Catlett v. Catlett ( 2015 )

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Decisions of the Nebraska Court of A ppeals
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CATLETT v. CATLETT
Cite as 23 Neb. Ct. App. 136
Irene Joan Orquia Catlett, appellee, v.
Jeffrey Paul Catlett, appellant.
___ N.W.2d ___
Filed August 18, 2015. No. A-14-741.
1. Divorce: Appeal and Error. An appellate court’s review of a trial
court’s judgment in dissolution proceedings is de novo on the record
to determine whether there has been an abuse of discretion by the
trial judge, whose judgment will be upheld in the absence of an abuse
of discretion.
2. ____: ____. Upon an appellate court’s de novo review on the record in
dissolution proceedings, when the evidence is in conflict, the appellate
court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
3. Divorce: Jurisdiction: Appeal and Error. The standard of review in
an appeal concerning a jurisdictional issue in an action for dissolution
of marriage is the same standard for appellate review of any other judg-
ment in a dissolution action.
4. Jurisdiction: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, determination of a jurisdictional issue is
a matter of law which requires an appellate court to reach a conclusion
independent of the trial court’s decision.
5. Divorce: Actions: Domicile: Intent. Pursuant to Neb. Rev. Stat.
§ 42-349 (Reissue 2008), in order to maintain an action for divorce in
Nebraska, one of the parties must have had actual residence in this state
with a bona fide intention of making this state his or her permanent
home for at least 1 year prior to the filing of the complaint.
6. Divorce: Domicile: Jurisdiction. Satisfaction of the residency require-
ment in Neb. Rev. Stat. § 42-349 (Reissue 2008) is required to con-
fer subject matter jurisdiction on a district court hearing a dissolu-
tion proceeding.
7. Jurisdiction: Words and Phrases. Jurisdiction is defined as a court’s
power or authority to hear a case.
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CATLETT v. CATLETT
Cite as 23 Neb. Ct. App. 136
8. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
9. Judgments: Jurisdiction. A judgment entered by a court which lacks
subject matter jurisdiction is void.
10. Judgments: Jurisdiction: Collateral Attack. A void judgment entered
by a court which lacks subject matter jurisdiction may be attacked at any
time in any proceeding.
11. Divorce: Actions: Domicile: Words and Phrases. The language of
Neb. Rev. Stat. § 42-349 (Reissue 2008) requiring an “actual residence
in this state” means that one party is required to have a bona fide
domicile in Nebraska for 1 year before commencement of a dissolu-
tion action.
12. Domicile: Intent: Words and Phrases. Domicile is obtained only
through a person’s physical presence accompanied by the present inten-
tion to remain indefinitely at a location or site or by the present intention
to make a location or site the person’s permanent or fixed home.
13. Domicile. Once established, domicile continues until a new domicile
is perfected.
14. Property Division. The purpose of a property division is to distribute
the marital assets equitably between the parties.
15. Divorce: Alimony. A court entering a decree in a dissolution proceeding
may order alimony under Neb. Rev. Stat. § 42-365 (Reissue 2008) as
may be reasonable with regard to the listed statutory factors.
16. Alimony: Property Division. While the criteria for reaching a rea-
sonable award of alimony overlap with the criteria for dividing prop-
erty reasonably, the two serve different purposes and are consid-
ered separately.
17. Alimony. In addition to the statutory factors, a trial court awarding ali-
mony also considers the income and earning capacity of each party, as
well as the general equities of each situation.
18. Alimony: Appeal and Error. In reviewing a trial court’s award of
alimony, an appellate court does not determine whether it would have
awarded the same amount of alimony as did the trial court, but whether
the trial court’s award is untenable such as to deprive a party of a sub-
stantial right or just result.
19. Divorce: Child Support. The Nebraska divorce statutes do not impose
a duty upon any individual other than a parent to pay for the support of
minor children.
20. Child Support: Rules of the Supreme Court. The purpose of the
Nebraska Child Support Guidelines is to recognize the equal duty of
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CATLETT v. CATLETT
Cite as 23 Neb. Ct. App. 136
both parents to contribute to the support of their children in proportion
to their respective net incomes.
21. Affidavits: Breach of Contract. An affidavit of support signed as part
of a federal immigration process is an independent contract that may be
enforced separately under a breach of contract theory.
22. Parent and Child. A parenting plan shall serve the best interests of
the child.
23. Parent and Child: Visitation. A reasonable visitation schedule is one
that provides a satisfactory basis for preserving and fostering a child’s
relationship with the noncustodial parent.
24. Visitation. There is not a certain mathematical amount of visitation that
is considered reasonable; the determination of reasonableness is to be
made on a case-by-case basis.
25. Attorney Fees. An award of attorney fees depends on multiple factors
including the nature of the case, the services performed and results
obtained, the earning capacity of the parties, the length of time required
for preparation and presentation of the case, customary charges of the
bar, and the general equities of the case.
Appeal from the District Court for Nemaha County: Daniel
E. Bryan, Jr., Judge. Affirmed in part, and in part vacated.
Matt Catlett for appellant.
Angelo M. Ligouri, of Ligouri Law Office, for appellee.
Irwin, Inbody, and R iedmann, Judges.
R iedmann, Judge.
INTRODUCTION
Jeffrey Paul Catlett appeals from a decree of the district
court for Nemaha County, Nebraska, dissolving his marriage
to Irene Joan Orquia Catlett and issuing further orders in con-
nection with that dissolution. Jeffrey argues that the district
court lacked subject matter jurisdiction over the dissolution
proceeding and abused its discretion in its determinations
regarding property, support, and children. We affirm the deci-
sion of the district court on all issues with the exception of
its award of child support and health insurance for Jeffrey’s
ex-­stepdaughter, which award we vacate.
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CATLETT v. CATLETT
Cite as 23 Neb. Ct. App. 136
BACKGROUND
Jeffrey and Irene met in Kuwait in 2010. Jeffrey is an
American citizen and contracts with a company in Kuwait
to work overseas. Irene is a Filipino national who moved to
Kuwait in 1997. They were married in April 2011. The par-
ties’ son, Jeffrey Paul Catlett II (J.P.), was born in December
2011. For a period of time, Jeffrey and Irene resided together
in Kuwait. In December 2012, Irene moved to Jeffrey’s house
in Auburn, Nebraska, with J.P. and her daughter from a prior
relationship. In order to facilitate this move to the United
States, Jeffrey sponsored the visas for Irene and her daughter,
which included contracting with the federal government and
promising to maintain them at an income level of at least 125
percent of the poverty threshold. Irene filed a complaint for
dissolution of marriage in the district court for Nemaha County
on June 13, 2013.
Trial Evidence of Jeffrey’s Domicile.
In the dissolution complaint, Irene alleged that Jeffrey had
been a resident of Nebraska for more than 1 year prior to the
filing and that “[f]or more than one (1) year last past and dur-
ing that time [he] has had a bona fide intention of making the
State of Nebraska his home and place of residence.” Jeffrey
admitted the above residency statement in his answer and
counterclaim and further affirmatively stated that he was “a
resident of Auburn, Nemaha County, Nebraska, and has been a
resident of the State of Nebraska for more than one year prior
to the filing of” the counterclaim. He further identified the
Auburn address for both himself and Irene, with a notation that
he was currently employed overseas in Kuwait.
At trial, Irene testified that Jeffrey works in Kuwait but is
a resident of Nemaha County. Jeffrey did not contest this tes-
timony at trial. Additionally, when his counsel asked, “Okay.
And we’ve heard some testimony that you — your permanent
residence is still Auburn, Nebraska; is that — ,” he answered,
“I have two residences: Here and Kuwait.”
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CATLETT v. CATLETT
Cite as 23 Neb. Ct. App. 136
Although residency was not a contested issue at trial, evi-
dence offered for other purposes revealed that Jeffrey pur-
chased a house in Auburn in July 2009 which he continues
to maintain and plans to maintain in the future. While Jeffrey
was in Kuwait, he maintained a bank account in Auburn and
his cousin held a financial power of attorney for him so she
could take care of certain affairs of his in Auburn through
this account. Jeffrey’s tax records indicate that he was pres-
ent in the United States for 36 days in 2012, 21 days in
2011, and 60 days in 2010. He listed on his tax returns that
he was a Kuwait resident full year, lived in rental housing
in Kuwait, and entered Kuwait with a permanent resident
visa. The tax records also reflect that he maintained a home
in the United States while living abroad. In the paperwork
sponsoring Irene’s and her daughter’s visas, Jeffrey listed his
house in Auburn as his mailing address, did not list a place
of residence different from his mailing address, and listed his
country of domicile as Kuwait. In Jeffrey’s proposed parent-
ing plan in this proceeding, he stated that although he “works
overseas he has vacation time from work when he returns to
Nebraska.” He proposed spending all of his vacation time
from arriving at the airport to departing as parenting time with
J.P. in Nebraska.
Property.
The evidence revealed that Jeffrey has maintained his
employment for the entire time of the parties’ marriage and
that his average monthly income exceeds $13,000. Since
Irene moved to the United States to act as a stay-at-home
mother to J.P., to her daughter, and to Jeffrey’s son from a
prior relationship, Irene has not worked, except for a 1-week
job through a “temp” agency. During the marriage, the parties
purchased a Chevrolet Tahoe. Other property of the parties
includes funds in several bank accounts in Jeffrey’s name.
The parties also have debts of over $150,000, including
credit cards and personal loans in Jeffrey’s name. During the
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marriage, Irene had access to only one credit card, with an
outstanding balance of under $3,000 at the time of trial.
Posttrial Proceedings.
Following trial, the district court entered a decree and order
dissolving the parties’ marriage. In the decree, the court spe-
cifically found that it had jurisdiction over the subject matter
of the action. It awarded the legal and physical custody of
J.P. to Irene with parenting time awarded to Jeffrey, ordered
Jeffrey to pay child support and health insurance for both J.P.
and Irene’s daughter along with alimony and attorney fees to
Irene, and provided for a division of property.
Jeffrey timely filed a motion to vacate or modify, arguing
for the first time that he was not a Nebraska resident and that
the court lacked subject matter jurisdiction. Jeffrey also alleged
deficiencies in the substance of the court’s award as it related
to support for Irene’s daughter, alimony, and the division of
property. Jeffrey also moved for a new trial.
At a hearing on Jeffrey’s motions, the district court received
affidavits from both parties on the issue of jurisdiction. In his
affidavit, Jeffrey blamed his attorney for his prior pleadings
asserting Nebraska residency and claimed that he in fact was a
resident of Kuwait at all relevant times.
According to Jeffrey’s affidavit, he moved from Delray
Beach, Florida, to Auburn in 2003 to look after his ill mother.
He stayed with his cousin during this time. He resided in
Auburn until May 2004, when he accepted a position as a
contractor supporting U.S. troops in Iraq. In February 2005,
Jeffrey moved from Iraq to Kuwait, and he has lived there
since. His cousin and her son lived in Jeffrey’s Auburn house
after he purchased it. Jeffrey stated that he has qualified as
a bona fide resident of Kuwait for tax purposes since 2005.
He claimed he has never voted in Nebraska, although Irene
asserted without evidence in her affidavit that he is a regis-
tered voter in Nebraska. She also stated, without supporting
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evidence, that Jeffrey maintains a driver’s license and “conceal
and carry permit” in Nebraska.
The court denied Jeffrey’s motions, and he timely appealed.
ASSIGNMENTS OF ERROR
Jeffrey assigns that the district court erred in its (1) exer-
cise of subject matter jurisdiction, (2) division of property, (3)
award of alimony to Irene, (4) determination of child support,
(5) award of parenting time to Jeffrey, (6) award of attorney
fees to Irene, and (7) failure to grant Jeffrey’s motions to
modify or vacate or for a new trial.
STANDARD OF REVIEW
[1,2] An appellate court’s review of a trial court’s judg-
ment in dissolution proceedings is de novo on the record to
determine whether there has been an abuse of discretion by
the trial judge, whose judgment will be upheld in the absence
of an abuse of discretion. See Huffman v. Huffman, 232 Neb.
742, 441 N.W.2d 899 (1989). In such de novo review, when the
evidence is in conflict, the appellate court considers, and may
give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than
another. See id.
[3,4] The standard of review in an appeal concerning a
jurisdictional issue in an action for dissolution of marriage is
the same standard for appellate review of any other judgment
in a dissolution action. Id. When a jurisdictional question
does not involve a factual dispute, determination of a juris-
dictional issue is a matter of law which requires an appellate
court to reach a conclusion independent of the trial court’s
decision. See Rozsnyai v. Svacek, 272 Neb. 567, 723 N.W.2d
329 (2006).
ANALYSIS
Subject Matter Jurisdiction.
Jeffrey argues that the district court lacked subject matter
jurisdiction over these proceedings because neither party had
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CATLETT v. CATLETT
Cite as 23 Neb. Ct. App. 136
an actual residence in Nebraska with a bona fide intention of
making it his or her permanent home for at least 1 year prior
to the filing of the action. Based upon our de novo review of
the record, we conclude that the district court had subject mat-
ter jurisdiction under Neb. Rev. Stat. § 42-349 (Reissue 2008)
because evidence in the record supports a finding that Jeffrey
was domiciled in Nebraska for more than 1 year before the fil-
ing of the dissolution complaint.
[5,6] Section 42-349 provides that in order to maintain an
action for divorce in Nebraska, one of the parties must have
had “actual residence in this state with a bona fide intention
of making this state his or her permanent home for at least
one year prior to the filing of the complaint.” See Rozsnyai
v. Svacek, supra. Satisfaction of the residency requirement in
§ 42-349 is required to confer subject matter jurisdiction on a
district court hearing a dissolution proceeding. Neb. Rev. Stat.
§ 42-351 (Reissue 2008); Rozsnyai v. Svacek, supra.
[7-10] Jurisdiction is defined as a court’s power or author-
ity to hear a case. Kuhlmann v. City of Omaha, 251 Neb. 176,
556 N.W.2d 15 (1996). Parties cannot confer subject matter
jurisdiction upon a judicial tribunal by either acquiescence
or consent, nor may subject matter jurisdiction be created by
waiver, estoppel, consent, or conduct of the parties. Id. A judg-
ment entered by a court which lacks subject matter jurisdiction
is void. Id. It is a longstanding rule in Nebraska that such a
void judgment may be attacked at any time in any proceeding.
Id. This is true even if a party attacks subject matter jurisdic-
tion only after being displeased with the decision of a district
court. See Paulsen v. Paulsen, 11 Neb. Ct. App. 582, 658 N.W.2d
49 (2003) (vacating judgment for lack of subject matter juris-
diction where mother raised jurisdictional issue on appeal only
after custody was awarded to child’s father).
[11-13] The Nebraska Supreme Court has interpreted the
language of § 42-349 requiring an “actual residence in this
state” to mean that one party is required to have a “‘bona
fide domicile’” in Nebraska for 1 year before commence-
ment of a dissolution action. Huffman v. Huffman, 232 Neb.
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742, 748, 441 N.W.2d 899, 904 (1989). Domicile is obtained
only through a person’s physical presence accompanied by
the present intention to remain indefinitely at a location or
site or by the present intention to make a location or site the
person’s permanent or fixed home. Id. The absence of either
presence or intention thwarts the establishment of domicile.
Id. Once established, domicile continues until a new domicile
is perfected. See State v. Jensen, 269 Neb. 213, 691 N.W.2d
139 (2005). In some cases, persons with significant physical
absences from Nebraska in the year preceding a petition for
dissolution may qualify as Nebraska domiciliaries for juris-
dictional purposes. See Rector v. Rector, 224 Neb. 800, 401
N.W.2d 167 (1987) (finding jurisdiction where truckdriver who
spent majority of his time driving cross country was raised in
North Platte, Nebraska, considered it his home, did his banking
there, and testified to several years of residence before filing
petition for divorce).
Irene does not satisfy § 42-349 because she resided in
Nebraska for only about 6 months before filing her peti-
tion, and so jurisdiction is dependent upon Jeffrey’s domicile.
Although the record is clear that Jeffrey was present in the
United States for only 36 days in 2012, the year preceding
the dissolution petition, we must consider all of the evidence
to determine whether Jeffrey established and maintained a
Nebraska domicile in the years before this action was filed. See
Rector v. Rector, supra.
Evidence that Jeffrey formed the intent to make Nebraska
his permanent home exists from the time period beginning
when he bought a home in Auburn in July 2009. Jeffrey’s
cousin lived in his Auburn home and took care of some of his
affairs from Nebraska with a power of attorney. Jeffrey used
the address of the Auburn home for several official purposes,
including filing tax and immigration forms. Jeffrey disclosed
on his tax forms that he “maintain[ed] a home in the United
States” at the Auburn house address. He also held a bank
account in Auburn.
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Further, Jeffrey’s pleadings, testimony, and representations
to the district court in this case serve as evidence that he
intended to make Nebraska his permanent or fixed home.
See State ex rel. Rittenhouse v. Newman, 189 Neb. 657, 204
N.W.2d 372 (1973) (holding that testimony as to intent is
entitled to great weight in domicile determinations). In his
answer and counterclaim, Jeffrey admitted that for more than
a year he had held a “bona fide intention of making the State
of Nebraska his home and place of residence.” Jeffrey listed
the Auburn home as his mailing address in his pleadings and
stated multiple times that he was a Nebraska resident, despite
being currently employed overseas. In his proposed parenting
plan, Jeffrey represented that he returns to Nebraska during
vacation from his work and proposed spending all of his vaca-
tion time parenting J.P. in Nebraska. From this evidence, we
determine that Jeffrey formed the intent to make Nebraska his
fixed home more than 1 year before the petition for dissolution
of marriage was filed.
Although Jeffrey was working in Kuwait during this time
period, he returned to Nebraska during vacation from work.
His physical presence in Nebraska and consistently returning
to the state, combined with the intent to make it his permanent
home, were sufficient for Jeffrey to establish Nebraska as his
domicile. See Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d
899 (1989). Jeffrey testified to the length of this domicile when
he admitted in pleadings that he had been a resident for more
than 1 year with the requisite intent. Accordingly, the trial
court had jurisdiction under § 42-349 and this assignment of
error is without merit.
Division of Property.
[14] Jeffrey next argues that the trial court abused its dis-
cretion in its division of property. The purpose of a property
division is to distribute the marital assets equitably between the
parties. Neb. Rev. Stat. § 42-365 (Reissue 2008); Gangwish v.
Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
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Under § 42-365, the equitable division of property is a
three-step process. Gangwish v. Gangwish, supra. The first
step is to classify the parties’ property as marital or nonmari-
tal. Id. The second step is to value the marital assets and mari-
tal liabilities of the parties. Id. The third step is to calculate
and divide the net marital estate between the parties in accord­
ance with the principles contained in § 42-365. Gangwish v.
Gangwish, supra. The principles and factors to be considered
in reaching an equitable division include
the circumstances of the parties, duration of the marriage,
a history of the contributions to the marriage by each
party, including contributions to the care and education
of the children, and interruption of personal careers or
educational opportunities, and the ability of the supported
party to engage in gainful employment without interfering
with the interests of any minor children in the custody of
such party.
§ 42-365.
At the time of the marriage, Jeffrey owned a home in
Auburn. During the marriage, certain improvements were
made to the home. The court concluded that the home was a
premarital asset and that the improvements were made with
premarital funds and therefore constituted property belonging
to Jeffrey. The court determined, however, that $3,000 of mari-
tal funds were used to pay down the mortgage, and it awarded
one-half of that amount to Irene; Jeffrey argues the court erred
in making this award, because there was no evidence that Irene
contributed financially to such payment.
Despite the district court’s award of all personal property to
Jeffrey with the exception of Irene’s wedding and engagement
rings, her and her daughter’s clothing, and her daughter’s
bedroom set, Jeffrey argues that the court erred in order-
ing an equalization payment of $13,500. The district court
arrived at this amount by awarding Irene one-half ($2,000)
of the equity in the family vehicle and approximately one-
third ($10,000) of the parties’ bank account, in addition to the
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$1,500 mortgage contribution previously discussed. Jeffrey
argues that because he was awarded all of the debt, he should
not have been assessed an equalization payment.
Jeffrey seems to argue that because Irene did not contrib-
ute financially to the household, she should not have been
given anything beyond the few personal items awarded. While
it is true that Irene was not employed outside the home
while in Auburn, she was responsible for caring for J.P. and
maintaining the residence while Jeffrey was in Kuwait, at
Jeffrey’s direction. Until moving to Auburn, she was gainfully
employed in Kuwait, and she gave up that employment to
move to the United States. Her cultural barriers and instruc-
tions from Jeffrey to “be a stay-at-home mother” prevented
her from obtaining outside employment. Irene’s contributions
to the marriage are relevant and must be taken into consider-
ation. See Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d
848 (1998).
Jeffrey also argues that funds in his Kuwait bank account
should be considered nonmarital. At the time of the divorce,
this account held in excess of $28,000. These funds came
from Jeffrey’s salary, which was deposited directly into this
account, as well as a loan that Jeffrey took from the bank.
Jeffrey’s arguments that these funds are nonmarital seem to
be that Irene did not contribute to the account and that he
planned to use the loan to pay debts after the divorce was
finalized. However, although Jeffrey testified that he planned
to use the loan funds postmarriage, Jeffrey listed the debt
from the loan as a marital debt, commingled the funds with
his salary, and spent the majority of the loan on general
expenses indistinguishable from other marital expenses before
the marriage ended. Therefore, we do not find error in the
trial court’s determination that the remaining loan funds were
marital property. Additionally, this account held at least some
funds derived from Jeffrey’s salary during the marriage. To the
extent that Jeffrey argues Irene is not entitled to any portion of
his income because she did not provide income, the assertion
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is without merit. As described above, Irene’s contributions to
the marriage merit consideration even if she did not contribute
financially to this account. See id. Applying the factors set
forth in § 42-365, we find no abuse of discretion in the court’s
division of property and allocation of debt.
Alimony.
[15-18] A court entering a decree in a dissolution proceed-
ing may order alimony under § 42-365 “as may be reasonable”
with regard to the same factors listed above in the division
of property section. While the criteria for reaching a reason-
able award of alimony overlap with the criteria for dividing
property reasonably, the two serve different purposes and are
considered separately. § 42-365. In addition to the property
division factors listed above, a trial court awarding alimony
also considers the income and earning capacity of each party,
as well as the general equities of each situation. See Becker
v. Becker, 20 Neb. Ct. App. 922, 834 N.W.2d 620 (2013). In
reviewing a trial court’s award of alimony, an appellate court
does not determine whether it would have awarded the same
amount of alimony as did the trial court, but whether the trial
court’s award is untenable such as to deprive a party of a sub-
stantial right or just result. Id.
The Nebraska Supreme Court has recognized the potential
disruption that occurs when someone immigrates for a mar-
riage and has consequently upheld an award of alimony in this
situation, in even short marriages. See Anderson v. Anderson,
290 Neb. 530, 861 N.W.2d 113 (2015) (affirming alimony
of $600 for 60 months following marriage of less than 3
years). In the present case, the parties had a short marriage,
which weighs against a lengthy award of alimony. However,
the other statutory and case law factors support the district
court’s award.
Although Jeffrey contributed the heavy majority of the
income to the marriage, Irene contributed to the care of the
parties’ child, her child, and Jeffrey’s child from a prior mar-
riage. Irene also changed her employment status during the
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marriage in reliance on Jeffrey’s support when she left Kuwait,
where she was employed, to move to the United States as
a stay-at-home mother. Jeffrey currently enjoys considerably
greater earning capacity than Irene. Irene will also have a
unique need of support as she searches for work in a new coun-
try as a custodial parent. The district court properly considered
these factors. Given our de novo review of the record pertain-
ing to the relevant legal considerations, we find no abuse of
discretion in the district court’s award of alimony of $1,500
per month for 12 months. This award cannot be considered
so untenable as to deprive Jeffrey of a substantial right. See
Becker v. Becker, supra.
Child Support.
Jeffrey next assigns that the district court erred in award-
ing 6 months of child support and health insurance for his
stepdaughter, Irene’s daughter. Because an ex-stepfather has
no duty to support a stepchild after he has divorced the child’s
mother unless he stands in loco parentis to the child, we
vacate the award of child support and health insurance for
Irene’s daughter.
[19] The Nebraska divorce statutes do not impose a duty
upon any individual other than a parent to pay for the sup-
port of minor children. Weinand v. Weinand, 260 Neb. 146,
616 N.W.2d 1 (2000). In the absence of a statute, the common
law does not impose a liability for support upon stepparents
except in some instances where the stepparent voluntarily
takes the stepchild into his or her family and assumes, in loco
parentis, the obligations incident to a parental relationship. Id.
Additionally, parties in a proceeding to dissolve a marriage
cannot control by agreement the disposition of matters pertain-
ing to minor children. Id.
In Weinand, the parties agreed that the husband stood
in loco parentis to his stepdaughter and would pay child
support in an amount determined by the court. On appeal,
the Nebraska Supreme Court noted that the parties could
not stipulate to matters involving minor children, found
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that the husband no longer stood in loco parentis to the
ex-­stepdaughter, and vacated the district court’s award of
child support. Id. Although the husband in Weinand had acted
as a parent to the minor child during the marriage and had
obtained visitation since the separation, the court held that
at the time of the dissolution, he had lived in a separate resi-
dence and had not performed all of the duties and obligations
of a parent such as attending to the child’s ongoing daily
physical and emotional needs. Id. The term “in loco parentis”
refers to a person who has fully put himself or herself in the
situation of a lawful parent by assuming all the obligations
incident to the parental relationship and who actually dis-
charges those obligations. Id.
Here, there is no evidence that Jeffrey stands in loco paren-
tis to Irene’s daughter. There is no evidence that Jeffrey has
sought even minimal visitation with the child, and certainly no
evidence from which we could conclude that he assumed and
discharged all of the obligations of parenting her. Accordingly,
Nebraska law does not obligate Jeffrey to pay child support
for his stepchild.
Jeffrey’s agreement at trial to pay child support also does
not obligate him under Nebraska law. At trial, Jeffrey submit-
ted a child support calculation including Irene’s daughter and
agreed during testimony to pay child support. However, as the
Nebraska Supreme Court held in Weinand v. Weinand, supra,
a party’s agreement to pay an unspecified amount of child
support does not provide a district court with the authority to
order support under the statutes or common law of Nebraska.
Accordingly, we must vacate the order of child support as it
pertains to Irene’s daughter.
[20] While Jeffrey does owe Irene’s daughter an obliga-
tion pursuant to the “I-864EZ” immigration contract form
he signed, this contract does not obligate Jeffrey to pay
child support under the Nebraska Child Support Guidelines.
Further, no breach of contract action was properly before the
trial court for enforcement of that contract. Jeffrey sponsored
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Irene’s daughter as an immigrant to the United States and con-
tractually agreed with the federal government to support her
at an income that is at least 125 percent of the federal poverty
guidelines for her household size. Although this immigration
contract provides an independent basis upon which Jeffrey
is obligated to support Irene’s daughter, the purpose of the
contract and level of support it requires differ from those of
the Nebraska Child Support Guidelines. The purpose of the
federal immigration affidavit of support is to prevent immi-
grants from becoming public charges, while the purpose of
the Nebraska Child Support Guidelines is “to recognize the
equal duty of both parents to contribute to the support of their
children in proportion to their respective net incomes.” Neb.
Ct. R. § 4-201. See Anderson v. Anderson, 290 Neb. 530, 861
N.W.2d 113 (2015). See, also, In re Marriage of Dickson, 337
P.3d 72 (Kan. App. 2014) (unpublished memorandum opinion
listed in table of “Decisions Without Published Opinions”)
(noting that immigration affidavit of support does affect award
of spousal support given difference in origin and purpose of
each obligation).
[21] As the Nebraska Supreme Court has recognized, an
affidavit of support signed as part of a federal immigration
proc­ess is an independent contract that may be enforced
separately under a breach of contract theory. See Anderson
v. Anderson, supra. A court will not ordinarily order enforce-
ment of an affidavit of support as part of a dissolution pro-
ceeding unless one of the parties specifically alleges a breach
of contract claim. See id. See, also, Yuryeva v. McManus,
No. 01-12-00988-CV, 2013 WL 6198322 (Tex. App. Nov. 26,
2013) (unpublished memorandum opinion). Although Irene’s
daughter could seek enforcement of Jeffrey’s affidavit of sup-
port in a court of law, she did not do so here.
We therefore conclude that Jeffrey’s immigration contract is
a separately enforceable and independent contract, but is not
a basis for requiring him to pay child support. See Weinand
v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000). Given that
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the district court’s order has its own expiration date and uses
the Nebraska Child Support Guidelines for the amount of sup-
port ordered, it cannot be said to be enforcing the immigration
contract. Further, the immigration contract is between Irene’s
daughter, Jeffrey, and the federal government and is enforce-
able by those parties. See 8 U.S.C. § 1183a(a)(1)(B) (2012).
Because Irene’s daughter is not a party to this action and no
breach has been asserted, the trial court’s decree ordering child
support cannot be construed as enforcement of Jeffrey’s con-
tractual obligation.
Similarly, we must vacate the district court’s award of health
insurance coverage of Irene’s daughter. This is a form of sup-
port which Jeffrey is not required to provide under Nebraska
dissolution statutes or the immigration contract for the reasons
discussed above.
Parenting Time.
[22-24] Jeffrey argues that the district court erred in award-
ing him only 4 weeks of visitation with J.P. outside the
United States instead of the 12 weeks he proposed. A parent-
ing plan shall serve the best interests of the child. Neb. Rev.
Stat. § 43-2929(1) (Cum. Supp. 2014). See 2015 Neb. Laws,
L.B. 219. Determination of the best interests of the child
includes consideration of the relationship of the minor child
to each parent prior to the commencement of the action as
well as the general health, welfare, and social behavior of the
minor child. Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2014). A
reasonable visitation schedule is one that provides a satisfac-
tory basis for preserving and fostering a child’s relationship
with the noncustodial parent. Vogel v. Vogel, 262 Neb. 1030,
637 N.W.2d 611 (2002). There is not a certain mathematical
amount of visitation that is considered reasonable; the deter-
mination of reasonableness is to be made on a case-by-case
basis. See id.
In this case, Irene has been the primary caretaker for J.P.
during the marriage, and she has been the sole caretaker for
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long stretches while she and J.P. lived in Nebraska and Jeffrey
worked in Kuwait. She testified to a concern with Jeffrey’s
taking J.P. to Kuwait because of her inability to travel to
Kuwait should an issue arise or J.P. not be returned according
to the court order. Jeffrey testified that he had no intention of
keeping J.P. in Kuwait against the court order but that he had
only 30 days of vacation time to spend in the United States
and needed visitation in Kuwait to maintain a relationship with
J.P. Jeffrey’s proposed parenting plan included 12 weeks of
overseas “summer” parenting time, while Irene proposed no
overseas parenting time.
Given our review of the record, including the special chal-
lenges posed by Jeffrey’s work schedule overseas, the disrup-
tions of international travel for a young child, and the rela-
tionship J.P. has with his parents, we do not find an abuse of
discretion in the district court’s award of 4 weeks of summer
parenting time outside the United States. This assignment of
error is without merit.
Attorney Fees.
[25] Jeffrey argues that the district court erred in awarding
Irene an additional $5,000 of attorney fees in its decree. An
award of attorney fees lies in the discretion of the trial court,
is reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Mathews v. Mathews, 267
Neb. 604, 676 N.W.2d 42 (2004). An award of attorney fees
depends on multiple factors including the nature of the case,
the services performed and results obtained, the earning capac-
ity of the parties, the length of time required for preparation
and presentation of the case, customary charges of the bar, and
the general equities of the case. See Sitz v. Sitz, 275 Neb. 832,
749 N.W.2d 470 (2008).
Jeffrey notes that the attorney fees he incurred in this case
are significantly higher than those incurred by Irene. This sug-
gests that Irene’s expenses are not unreasonable in amount.
Jeffrey also argues that litigation costs for both were increased
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by Irene’s motion to continue the trial. However, the record
reflects that the motion for continuance was based on Jeffrey’s
attorney’s providing discovery documents 2 days before trial.
Accordingly, the continuance does not influence the equities
of the case in favor of either party. Given the disparity in
income between the parties, we find no abuse of discretion in
the district court’s award of attorney fees.
Failure to Grant Motion to Vacate
or Motion for New Trial.
Jeffrey’s only argument that the district court erred in deny-
ing his motions is that the court ruled from the bench and did
not first take the matter under advisement. He cites no law to
support his argument that it is error to rule from the bench, nor
do we find any.
CONCLUSION
We find that the district court had subject matter jurisdic-
tion over the proceedings below, and we find no abuse of
discretion in the court’s division of property, award of ali-
mony, award of parenting time, or award of attorney fees. The
district court’s order is affirmed as to these issues. However,
we hold that despite Jeffrey’s agreements to pay some amount
of support for Irene’s daughter, his ex-stepchild, the district
court did not have the authority to order child support or
health insurance for this child. Accordingly, we vacate the
judgment as to the order of support and health insurance for
Irene’s daughter.
A ffirmed in part, and in part vacated.