886 N.W.2d 536
Neb. Ct. App.2016Background
- Linda and David Burcham divorced after a 2001 marriage; they had adopted three special‑needs siblings (H.B., A.B., Z.B.).
- During dissolution proceedings the trial court awarded primary physical custody of H.B. to Linda and of A.B. and Z.B. to David (siblings thus split).
- The family receives a $1,300/month adoption subsidy from Kansas because of the children’s special needs; the trial court treated those subsidies as income and assigned each subsidy to the custodial parent.
- The court set child support (with David’s farm income estimated at $200/month), divided marital property (including a marital residence awarded to David and a $21,000 credit to David for proceeds of a premarital home), and denied Linda’s request for attorney fees.
- On appeal Linda challenged custody of the boys, child support and dependency exemptions, property division and attorney‑fee allocation.
Issues
| Issue | Plaintiff's Argument (Linda) | Defendant's Argument (David) | Held |
|---|---|---|---|
| Custody of A.B. and Z.B. | Award custody to Linda to keep sibling group together; she was primary caregiver | Boys prefer and thrive living with David; safety/structure concerns with H.B. | Affirmed: best interests support awarding boys to David; no abuse of discretion |
| Child support — farm income | Use 2012 tax return to show higher farm income | Trial court’s $200/month farm income reasonable given evidence and judge credibility findings | Affirmed: appellant failed to preserve/produce record to overturn farm income finding |
| Child support — treatment of adoption subsidy | Subsidy should offset/support obligation (treated as income or credit) | Subsidy is for children’s special needs and should not reduce parental support obligations | Reversed in part: subsidy is not parental income; remanded to recalculate child support excluding subsidy |
| Property division & credits | Various claims: (1) retirement accounts premarital, (2) livestock and savings misclassified, (3) residence undervalued and land was marital | Trial court’s classifications, valuations, and credits supported by record and credibility findings | Affirmed: district court’s property classification, valuation, division and equalization payment upheld |
Key Cases Cited
- Maska v. Maska, 274 Neb. 629 (custody determined by parental fitness and best interests)
- Klimek v. Klimek, 18 Neb. App. 82 (when both parents fit, best interests controls)
- Johnson v. Johnson, 290 Neb. 838 (Social Security paid due to parent’s work may be considered substitute income)
- Gress v. Gress, 274 Neb. 686 (Social Security paid for child’s disability is supplemental and should not offset child support)
- Ward v. Ward, 7 Neb. App. 821 (Social Security benefits as offset when benefits replace parent income)
- Van Newkirk v. Van Newkirk, 212 Neb. 730 (exception when premarital property enhanced by spouse’s significant contribution)
- Pohlmann v. Pohlmann, 20 Neb. App. 290 (dissolution review de novo; issues like farm income fluctuate and may be averaged)
- Brunges v. Brunges, 260 Neb. 660 (attorney‑fee awards discretionary in dissolution cases)