Donald v. Donald
892 N.W.2d 100
| Neb. | 2017Background
- Marriage dissolved after ~2 years; two children under 4 at trial; 2-day trial in Lancaster County district court.
- Prior to separation, mother (Lacy) worked outside home; father (Alex), disabled from military service, provided daytime childcare and could not work.
- District court awarded legal and physical custody to Lacy, with substantial parenting time to Alex (weekday daytime care before school starts, alternating weekends, 5 weeks summer); ~80 overnights/year before school, ~120 after school begins.
- Child support calculated with the sole-custody worksheet based on projected post-school parenting allocation; court granted a $200/month downward deviation for a limited period, setting Alex’s obligation at $855/month (with deviation shown separately).
- Alex received a $41,906.47 retroactive lump-sum VA disability payment; the district court treated it as marital property and ordered an equalization payment to Lacy; appellant contested custody classification, support calculation, and inclusion of the VA lump sum.
Issues
| Issue | Donald (Appellant) Argument | Lacy (Appellee) Argument | Held |
|---|---|---|---|
| Whether award should be joint physical custody | Significant daytime parenting time and total parenting time amount to de facto joint physical custody | Parenting plan does not meet statutory definition of joint physical custody; children reside primarily with Lacy | Not joint physical custody; trial court did not abuse discretion |
| Whether court should use joint-custody child support worksheet | Parenting-time hours exceed 142 days/year (when converting hours to days), so joint worksheet required | Guidelines define a ‘day’ as generally including an overnight; Alex’s parenting time lacks sufficient overnights | Sole-custody worksheet appropriate; court properly applied guidelines and permissibly deviated downward temporarily |
| Whether court should award joint legal custody | (Implicit) Joint legal custody appropriate given shared childcare | Lacy was primary decisionmaker pre- and post-separation and disputes occurred over shared decisions | Legal custody to Lacy affirmed as in children’s best interests |
| Whether VA lump-sum disability payment is marital property divisible in state dissolution | Lump sum was marital property and should be divided | Lump sum is service-connected VA disability compensation not subject to state division | Exclude the VA lump-sum from marital estate under federal law; equalization payment reduced accordingly |
Key Cases Cited
- Zahl v. Zahl, 273 Neb. 1043 (2007) (joint physical custody reserved for mature parents who provide stability)
- Heesacker v. Heesacker, 262 Neb. 179 (2001) (multiple parenting times do not alone establish joint physical custody)
- Ryan v. Ryan, 257 Neb. 682 (1999) (state courts lack jurisdiction over VA disability benefits in dissolution)
- Kramer v. Kramer, 252 Neb. 526 (1997) (federal preemption bars state division of certain military benefits)
- Mansell v. Mansell, 490 U.S. 581 (1989) (Supreme Court: federal law prevents state courts from treating waived military retirement pay used to obtain VA benefits as divisible marital property)