Klimek v. Klimek
Decision Date | 27 October 2009 |
Docket Number | No. A-09-023.,A-09-023. |
Citation | 18 Neb. App. 82,775 N.W.2d 444 |
Parties | Stacey L. KLIMEK, appellee and cross-appellant, v. Daniel D. KLIMEK, appellant and cross-appellee. |
Court | Nebraska Court of Appeals |
Anne M. Breitkreutz, Omaha, and Michael R. Peterson, of Hotz, Weaver, Flood, Breitkreutz & Grant, for appellant.
Jeffrey A. Wagner, Omaha, of Schirber & Wagner, L.L.P., Omaha, for appellee.
Stacey L. Klimek filed for dissolution of her 15-year marriage to Daniel D. Klimek in the district court for Sarpy County. The district court awarded Stacey sole custody of the parties' two children, divided the marital estate, and dissolved the parties' marriage. Daniel appealed the decree of dissolution to this court. For the reasons set forth herein, we modify the decree and remand the cause for further proceedings.
Stacey and Daniel were married on July 10, 1993, and resided in Lincoln and York, Nebraska, until 1999, when they moved to Gretna, Nebraska. The parties lived in Gretna from 1999 until the time of separation. Stacey and Daniel have one son, born in April 2001, and in September 2007, they adopted a daughter, born in September 2006. Stacey has been employed in various positions with the Department of Health and Human Services during the course of the marriage. At the time of separation, Stacey was training protection and safety workers. Daniel is employed as a sergeant for the Nebraska State Patrol.
In February 2008, Daniel moved out of the marital residence. Stacey filed a complaint for dissolution on February 13 in the district court for Sarpy County. In such, Stacey alleged that the marriage was irretrievably broken and sought a decree of dissolution of marriage; an equitable distribution of property; custody and control of the minor children, subject to visitation by Daniel; and child support, alimony, attorney fees, and court costs. Daniel answered, and temporary orders were issued, but such are not pertinent to this appeal.
Trial was held on August 18, 2008. The court issued its tentative findings to the parties on September 16. On December 2, Daniel filed a motion to reconsider and notice of hearing, seeking custody of the minor children because of events that took place during November that caused Daniel to be concerned about Stacey's ability to protect the children. A hearing was held on December 5, at which the court determined that the motion to reconsider was not properly brought before the court because the court had not yet issued its decree.
The court issued its decree of dissolution on December 9, 2008. The court awarded Stacey sole legal and physical custody of the minor children, subject to Daniel's regular and holiday visitation as set out in the parenting plan. The parenting plan was adopted and incorporated into the decree. The court ordered Daniel to pay $1,076 per month in child support, to pay 60 percent of the childcare and preschool expenses, to provide health insurance for the children, and to pay the first $480 of medical expenses.
The court also ordered a distribution of property. The parties were awarded any personal property or bank accounts in their own names. Stacey was awarded the 2004 Dodge Caravan, and Daniel was awarded the 1997 Dodge 1500 truck. The court ordered that the marital home in Gretna be sold and all proceeds split equally and that pending the sale, each party was responsible for one-half of the mortgage payment. Stacey was ordered to pay the following debts: the Chase account, the BP account, and the First Investors Financial Services account. These accounts totaled $24,184.99 at the time of separation. Daniel was ordered to pay the following debts: the Capital One account, the Bank of America account, and the Ambassador account. These accounts had a total balance of $33,646.77 at the time of separation. In paragraph 20 of the decree, the court awarded Stacey, as a property settlement and not as alimony, a portion of Daniel's State Patrol retirement plan, which we will discuss further in our analysis, but the court apparently treated Stacey's retirement plan as nonmarital property. On January 6, 2009, Daniel filed notice of his intent to appeal to this court.
Daniel assigns as error the following: (1) The trial court abused its discretion in awarding Stacey sole legal and physical custody, and (2) the trial court erred in its division of the marital estate by awarding Stacey one-half of Daniel's retirement fund but failing to divide Stacey's retirement fund in the same manner. On her cross-appeal, Stacey assigns as error that the district court failed to award alimony.
An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). 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 requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. Dormann v. Dormann, 8 Neb.App. 1049, 606 N.W.2d 837 (2000).
Custody of Minor Children.
Daniel argues that the trial court abused its discretion in awarding Stacey sole legal and physical custody of the minor children. Daniel sought sole custody in his cross-complaint, but testified at trial and argues in his brief to this court that the best interests of the children require joint legal and physical custody, as was provided in the trial court's March 31, 2008, temporary order.
When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child's parents, custody is determined by parental fitness and the child's best interests. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007). In the parenting plan adopted and incorporated into the decree of dissolution by the court, the parties acknowledge that both parents are fit. Such was testified to by both Stacey and Daniel at trial as well, and neither challenges the fitness of the other upon appeal. When both parents are found to be fit, the inquiry for the court is the best interests of the children. Id.
The best interests of the child require:
(1) A parenting arrangement and parenting plan or other court-ordered arrangement which provides for a child's safety, emotional growth, health, stability, and physical care and regular and continuous school attendance and progress for school-age children;
. . . .
(3) That the child's families and those serving in parenting roles remain appropriately active and involved in parenting with safe, appropriate, continuing quality contact between children and their families when they have shown the ability to act in the best interests of the child and have shared in the responsibilities of raising the child.
Neb.Rev.Stat. § 43-2923 (Reissue 2008).
Under Neb.Rev.Stat. § 42-364(3) (Reissue 2008), the court may place custody of minor children with both parents on a joint legal or physical custody basis, or both, when both parents agree to such or if the court specifically finds that joint custody is in the best interests of the minor children regardless of parental agreement or consent. When making custody determinations under § 42-364(3), if both parties do not agree, the court can award joint custody only if it holds a hearing and makes the required finding that joint custody is in the best interests of the children. See Kay v. Ludwig, 12 Neb.App. 868, 686 N.W.2d 619 (2004). The parties did not agree to joint legal custody—each parent sought sole custody. Furthermore, Stacey disagreed with Daniel's assessment that the court-ordered temporary joint custody arrangement had been working well. The trial court did not find that joint legal custody was in the minor children's best interests.
There was evidence adduced at trial that the joint custody arrangement was not in the minor children's best interests. Stacey testified that the parties' son had been confused about the joint custody arrangement and felt as if he did not have a home. There was also considerable testimony from both Stacey and Daniel that they had a hard time communicating with one another, and communication is an essential requirement for joint custody to be successful. Therefore, we find that the district court did not abuse its discretion in failing to find that joint custody was in the best interests of the minor children.
We also find that the district court did not abuse its discretion in granting sole legal and physical custody to Stacey. Throughout the marriage, Stacey had been the primary care-giver for the children, and Daniel admitted that he had spent much of his time outside the home, either working or trying to avoid fighting with Stacey in front of the children. Both Stacey and Daniel testified that each was capable of parenting the children, and the evidence adduced at trial showed that either Stacey or Daniel would be able to provide for the safety, emotional growth, health, stability, and physical care of the children. However, Stacey had taken on most of the parenting responsibilities. Stacey and Daniel both testified that the children are well-adjusted, and while Stacey admitted to struggling sometimes with disciplining their son, that certainly does not indicate Stacey lacks the requisite parenting skills to adequately care for her children. After our de novo review, we find that Daniel's first assignment of error lacks merit.
Division of Marital Estate.
Daniel also argues that the trial court erred in its division of the marital estate by awarding Stacey one-half of Daniel's retirement plan but failing to divide Stacey's retirement fund in the same manner.
The purpose of a property division is to...
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