Riegel v. Lemond
| Decision Date | 09 July 2019 |
| Docket Number | No. A-18-607.,A-18-607. |
| Parties | STEPHEN P. RIEGEL, APPELLANT, v. JACKIE D. LEMOND, APPELLEE. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: DARLA S. IDEUS, Judge. Affirmed.
Steffanie J. Garner Kotik, of Kotik & McClure Law, for appellant.
Jackie D. Lemond, pro se.
Stephen P. Riegel appeals from a decree of dissolution entered by the district court, which decree dissolved his marriage to Jackie D. Lemond, divided the marital assets and debts, awarded Jackie legal and physical custody of the parties' minor child, and ordered Stephen to pay child support and alimony. On appeal, Stephen asserts that the district court erred in awarding Jackie sole custody of their minor child, in its calculation of his child support obligation, in awarding Jackie alimony, and in its distribution of the marital assets and debts. For the reasons set forth herein, we affirm the decision of the district court in its entirety.
Stephen and Jackie were married on December 18, 1997. Two children were born of the marriage; however, by the time of the dissolution proceedings only one of their children, Ivie L., born in 2000, was still a minor.
In April 2016, Jackie moved out of the marital home. A few months later, in July 2016, Stephen filed a complaint for dissolution of marriage. In the complaint, Stephen specifically asked that the parties' marriage be dissolved; that he be awarded temporary and permanent custody of Ivie; that Jackie be ordered to pay child support; and that the marital assets and debts be equitably divided. Jackie timely filed an answer and a cross-complaint for dissolution of marriage. Therein, Jackie asked that the parties' marriage be dissolved; that she be awarded temporary and permanent custody of Ivie; that Stephen be ordered to pay child support and alimony; and that the marital assets and debts be equitably divided.
In August 2016, after a hearing, the district court entered a temporary order. In that order, the court awarded Stephen temporary legal and physical custody of the parties' oldest child (who has since reached the age of majority). The court declined to provide specific parenting time for Jackie as to this child, noting that the child "is a college student who continues to have contact with [Jackie]." The court awarded Jackie temporary legal and physical custody of Ivie. Although Jackie had requested that Stephen have no parenting time with Ivie, or, in the alternative that any parenting time between Stephen and Ivie be supervised, the district court found insufficient evidence to grant this request. The court awarded Stephen parenting time with Ivie every Wednesday evening from 5:30 to 8:30 and every other weekend beginning Friday at 5:30 p.m. and ending Sunday at 5:30 p.m. Based upon Stephen's statement that he earned $22.02 per hour and Jackie's statement that she has no income other than government assistance, the court ordered Stephen to pay temporary child support in the amount of $509 per month.
In November 2016, the district court found Jackie in willful contempt of the temporary order because On December 2, 2016, the court sentenced Jackie to 15 days in jail. The court suspended the sentence The court also modified Stephen's parenting time such that he was to see Ivie every Wednesday from the conclusion of her school day until 8:30 p.m. and every other weekend from Friday at the conclusion of school to Monday morning at the commencement of school.
A few weeks later, on December 22, 2016, the district court again modified Stephen's parenting time after hearing Ivie's testimony in chambers. Stephen was still to have parenting time every Wednesday from the conclusion of school until 8:30 p.m. However, his every other weekend parenting time was shortened such that he was to see Ivie every other Saturday from 10 a.m. until 8 p.m. and every other Sunday from noon until 8 p.m.
In April 2018, trial was held. Prior to the start of the presentation of evidence, the parties informed the district court of the contested issues. The parties agreed that the issues for the court to decide included the finalization of the property division, spousal support, custody of Ivie, and child support. However, when the court asked whether parenting time was at issue, Stephen's counsel answered, When the court specifically asked Stephen if hewas not asking for specific parenting time regardless of who was awarded custody, he responded, "That is correct, Your Honor." Jackie responded similarly to the court's inquiry.
At trial, Stephen testified concerning his employment, his current financial situation, and his relationship with Ivie and Jackie. At the time of trial, Stephen was 49 years old. He testified that he is an industrial electrician. Through the local union, Stephen is able to "bid[] on" job opportunities. If he is chosen for a "union job," he earns $35 per hour. However, he is also able to obtain employment outside of the opportunities associated with the union. Stephen explained that, despite his best efforts, he has had periods of unemployment during the last few years. He provided a summary of his recent employment for the court.
Stephen testified that he was currently employed by Commonwealth Electric of the Midwest and had been so employed for the month prior to the trial, or since approximately March 2018. He testified he was earning $35 per hour, but he did not provide a paystub to support his testimony. Prior to his current job, Stephen had been employed by Omaha Electric in December 2017 and January 2018. He had earned $39 per hour for that job. Stephen indicated that he had been fired from Omaha Electric, but he did not provide the details surrounding this firing. Stephen testified that prior to his brief employment with Omaha Electric, he did not have steady employment for a period of time. When Stephen has been unemployed, he has received $408 per week in unemployment benefits. Stephen's longest period of employment in the past 20 years was when he worked for OPPD for 3 years beginning in approximately 2014. There, he earned $28 per hour. Stephen indicated that the least he has earned in any job for the last 2 years was $17 per hour.
Upon the district court's request, Stephen offered into evidence his tax returns for the 3 years immediately preceding the trial. These documents reveal that in 2015, Stephen's annual gross income totaled $66,276, or $5,523 per month. In 2016, Stephen's annual gross income, which included earned income and unemployment benefits, totaled $53,473, or $4,456 per month. In 2017, Stephen's annual gross income totaled $85,062, or $7,088.50 per month. Stephen estimated that his current monthly expenses totaled $6,043.33.
Stephen initially testified that during the marriage, he did not have a retirement account. However, upon Jackie's cross examination of Stephen, he admitted that he had a retirement account as a result of his employment with OPPD, but he had withdrawn all of the money from that account after the parties' separation. He estimated that the account had about $10,000 in it when he closed it out. An account statement admitted into evidence revealed that the actual value of the account was $11,877.57. Stephen testified that he had used this money to pay for marital debt and to pay for some of their oldest child's college expenses.
During his direct testimony, Stephen asked that he be awarded physical and legal custody of Ivie. He believed that Jackie did not provide adequate supervision or direction for Ivie. He explained that when Ivie is with Jackie, she is treated like an adult and is permitted to make her own decisions. Stephen testified that he was always the disciplinarian of the parties' children and that he wanted to ensure that Ivie is prepared to make good decisions about her future. Stephen admitted that his relationship with Ivie "has been up and down," particularly since the parties' separation; however, he believed the relationship had improved by the time of trial.
During Stephen's rebuttal testimony, his testimony about custody of Ivie changed. He indicated that he was asking for joint custody of Ivie or that Ivie be emancipated so that she couldhave "full autonomy." He agreed that Ivie should choose how to divide her time between her parents. He also agreed to try to work with Jackie for Ivie's sake.
Jackie also testified concerning her employment status, her current financial situation, and her relationship with Ivie. At the time of trial, Jackie was 60 years old. She is disabled and, as a result, is unable to work. Jackie suffers from diabetes, chronic obstructive pulmonary disease, severe arthritis, high blood pressure and cholesterol, and clinical depression. She also has mobility issues. Our record indicates that she was in a wheelchair during the trial. Jackie receives $750 per month in Supplemental Security Income (SSI) as a result of her disability. This is her only source of income. Prior to the birth of the parties' oldest child, Jackie was employed doing ceramic tile work and as a custodian for a school district. Jackie testified that Stephen "insisted" that she stop working in order to stay at...
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