Araujo v. Araujo
A-16-453
| Neb. Ct. App. | Jul 18, 2017Background
- Dena and David Araujo divorced after a long marriage with four children; David has severe post-surgical medical limitations and is a veteran receiving VA disability and military retirement; Dena works as a school para and receives periodic trust distributions.
- Dena sought sole custody, supervised/limited visitation for David, GAL appointment, psychological evaluation, child support, spousal support, and an equitable property division; David sought shared custody and a non-hypothecation order.
- The district court awarded custody to Dena with a graduated "therapeutic" parenting schedule for David, ordered David to pay child support (originally $1,535/mo later modified), awarded the marital residence to Dena, divided assets/debts 50/50, denied alimony, split GAL fees 50/50, and awarded Dena $270/mo from David’s military retirement (fixed amount).
- Trial occurred in 2015; Dena appealed, raising claims about parenting time, third‑party contact (the Doxey family), child support calculation, tax exemptions, contempt actions, property valuation/division, military retirement division, alimony, and fee allocations.
- The Nebraska Court of Appeals affirmed most of the decree but modified child support, the allocation of uninsured health expenses, the marital residence equity/equalization payment, and increased Dena’s fixed military-retirement award to $363/mo as plain error corrections.
Issues
| Issue | Plaintiff's Argument (Araujo - Dena) | Defendant's Argument (Araujo - David) | Held |
|---|---|---|---|
| Parenting time awarded to David | Schedule exceeds David’s physical capacity and expert recommended shorter visits (3–4 hrs); not in children’s best interests | David can parent despite limits; children are old enough to help; court should foster continuing relationship | Affirmed: trial court did not abuse discretion in awarding graduated therapeutic parenting time |
| Contact with Doxey family (third parties) | Court should prohibit Doxey family contact due to alleged misconduct and children’s distress | No concrete evidence of harm; Dena impeded father–child relationship | Affirmed: insufficient evidence to restrict contact; court did not abuse discretion |
| Child support calculation (income, credits) | Court miscalculated incomes (VA/disability, retirement credits), misapplied trust distributions, and miscredited health premium | Court’s imputations reasonable; use of earning capacity and trust distributions appropriate | Modified: appellate court recalculated incomes (Dena $3,798/mo; David $2,053 + $3,700 tax‑exempt) and set new support amounts; $1,642/mo for four children; health premium credit of $93 upheld; uninsured health costs reallocated 40/60 (Dena/David) as plain error |
| Property division — marital residence equity & other assets/debts | Trial court misvalued home equity and included improper assets/debts (household items, SAC loan, 2012 tax) | Trial court reasonably considered mortgage payments after separation and treated disputed items as marital absent proof otherwise | Mostly affirmed; court overvalued home equity by $1,417.54 (reduced equalization payment by $708.77); SAC loan and 2012 tax treated as marital and upheld; Dena failed to prove nonmarital status for disputed household items |
| Military retirement award & SBP | Dena asked for a percentage (coverture) so COLAs apply and preservation of SBP election; fixed $270 insufficient | David/record supported fixed award; coverture figures discussed at trial but Dena didn’t request percentage | Modified for plain error: award increased to $363/mo (coverture-derived share); SBP issue not preserved on appeal, so not addressed |
| Alimony and fees (GAL & attorney) | Dena sought alimony or nominal award to allow future modification; sought full or proportionate payment of GAL and attorney fees due to David’s conduct | David argued he is disabled, on fixed income; fees/funding equities do not warrant awarding Dena fees | Affirmed: denial of alimony not an abuse; GAL fee split 50/50 appropriate; trial court did not abuse discretion in denying attorney fees |
| Contempt and mortgage arrears | Dena argued the court failed to rule on contempt and preserve mortgage arrears | David argued issues not preserved for appeal and record lacks final order on contempt | Court: appellate jurisdiction lacking because no final order disposing of contempt actions; contempt/mortgage-arrear claims not resolved on appeal |
Key Cases Cited
- Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (appellate standard in dissolution) (standard of de novo review with abuse-of-discretion deference)
- Thompson v. Thompson, 24 Neb. App. 349, 887 N.W.2d 52 (parenting-time scheduling and reasonableness)
- Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (parenting time principles)
- Walters v. Walters, 12 Neb. App. 340, 673 N.W.2d 585 (visitation and fostering parental relationship)
- Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (best interests factors statutory interpretation)
- Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 (earning capacity and child support guideline application)
- Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (property classification, valuation, and alimony vs. property division)
- Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (equitable property division analysis)
- Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (marital debt treatment)
- Myhra v. Myhra, 16 Neb. App. 920, 756 N.W.2d 528 (valuation date discretion)
- Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (consideration of inheritance in support/alimony)
- Smith v. Smith, 222 Neb. 752, 386 N.W.2d 873 (allocation of GAL fees)