966 N.W.2d 519
Neb. Ct. App.2021Background
- Tammy and Philip Toro married in 2005 and have two children (born 2005 and 2014); they separated in September 2019 and Tammy filed for dissolution.
- Temporary orders (April 2020) granted Tammy legal and physical custody; Philip received limited parenting time and temporary child support; protection orders involving Philip and his girlfriend (Wood) were in the record.
- Trial occurred June–July 2020; evidence included allegations of Philip’s threats, a 2019 domestic assault guilty plea, drug concerns, and testimony that Wood had contact with the children contrary to court orders.
- After trial Tammy filed an ex parte motion (Oct. 2020) citing juvenile proceedings involving Philip’s newborn twins; the district court entered the decree Oct. 14, 2020 awarding Tammy custody with supervised parenting time for Philip, imputing Philip’s annual earning capacity at $60,000 and ordering $998/month child support.
- The decree divided marital property largely per Tammy’s proposed division, allocating Tammy a far larger share of the net marital estate; Philip appealed challenging supervised parenting time, income attribution for child support, and the property division.
Issues
| Issue | Philip's Argument | Tammy's Argument | Held |
|---|---|---|---|
| Supervised parenting time | Court erred by ordering supervised time without in camera interview of older child, and by ruling on custody based on Tammy’s ex parte filings | Supervision justified by Philip’s threats, assault conviction, violations of protection orders, presence of Wood around children, and evidence of parental alienation | Affirmed: supervised parenting time supported by record (domestic abuse, threats, court-order violations, potential alienation); child’s handwritten note sufficed so omission of in camera interview was not prejudicial; post-decree hearing did not require reversal |
| In camera interview of child | Failure to interview Josie prevented full evaluation of child’s wishes under §43-2923 | Court had Josie’s handwritten note (exhibit) expressing preference and reasons; note was sufficient | Held no reversible error; exhibit allowed consideration of child’s wishes and favored Philip but did not prejudice him |
| Income imputation / child support | Court erred imputing $60,000; trial evidence supports a lower figure (Philip argued ~$36,000–38,000) and averaging should have been applied | Court relied on 2019 gross receipts, Philip’s earning capacity, and unreported side-work; averaging of 3 years inappropriate because 2017 not a full year and no large fluctuation | Affirmed: court did not abuse discretion in imputing $60,000 annual earning capacity given 2019 gross receipts, pattern for 2018–2019, and testimony of unreported side income; child support order affirmed |
| Property division & clerical errors | Division undervalued certain assets, failed to award equalization, and omitted Philip’s Machinist pension and camper proceeds | Court adopted Tammy’s proposed division; values and allocations were supported by exhibit; overall division within trial court discretion | Affirmed as to substance: adoption of exhibit values not abuse of discretion; modified to correct scrivener errors (include Machinist pension to Philip; strike "per month" in healthcare threshold; clarify Tammy must pay Philip $3,425 for half the camper proceeds if not already paid) |
Key Cases Cited
- Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (standard of review in dissolution actions is de novo review for abuse of discretion)
- Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (appellate court may give weight to trial judge’s firsthand witness observations)
- Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (child preference considered when child of sufficient maturity expresses reasoned choice)
- Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (limits on visitation, including supervised visitation, may be warranted to protect child’s best interests)
- Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (income of self-employed person may be determined from tax returns for child support)
- Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (three-step framework for classifying, valuing, and dividing marital property)
- Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (general rule: equitable division typically awards a spouse one-third to one-half of marital estate)
- Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (plain error doctrine applied to correct scrivener errors in decree)
- Bornhorst v. Bornhorst, 28 Neb. App. 182, 941 N.W.2d 769 (parenting time determinations entrusted to trial court discretion)