Kelly v. Kelly
| Decision Date | 24 November 2020 |
| Docket Number | No. A-20-084.,A-20-084. |
| Citation | 952 N.W.2d 207,29 Neb.App. 198 |
| Parties | Kirsten W. KELLY, appellee, v. Gary B. KELLY, appellant. |
| Court | Nebraska Court of Appeals |
Mark A. Steele, of Steele Law Office, for appellant.
John H. Sohl, Wahoo, for appellee.
Gary B. Kelly appeals from the decree entered by the Saunders County District Court dissolving his marriage to Kirsten W. Kelly, awarding legal and physical custody of the parties’ three children to Kirsten, and ordering Gary to pay child support and alimony. Gary challenges decisions made related to the parenting plan, private school tuition, extracurricular and other expenses, tax exemptions, equalization of the marital estate, alimony, and attorney fees. We affirm in part as modified, and in part vacate.
Gary and Kirsten married in September 2007, and three children were born during the marriage: the first in 2008, the second in 2009, and the third in 2010. Kirsten separated from Gary in November 2018 and moved with the minor children out of the marital home. Kirsten then sought and obtained a protection order against Gary based on allegations of domestic abuse by Gary against her and the children for which he received a criminal citation and was sentenced to probation.
Kirsten filed for divorce shortly after the separation in November 2018. On January 14, 2019, the district court granted Kirsten's motion for temporary legal and physical custody. The court restricted Gary from contacting the children until the children met with a mental health professional and that professional gave a report and recommendation to the court. The temporary order required Gary to pay $2,109 per month in child support. The temporary order also required Gary to pay $3,606 per month in spousal support, to be reduced to $1,708 per month beginning in February. Gary was also responsible for two-thirds of daycare and health care expenses incurred for the children. The court entered a second temporary order on February 5 concerning Gary and Kirsten's agreement to the sale of the marital residence. On September 30, the court modified the first temporary order to allow Gary to have supervised therapeutic sessions with the oldest child.
Trial took place on October 24 and 25, 2019. In the analysis section below, we will discuss the trial evidence relevant to the errors assigned. A decree dissolving the marriage was entered by the district court on November 12. Pursuant to the decree and an order nunc pro tunc entered shortly thereafter on November 18, and another nunc pro tunc order entered on February 3, 2020, the district court awarded Kirsten legal and physical custody of the minor children, noting "there [was] credible evidence that [Gary] has perpetuated child abuse and domestic intimate partner abuse." The court concluded that Kirsten should have sole legal and physical custody, which was "in the best interest of the minor children."
The decree established certain provisions in the parenting plan for Gary, which consists of the following four phases:
Phase 4 of the parenting plan also included a holiday parenting time schedule.
Relevant to this appeal, the decree also required Gary to pay $1,980 per month in child support for three children. The district court divided expenses such that Gary would be responsible for 70 percent of childcare and extracurricular expenses incurred on behalf of the children and 50 percent of the cost of tuition for the children to continue attending private school. Gary was also ordered to pay other miscellaneous expenses related to the children. The decree gave Kirsten the sole right to claim the children for state and federal income tax purposes. As part of the division of marital property, the court ordered Gary to pay Kirsten an equalization payment of $15,841. The decree additionally required Gary to pay Kirsten $500 per month in alimony for 5 years and awarded Kirsten $8,000 in attorney fees.
Following the entry of the decree, Gary filed a motion for new trial and/or reconsideration. The district court denied his motion on January 9, 2020. Gary then timely filed this appeal.
Gary claims the district court erred by (1) formulating an unreasonably restrictive phased parenting plan, (2) requiring Gary to pay 50 percent of private school tuition for the children, (3) requiring Gary to pay 70 percent of the costs for the children's extracurricular activities, (4) allocating solely to Kirsten the right to claim the children for state and federal income tax purposes, (5) ordering Gary to pay Kirsten a property equalization payment of $15,841, (6) ordering Gary to pay Kirsten alimony of $500 per month for 5 years, and (7) ordering Gary to pay Kirsten $8,000 for attorney fees.
In a marital dissolution action, 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. Doerr v. Doerr , 306 Neb. 350, 945 N.W.2d 137 (2020). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Id. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
The district court ordered the implementation of the phased parenting plan described above. Based on the evidence presented at trial, the district court found the phased parenting plan to be in the best interests of the minor children. In its decree, the court stated that it found "by a preponderance of evidence that there is credible evidence that [Gary] perpetuated child abuse and domestic intimate partner abuse" and "limitation on parenting time between [Gary] and the minor children must be implemented to provide for their safety and well-being." Notably, Neb. Rev. Stat. § 43-2932(1) (Reissue 2016) provides that when there is evidence of child abuse or domestic intimate partner abuse, limitations on parenting time may be imposed that are "reasonably calculated to protect the child or child's parent from harm." There is considerable evidence in the record related to the inappropriate, harmful behaviors in which Gary engaged with either the children and/or Kirsten. It is unnecessary to detail those instances here given the limited nature of Gary's assigned error.
Gary does not argue that the phased approach to parenting time is by itself problematic. Rather, he contends that the "phases required the approval and recommendation for each phase by the children's therapist and last for a period of six months between phases" and that this "restrictive parenting time ... was arbitrary and unsupported by the evidence, and unjustifiably interferes with his parenting relationship with the minor children." Brief for appellant at 13. He asserts that he has "taken the necessary steps to modify his behaviors and testified to his ability to interact successfully with the minor children." Id. at 15. He further contends that "the duration of any phases should not be for definitive times; but instead monitored and moved forward under direct therapist supervision and recommendations." Id.
We understand Gary's arguments as challenging the specific 6-month duration of the parenting phases and not allowing for greater flexibility; he suggests a faster progression through each phase should be permitted if recommended by the therapist, based upon the parenting plan being "closely monitored and supervised for cooperation and progress." Id. We do not read the parenting plan to be quite as restrictive as Gary suggests, at least as to Phase 2 through Phase 4.
We begin our analysis with the understanding that while it is not...
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