912 N.W.2d 278
Neb. Ct. App.2018Background
- Benjamin and Jessica Schmeidler married in 2011; their daughter was born in 2014. Benjamin filed for dissolution in May 2016. Trial addressed custody, parenting time, child support, and property division.
- Conflicting evidence at trial about Benjamin’s alcohol use and alleged domestic violence; trial court found Jessica more credible and noted a long history of conflict between the parties.
- Trial court awarded legal and physical custody of the child to Jessica, denied joint custody, and adopted Jessica’s parenting plan with supervised-safety provisions restricting Benjamin’s contact when alcohol use was suspected.
- Parenting plan limited contact between the child and certain of Jessica’s family members, required Benjamin to provide all transportation, granted Benjamin every-other-weekend and Wednesday evening time, and only 2 weeks summer parenting time. Child support was set at $568/month.
- The court valued and divided marital assets and ordered Benjamin to pay a $5,000 equalization payment. Benjamin appealed, contesting custody decision, parenting plan provisions (including delegation in the safety plan), and asset classification/valuation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether joint legal and physical custody should have been awarded | Benjamin: joint custody and more parenting time is in child’s best interests | Jessica: long history of conflict, safety concerns from Benjamin’s alcohol/violence, Jessica primary caregiver | Court: Affirmed denial of joint custody; awarded custody to Jessica based on credibility, child’s best interests, and parental conflict making joint custody unworkable |
| Whether the trial court erred in adopting Jessica’s parenting plan (contact restrictions, transportation, summer time) | Benjamin: plan contains errors — bans certain family contact, makes him provide all transport, and grants only 2 weeks summer time | Jessica: plan is reasonable given safety concerns and travel logistics | Court: Upheld contact bans; modified transport requirement (midpoint exchanges for Wednesday visits) and increased summer time to 6 continuous weeks; clarified Christmas timeframe |
| Whether the “safety plan” unlawfully delegates judicial authority by allowing Jessica to unilaterally suspend parenting time for suspected drinking | Benjamin: safety plan impermissibly delegates court’s custody/visitation power and requires overbroad self-reporting | Jessica: provisions merely penalize drinking choices by Benjamin and preserve child safety | Court: Agreed with Benjamin; held safety plan unlawfully delegated judicial power and required removal of the safety plan and the self-reporting provision |
| Whether certain assets/debts were misclassified or misvalued (fencing supplies, Shop‑Vac, hay, FSA loan) | Benjamin: fencing supplies and Shop‑Vac were his nonmarital property; FSA loan value was higher than court found; hay may be nonmarital | Jessica: items included in marital estate and values supported trial court’s calculations | Court: Reclassified Shop‑Vac and fencing supplies as Benjamin’s nonmarital property (reduce marital assets by $3,100); affirmed hay as marital (insufficient proof it was nonmarital); found FSA marital portion was $22,000 not $20,000; modified equalization payment from $5,000 to $2,531 |
Key Cases Cited
- Burcham v. Burcham, 24 Neb. App. 323 (appellate review in dissolution is de novo and trial court discretion reviewed for abuse)
- Maska v. Maska, 274 Neb. 629 (custody decided by parental fitness and child’s best interests)
- Donald v. Donald, 296 Neb. 123 (joint physical custody reserved for parents of sufficient maturity and ability to provide stable atmosphere)
- Deacon v. Deacon, 207 Neb. 193 (court cannot delegate custody/visitation determinations to parties or third parties)
- Von Tersch v. Von Tersch, 235 Neb. 263 (limits on alcohol consumption during parenting time permissible)
- Millatmal v. Millatmal, 272 Neb. 452 (marital debt includes obligations incurred during marriage for joint benefit)
- Barth v. Barth, 22 Neb. App. 241 (disapproving grant of custodial parent discretion to withhold visitation; delegation concerns)