Toro v. Toro
30 Neb. Ct. App. 158
| Neb. Ct. App. | 2021Background
- Tammy and Philip Toro married in 2005 and separated in September 2019; they have two children (born 2005 and 2014). Tammy filed for dissolution and sought full custody; Philip contested custody and appealed the final decree.
- The district court entered temporary orders awarding Tammy primary legal and physical custody, limited parenting time to Philip, and temporary child support; an ex parte domestic abuse protection order existed earlier in the proceedings.
- Trial occurred (June–July 2020). After trial, Tammy filed ex parte juvenile-related information about Philip’s girlfriend and newborn twins; the court entered a decree (Oct. 14, 2020) awarding Tammy custody with supervised parenting time for Philip, imputing $60,000 annual earning capacity to Philip for child support, and dividing marital property largely per Tammy’s proposed exhibit.
- Philip moved to alter/reopen; an evidentiary hearing was held on November 17, 2020; the court denied Philip’s postdecree motions and adopted Tammy’s parenting plan (clarifying parenting every other Saturday).
- On appeal Philip challenged (1) the supervised parenting time, (2) the income imputed to him for child support and related expense allocations, and (3) the property division. The Court of Appeals affirmed as modified for clerical corrections and to add an omitted pension and clarify camper proceeds payment.
Issues
| Issue | Plaintiff's Argument (Tammy) | Defendant's Argument (Philip) | Held |
|---|---|---|---|
| Supervised parenting time | Supervision necessary due to Philip’s domestic violence, threats, violation of protection orders, presence of girlfriend with alleged drug history, and parental alienation of children | No basis for supervised visits: court didn’t interview daughter, ex parte filings decided without defendant’s rebuttal, and no trial evidence supporting supervision | Affirmed. Evidence (assault plea, protection orders, threats, girlfriend present despite orders, altered child behavior) supported supervised parenting; trial court did not abuse discretion and supervision may be modified on proof of changed circumstances |
| Child support: income attribution and allocation of childcare/medical costs | Use 2019 receipts and earning capacity to impute income (~$60,000 annually); allocate uncovered childcare/medical per guidelines | Income should be based on net profit or multi-year average (Philip proposed ~$36–38k); allocations should reflect that lower income | Affirmed. Court permissibly relied on 2019 gross receipts and evidence of unreported side work to impute $60,000 earning capacity; no abuse of discretion. Court corrected scrivener’s error: $250 threshold is per child per year (not per month) |
| Property division and specific asset allocations (retirement, camper proceeds) | Adopted Tammy’s exhibit allocating majority of marital estate to Tammy; overall division fair in court’s discretion | Challenges to valuations, alleged failure to award Philip equitable share, omitted retirement account (Machinist pension), and unclear camper proceeds allocation | Affirmed division as within discretion. Modified decree to (1) include Machinist pension awarded to Philip, and (2) require Tammy to pay Philip $3,425 if his half of camper sale proceeds was not already paid; no other reversal warranted |
Key Cases Cited
- Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (review standard in dissolution appeals and abuse-of-discretion test)
- Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (deference to trial court fact-finding when evidence conflicts)
- Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (child’s preference entitled to consideration when mature and reasoned)
- Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (limits on visitation may be warranted to protect child)
- Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (self-employed income ordinarily determined from tax returns; averaging where appropriate)
- Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (three-step marital property division framework)
- Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (general rule on equitable division — roughly one-third to one-half to each spouse)
- Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (plain-error doctrine applied to correct clerical errors)
- Yost v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (treatment of motions to reopen as motions for new trial/newly discovered evidence)
- State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208 (modification of parenting time upon changed circumstances)