Gandara-Moore v. Moore , 29 Neb. Ct. App. 101 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/17/2020 09:05 AM CST
- 101 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
Tracy D. Gandara-Moore, appellant, v.
Michael E. Moore, Jr., appellee.
___ N.W.2d ___
Filed November 17, 2020. No. A-19-1110.
1. Divorce: Appeal and Error. In a marital dissolution action, an appellate
court reviews the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge.
2. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy or admissibility of evidence, and such determi-
nations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
3. Court Rules: Waiver. In appropriate circumstances where no injustice
would result, a district court may exercise its inherent power to waive its
own rules.
4. Trial: Expert Witnesses: Appeal and Error. It is within the trial
court’s discretion to admit or exclude the testimony of an expert witness,
and a trial court’s ruling in receiving or excluding an expert’s opinion
will be reversed only when there has been an abuse of discretion.
5. Trial: Expert Witnesses. The trial court is the sole judge of the cred-
ibility of a witness, and the opinion of any given expert witness is not
binding on the trier of fact.
6. Expert Witnesses: Trial. A party generally must move to strike the
testimony of an undisclosed expert witness or move for a continuance to
gain more time to investigate the witness and secure rebuttal evidence.
7. Visitation. The trial court has discretion to set a reasonable parenting
time schedule.
8. Trial: Evidence: Witnesses: Appeal and Error. All conflicts in the
evidence, expert or lay, and the credibility of the witnesses are for the
fact finder and not for the appellate court.
9. Evidence: Appeal and Error. Where credible evidence is in conflict
on a material issue of fact, the appellate court considers, and may give
weight to, the fact that the trial court heard and observed the witnesses
and accepted one version of the facts rather than another.
- 102 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
10. Parent and Child. If a parent has been found to have engaged in
domestic intimate partner abuse, limits shall be imposed within the par-
enting plan that are reasonably calculated to protect the child or child’s
parent from harm.
11. Child Support: Rules of the Supreme Court. As a general matter,
child support obligations should be set according to the provisions of the
Nebraska Child Support Guidelines.
12. Child Support. Child support may be based on a parent’s earning
capacity when a parent voluntarily leaves employment and a reduction
in that parent’s support obligation would seriously impair the needs of
the children.
13. Child Support: Proof. In calculating child support, a parent requesting
a deduction for the amount he or she pays for his or her own health
insurance, or a credit for the amount paid for a child’s health insurance,
must submit proof of the cost actually incurred for that portion of the
health insurance.
14. Property Division: Words and Phrases. Dissipation of marital assets
is generally defined as one spouse’s use of marital property for a self-
ish purpose unrelated to the marriage at the time when the marriage is
undergoing an irretrievable breakdown.
15. Property Division: Proof. The initial burden of proof is on the party
alleging dissipation, and after sufficient evidence is produced, the bur-
den shifts to the dissipating spouse to prove that the funds were spent
for marital purposes.
16. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed as modified.
Stephen D. Stroh, of Bianco Stroh, L.L.C., and Ryan D.
Caldwell, of Caldwell Law, L.L.C., for appellant.
Alex M. Lierz, of Rembolt Ludtke, L.L.P., for appellee.
Pirtle, Riedmann, and Arterburn, Judges.
Riedmann, Judge.
INTRODUCTION
Tracy D. Gandara-Moore appeals from the order of the dis-
trict court for Lancaster County that dissolved her marriage
- 103 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
to Michael E. Moore, Jr.; awarded custody, parenting time,
and child support for their minor children; divided the mari-
tal estate; and found her in contempt of court. We find that
the district court abused its discretion in failing to include a
provision in the parenting plan to protect Tracy from harm, in
calculating child support, and in dividing the marital estate.
We therefore modify the court’s order accordingly. We other-
wise affirm.
BACKGROUND
Tracy and Michael were married in March 2012, in Lincoln,
Nebraska. Two children were born during the marriage: a
daughter in 2012 and another daughter in 2014. Tracy filed a
dissolution petition in August 2017, after an incident of domes-
tic violence perpetrated by Michael. Tracy was granted tem-
porary custody of the children in January 2018. Michael was
ordered to pay $1,061 per month in child support, and each
party was to pay half of all daycare costs and medical bills.
In June 2018, Michael, who had moved back to the east
coast, filed a motion for parenting time. In July, the dis-
trict court granted Michael parenting time on the “FaceTime”
application twice a week for at least 30 minutes. The court
also ordered Michael to meet with Dr. Michael Keady, the
children’s counselor, twice before exercising in-person parent-
ing time. The court further stated that if Keady recommended
in-person parenting time, Michael could have parenting time
one weekend in August in Lincoln and parenting time from
August 31 until September 4 in Washington, D.C.
In August 2018, the parties stipulated that Michael was in
contempt of the January temporary order, as he had failed
to pay $3,971.20 in daycare expenses. They agreed that he
should be sentenced to 7 days in jail with the ability to purge
his contempt by paying $300 per month until the outstand-
ing expenses were paid. The court entered a stipulated order
accordingly. Michael filed additional motions requesting par-
enting time in September, November, and March 2019. In
- 104 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
response to Michael’s motions for parenting time, the district
court again ordered that Michael was to have FaceTime par-
enting time twice a week. The court’s notes from October 12,
2018, indicate Michael’s parenting time was subject to the
modification of a no-contact order that had been entered in
his ongoing criminal case resulting from Tracy’s allegations of
domestic abuse. In September and November 2018, the county
court for Lancaster County, in which Michael’s criminal case
was pending, noted that Michael’s bond could be amended to
allow him to have FaceTime visitation with the children, con-
sistent with the district court’s order.
Michael filed a motion with the district court in March 2019,
requesting that Tracy show cause as to why she should not be
held in contempt for withholding parenting time. According
to Michael’s motion, he had not had any FaceTime visitations
with his children since the court ordered it in October 2018
and he had not spoken to his daughters since the previous sum-
mer. In June 2019, Tracy filed an affidavit requesting sanctions
for Michael’s failure to comply with the purge plan ordering
him to make monthly payments for past daycare expenses.
As referenced above, while the dissolution case was pend-
ing, Michael was charged in the county court for Lancaster
County with domestic assault in August 2018. Michael was
arrested on the same day as the charges were filed, and his
appearance bond ordered him to have no contact with Tracy.
Following a trial in June 2019, he was convicted of domestic
assault and placed on probation.
A trial was held on Tracy’s complaint for dissolution,
Michael’s order to show cause, and Tracy’s request for sanc-
tions. The trial spanned 3 days in May, June, and September
2019. During the trial, Tracy testified and presented evidence
regarding her relationship with Michael. She stated that Michael
started verbally abusing her shortly after they were married.
Michael became more violent during the marriage, and physi-
cally abused her “four or five” times. The last assault occurred
in July 2017, when Michael punched her in the face, held
- 105 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
her against her will in the garage, strangled her, and threat-
ened to kill her and kidnap their children. After the assault,
Michael left Nebraska and returned to the east coast.
Tracy filed for a protection order after the assault, and she
indicated on the form that she was not requesting that Michael
be prohibited from contacting or communicating with her so
that he could call the children. Tracy further indicated that
she made “[h]undreds and hundreds” of attempts to com-
municate with Michael after he left, but Michael refused to
answer his phone and had only random communication with
the children.
According to Tracy, after the district court ordered Michael
to have FaceTime parenting time with the children, she
attempted to facilitate calls between him and the children until
August 15, 2018, when a no-contact order was put in place as a
condition of his appearance bond in the domestic assault case.
She stated that she spoke to a prosecutor who informed her
that the no-contact order “trumped” any civil order that was in
place; therefore, she was unable to facilitate visitation between
Michael and the children. The appearance bond was modified
in September and November to allow Michael to have contact
with the children consistent with the district court’s order.
Tracy stated that Keady, the children’s therapist, was will-
ing to facilitate parenting time between Michael and the
children after the appearance bond was modified. However,
Keady testified that it was his recommendation that any par-
enting time between Michael and the children be therapeutic.
Keady stated that he met with the children four or five times
and that they met the criteria for a post-traumatic stress disor-
der diagnosis. Keady also indicated that he met with Michael
and the children in August 2018, that the children asked why
Michael had not apologized to Tracy, and that Michael did
not respond. Despite Keady’s offer to facilitate therapeutic
visitation, he stated that Michael did not accept the offer.
Keady further opined that Tracy was an appropriate and pro-
tective mother.
- 106 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
Tracy also testified regarding her employment and income,
the children’s health and education, and her continued fear of
Michael. She stated that at the time of trial, she was unem-
ployed and had been since January 2019. Tracy worked for a
health insurer from 2016 to 2018, earning about $58,000 per
year. She explained that she left the job because she could not
keep up with the demands of the job while she was a single
parent. She indicated that she receives $400 per week in unem-
ployment benefits and that she was applying for 5 to 10 jobs
per week. Tracy also testified that she was injured in a car
accident in June 2019 and her injuries impacted her ability to
look for work.
Tracy informed the court that the children attend a private
school and daycare in Lincoln and are doing very well. She
indicated that the children were significantly delayed in speech
and language when she registered them for preschool but that
they have made great progress under her care. According
to Tracy, the older child has an autoimmune disease which
requires frequent hospitalizations and requires a complicated
treatment when she becomes sick, which Michael was not
aware of. Tracy also stated that she remained in fear of Michael
and believed that he would eventually try to kill her.
Finally, Tracy testified regarding the parties’ marital assets.
She stated that she had cashed out her retirement account from
her prior employment to pay her bills. She explained that the
parties had numerous debts, including a loan which was used
to pay basic living expenses during the marriage. Tracy stated
that a portion of an inheritance that Michael received during
the marriage was placed in her account to pay bills and that
the money had been spent. She further indicated that Michael
had not made all of the payments he was ordered to make for
daycare expenses, nor had he paid his half of the unreimbursed
medical expenses for the children. Tracy did not request ali-
mony, but did request approximately $5,000 in attorney fees.
She also requested that any parenting time that Michael receive
be therapeutic.
- 107 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
In his case in chief, Michael testified about the domestic
assault, as well as his attempts to have parenting time with
the children. He disputed Tracy’s account of the assault and
stated that he did not punch her. However, Michael acknowl-
edged that he was found guilty of domestic assault by the
county court and was placed on probation.
Michael indicated that the last telephonic parenting time he
had was in March 2019 and that he had not had any other tele­
phonic parenting time since the beginning of 2018. He stated
that it was difficult to call his children because of the restrain-
ing orders and that when he did call, Tracy called the police on
him. Michael also informed the court that he attended a thera-
peutic parenting session with his children facilitated by Keady,
but that the session lasted only 15 minutes and Tracy was in
the room during the session. Michael stated that he underwent
an evaluation by Dr. Rick McNeese in October 2018 to dem-
onstrate that he was ready for parenting time. Issues regarding
McNeese’s testimony and report will be laid out in greater
detail in the analysis section below.
Michael provided testimony about the marital estate and
the care he provided for the children during the marriage. He
stated that Tracy controlled the family’s finances and that
he was not included in the financial decisions. He stated that he
received an inheritance and that $5,800 of it was placed into an
account controlled by Tracy to be used for medical bills, but
she used the money for other purposes. Michael also testified
that he provided health insurance for the children and that he
did not believe that the older child was as sick as Tracy made
her out to be. Michael testified that he was a stay-at-home
father during the marriage and was not aware of any concerns
about his parenting.
In October 2019, the district court dissolved the par-
ties’ marriage and awarded Tracy legal and physical custody
of the children. Michael was granted parenting time of one
­weekend per month in Lincoln; parenting time alternating
during either the children’s spring break or winter break in
- 108 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
Maryland, Virginia, or Washington, D.C.; and two periods of
two consecutive weeks of parenting time in the summer in
Maryland, Virginia, or Washington, D.C. The district court also
held Tracy in contempt for withholding parenting time. The
court created a purge plan, ordering Tracy to pay $2,500 in
attorney fees to Michael.
The court calculated Michael’s child support payments
using Tracy’s previous earnings of $58,000 per year. The
court ordered Michael to pay $691 per month in child sup-
port for two children and $426 per month for one child. It
adopted Michael’s division of the marital estate, which indi-
cated that Tracy had dissipated $5,800 from Michael’s inherit­
ance. Accordingly, Michael was ordered to pay an equalization
payment in the amount of $7,590.39 to Tracy. Finally, the
court ordered each party to pay their own attorney fees. Tracy
timely appealed.
ASSIGNMENTS OF ERROR
Tracy assigns, reordered, consolidated, and restated, that
the district court erred in (1) admitting a nondisclosed exhibit
and allowing a nondisclosed witness to testify, (2) fashion-
ing a vague parenting plan that was not in the children’s best
interests and did not include safety provisions, (3) calculating
child support, (4) dividing the marital estate, (5) finding her in
contempt, and (6) not awarding her attorney fees.
STANDARD OF REVIEW
[1] In a marital dissolution action, an appellate court reviews
the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. Burgardt v.
Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees. Id.
[2] A trial court has the discretion to determine the relevancy
or admissibility of evidence, and such determinations will
not be disturbed on appeal unless they constitute an abuse of
- 109 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
that discretion. Hartley v. Metropolitan Util. Dist., 294 Neb.
870, 885 N.W.2d 675 (2016).
ANALYSIS
McNeese’s Testimony and Report.
Tracy argues that Michael did not disclose McNeese as an
expert witness nor list his report as an exhibit on Michael’s
pretrial memorandum; therefore, the district court abused its
discretion in allowing McNeese to testify and in admitting his
report into evidence. We disagree.
In his pretrial memorandum, Michael acknowledged that
“[h]e will not be permitted to call witnesses, present exhibits
or otherwise produce any evidence unless the witness, exhibit,
property and issue timely appear in this Exhibit . . . .” He
did not list McNeese as a witness, nor did he list McNeese’s
report as an exhibit to be offered. Nevertheless, McNeese was
allowed to testify at trial, over Tracy’s objection, and his report
was received into evidence. Tracy asserts that the court violated
Rules of Dist. Ct. of Third Jud. Dist. 3-9(D) (rev. 2019), which
governs a party’s responsibilities for disclosing witnesses and
exhibits in a pretrial memorandum.
[3,4] The Nebraska Supreme Court has recognized that in
appropriate circumstances where no injustice would result, a
district court may exercise its inherent power to waive its own
rules. Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).
Further, it is within the trial court’s discretion to admit or
exclude the testimony of an expert witness, and a trial court’s
ruling in receiving or excluding an expert’s opinion will be
reversed only when there has been an abuse of discretion.
Zarp v. Duff, 238 Neb. 324, 470 N.W.2d 577 (1991). Thus,
our analysis of whether the district court abused its discretion
in allowing McNeese to testify and admitting his report into
evidence turns on whether or not Tracy was prejudiced by the
ruling. We find that she was not.
[5] In awarding Michael parenting time, the district court
relied on McNeese’s report. McNeese’s report indicated that
- 110 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
Michael showed no evidence of a major emotional disor-
der, thought disorder, personality disorder, or substance abuse
disorder and that he did not appear to have various factors
found in angry and impulsive individuals. McNeese supported
Michael’s request for parenting time. His conclusions were in
contrast to Keady’s testimony that Michael should have only
therapeutic visitation with the children. Thus, Tracy alleges
that she was prejudiced by McNeese’s testimony and report
because the district court relied on it instead of on Keady’s
assessment. We reject this assertion because the trial court is
the sole judge of the credibility of a witness and the opinion
of any given expert witness is not binding on the trier of fact.
See Way v. Hendricks Sodding & Landscaping, Inc., 236 Neb.
519, 462 N.W.2d 99 (1990). Therefore, the fact that the district
court accepted McNeese’s opinion over that of Keady does not
support a finding of prejudice.
It appears from the discussion that occurred prior to
McNeese’s testimony that his report had been provided to
opposing counsel and the court at a hearing more than 6 months
before trial. Tracy was allowed to cross-examine and voir dire
McNeese at trial, and she did so, pointing out that he made his
evaluation without ever having met with the children or Tracy.
According to McNeese, however, a meeting was scheduled
with the children, but they did not appear. Tracy does not assert
how her trial preparation would have differed had McNeese
been timely disclosed.
Under similar circumstances, the Supreme Court allowed an
undisclosed expert witness to testify when there was no show-
ing that the appellant’s preparation for trial was hampered by
the untimely disclosure of the witness. See Nixon v. Harkins,
220 Neb. 286, 369 N.W.2d 625 (1985). Likewise, here, Tracy
has not demonstrated how her preparation for trial was ham-
pered by Michael’s late disclosure. Under the circumstances
of this case, it cannot be said that Tracy was prejudiced by the
district court’s decision to receive the evidence.
- 111 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
[6] We recognize that a party generally must move to strike
the testimony of an undisclosed expert witness or move for
a continuance to gain more time to investigate the witness
and secure rebuttal evidence. See Kirkwood v. State, 16 Neb.
App. 459, 748 N.W.2d 83 (2008). Here, Tracy did neither.
However, the district court received the evidence subject to
Tracy’s objection, stating it would take the objection under
advisement. It did not rule on its admissibility until entering
its order after trial was concluded. The Supreme Court has
condemned such practice, stating that “appropriate judicial trial
practice requires that trial judges rule on matters submitted to
them in a timely fashion in order that the litigants be in a posi-
tion to react to the ruling.” Phillips v. Monroe Auto Equip. Co.,
251 Neb. 585, 594, 558 N.W.2d 799, 805 (1997).
Accordingly, because the district court failed to rule on the
objection when made, Tracy’s failure to seek a continuance or
move to strike does not preclude her ability to raise the issue
on appeal. However, because Tracy was not prejudiced by the
untimely disclosure, we find no abuse of discretion by the dis-
trict court.
Parenting Plan.
Tracy asserts that the district court erred in awarding
Michael significant parenting time. She specifically argues that
the court erred in relying on McNeese’s report, disregarding
Keady’s opinion, failing to consider the children’s best inter-
ests, failing to include adequate domestic violence protections,
and including a vague and ambiguous transition plan. We agree
that the district court failed to include adequate protections
from domestic violence for Tracy, as required by Neb. Rev.
Stat. § 43-2932 (Reissue 2016). We otherwise affirm the provi-
sions of the parenting plan.
[7] The trial court has discretion to set a reasonable parent-
ing time schedule. Thompson v. Thompson, 24 Neb. Ct. App. 349,
887 N.W.2d 52 (2016). The determination of reasonableness is
to be made on a case-by-case basis. Id. Parenting time relates
to continuing and fostering the normal parental relationship
- 112 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
of the noncustodial parent. Id. The best interests of the children
are the primary and paramount considerations in determining
and modifying visitation rights. Id. The best interests inquiry
has its foundation in both statutory and case law.
Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) provides that
in determining custody and parenting arrangements:
[T]he court shall consider the best interests of the minor
child, which shall include, but not be limited to, consid-
eration of . . . :
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent 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.
In addition to these factors, the Supreme Court has previ-
ously held that in determining a child’s best interests, courts
“‘may consider factors such as general considerations
of moral fitness of the child’s parents, including the
parents’ sexual conduct; respective environments offered
by each parent; the emotional relationship between child
and parents; the age, sex, and health of the child and
parents; the effect on the child as the result of continu-
ing or disrupting an existing relationship; the attitude and
stability of each parent’s character; parental capacity to
provide physical care and satisfy educational needs of the
child; the child’s preferential desire regarding custody if
the child is of sufficient age of comprehension regardless
of chronological age, and when such child’s preference
- 113 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
for custody is based on sound reasons; and the general
health, welfare, and social behavior of the child.’”
Davidson v. Davidson, 254 Neb. 357, 368, 576 N.W.2d 779,
785 (1998).
Here, the district court awarded Tracy legal and physical
custody of the children. Michael was granted parenting time
one weekend a month in Lincoln, beginning Friday evening and
ending Sunday evening, as well as parenting time in his home
state during either the children’s spring break or winter break
and during their summer break. At trial, Tracy argued that
Michael should be granted only therapeutic parenting time with
the children. On appeal, she makes similar arguments.
Tracy first asserts that the district court erred in relying on
McNeese’s report in awarding Michael “substantial parenting
time.” Brief for appellant at 30. Tracy argues that there are
numerous flaws in McNeese’s report that the district court
did not consider. McNeese’s report indicated that Michael
showed no evidence of a major emotional disorder, thought
disorder, personality disorder, or substance abuse disorder
and that he did not appear to have various factors found in
angry and impulsive individuals. McNeese concluded that
the absence of such evidence supported Michael’s request for
parenting time.
Tracy argues that McNeese met with Michael only twice;
further, she argues that his report does not analyze Michael’s
criminal case or the domestic abuse protection order, the chil-
dren’s current feelings toward Michael, Michael’s departure
from the marital home, or his failure to participate in fam-
ily therapy. Tracy contends that the court’s error in relying
on McNeese’s report is exacerbated by Keady’s opinion that
Michael and the children needed to engage in therapeutic
visitation to address the various issues in their relationship,
because Keady met with Tracy, the children, and Michael.
[8] Tracy’s argument is that Keady’s opinion conflicted
with that of McNeese and was more credible. However, all
conflicts in the evidence, expert or lay, and the credibility of
- 114 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
the witnesses are for the fact finder and not for the appellate
court. See Pierce v. Landmark Mgmt. Group, 293 Neb. 890,
880 N.W.2d 885 (2016). The district court heard Keady’s tes-
timony, as well as that of Tracy and Michael; read McNeese’s
report; and then determined that it was in the children’s best
interests to award Michael parenting time in both Lincoln and
his home state. Based on the record, this was not an abuse
of discretion.
Tracy further asserts that the district court did not consider
the children’s physical health or emotional well-being in devel-
oping the parenting plan. She argues that the court did not
properly consider Michael’s “purposeful denial of exercising
FaceTime parenting time offered to be facilitated by . . . Keady.”
Brief for appellant at 31. As we explain in greater detail below,
Keady testified that he offered to provide therapeutic parent-
ing time for Michael; however, the district court did not order
therapeutic parenting time. Michael testified that he had par-
enting time with the children only twice since the beginning of
2018. As a result, the district court determined that Tracy was
in contempt of multiple court orders granting Michael parent-
ing time. Therefore, the court did not fail to consider Michael’s
lack of parenting time with the children.
Tracy alleged both at trial and on appeal that the older child
has an autoimmune issue that requires many hospitalizations
and a respiratory distress plan to be implemented. Michael tes-
tified that he did not think the older child’s health was as poor
as Tracy represented it to be.
[9] Tracy argues that it is an abuse of discretion to require
the older child to fly on a plane and visit with a parent unfa-
miliar with her health conditions. However, where credible
evidence is in conflict on a material issue of fact, the appellate
court considers, and may give weight to, the fact that the trial
court heard and observed the witnesses and accepted one ver-
sion of the facts rather than another. Barth v. Barth, 22 Neb.
App. 241, 851 N.W.2d 104 (2014). There is nothing before us
to indicate that the district court failed to consider the older
- 115 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
child’s health condition before granting Michael parenting
time in his home state.
Tracy also asserts that the district court failed to ensure that
there were measures in place to protect her and the children
from domestic abuse. We agree.
[10] Section 43-2932 states that if a parent has been found
to have engaged in domestic intimate partner abuse, limits shall
be imposed that are reasonably calculated to protect the child
or child’s parent from harm. These limitations may include
limits on the exchange of the child, restraints on the parent
from communication with the other parent or child, and any
other constraints or conditions deemed necessary to provide for
the safety of the parent or child. See § 43-2932(1)(b). The par-
ent found to have engaged in domestic abuse has the burden of
proving that having access to parenting time will not endanger
the child or other parent. See § 43-2932(3).
Here, the district court expressly found that Michael
assaulted Tracy. Although the court noted that the parties dis-
puted the severity of the assault, the court still made a finding
that an assault occurred. Despite this finding, the court did
not include any provisions in the parenting plan providing for
the safety of Tracy or the children. When there is a finding of
domestic intimate partner abuse, as happened here, the obliga-
tions of § 43-2932 are mandatory. See Fales v. Fales, 25 Neb.
App. 868, 914 N.W.2d 478 (2018). See, also, Flores v. Flores-
Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). The district
court abused its discretion in failing to comply with § 43-2932
by not imposing adequate limitations in the parenting plan to
protect Tracy from abuse.
Based on our review of the record, adequate limitations
should be imposed to protect Tracy. There is currently a
protection order in place which the district court modified
to allow Michael to pick up and return the children from both
Tracy’s home and the children’s school. However, at trial,
Tracy testified that she feared for her safety around Michael
and believed he would try to kill her. Therefore, to pro-
vide for Tracy’s safety, we modify the exchange location for
- 116 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
parenting time to require that exchanges occur at a mutually
agreed-upon public location. If the parties cannot agree on
a transfer location, exchanges that otherwise would occur at
Tracy’s house are to occur at the Lancaster County sheriff’s
office in Lincoln on North 10th Street. We acknowledge that
the parenting plan requires Michael to provide transportation
for the children at the start and end of his parenting time; how-
ever, given Tracy’s safety concerns, we modify that portion of
the court’s order as set forth above.
Tracy additionally asserts that the court’s parenting plan
contained vague provisions in that it did not define “evening,”
when it ordered that Michael’s parenting time was to run from
Friday evening until Sunday evening. We disagree. Because
Michael is required to travel to Lincoln from his home on the
east coast, it would be difficult for the court to order his par-
enting time to begin and end at a certain time. While it may
have been preferable to provide a window of time during which
Michael was to pick up and return the children, under the cir-
cumstances, we cannot find that the court’s use of “evening”
constitutes an abuse of discretion.
Child Support Calculation.
Tracy asserts that the district court abused its discretion in
using her previous income of $58,000 per year to calculate
child support. We disagree.
[11,12] As a general matter, child support obligations should
be set according to the provisions of the Nebraska Child
Support Guidelines. Gress v. Gress, 274 Neb. 686, 743 N.W.2d
67 (2007). In determining income, the court may use earning
capacity in lieu of a parent’s actual, present income. See Neb.
Ct. R. § 4-204(E) (rev. 2016). Child support may be based on
a parent’s earning capacity when a parent voluntarily leaves
employment and a reduction in that parent’s support obligation
would seriously impair the needs of the children. Claborn v.
Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).
Here, the district court adopted Michael’s proposed child
support calculation. In doing so, the court held Tracy to her
- 117 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
previous earning capacity of $58,000 and rejected her request
to calculate child support using her unemployment benefits
of $1,733.33 per month. The court determined that Tracy vol-
untarily left her employment where she earned $58,000 and
that it would be inequitable to use her unemployment ben-
efits to calculate child support. The record supports the district
court’s findings.
Tracy asserts that the district court erred in failing to con-
sider the circumstances surrounding her voluntary termination
of employment. She further argues that due to her car accident,
she no longer has the capacity to earn $58,000. Tracy testi-
fied that in the June 2019 accident, she was driving and was
“T-boned.” She sustained a concussion, suffered a whiplash,
and aggravated a preexisting disk degeneration in her spine and
neck. She claimed that the injuries impacted her ability to look
for work and to perform work. According to Tracy, she was
scheduled for a consultation for a “neck fusion” in October.
She presented no medical records or other documentation
regarding her injuries.
Although Tracy testified that the June 2019 accident affected
her ability to work, she voluntarily terminated her employ-
ment with the health insurance company in 2018. She worked
for a short time at a psychiatric rehabilitation center, but was
terminated in January 2019. She has remained unemployed
since that date, attributing that situation to the car accident.
The trial court is the sole judge of the witnesses’ credibility
and the weight to be given their testimony. See Omaha Police
Union Local 101 v. City of Omaha, 292 Neb. 381, 872 N.W.2d
765 (2015). Despite hearing Tracy’s testimony, the court deter-
mined that it would be inequitable to use her unemployment
benefits to calculate child support. We find no abuse of discre-
tion in this determination.
Tracy also argues that the court incorrectly calculated her
monthly income because it should have been calculated at
$4,833.33, not $4,977.74. However, Tracy’s most recent pay
stub from her employment at the insurance company indicates
that she earned $2,297.42 biweekly; therefore, considering
- 118 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
that Tracy was paid 26 times per year, her average monthly
income equates to $4,977.74. Thus, the district court did not err
in calculating her monthly income.
Tracy further alleges that the district court erred in attrib-
uting a health insurance deduction of $517 to Michael in its
child support calculation. She argues that Michael’s pay stubs
indicate that he has only $278.50 deducted for health insur-
ance, not the $517 he claims. We agree that the district court
abused its discretion in calculating Michael’s child support
payment, because he did not submit proof of what portion of
the medical insurance deduction was attributable to coverage
for him and what portion was attributable to the children.
At trial, Michael testified that his paycheck generally was
$1,648 for a 2-week pay period and that his net pay after
health insurance, child support, and taxes were deducted was
$852.73. Michael explained that he had $530.50 deducted
from each paycheck for child support; thus, in his brief to this
court, he stated that he paid $264.77 per paycheck in health
insurance, which equates to $529.54 per month in health insur-
ance. However, according to that calculation, Michael did not
pay any taxes on his income. Exhibit 11 contains Michael’s
pay stubs, which he testified reflect his current income. His
pay stubs indicate that he pays $128.54 per paycheck in health
insurance for himself and the children. Michael indicated that
he is paid every 2 weeks; thus, on average, he pays $278.50 per
month in health insurance.
[13] Under the Nebraska Child Support Guidelines, a par-
ent is entitled to a deduction for the amount he or she pays
for his or her own health insurance. Neb. Ct. R. § 4-205(F)
(rev. 2016). But, the parent requesting the deduction must
submit proof of the cost actually incurred for his or her health
insurance. Id. Likewise, a parent is entitled to a credit for the
prorated portion of the health insurance cost he or she expends
for the children when that parent submits proof of the cost
of the children’s health insurance. Neb. Ct. R. § 4-215(A)
(rev. 2011).
- 119 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
Here, Michael did not submit proof of the cost of his medi-
cal insurance nor the medical insurance of the children. The
evidence before us demonstrates that Michael paid $128.54
per paycheck, or $278.50 in insurance per month. His pay-
check indicates that his insurance is for himself and the chil-
dren. However, Michael did not present evidence indicating
how much of the $128.54 he paid for health insurance went
toward his own insurance and how much went toward the
children’s insurance. Thus, he did not submit adequate proof
of the cost of his own insurance, nor adequate proof of the
children’s insurance. Accordingly, the district court abused
its discretion in calculating Michael’s child support payments
using a deduction of $186.33 for his health insurance and
applying a credit of $331 per month for the children’s insur-
ance. See Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314
(2001) (trial court erred in granting father deduction for health
insurance without proof of how much of health insurance pre-
mium was attributable to children).
To remedy the district court’s error, we delete Michael’s
deduction for health insurance on the child support worksheet,
line 2.f, and his credit for health insurance for the children on
the worksheet, line 8. Michael’s net monthly income increases
to $3,563.96, the parties’ combined monthly income becomes
$7,629, and their annual income increases to $91,548. Michael’s
monthly income increases to 46.72 percent, and Tracy’s monthly
income decreases to 53.28 percent. The monthly support from
table 1 is $1,961, which brings Michael’s share to $916 per
month for two children and $640 per month for one child. The
decree is modified to reflect these calculations.
Division of Marital Estate.
Tracy argues that the district court erred in dividing the mar-
ital estate because it improperly determined that she dissipated
$5,800 from Michael’s inheritance. We agree.
[14,15] Dissipation of marital assets is generally defined
as one spouse’s use of marital property for a selfish purpose
unrelated to the marriage at the time when the marriage is
- 120 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
undergoing an irretrievable breakdown. Harris v. Harris, 261
Neb. 75, 621 N.W.2d 491 (2001). As a remedy, marital assets
dissipated by a spouse should be included in the marital estate
in dissolution actions. Anderson v. Anderson, 27 Neb. Ct. App.
547, 934 N.W.2d 497 (2019). The initial burden of proof is
on the party alleging dissipation, and after sufficient evidence
is produced, the burden shifts to the dissipating spouse to prove
that the funds were spent for marital purposes. See Schnackel
v. Schnackel, 27 Neb. Ct. App. 789, 937 N.W.2d 234 (2019) (citing
Harris v. Harris, supra, and Brunges v. Brunges, 260 Neb. 660,
619 N.W.2d 456 (2000)).
The district court accepted Michael’s proposed division of
marital assets, which included $5,800 from his inheritance
which Tracy allegedly dissipated. In its order, the court stated
that half of Michael’s inheritance was deposited into Tracy’s
account to pay for medical bills. The deposit of the money is
corroborated by Tracy’s and Michael’s testimony and exhibit
17, which is an account summary for Tracy’s bank account.
However, Michael claims that the money was deposited for
the purpose of paying medical bills and that Tracy failed
to pay those bills. Tracy disputes the purpose for which the
money was deposited. Regardless, neither Michael’s testimony,
nor exhibit 17, demonstrates that Tracy used the $5,800 for
purposes unrelated to the marriage. Exhibit 17 indicates that
Tracy used the funds to pay various bills and to pay for insur-
ance, food, and clothing. Although Michael indicated that the
money was used for a purpose other than that for which it was
given to Tracy, the standard for dissipation of marital assets is
whether marital assets were used for a selfish purpose unre-
lated to the marriage, not whether the funds were used for a
specified purpose.
In Harris v. Harris, supra, the husband began to make
large withdrawals from the parties’ savings account after the
wife asked for a divorce. The husband was able to account,
through testimonial and documentary evidence, for a portion
of the withdrawals being used for marital expenses. Id. The
- 121 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
remaining portion of the withdrawals were unaccounted for,
and the court determined that portion, not the portion used
for marital expenses, had been dissipated. Id. Likewise, in
the present case, Tracy’s testimony and the documentary evi-
dence indicates that she spent the $5,800 on marital expenses,
such as the parties’ debts, insurance, cell phones, food, and
clothing. Therefore, based on the record before us, the district
court abused its discretion in finding that Tracy dissipated
$5,800, because the documentary evidence does not indicate
that she used the money for selfish purposes unrelated to
the marriage.
To remedy the court’s error, $5,800 should not be attributed
to Tracy, as demonstrated in exhibit 43, Michael’s proposed
division of assets. Rather, the total marital debts should remain
at $20,980.78, which will result in an equalization payment by
Michael of $10,490.39. Further, pursuant to the court’s purge
plan for Tracy’s contempt of court, Michael’s equalization pay-
ment of $10,490.39 is reduced by $2,500.
Contempt.
Tracy also alleges that the district court erred by finding her
to be in contempt of various court orders regarding Michael’s
FaceTime parenting time. We find no error in the district
court’s finding.
[16] Civil contempt proceedings are instituted to preserve
and enforce the rights of private parties to a suit when a party
fails to comply with a court order made for the benefit of the
opposing party. Martin v. Martin, 294 Neb. 106, 881 N.W.2d
174 (2016). Willful disobedience is an essential element of
contempt; “willful” means the violation was committed inten-
tionally with knowledge that the act violated the court order.
Id. Outside of statutory procedures imposing a different stan-
dard, it is the complainant’s burden to prove civil contempt by
clear and convincing evidence. See id.
The district court found that Tracy willfully and contuma-
ciously violated the court’s orders that Michael was to have
- 122 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
parenting time via FaceTime with the children. In three sepa-
rate orders, the district court ordered FaceTime parenting time.
Despite these orders, the evidence demonstrates that at the time
of trial, Michael had not had parenting time with the children
since March 2019 and had only had one other visitation with
the children since the beginning of 2018.
Tracy testified that she did not believe she could commu-
nicate with Michael due to a no-contact order which was put
in place by the county court for Lancaster County; therefore,
she could not facilitate the FaceTime calls. However, the
appearance bond that implemented the no-contact restriction
in August 2018 was modified in September and November
to allow Michael FaceTime visitation with the children, fol-
lowing an October 12 order from the district court to allow
FaceTime visitation. The district court ordered FaceTime visi-
tation again on October 25 and November 16, as well as on
March 18, 2019. In light of these orders and the initial July
2018 order granting Michael FaceTime visitation with the
children “by calling [Tracy],” we find Tracy’s position ques-
tionable at best.
Tracy testified that after the no-contact order was modi-
fied, she arranged for Keady to facilitate FaceTime therapeutic
visitation for Michael with the children. However, the district
court’s orders did not require Michael’s parenting time to be
therapeutic. Tracy’s position requiring therapeutic parenting
time undermines her argument that she did not willfully violate
the court’s orders. After reviewing the evidence, we agree that
Tracy willfully and contumaciously violated the court’s orders
by withholding FaceTime parenting time from Michael.
Attorney Fees.
Tracy asserts that the district court abused its discretion in
failing to award her attorney fees. We disagree.
Attorney fees and expenses may be recovered only where
provided for by statute or when a recognized and accepted
uniform course of procedure has been to allow recovery of
- 123 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
GANDARA-MOORE v. MOORE
Cite as 29 Neb. Ct. App. 101
attorney fees. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314
(2019). In dissolution cases, as a matter of custom, attorney
fees and costs are awarded to prevailing parties. Id. In award-
ing attorney fees in a dissolution action, a court shall consider
the nature of the case, the amount involved in the controversy,
the services actually performed, the results obtained, the length
of time required for preparation and presentation of the case,
the novelty and difficulty of the questions raised, and the cus-
tomary charges of the bar for similar services. Id.
Both Tracy and Michael requested the district court to award
attorney fees. Apart from the fees Tracy was ordered to pay
as part of the court’s contempt finding, the court ordered each
party to pay his or her own attorney fees. After reviewing the
record, we find no abuse of discretion by the district court in
denying Tracy attorney fees. Each party incurred significant
attorney fees, each party prevailed on some issues, and each
party was unsuccessful on others. Consequently, the court
did not abuse its discretion in refusing to award Tracy attor-
ney fees.
CONCLUSION
For the reasons set forth above, the district court’s decree
is modified to increase Michael’s equalization payment to
$10,490.39, from which shall be deducted $2,500 as contempt
sanctions against Tracy. The decree is further modified to
increase Michael’s child support payments to $916 per month
for two children and $640 per month for one child. Finally, the
decree is modified to provide that parenting time transitions
are to occur at an agreed-upon public place, not at Tracy’s
house, and that if the parties cannot agree on a place, they are
to occur at the Lancaster County sheriff’s office. The decree is
otherwise affirmed.
Affirmed as modified.