Roehrs v. Roehrs
A-18-712
| Neb. Ct. App. | Aug 10, 2021Background
- Odessa and Gerald Roehrs married in 2001 and have three children (born 2004, 2010, 2012). Gerald filed for dissolution in July 2016; both sought custody.
- Parties lived separately by trial; temporary joint custody (week-on/week-off) had been in place during proceedings. GAL visited children and reported the two younger children were doing well; Maegan (age 13) expressed anxiety about placement with Odessa.
- Maegan testified in camera; transcript sealed. Court considered her expressed preferences when deciding placement.
- District court’s decree (April 2018) awarded primary legal and physical custody of Maegan to Gerald, joint legal/physical custody of the two younger children (week on/week off), ordered Odessa to pay child support, and denied alimony.
- Odessa appealed, arguing the parenting plan is vague/unenforceable, that calling/considering Maegan’s testimony was improper, that she should have sole custody, and that she should have received alimony.
Issues
| Issue | Plaintiff's Argument (Odessa) | Defendant's Argument (Gerald) | Held |
|---|---|---|---|
| Parenting plan vague and unenforceable | Plan fails to specify legal vs physical custody, uses custodial/noncustodial terms inconsistently, and is unclear when parenting time for younger children starts | Language "care, custody, and control" is equivalent to legal and physical custody; schedule intended to continue temporary week-on/week-off transitions on Mondays | Not an abuse of discretion; phrasing construed to mean legal and physical custody; schedule interpreted as continuing prior week-on/week-off regimen |
| Calling and considering Maegan’s testimony | Court improperly called child; testimony prejudicial and improperly considered | Gerald called Maegan as a witness; child of sufficient age/maturity; child’s wishes may be considered under statute when based on sound reasoning | Not an abuse of discretion; Maegan (≈13) was competent, testimony admissible and appropriately considered among best-interest factors |
| Custody allocation (award of Maegan to Gerald; joint custody of younger children) | Odessa should have been awarded sole legal and physical custody of all children | Both parents fit; evidence (GAL, child testimony, stability) supported placing Maegan with Gerald and joint custody of younger children | Custody decision affirmed as within trial court’s discretion and in children’s best interests |
| Denial of alimony | Trial court abused discretion by not awarding alimony to Odessa | Odessa is employed, completed advanced degree, has earning potential and flexible hours; equitable to deny alimony here | Affirmed; trial court’s denial of alimony was not an abuse of discretion given circumstances and Odessa’s earning capacity |
Key Cases Cited
- Korth v. Korth, 309 Neb. 115, 958 N.W.2d 683 (use of "care, custody, and control" language as alternative to legal/physical custody)
- Braeman v. Braeman, 192 Neb. 510, 222 N.W.2d 811 (historical use of "care, custody, and control")
- Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (standard of appellate review in dissolution matters)
- Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (child’s preference considered but not controlling; weight depends on age and reasoning)
- Donscheski v. Donscheski, 17 Neb. App. 807, 771 N.W.2d 213 (12-year‑old child competent to express custody preference)
- Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (best‑interest standard when both parents fit)
- Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 582 (factors for alimony and review standard)