Toro v. Toro

• Citation: 30 Neb.App. 158,966 N.W.2d 519
• Decision Date: 21 September 2021
• Docket Number: No. A-20-875.,A-20-875.
• Parties: Tammy A. TORO, appellee, v. Philip E. TORO, appellant.
• Court: Nebraska Court of Appeals

30 Neb.App. 158

966 N.W.2d 519

Tammy A. TORO, appellee,

v.Philip E. TORO, appellant.

No. A-20-875.

Court of Appeals of Nebraska.

Filed September 21, 2021.

Wesley S. Dodge, Omaha, for appellant.

Lindsay Belmont, of Koenig | Dunne, P.C., L.L.O., for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

I. INTRODUCTION

Philip E. Toro appeals the decree entered by the Douglas County District Court dissolving his marriage to Tammy A. Toro. He claims errors related to his parenting time, the income attributed to him for purposes of child support and related expenses, and the court's division of the parties’ assets. We affirm the decree in all matters, but we modify to correct scrivener's errors in two places: (1) the language regarding the children's nonreimbursed health care expenses and (2) the omission of a pension fund in the allocation of retirement accounts. We also modify to clarify an obligation owed by Tammy to Philip. We affirm as modified.

II. BACKGROUND

Tammy and Philip were married in 2005. Together they have two children—Josie Toro, born in 2005, and Jacob Toro, born in 2014. The parties separated on September 28, 2019. Tammy filed a pro se complaint for dissolution of marriage on October 16, seeking joint legal and joint physical custody of the parties’ children, child support, and division of the parties’ property and debts. On December 3, she filed an amended complaint through legal counsel, now seeking full custody of the parties’ children, subject to Philip's right to limited and supervised parenting time. She also sought child support, an equitable division of the parties’ property and debts, alimony, and attorney fees. In his answer filed on March 27, 2020, Philip alleged that both parties were fit and proper persons to be awarded legal and physical custody of the children.

On April 1, 2020, Tammy filed a motion for temporary order. She sought temporary legal and physical custody of the children, child support, and attorney fees. She also sought alimony or, in the alternative, an order for Philip to maintain the home-related expenses. She alleged that any parenting time awarded to Philip should take into consideration an ex parte domestic abuse protection order entered in February. Tammy also asked that the temporary order restrain Philip, both personally and financially.

The district court's temporary order was entered on April 30, 2020. Tammy was awarded temporary legal and physical custody of the children. Philip was awarded parenting time every Saturday from 10 a.m. to 5 p.m., as well as one weekday evening every week from after school (or 5 p.m. if school was not in session) until 8 p.m. Philip's significant other was not to be present during his parenting time. Philip was ordered to pay temporary child support of $973 per month, commencing retroactively to March 1. Temporary alimony was denied; however, commencing May 1, Philip was to be responsible for the "auto loan associated with the 2019 Chevrolet Silverado." Philip was restrained and enjoined by the court from transferring, encumbering, hypothecating, concealing, or in any way disposing of the property of the parties other than in the usual course of business or other than for the necessities of life, until further order of the court. And during the pendency of the proceedings, Philip was restrained and enjoined from harassing, intimidating, coercing, bothering, assaulting, or in any other way impeding the peace and enjoyment of Tammy at her residence or any other location. The court stated that the separately docketed ex parte domestic violence protection order remained in full force and effect; however, the parties may communicate "only in regard to facilitating the temporary parenting time scheduled as ordered" and/or if there was an emergency affecting the children. (Emphasis in original.)

On June 4, 2020, Philip filed a motion asking the district court to conduct an in camera interview with Josie, one of the parties’ children, alleging that her opinions were relevant to the court's determination of parenting time. Tammy objected to an in camera interview of Josie, alleging that Philip had alienated Josie from her, unnecessarily involved Josie in the proceedings, and coached Josie on what to say.

Trial was held on June 15 and July 16, 2020. Tammy and Philip both testified. Tammy also called other witnesses to testify on her behalf, and numerous exhibits were received into evidence. The testimony and exhibits will be discussed as necessary in our analysis. The district court did not conduct an in camera interview of Josie.

On September 29, 2020, Tammy filed a motion to reopen trial. Tammy alleged that new material had come to light, namely that Philip's girlfriend, Shannon Wood, gave birth to twins in September and that the twins were immediately placed into the temporary custody of the Nebraska Department of Health and Human Services, with placement to exclude the home of Philip (because of ongoing domestic violence with Wood) and Wood (because the twins tested positive for amphetamines at birth). Copies of juvenile court pleadings and orders, including an ex parte order for immediate temporary custody, were attached to Tammy's motion. Tammy alleged that the evidence was "integral to the ultimate issues" at trial, and thus, she sought to reopen trial to provide such evidence to the district court. Tammy's motion reflected that an evidentiary hearing was scheduled for October 22. Philip filed an objection to Tammy's motion.

On October 5, 2020, Tammy filed a verified motion for an ex parte order, citing the juvenile court proceedings regarding Philip's newborn twins and asking the district court to require that Philip's parenting time with Josie and Jacob be supervised and that Wood continue to not be present during any supervised parenting time. On October 6, the district court granted Tammy's motion for an ex parte order, stating that an emergency existed and that Philip's parenting time with Josie and Jacob should be supervised until further order of the court. The matter was also set for hearing on October 22.

Prior to the hearing scheduled for October 22, 2020, on the matters just described, the district court entered a decree of dissolution on October 14. The court divided the parties’ marital estate. Tammy was awarded legal and physical custody of the children, subject to Philip's supervised parenting time which was to occur every Saturday from 10 a.m. to 5 p.m., as well as one weekday evening every week from after school (or 5 p.m. if school was not in session) until 8 p.m. A holiday parenting time schedule was also established. Additionally, each parent was to have the right to 7 days of uninterrupted parenting time with the children each year. Wood was prohibited from being in the presence of the children until further order of the court. The court identified "Shaul Mediation" as an appropriate agency to supervise parenting time and stated that "the parties may agree on another appropriate person or agency." The court found that Philip had an annual earning capacity of at least $60,000 per year and ordered him to pay child support in the amount of $998 per month. Philip was ordered to pay 60 percent of all work-related childcare expenses. He was also ordered to pay 60 percent of all health care expenses incurred on behalf of the children and not covered by insurance, after Tammy paid the "threshold amount of $250.00 per month [sic], per calendar year, per child."

On October 20, 2020, Philip filed a motion to alter the judgment or, alternatively, for a new trial. In support of his motion, Philip alleged that the district court ordered supervised parenting time, even though "[i]mmediately after trial, it appeared to the Court that no issues existed that warranted supervision of parenting time"; "James Shaul ha[d] moved ... and [was] not an option as a supervisor"; the court held in abeyance its decision to hear testimony from Josie, whose desire should have been considered by the court; Tammy's ex parte motion requesting emergency custody, filed after trial but prior to the decree, alleged unsubstantiated facts which were not presented to the court in a formal hearing and such issues were still pending; the evidence presented at trial did not support the $60,000 income the court attributed to Philip for purposes of the child support calculation; as a result of the court's child support calculation, the percentages for childcare and other costs were not consistent with the evidence; and the court's division of the marital assets was unconscionable.

On October 20, 2020, Tammy withdrew her motion to reopen trial. On October 21, she filed a motion to alter or amend the decree. As relevant to this appeal, Tammy alleged that the district court adopted her proposed parenting plan and attached it to the decree; however, the parenting plan attached to the decree was not reflective of the trial exhibit that was marked and received into evidence. According to the interlineated exhibit received at trial, Philip was to have parenting time every other Saturday from 10 a.m. to 5 p.m., not every Saturday. Tammy requested that the court attach the correct proposed parenting time exhibit to the decree.

On October 29, 2020, Philip filed a motion to reopen trial, raising many of the issues asserted in his motion to alter the judgment or, alternatively, for a new trial.

An evidentiary hearing was held on November 17, 2020, on the pending motions. The evidence from the hearing will be set forth as necessary in our analysis. In its order entered on December 3, the district court denied Philip's motion to alter judgment or, in the alternative, for new trial; denied his objection to Tammy's motion to reopen trial; and denied his request to reopen trial. As relevant to this appeal, the court did adopt Tammy's proposed parenting plan, identified as "Exhibit 13" at trial, wherein Philip was to have parenting time every other Saturday from 10 a.m....