Zellner v. Latham, A-16-430

Background

Torrance (father) and Lanta (mother) married in 2010; three children (two older born in Maryland, youngest Greyson born in Nebraska after mother moved there in 2011).
Maryland court entered orders (2013) giving joint legal custody and Lanta sole physical custody of the two older children; Torrance ordered to pay child support (later modified for unemployment).
Torrance filed for dissolution in Nebraska (2013) seeking custody and support for Greyson; parties entered a temporary stipulation giving Lanta physical custody and setting $100/month support for Greyson while Torrance was unemployed.
At trial (Dec. 2015) parties agreed physical custody to Lanta; disputed issues were legal custody and child support amount/retroactivity; both parties earned income by trial (Torrance $5,208/mo; Lanta $4,528/mo).
District court (Mar. 2016) awarded Lanta sole legal and physical custody of Greyson (with parenting time for Torrance), ordered Torrance to pay $645/month for Greyson with a $55/month transportation credit, and made support retroactive to June 1, 2015; Torrance’s motion for new trial denied.
On appeal Torrance argued (1) sole legal custody was erroneous, (2) child support amount and retroactivity were improper, and (3) ineffective assistance of trial counsel; appellate court affirmed as modified to incorporate certain unadopted agreed provisions (childcare, medical cost split, insurance, tax credit).

Issues

Issue	Torrance's Argument	Lanta's Argument	Held
Whether sole legal custody for Lanta was an abuse of discretion	Joint legal custody appropriate; parties successfully shared legal custody of older children; Lanta indicated willingness to joint custody	Sole legal custody needed because parents cannot communicate; custodial parent should have final say	Affirmed: sole legal custody to Lanta; poor communication and Lanta’s de facto decisionmaking supported award
Whether court abused discretion in child support amount and deviations	Requested multiple downward deviations ($545/month) for summer abeyance, travel, and childcare; sought lower support and/or travel cost allocation	Support should follow guidelines; small $50–$55/month deviation appropriate for travel; proposed $595/month	Affirmed mostly: denied most deviations except $55/month transportation credit; guideline amount adopted ($645/month)
Whether retroactive support to June 1, 2015 was improper	Retroactive award creates immediate arrearage and undue burden; no trial finding on retroactivity	Retroactivity reasonable given Torrance returned to work April 2015 but continued minimal payments	Affirmed: retroactive to June 1, 2015 not an abuse of discretion based on equities and Torrance’s employment/resumed income
Whether Torrance received ineffective assistance of counsel	Counsel failed to contest physical custody or present unfitness evidence against Lanta	No Sixth Amendment right to counsel in civil family matters; Torrance could have sought new counsel	Denied: ineffective assistance claim without merit

Key Cases Cited

Schrag v. Spear, 290 Neb. 98 (trial-court custody determinations given deference; reviewed de novo)
Anderson v. Anderson, 290 Neb. 530 (child support determinations reviewed de novo; guidelines presumptively correct)
Brown v. Brown, 260 Neb. 954 (definition and scope of joint legal custody)
Pearson v. Pearson, 285 Neb. 686 (transportation costs and deviations must be reasonable and documented)
Gress v. Gress, 274 Neb. 686 (guidelines as rebuttable presumption; speculative costs cannot justify deviation)
Klimek v. Klimek, 18 Neb. App. 82 (communication is essential for joint legal custody)
Kamal v. Imroz, 277 Neb. 116 (affirming denial of joint legal custody where parents cannot communicate)
Johnson v. Johnson, 290 Neb. 838 (retroactive child support entrusted to trial court discretion; equities govern)
McDonald v. McDonald, 21 Neb. App. 535 (court must consider ability to pay when ordering lump-sum retroactive support)