Von Tersch v. Von Tersch

• Decision Date: 04 May 1990
• Docket Number: No. 89-776,89-776
• Citation: 455 N.W.2d 130,235 Neb. 263
• Parties: , 58 USLW 2720 Lawrence E. Von TERSCH, Appellee and Cross-Appellant, v. Geraldine A. Von TERSCH, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 130

455 N.W.2d 130

235 Neb. 263, 58 USLW 2720

Lawrence E. Von TERSCH, Appellee and Cross-Appellant, v. Geraldine A. Von TERSCH, Appellant and Cross-Appellee.

No. 89-776.

Supreme Court of Nebraska.

May 4, 1990.

Syllabus by the Court

1. Divorce: Appeal and Error. In an appeal involving an action for dissolution of marriage, the Supreme Court's review of a trial court's judgment is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

2. Divorce: Child Custody. A custodial parent in a marital dissolution proceeding may determine the nature or extent of the education for a child legally affected by the dissolution proceeding unless there is an affirmative showing that the custodial parent's decision has injured or harmed, or will jeopardize, the child's safety, well-being, or health, whether physical or mental.

3. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

Lorin C. Galvin, for appellant.

James S. Jansen, of Stave, Coffey, Swenson, Jansen & Schatz, P.C., for appellee.

Kelly K. Duncan, for amicus curiae Rutherford Institute of Neb.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

In this appeal from the district court for Douglas County, which dissolved the marriage of Geraldine A. Von Tersch and Lawrence E. Von Tersch, Geraldine Von Tersch (Geri), as custodial parent, contends that the district court erred in (1) requiring that the parties' minor children attend a public school rather than a private school of Geri's choice and (2) awarding insufficient child support, distributing the parties' marital property, allocating debts, awarding an inadequate attorney fee for Geri's lawyer, assessing Geri with the costs of the eventual sale of the parties' residence, and charging the gross marital estate with the costs of a psychological child custody evaluation. Lawrence Von Tersch (Larry) cross-appeals, contending that the district court erred in granting Geri custody of the Von Tersch minor children and in ordering Larry to refrain from drinking alcoholic liquor in relation to visitation of his children.

Von Tersches were married in November 1964 and have four children from their marriage. Only two of the Von Tersch children are legally affected by the dissolution proceedings, namely, Kurtis and Kyle, twin boys born May 17, 1980. During the early years of the marriage, Larry earned a degree in physical education in 1967 and, after graduation, taught high school physical education from 1967 through 1973, although his teaching career was interrupted by 1 year's military service in Vietnam. Eventually, Larry became a high school head football coach and physical education instructor, but in 1984 left teaching and joined the sales force for an Omaha-based corporation. At the time of trial, Larry had an annual gross salary of $37,000 as a senior account representative.

When Larry and Geri married, Geri worked as a medical assistant and secretary at Physicians Clinic, but took time off regarding the birth of the two oldest Von Tersch children. In 1979, Geri went to work as a secretary and receptionist and earned approximately $4.50 per hour, but, due to complications in her pregnancy with the Von Tersch twins, had to leave her secretarial-receptionist job. Since the twins' birth, Geri has not been employed outside the Von Tersch home. However, at the time of trial, Geri worked full time as a volunteer secretary and teacher's aide at the grade school attended by the Von Tersch twins and received no compensation for her services at the twins' school. Throughout the marriage, Geri was mainly responsible for rearing the Von Tersch children.

The Von Tersch marital estate included a southwest Omaha residence, which was valued at $62,500 and was subject to a $20,000 mortgage. Von Tersches also owned 2 acres of land in rural Douglas County, which was sold for $9,300 some 3 weeks before the dissolution trial. Other assets included a money market account, a 401K plan with Larry's employer, an IRA account, stock and various insurance policies, two automobiles, and miscellaneous household goods and furnishings.

Prior to trial in the marital dissolution proceedings, the Von Tersch family had attended a Catholic church fairly regularly until 1978, when they began going to various Protestant churches. In 1986, Geri commenced attending services at the Sword of the Spirit Church and enrolled the Von Tersch twins in kindergarten at the church's school, a "private Christian school" which had as its primary purpose "to train the student in the Christian way of life and to give the student a good general education." Although Larry and Geri do not share the same religious beliefs, the dissimilarities of their religions are not a major source of controversy between the couple. After Larry returned to the Catholic church in May 1988, the parties alternated the twins' church attendance, that is, one Sunday Larry took the boys to his church, and the following Sunday Geri took them to her church. Neither party objects to this arrangement, which exposes the twins to both the Catholic faith and Geri's religious beliefs.

Geri and Larry experienced various difficulties, such as problems arising from Larry's drinking and gambling activities. On at least five occasions, professional counselors suggested that Larry seek treatment for his drinking problem. Geri expressed concern about Larry's drinking in the presence of the twins, particularly when he was driving the car in which the twins were riding. Larry regularly attended races at horse or dog tracks.

Geri and Larry differed in their views on rearing and disciplining the twins, and also disagreed about the twins' participation in sports, especially when Geri balked at the boys' playing soccer. As a former physical education teacher, Larry felt that the twins' participation in sports was very important to their development and, consequently, encouraged and coached the twins in baseball, soccer, hockey, and basketball.

The couple attended marriage counseling, but their marital problems persisted. In September 1985, Larry filed a petition for dissolution of his marriage to Geri. The court entered a temporary order that the parties have joint custody of the children. Nevertheless, Larry and Geri continued to live together in the family residence and attempted to reconcile their differences. Despite a provision in the temporary order that attendance at a public school was in the twins' best interests, Geri wanted the twins to attend Sword of the Spirit school. Larry, however, believed that the boys would be better off in a public school. "[T]o make the marriage workable," Larry acquiesced in Geri's wishes for education of the twins.

Sword of the Spirit school is a small private school operated in urban Omaha. Although the school was founded in 1981 and was state approved, after adoption of "Rule 13" of the Nebraska Department of Education's regulations and procedures in 1984, the school elected to become exempt from state approval or accreditation requirements and standards, an exemption authorized by 92 Neb.Admin.Code, ch. 13, § 003.01 (1984), and Neb.Rev.Stat. §§ 79-1701 et seq. (Reissue 1987) which, generally, provide for exemption from state accreditation or approval requirements, such as certification requirements for teachers in private, denominational, and parochial schools.

Children attending the Sword of the Spirit school are taught in small classes, consisting of approximately 12 students. The school has 14 teachers, some of whom are teachers certified by the state, while others are not. Teachers assigned for the Von Tersch twins held valid teaching certificates. The school's academic program follows traditional approaches to education with a wide range of subjects. The kindergarten curriculum consists of language arts, science, and arithmetic. For first grade and succeeding grades, the curriculum, in addition to the aforementioned kindergarten subjects, includes history, geography, health, safety, and manners. All classes engage in daily Bible study. At the time of trial, the Von Tersch twins were in the third grade, with satisfactory performance in their studies.

In 1988, the court appointed a guardian ad litem for the Von Tersch twins and ordered a comprehensive child custody evaluation, which was rendered by Joseph L. Rizzo, a clinical psychologist. The custody evaluation included interviews with Geri and Larry, psychological evaluations of the parents and the twins, and psycho-educational testing of the twins by a certified school psychologist. Dr. Rizzo described the twins as "very socially conscious, precocious, challenging, and seem to have the capability of generating a wide variety of interests."

Regarding the Sword of the Spirit school and the needs of the twins, Dr. Rizzo stated:

[T]he strong focus on academic basics [at the school] will have a very limiting effect as these children are not the Above Average children who can self teach themselves. They, themselves, tend to be in need of structure, guidance and active teaching, in which The Sword of the Spirit School is limited. Additionally, not having any supplemental programs in place as of this date in Art, Physical Education, Reading, Shop, Special Ed as well...