every other weekend from Friday evening until Monday morning and ... every Tuesday night.” Courtney's attorney pointed out, “What we had discussed was my client would have every other weekend but that it would include Mondays and Tuesdays on that weekend and then on that off week he just would have the Tuesdays.” The trial judge agreed.
In the decree of dissolution, the court awarded joint legal custody to the parties, but sole physical custody to Tysha, subject to Courtney's parenting time rights delineated in the decree and the parenting plan, which the trial court incorporated into its decree. The decree awarded Courtney the following parenting time:
[Courtney] shall have the minor children on alternating weekends from Friday after school until Wednesday at 8:00 a.m. or return to school, if in session. In off week, [Courtney] shall have the children on Tuesday after school until Wednesday at 8:00 a.m. or return to school, if in session.
The trial court utilized “Worksheet 1,” the sole physical custody worksheet of the Nebraska Child Support Guidelines, to calculate Courtney's child support obligation and ordered Courtney to pay $881 per month for the two children.
Courtney filed this appeal, and Tysha cross-appealed.
On appeal, Courtney alleges, restated and renumbered,...
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