952 N.W.2d 17
Neb. Ct. App.2020Background
- Married in 2012; two daughters (2012, 2014). Tracy filed for dissolution after a 2017 incident of domestic violence by Michael; he was later convicted of domestic assault and placed on probation.
- During the case the district court entered temporary orders requiring Michael be allowed FaceTime parenting twice weekly; Michael alleged Tracy withheld FaceTime visits.
- Children’s therapist Dr. Michael Keady recommended therapeutic visitation; Michael submitted an undisclosed evaluator (Dr. Rick McNeese) whose report supported non-therapeutic parenting time.
- Trial occurred over several days in 2019. The district court awarded Tracy legal and physical custody, granted Michael periodic in-person parenting time (including out-of-state periods), found Tracy in contempt for withholding FaceTime and ordered a purge/sanction, calculated child support using Tracy’s prior salary, and accepted Michael’s proposed property division (including a $5,800 dissipation finding).
- Tracy appealed, challenging admission of McNeese’s report, the parenting plan’s safety provisions, child support calculations (including health-insurance credit/deduction), the dissipation finding/division of assets, the contempt finding, and denial of attorney fees.
Issues
| Issue | Plaintiff's Argument (Gandara-Moore) | Defendant's Argument (Moore) | Held |
|---|---|---|---|
| Admission of undisclosed expert/exhibit | McNeese was not disclosed in the pretrial memorandum; admitting his report and testimony prejudiced Tracy. | McNeese’s report had been provided earlier; Tracy was allowed voir dire and cross-examined him; no prejudice. | No abuse of discretion: no showing of prejudice; admission affirmed. |
| Parenting plan / domestic-violence protections | Court should have limited Michael’s access and required therapeutic visitation; include safety measures given assault finding. | Michael sought significant parenting time; evaluator supported non-therapeutic time. | Court abused discretion by failing to impose statutorily required protections after finding domestic abuse; appellate court modified transfers to public locations and otherwise affirmed parenting-time award. |
| Child support (income basis and insurance credits) | Use current unemployment income; or account for decreased earning capacity after accident; dispute over correct health-insurance proof and amounts. | Use Tracy’s prior $58,000 earning capacity; Michael claimed higher insurance deductions/credits. | Court permissibly used Tracy’s prior earnings (earning-capacity basis). But abused discretion by applying health-insurance deduction/child credit without proof; appellate court removed those deductions and recalculated support (Michael: $916/mo for two children; $640/mo for one). |
| Division of marital estate / dissipation | Money Michael deposited into Tracy’s account ($5,800 of inheritance) was spent on marital expenses, not dissipated; no proof of selfish, nonmarital use. | Alleged dissipation of $5,800 from inheritance; proposed division allocated that loss to Tracy. | Reversed: insufficient evidence of dissipation; $5,800 not attributed to Tracy; equalization payment recalculated upward and adjusted for contempt sanction. |
| Contempt for withholding FaceTime | Tracy acted under no-contact/prosecutorial advice and arranged therapeutic facilitation; did not willfully disobey. | Orders requiring FaceTime were repeatedly entered; Tracy withheld calls despite modifications to bond/no-contact to allow FaceTime. | Affirmed: clear-and-convincing evidence that Tracy willfully withheld ordered FaceTime; contempt and sanction upheld. |
| Attorney fees | Tracy sought fees; district court should have awarded based on circumstances. | Each party prevailed on some issues; each incurred significant fees. | Affirmed: district court did not abuse discretion in denying additional attorney-fee award. |
Key Cases Cited
- Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (Neb. 2019) (standard of review in dissolution: de novo with abuse-of-discretion review for trial court rulings)
- Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (Neb. 2014) (court may waive its own rules where no injustice results)
- Zarp v. Duff, 238 Neb. 324, 470 N.W.2d 577 (Neb. 1991) (trial court discretion to admit/exclude expert testimony)
- Nixon v. Harkins, 220 Neb. 286, 369 N.W.2d 625 (Neb. 1985) (undisclosed expert may be allowed when appellant shows no prejudice)
- Fales v. Fales, 25 Neb. App. 868, 914 N.W.2d 478 (Neb. Ct. App. 2018) (when domestic intimate partner abuse is found, court must impose limits reasonably calculated to protect parent/child)
- Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (Neb. 2015) (same principle: protective limitations mandatory after abuse finding)
- Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (Neb. 2004) (child support may be set on earning capacity when a parent voluntarily leaves employment)
- Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 (Neb. 2001) (parent must prove premiums attributable to children to claim child-insurance credit)
- Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (Neb. 2001) (definition and proof burdens for dissipation of marital assets)
- Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (Neb. 2016) (civil contempt requires willful disobedience; clear-and-convincing proof standard)
- Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (Neb. 2019) (factors for awarding attorney fees in dissolution matters)