Ziebarth v. Ziebarth

• Decision Date: 05 July 1991
• Docket Number: No. 90-952,90-952
• Citation: 238 Neb. 545,471 N.W.2d 450
• Court: Nebraska Supreme Court
• Parties: Laurie Jo ZIEBARTH, Appellee and Cross-Appellant, v. James Jay ZIEBARTH, Appellant and Cross-Appellee.

Page 450

471 N.W.2d 450

238 Neb. 545

Laurie Jo ZIEBARTH, Appellee and Cross-Appellant, v. James Jay ZIEBARTH, Appellant and Cross-Appellee.

No. 90-952.

Supreme Court of Nebraska.

July 5, 1991.

Syllabus by the Court

1. Divorce: Appeal and Error. In an appeal of an action for dissolution of marriage, the Supreme Court's review is de novo on the record; the judgment of the trial judge will be upheld in the absence of an abuse of discretion. 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. When the custody of minor children is involved in a dissolution proceeding, the custody is determined by the fitness of each parent and the best interests of the children.

3. Child Custody. Under Nebraska law, the inquiry into providing for the best interests of the children includes, but is not limited to, a consideration of the relationship of the children to each parent and the general health, welfare, and social behavior of the children. Other factors to be considered include the moral fitness of the parents; the respective environments each offers; the emotional relationship between the children and the parents; the age, sex, and health of the children and parents; the effect on the children as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and the capacity of each parent to provide physical care and to satisfy the needs of the children.

4. Divorce: Child Custody: Public Policy. It is sound public policy to keep children together when a marriage is dissolved, but the ultimate test remains the best interests of the children.

5. Property Division: Appeal and Error. A division of property is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

6. Divorce: Attorney Fees: Appeal and Error. An award of an attorney fee in a marital dissolution proceeding is reviewed de novo on the record and will be affirmed on appeal in the absence of abuse of discretion by the trial court.

7. Divorce: Attorney Fees. Factors to be considered in awarding attorney fees in a dissolution action include the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of questions, and the customary charges for similar services; the trial court may also consider the earning capacity of the parties and the general equities of the situation.

8. Alimony: Appeal and Error. On appeal, an alimony award will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion.

9. Alimony: Appeal and Error. The test to determine the correctness in the amount of the alimony is the reasonableness in light of the facts of each case, considering the duration of the marriage, the history of the contributions to the marriage by each party, the ability of the supported party to engage in gainful employment, the income and earning capacity of each party, and the general equities of the situation.

Marsha E. Fangmeyer of Knapp, Mues, Beavers, Luther & Fangmeyer, Kearney, for appellant and cross-appellee.

Steven O. Stumpff of Stumpff Law Office, Broken Bow, for appellee and cross appellant.

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

WHITE, Justice.

After a trial in Franklin County District Court, the marriage of Laurie Jo and James and Laurie Ziebarth were married on July 31, 1982, and had two children: Tyler, born May 12, 1984, and Jillian, born June 5, 1988. The petition for dissolution was filed on January 3, 1990. A temporary order was entered which divided custody of the children between the parents. Following a hearing, the court entered its final decree on August 9, 1990. Although the guardian ad litem had recommended that the children be placed with James, the court continued the split custody arrangement--the son, Tyler, to James, and the daughter, Jillian, to Laurie. A visitation schedule was devised which provided that the children were together each weekend, alternating between the mother and the father; together with each parent for 6 weeks in the summer and on alternating holidays; and together with the mother on Mother's Day and the father on Father's Day. The father was ordered to pay $200 per month child support. James was allowed the dependent tax exemptions and was ordered to provide medical insurance and to pay for any uncovered medical, dental, and optometric expenses. Neither party was awarded alimony. The marital property was divided, and the wife was awarded a money judgment of $13,385. James was also ordered to pay $5,000 toward Laurie's attorney fees and to pay two-thirds of the guardian ad litem's fee of $3,740.96, with Laurie to pay the remaining one-third.

James Jay Ziebarth was dissolved. The husband was awarded custody of the minor son and the wife was awarded custody of the minor daughter. The husband has appealed, alleging that the district court abused its discretion in dividing the custody of the two minor children, in ordering him to pay child support and $5,000 toward the wife's attorney fees, in incorrectly valuing the marital estate, and in awarding a money judgment to the wife. The wife cross-appeals, also asserting that the trial court abused its discretion in splitting custody of the children and asserting error in its failure to award alimony.

The record indicates that James is a self-employed farmer and was formerly employed by the family farm corporation. Laurie is employed in the respiratory care unit of a hospital in Holdrege, Nebraska, and has worked toward a respiratory therapy degree. The parties agree about little else. This record is replete with accusations and allegations, and we provide details on the charges merely to demonstrate the vitriolic nature of the divorce and to illustrate some of the reasons for our decision to reverse the trial court and award sole custody of both children to the father, James.

FACTUAL BACKGROUND

Laurie was 19 when she married after meeting James when both were students at the University of Nebraska-Lincoln. She attended UNL for 1 year, majoring in preveterinary science. Although Laurie told James that she had earned 120 credit hours by the end of the summer following her freshman year because she had tested out of a number of classes, she transferred only 5 credit hours to Kearney State College. She attended KSC at various times between 1981 and 1989, earning 62 credit hours, but she has not received a degree.

James attended UNL for 2 years before returning to farm near Wilcox, Nebraska, where he and Laurie lived during the marriage. He stated that his first priority is his family and that he always quit working in the fields at 5 or 6 p.m. to go home to fix dinner. He said he has been the primary caretaker for the children almost since birth. Throughout the marriage, Laurie repeatedly threatened divorce and had left for 2 weeks in 1989 and told James he could not see the children during that time. Laurie accused him of having a drinking problem, but he denies any difficulty with alcohol. James said he took part in an alcohol evaluation, but no evidence of the evaluation was offered at trial.

After her marriage to James, Laurie enrolled in a radiology program at Mary Lanning Hospital in Hastings and respiratory therapy programs in Grand Island and in Omaha, but has not completed any course of training. She testified at trial that she would finish her certification for respiratory Laurie stated that James verbally encouraged her to continue her education, but then threatened to take away a vehicle so that she would not be able to attend school. She also accused him of calling her late at night before an exam to harass her.

therapy by November 1990. When she attended the respiratory therapy program in Omaha at Immanuel Medical Center, Jillian was 3 months old and Tyler was 4 years old, and she took the children with her for much of the time. Laurie said James had the children 1 week out of 4, but James said he had them half of the time. She told James that her expenses were covered by student loans and grants, but he later discovered that she had charged $3,000, the limit on a credit card, to pay for her expenses. James said she spent $8,000 in 4 months and did not complete the program.

Cindy Benjamin, a respiratory therapist in Lexington, testified that she and Laurie studied together while in Omaha and that Laurie was a loving mother. She said there were times when Laurie would be crying after a phone call from James. Benjamin said she heard one phone call in which James called Laurie a "bitch" and a "whore."

As part of the program at St. Francis Medical Center in Grand Island, Laurie agreed to work for 1 year in exchange for assistance with attaining certification in respiratory therapy. She failed to complete the program and owed the center $600. Eventually, her wages were garnished to pay the bill.

Each party accuses the other of physical abuse. Laurie said that when Jillian was 3 weeks old, James had come home intoxicated. Laurie was feeding Jillian in bed and bumped James in the back while getting out of bed. James then kicked her until she fell out of bed with Jillian in her arms. James denies that incident, along with most of the other accusations made by Laurie. James testified that he never hit his wife, but that she hit him on three occasions. A farmhand for Ziebarth Farms, Inc., Roger Blank, stated that James came to work once with a cracked lip and puffy eyes and told him that his wife had hit him.

Another problem resulted from a difference of religion. Laurie said she had the children baptized in...