Donald v. Donald
296 Neb. 123
| Neb. | 2017Background
- Marriage dissolved after ~2 years; two children under age 4 at trial. District court awarded primary physical and legal custody to wife (Lacy) and substantial parenting time to husband (Alex), including weekday daytime care while children were young and alternating weekends; ~80–120 overnights/year depending on school attendance.
- Court calculated child support using the sole-custody worksheet, found future parenting time would decrease once children began school, and granted a downward deviation ($200/month for a limited period) to account for the husband’s daytime care before school.
- Husband received a retroactive lump-sum VA payment ($41,906.47) for increased disability (individual unemployability), deposited portions into an HSA and checking; district court treated the lump sum as marital property and ordered an equalization payment to wife.
- Husband appealed, arguing (1) the parenting arrangement amounted to joint physical (and legal) custody so the joint-custody support worksheet should apply, (2) the downward deviation was insufficient, and (3) the lump-sum VA payment was incorrectly included in divisible marital property.
- The Supreme Court affirmed the custody and support rulings but held the lump-sum VA disability payment could not be treated as marital property under federal law and modified the equalization payment downward accordingly.
Issues
| Issue | Plaintiff's Argument (Alex) | Defendant's Argument (Lacy) | Held |
|---|---|---|---|
| Whether the parenting plan constituted joint physical custody | The substantial daytime and weekend parenting time created de facto joint physical custody requiring joint-custody worksheet | Parenting time lacked continuous significant blocks and mother retained primary residence control; statutory definition of joint physical custody not met | Not joint physical custody; district court properly characterized custody as mother primary, father substantial parenting time |
| Whether child support should be calculated under joint-custody worksheet | Husband argued his parenting time exceeded 142 days/year (converting hours to days), so joint worksheet should apply | Wife argued no specific joint-physical-custody order and guidelines define a day as including an overnight; husband’s time did not meet threshold | Use of sole-custody worksheet was proper; day definition requires overnight so threshold not met; downward deviation for pre-school daytime care permissible |
| Whether the downward deviation for child support was adequate | Husband sought greater deviation reflecting extra daytime care | Wife accepted limited deviation; court already reduced support for finite period recognizing daytime care | Deviation was within court’s discretion and adequately explained; affirmed |
| Whether VA lump-sum disability payment is marital property divisible in divorce | Husband argued payment was disability compensation and not divisible; appealed district court inclusion | Wife argued payment may have included non-waived retirement benefits and thus was divisible | Lump-sum VA disability compensation is not subject to state-court division; decree modified to exclude the payment and reduce equalization amount |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (federal law prevents state courts from dividing military retirement pay waived for VA disability benefits)
- Ryan v. Ryan, 257 Neb. 682 (Neb. 1999) (state courts lack jurisdiction to divide VA disability benefits)
- Kramer v. Kramer, 252 Neb. 526 (Neb. 1997) (same principle regarding disability compensation and state-court division)
- Zahl v. Zahl, 273 Neb. 1043 (Neb. 2007) (joint physical custody reserved for mature parents and stable arrangements)
- Heesacker v. Heesacker, 262 Neb. 179 (Neb. 2001) (numerous parenting times alone do not constitute joint physical custody)
- Mamot v. Mamot, 283 Neb. 659 (Neb. 2012) (statutory factors to consider in custody determinations)