Gandara-Moore v. Moore ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/17/2020 09:05 AM CST
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    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.
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    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
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    GANDARA-MOORE v. MOORE
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    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
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    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
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    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.
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    GANDARA-MOORE v. MOORE
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    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.
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    GANDARA-MOORE v. MOORE
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    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
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    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
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    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
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    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.
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    [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
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    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
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    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
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    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
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    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
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    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
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    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
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    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).
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    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
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    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.
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    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
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    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
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    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.