McIver v. McIver ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
MCIVER V. MCIVER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
AMY MCIVER, APPELLEE,
V.
KEVIN MCIVER, APPELLANT.
Filed October 1, 2013. No. A-13-052.
Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.
Affirmed as modified.
Jerrad R. Ahrens, of Cordell & Cordell, P.C., for appellant.
Virginia A. Albers, of Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C.,
L.L.O., for appellee.
MOORE, PIRTLE, and BISHOP, Judges.
MOORE, Judge.
Kevin McIver appeals from the decree of dissolution entered by the district court for
Douglas County, and Amy McIver cross-appeals. At issue in this appeal are the district court’s
award of sole legal custody of the parties’ minor children to Amy and joint physical custody to
both parties, the parties’ holiday parenting time, and the property division. For the reasons set
forth below, we affirm the district court’s decree as modified by this opinion.
I. FACTUAL BACKGROUND
Kevin and Amy were married in Columbia, South Carolina, on June 20, 1998. After the
marriage, Amy and Kevin lived in North Carolina and began a family. Three children were born
of this marriage: a daughter born in 2002, a son born in 2003, and another son born in 2007.
When Kevin accepted a new job in 2007, the family moved from Asheboro, North Carolina, to
Omaha, Nebraska. At the time of trial, the children were 10, 8, and 5 years old, respectively, and
were all in school.
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On October 14, 2011, Amy filed a complaint for dissolution of marriage. In her
complaint, Amy sought to be awarded primary physical custody of the children, but was willing
to share legal custody with Kevin. Kevin filed an answer and counterclaim to Amy’s complaint,
requesting joint physical and legal custody of the children.
The district court entered a temporary order on December 29, 2011, granting Kevin and
Amy joint legal custody of their three children, with Amy appointed as the physical custodian.
Kevin was awarded overnight parenting time on one weekday night and every other weekend.
The district court also gave Amy exclusive occupancy of the marital home and ordered Kevin to
pay monthly child and spousal support in the respective amounts of $1,920 and $1,000.
Trial was held on September 24, 2012. The parties had entered into a partial parenting
agreement through mediation before trial, but the issues of legal custody, division of parenting
time, and the conclusion time for holiday visitation remained to be resolved. The parties also
disagreed as to the amount of spousal support and to valuations of certain personal and real
property. Both parties submitted evidence regarding these issues.
Kevin was 39 years old at the time of trial and was employed as a senior engineer at an
energy company. Following the birth of the parties’ first child, Kevin was the sole source of
income for the family. Because his job often required him to travel from Omaha to the company
plant in Lexington, Nebraska, Kevin was away from home a few days each week. At trial,
however, Kevin testified that his schedule would become more flexible to permit a joint custody
arrangement.
At the time of trial, Amy was 38 years old. After getting married and moving to North
Carolina, Amy worked as a teacher until their first child was born in 2002. Since the birth of
their children until her separation from Kevin, Amy had been a stay-at-home mother. During that
time, Amy arranged the children’s medical care and was the primary family contact person for
the children’s school. Amy was responsible for the day-to-day care of the children, including
purchasing their clothing and supplies.
Amy has a current Nebraska teaching certificate. Following the separation, Amy began
working as a substitute teacher in the Millard and Elkhorn school districts and had been pursuing
a full-time teaching position in these districts. As of trial, she had not yet been able to obtain
full-time employment and was continuing to substitute teach in both districts approximately 2 to
3 days per week.
In addition to their testimony, Kevin and Amy each submitted valuations of the personal
property and the marital residence. To value the marital residence, each party commissioned a
professional appraisal. Kevin’s appraisal concluded the home was valued at $338,000, and
Amy’s appraisal valued the home at $315,000. In their proposed valuations for the personal
property, including the various financial accounts, each used a different date of valuation. The
trial testimony reveals that each party disagreed with the other’s valuations. Further evidence
will be discussed regarding the property issues as necessary in the analysis below.
The district court entered its decree of dissolution on November 9, 2012. Taking into
consideration the best interests of the children, the district court granted the parties joint physical
custody, but awarded Amy sole legal custody. To facilitate the joint physical custody
arrangement, the court developed a visitation schedule. Amy was awarded parenting time
beginning at 8 a.m. on Monday and ending at 8 a.m. on Wednesday. Kevin’s parenting time
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starts at 8 a.m. on Wednesday and ends at 8 a.m. on Friday. The parties would also have
parenting time on alternating weekends, which begins at 8 a.m. on Friday and ends at 8 a.m. on
Monday. For holiday parenting time, the court adopted the holiday parenting schedule from the
parties’ partial parenting plan and determined that the holiday parenting time would end at 8 a.m.
following the last day of the designated holiday.
Among its other rulings, the court ordered Kevin to pay alimony and child support and a
portion of Amy’s attorney fees. The court also awarded Amy the marital residence on the
condition that she refinance the existing mortgage within 9 months of the decree and remove
Kevin from any obligation relating to the residence or, in the alternative, that she list the home
for sale. The court made further provisions for splitting the equity in the home between the
parties upon the sale or refinancing. In granting the marital residence to Amy, the court adopted
Amy’s appraised valuation for the home. Kevin was awarded the home that he purchased
separately during the temporary separation period. To divide the parties’ personal property,
including bank and retirement accounts, the court used January 31, 2012, as the valuation date.
After dividing the marital estate, the court ordered Kevin to pay Amy an equalization payment
totaling $69,579.
Kevin appeals from this decree, and Amy cross-appeals.
II. ASSIGNMENTS OF ERROR
Kevin assigns and argues four errors in his brief. He asserts, restated, that the district
court erred by (1) awarding Amy sole legal custody of the minor children, (2) awarding Amy
parenting time every Thanksgiving and Christmas Eve and Christmas Day, (3) ordering Kevin to
pay Amy an equalization payment in the amount of $69,579, and (4) accepting Amy’s values for
the parties’ marital residence and personal property.
On cross-appeal, Amy argues that the district court erred when it awarded Kevin joint
physical custody of the minor children.
III. STANDARD OF REVIEW
In an action for the dissolution of marriage, an appellate court reviews de novo on the
record the trial court’s determination of custody, child support, property division, alimony, and
attorney fees; these determinations, however, are initially entrusted to the trial court’s discretion
and will normally be affirmed absent an abuse of discretion. Keig v. Keig, 20 Neb. App. 362, 826
N.W.2d 879 (2012). An abuse of discretion occurs when a trial court bases its decision upon
reasons that are untenable or unreasonable or its action is clearly against justice or conscience,
reason, and evidence. Id.IV. ANALYSIS
1. KEVIN’S APPEAL
(a) Legal Custody of Children
Although the district court determined the parties should have joint physical custody of
the minor children, it awarded Amy sole legal custody. Kevin argues that there was sufficient
evidence to show that awarding the parties joint legal custody would be in the best interests of
the children.
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When custody of minor children is an issue in a proceeding to dissolve the marriage of
the children’s parents, custody is determined by parental fitness and the children’s best interests.
Klimek v. Klimek, 18 Neb. App. 82, 775 N.W.2d 444 (2009). The best interests of a child require
a parenting arrangement “for a child’s safety, emotional growth, health, stability, and physical
care and regular and continuous school attendance and progress.” Neb. Rev. Stat. § 43-2923(1)
(Cum. Supp. 2012). Section 43-2923(6) further provides:
In determining custody and parenting arrangements, the court shall consider the best
interests of the minor child, which shall include, but not be limited to, consideration of
the foregoing factors and:
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member
. . . ; and
(e) Credible evidence of child abuse or neglect or domestic intimate partner
abuse.
The district court is also guided by Neb. Rev. Stat. § 42-364(3) (Cum. Supp. 2012) when
determining a child custody award. This section provides:
Custody of a minor child may be placed with both parents on a joint legal custody or joint
physical custody basis, or both, (a) when both parents agree to such an arrangement in the
parenting plan and the court determines that such an arrangement is in the best interests
of the child or (b) if the court specifically finds, after a hearing in open court, that joint
physical custody or joint legal custody, or both, is in the best interests of the minor child
regardless of any parental agreement or consent.
“Joint legal custody” is defined as “mutual authority and responsibility of the parents for
making mutual fundamental decisions regarding the child’s welfare, including choices regarding
education and health.” Neb. Rev. Stat. § 43-2922(11) (Cum. Supp. 2012).
The district court found that both Amy and Kevin were fit persons capable of having the
permanent care, custody, and control of the children, but found that the best interests of the
minor children required that Amy have sole legal custody. The court noted that the traditional
division of responsibilities during the marriage, Kevin’s struggle during his parenting time to
ensure the children’s timely arrival at school, and the potential for communication problems
necessitated this arrangement.
Kevin does not challenge the district court’s conclusion that Amy is a fit parent. Rather,
Kevin asserts that there is sufficient evidence he is capable of exercising joint legal custody and
that it would be in the best interests of the children. Kevin claims there was no evidence that he
has made poor decisions regarding the children and points to the care that he has given to the
children during his parenting time since the parties’ separation to support this claim. At trial,
Kevin agreed that during the marriage, he relied on Amy to take care of the children’s health,
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education, and daily needs, but contended that this was due to their arrangement that he would
work to provide income and Amy would be a stay-at-home mother. Kevin asserts that the parties
had a history of discussing decisions regarding the children. Kevin argues that the family
dynamics have now changed with all of the children being in school and Amy returning to work
such that it would be best for the children to have both parties be involved in the decisionmaking
process. Kevin conceded that since the separation, the children arrived late to school on days
when he was responsible for transporting them. However, he claimed that they were only late a
few minutes and had arrived before classroom instruction began taking place. Finally, Kevin
argues that the parties have not had any communication problems or major disagreements
regarding decisions for the children such that it was an abuse of discretion by the district court to
use potential communication issues as a reason to deny joint legal custody.
Amy testified that she initially thought the parties could share legal custody but that she
changed her mind approximately 4 months after the parties’ separation. At that time, she
concluded that they could not share legal custody effectively. Amy pointed to Kevin’s
disagreement over the daycare arrangements she made for the children before and after school,
his unwillingness to suggest an alternative, and his reluctance and delay in paying for his portion
of the daycare expense during the temporary period. Amy also asserts she has been the parent
who arranges the children’s medical appointments, and she is the primary liaison between the
family and the children’s school.
Our review of the record leads us to conclude that the district court did not abuse its
discretion when it awarded Amy sole legal custody of the minor children. In reaching this
conclusion, we note that § 42-364(3) does not require a court to order both joint legal and joint
physical custody, but, rather, contemplates that a court may order one or the other, or both. We
further note that Kevin retains the right to make decisions regarding the day-to-day care of the
children while he is exercising his parenting time as provided in the parenting plan adopted by
the district court. This assigned error is without merit.
(b) Thanksgiving and Christmas
Parenting Time
Kevin argues that the holiday parenting schedule is unreasonable because it does not
grant him parenting time on Thanksgiving Day, Christmas Eve, or Christmas Day. He contends
that such a holiday schedule is not in the children’s best interests and that no evidence was
presented at trial to establish the reasonableness of this schedule.
Our review of the record reveals that Kevin and Amy mediated a partial parenting plan
before trial and had agreed upon a schedule for the Thanksgiving and Christmas holidays. This
plan was approved by the conciliation court and filed in the district court on May 2, 2012, and it
was also received into evidence. According to the plan’s schedule, the Thanksgiving holiday
would have two parts: (1) part one begins the Friday prior to Thanksgiving at 5 p.m. and ends the
Wednesday prior to Thanksgiving at 6 p.m. and (2) part two begins Wednesday prior to
Thanksgiving at 6 p.m. with the court determining the end time. Amy and Kevin also agreed to
divide the Christmas holiday into two parts: (1) part one begins on the day of school dismissal
for Christmas break at 5 p.m. and ends the day after Christmas at 9 a.m. and (2) part two begins
December 26 at 9 a.m. and ends December 31 at 9 a.m. Amy and Kevin agreed that Kevin would
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have parenting time during part one of Thanksgiving and part two of Christmas every year while
Amy would have part two of Thanksgiving and part one of Christmas. The only matter not
agreed to by the parties was the end time for the holiday visitation.
Despite having agreed upon a holiday schedule at mediation, Kevin submitted his own
“parenting plan proposal” at trial which deviated from the mediated plan. Kevin’s plan
maintained the two-part holiday division from the mediated plan, but proposed that the parties
alternate yearly between the two parts of each holiday. On cross-examination, Kevin admitted
that his plan deviated from the mediated plan, but he did not otherwise explain why his plan
should be adopted.
In its decree, the court adopted the holiday schedule from the parties’ mediated parenting
plan. The court also determined that all holidays without an established end time would end at 8
o’clock the morning after the last day of the holiday. Because the court adopted the holiday
schedule from the parties’ mediated parenting plan, and Kevin did not testify as to why such plan
should not be adopted, we find no abuse of discretion in the determination of the Thanksgiving
and Christmas holiday schedule. This assigned error is without merit.
(c) Equalization Payment
Kevin also claims the district court abused its discretion when it ordered him to pay Amy
an equalization payment in the amount of $69,579 within 30 days of the decree. Kevin contends
the district court improperly valued a certain account, a “Fidelity Traditional IRA” (Fidelity
IRA), which he claims led to certain funds being counted twice. Kevin also argues that having to
make this payment within 30 days creates an undue hardship.
Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the equitable division of property is a
three-step process. The first step is to classify the parties’ property as marital or nonmarital. The
second step is to value the marital assets and marital liabilities of the parties. The third step is to
calculate and divide the net marital estate between the parties in accordance with the principles
contained in § 42-365. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012). Although the
division of property is not subject to a precise mathematical formula, the general rule is to award
a spouse one-third to one-half of the marital estate, the polestar being fairness and
reasonableness determined by the facts of the case. Pohlmann v. Pohlmann, 20 Neb. App. 290,
829 N.W.2d 63 (2012).
Kevin’s argument relates to the second step of the property division process. Specifically,
Kevin argues that despite the district court ruling that the marital estate would be valued as of
January 31, 2012, or as closely as possible, it did not adhere to that date. In the decree, the
district court found that even though the Fidelity IRA had a $0 balance as of January 20, 2012, it
should not be valued on that date. The court noted that this account contained $27,272 in October
2011 and $28,612 on September 13, 2012. The court also found that Kevin had used the account
for the downpayment for his purchase of a new house and had later replenished the account with
a personal loan. Taking the account activity into consideration, the court valued the account at
$28,612 when it divided the marital estate. The court further awarded Kevin sole possession of
the home he purchased and any equity in that home.
At trial, Kevin attempted to explain the fluctuation in the Fidelity IRA and the
corresponding activity in his “ING” accounts. Kevin’s testimony and a careful review of the
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account exhibits offered by Amy show that on January 18, 2012, Kevin transferred the sum of
$27,823.01 from the Fidelity IRA to the ING checking account. On the same day, Kevin
transferred $13,934.30 from the ING checking account to the ING loan account to fully satisfy
the parties’ line of credit. On January 20, Kevin transferred $14,000 from the ING checking
account to the ING savings account. In February 2012, Kevin used funds in the ING savings
account to make a downpayment on his new house in the sum of $14,501.27. Kevin also
explained that he acquired a $30,000 personal loan in March 2012 to replenish the Fidelity IRA.
We agree with Kevin that the district court did not use the account balances as of January
31, 2012 (or as close thereto as possible), on the Fidelity IRA and ING accounts and that its
valuations contained some duplication. Based upon our careful review of the record, we
determine that the account balances of the pertinent accounts should be as follows:
Account Decree Actual
Fidelity IRA $28,612 $ 0.00
ING checking 16,102 664.08
ING loan ( 5,536) 0.00
ING loan payoff 13,934.30
ING savings 14,511.81
TOTAL $39,187 $29,110.19
Thus, we find that the district overvalued the accounts awarded to Kevin by $10,076.81,
which we round to $10,077. Given that the district court equalized the marital estate on a 50/50
basis in the decree, we accordingly modify Kevin’s net marital estate valuation from $221,259 to
$211,182. We further modify the equalization payment from $69,260 to $64,222.
Kevin also argues that the district court abused its discretion by requiring him to pay the
property judgment within 30 days while delaying payment of his portion of the equity in the
marital home by up to 9 months. Kevin asserts that this creates an undue hardship on him.
However, Kevin did not adduce any evidence at trial to support this argument or provide any
further explanation beyond what is stated above. Kevin’s argument is merely a reformulation of
the assigned error and, therefore, does not constitute the required argument in support of the
assigned error. See Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005). This argument is
without merit.
(d) Valuation of Marital Residence
and Personal Property
In his final assignment of error, Kevin argues that the district court erred when it adopted
Amy’s proposed values for the marital residence and personal property. Kevin claims that the
court’s decision was improper because it did not sufficiently explain its reasoning for adopting
Amy’s proposed values instead of his submitted values.
At trial, Kevin and Amy both produced professionally conducted appraisals of the marital
home. Kevin’s appraisal concluded the home should be valued at $338,000, and Amy’s appraisal
valued the home at $315,000. Neither appraiser testified at trial, but Amy questioned the
accuracy of Kevin’s appraisal during her testimony, specifically with regard to the comparable
sales used in the appraisal. In addition to her appraisal, Amy also produced a letter notification
from the Douglas County Board of Equalization that the residence was valued at $292,000 as of
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August 7, 2012. This determination followed the parties’ protest of the initial valuation at
$325,500.
In its decree, the district court adopted $315,000 as the value of the marital residence.
Based on our review of the evidence, the court’s adopted value is clearly reasonable and cannot
be considered an abuse of discretion.
We also conclude that the district court’s decision to adopt Amy’s valuations of the
parties’ personal property was not an abuse of discretion. Specifically, the district court valued
Amy’s personal property at $6,790 and Kevin’s at $2,250. Amy testified that her valuations were
based upon garage sale and “craigslist” prices. In his brief, Kevin argues that in adopting these
values, the district court created an unfair result. However, other than submitting an exhibit with
opposing valuations for the personal property, Kevin did not produce any evidence to establish
the validity of his valuations or to contradict Amy’s valuations. When faced with deciding
between these two opposing valuations, we cannot say the district court erred when adopting
Amy’s valuations. This assigned error is without merit.
2. AMY’S CROSS-APPEAL
In her cross-appeal, Amy asserts that the district court abused its discretion in awarding
the parties joint physical custody. Amy claims that joint physical custody cannot be effectively
combined with sole legal custody. She reiterates that she has been the primary caregiver for the
children during the marriage and claims the history of this family dictates that she should be
awarded sole physical custody of the children subject to Kevin’s liberal visitation.
As stated above, § 42-364(3) allows the trial court to award joint physical custody in
dissolution cases, even if the parties do not agree to joint custody in a parenting plan, if it
specifically finds, after a hearing in open court, that it is in the best interests of the children. The
statute contemplates that a court may order joint legal custody, joint physical custody, or both;
but it does not require a court to order both joint legal and joint physical custody, or preclude
ordering joint physical custody without joint legal custody. “Joint physical custody” is defined as
“mutual authority and responsibility of the parents regarding the child’s place of residence and
the exertion of continuous blocks of parenting time by both parents over the child for significant
periods of time.” § 43-2922(12). A district court abuses its discretion in ordering joint custody
when it fails to specifically find that joint physical custody is in the child’s best interests as
required by § 42-364. See, Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007); Hill v. Hill, 20
Neb. App. 528, 827 N.W.2d 304 (2013).
In this case, Kevin sought joint physical custody and both parties were aware at trial that
the court was considering joint custody. Both parties testified to their preference of a schedule in
the event the court ordered joint physical custody, although Amy maintained her belief that joint
physical custody was not in the children’s best interests. In the dissolution decree, the court
specifically found that a joint physical custody arrangement was in the children’s best interests
and it utilized the schedule proposed by Amy.
Nebraska has not yet recognized a presumption in favor of joint custody, and joint
custody remains disfavored to the extent that if both parties do not agree, the court can award
joint custody only if it holds a hearing and makes the required finding. See Zahl v. Zahl, supra.In Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009), the Nebraska Supreme Court
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discussed the interplay between § 43-364(3) and § 43-2923 of the Parenting Act, and found that
in essence, the statutes require the district court to devise a parenting plan and to consider joint
legal and physical custody. However, the statutes “do not require the district court to grant equal
parenting time or joint custody to the parents if such is not in the child’s best interests.” Kamal v.
Imroz, 277 Neb. at 121, 759 N.W.2d at 918 (emphasis in original).
Most appellate decisions reversing an award of joint physical custody involve a finding
that joint physical custody was not requested by either party or the failure of the trial court to
provide notice, a hearing, or make a finding that joint physical custody was in the best interests
of the child or children. See, e.g., State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777
N.W.2d 565 (2010); Zahl v. Zahl, supra; Hill v. Hill, supra.
In the present case, we are called upon to determine only whether the district court
abused its discretion in finding that joint physical custody was in the best interests of these
children. After reviewing the record, we cannot say that an abuse of discretion occurred. Both
parents clearly love their children and have good relationships with them. The parties live within
10 miles of each other in the Omaha area. While Amy has historically been the traditional
primary caregiver, the family circumstances have changed in that Amy is pursuing full-time
employment as a teacher and the children are now all of school age. Kevin testified that he will
have more flexibility in his work-related travels such that he can be home to care for the children
on an alternating basis. No evidence was adduced to suggest that an alternating parenting
schedule would be detrimental to the children. On this record, we cannot say that the district
court abused its discretion in finding that the children’s best interests will be served by the award
of joint physical custody.
V. CONCLUSION
We find that the district court did not abuse its discretion when awarding custody of the
minor children. Nor did the district court abuse its discretion when adopting the parties’
mediated holiday schedule or Amy’s proposed property values. However, the district court did
not properly value certain accounts which led to an error in dividing the marital estate. We have
modified the decree to correct this error. Accordingly, we affirm the district court’s decree as
modified.
AFFIRMED AS MODIFIED.
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