McNulty v. NcNulty

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MCNULTY V. MCNULTY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MAKAYLA N. MCNULTY, APPELLEE,
V.
SEAN T. MCNULTY, APPELLANT.
Filed March 8, 2022. No. A-21-446.
Appeal from the District Court for Dawson County: JAMES E. DOYLE IV, Judge. Affirmed.
Shane M. Cochran, of Cochran Law, P.C., L.L.O., for appellant.
Claire K. Bazata, of Berreckman & Bazata, P.C., L.L.O., for appellee.
PIRTLE, Chief Judge, and RIEDMANN and BISHOP, Judges.
BISHOP, Judge.
I. INTRODUCTION
Sean T. McNulty appeals the decree entered by the Dawson County District Court
dissolving his marriage to Makayla N. McNulty. Sean claims the district court erred by denying
his motion to dismiss for lack of subject matter jurisdiction or, in the alternative, to change venue.
He also challenges the court’s award of custody and parenting time, and the court’s finding that a
house in Kimball, Nebraska, was marital property. We affirm.
II. BACKGROUND
1. PROCEDURAL BACKGROUND
Sean and Makayla were married in August 2016 in Gothenburg, Dawson County,
Nebraska. At the time of their marriage, the parties lived in Colorado, but they moved to Sidney,
Cheyenne County, Nebraska, that fall. Sean and Makayla have two children: Blake McNulty, born
in 2015, and Bennett McNulty, born in 2018.
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On September 20, 2019, Makayla filed a complaint for dissolution of marriage in the
district court for Dawson County. She stated that her address was in Gothenburg, and that she was
a resident of Dawson County. She stated that Sean’s address was in Sidney. Makayla sought
temporary and permanent custody of the parties’ children, child support, alimony, an equitable
distribution of the marital property and debts, court costs, and attorney fees. Makayla also filed
motions for temporary custody and allowances.
On October 11, 2019, Sean filed a “Motion to Dismiss or in the Alternative to Change
Venue.” He alleged that Makayla was not a resident of Dawson County at the time she filed the
complaint, and that the action should have been brought in Cheyenne County. Sean asked the
district court to dismiss the action for lack of subject matter jurisdiction or, in the alternative, to
transfer venue to the district court of Cheyenne County because Dawson County would be
inconvenient for witnesses. The district court “overruled and denied” Sean’s motion.
In December 2019, the district court awarded the parties joint legal custody of the children,
with temporary physical custody awarded to Makayla. Sean was to have parenting time from
6:30 p.m. on Thursday to 6 p.m. on Sunday on the first, second, and fourth weekends of each
month until further order of the court. The parties were to meet in Paxton, Nebraska, for all
parenting time exchanges. Sean was ordered to pay temporary child support in the amount of
$1,509 per month for the parties’ two children.
On January 21, 2020, Sean filed an “Answer and Cross Complaint for Dissolution of
Marriage.” He sought temporary and permanent custody of the parties’ children, temporary and
permanent child support, an equitable division of the marital property and debts, costs, and
attorney fees.
On March 23, 2020, the parties filed a stipulation and agreement to modify temporary
orders, including a recalculated child support worksheet wherein Sean’s temporary child support
obligation would now be $1,092 per month. The district court approved the stipulation. On April
1, the court ordered that during the summer of 2020, the parties were to have parenting time with
the children on a “week-on/week-off rotation.”
2. TRIAL
The 2-day trial was held on March 23 and April 19, 2021. By agreement of the parties,
several witnesses appeared remotely by video conference. Sean and Makayla appeared in person
with their respective counsel. Several witnesses testified and numerous exhibits were received into
evidence. We summarize the evidence relevant to the issues on appeal.
(a) Evidence Regarding Parties’ Relationship and Parenting
Makayla, 27 years old, and Sean, 33 years old, both testified at trial. Makayla was currently
employed at a law firm in Gothenburg; she worked “[a]bout 40” hours per week, with a daily
schedule of approximately 8 a.m. to 5 p.m. She was previously employed as a dental assistant in
Cozad, Nebraska, and, before that, in Sidney. Sean was currently employed by the federal
government, Department of Energy, as a substation technician; he worked four 10-hour days
Monday through Thursday each week. He was previously employed as a substation technician for
a different employer; his regular work schedule was four 10-hour days Monday through Thursday
each week.
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According to Makayla, she had been the primary caregiver for the children since their
births. She stated that when the parties were still together, “I did pretty much everything for [the
children]; diaper changes, bath, fed them, I nursed them, got up with them in the middle of the
night.” When asked if Sean ever helped with any of the childcare, Makayla responded, “Rarely.”
She said he would play with the children “occasionally” and would help put Blake to bed. Makayla
did not leave the children home alone with Sean often because “[h]e would always be
overwhelmed by the time I got home.” Sean, on the other hand, testified that prior to their
separation the parties “did a pretty good job” of parenting together, and he believed that they were
equal. He said, “We had different roles, and we took on each role as a team, and we -- we
understood each others’ [sic] roles in the -- in the parenting.” Sean’s mother watched the children
during the day when Makayla and Sean worked.
As for discipline, Makayla said that she and Sean both “spank[ed]” the children, but “he
would spank extremely hard and multiple times to where [she] was uncomfortable with how he
was disciplining.” If Makayla tried to intervene, “the blame was put on me that I wasn’t allowing
him to discipline his child like he wanted to.” On cross-examination, Makayla was asked if she
ever used something called a spanking stick. She responded, “one time,” and then described it as
“kind of similar to a paper towel roll, but it . . . would hold like chair covers from like my office,”
and was thicker than a normal paper towel roll. Sean testified that “[e]very time that spanking was
necessary, [Makayla] would use this device,” and it was not just one time like Makayla said. Sean
used “[a]n open hand, palm,” when he spanked the children.
Makayla said that Sean would frequently not speak to her during their marriage. He would
“get mad over something, and he would go days without talking to me. He would just like exclude
himself from anything, wouldn’t help parent, was always in the garage or on his phone[.]” When
asked if there were times when he would go without talking to Makayla, Sean responded, “That is
my form of dealing with a stressful situation.” When asked how long he went without speaking to
her, he responded, “I’d go a day or two. I believe our last argument before the separation I think
was three days.” Makayla stated that during the times when Sean would not speak to her he would
speak to the children, but he did not help parent. When asked what she meant by that, Makayla
stated, Sean “would say things to the boys that made it harder for me to do things I needed to do.
Like he would . . . go to Blake and say, ‘Mommy’s mean,’ or, ‘Let’s leave Mommy,’ and tell him
to go get into the pickup and, you know, things like that, like, ‘Mommy’s mean to Daddy.’”
Makayla was asked if there was anything else Sean would do when he was upset with her. She
responded,
I guess the . . . verbal abuse was probably the worst, that and emotional, called me names
in front of the kids. He’d call me a [expletive]. He’d called me ungrateful, disgusting, a
[expletive], worthless. He would kick objects . . . in my general direction, throw things.
There was one time he punched a wall.
She said this behavior occurred every week and was witnessed by the children. During his
testimony, Sean denied and “[did not] recall” saying to the boys that Makayla was mean. “I would
not lead them to -- to think that their mother was mean.” He also denied calling Makayla names in
front of the children.
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On Thursday, September 19, 2019, Makayla planned to leave with the children and go to
Gothenburg. She testified,
Sean claimed that . . . I didn’t tell him that I was going to be leaving on Thursday. That
was always my plan. And . . . he told me it’s a good thing that I didn’t leave right
away . . . because he wouldn’t have gotten to say goodbye to the kids. And then he said he
would have called the cops on me and said I was kidnapping them.
He grabbed Blake and tried to put him into his personal pickup, saying that he was
going to take him and that we could leave when they got back.
Makayla said that Blake cried for her, and that she had to call Sean’s mother. After his mother
arrived, Sean “calmed down a little bit.” When asked when she quit her job in Sidney, Makayla
replied, “I called my employer the Friday after I left.” She was asked if that would have been the
very next day, and she responded, “Correct”; that was the same day that she filed the divorce
action.
Sean also testified about the parties’ plans the weekend Makayla left with the boys. Sean
stated that he was going to the motocross track for a weekend of racing and Makayla and the boys
were going to go to Gothenburg “for a parade, a festival.” Makayla planned to leave Thursday
night, “and she waited for me . . . to get home so I could say goodbye.” “[A]n argument occurred,
emotional conversation. . . . [S]he was going to leave and I was not okay with it at that point. So
at one point, I . . . had picked Blake up and I said, ‘We’re going to ride dirt bikes.’” “[W]e walked
towards the pickup, and that’s when she had cut us off, and at that point is when Blake started
throwing a fit and crying.” Sean said, “[S]o Thursday night is when they left, and then Friday
morning is when I went to the track. I camped there until Sunday evening. That’s when I returned
home to find out that all of the boys’ clothes were gone, toys were gone, and Makayla’s belongings
were gone.” Sean was “very shocked” by Makayla filing for divorce.
Makayla currently resides with her parents in their home in Gothenburg. The children have
friends and extended family in Gothenburg. Makayla’s parents helped her with the children, and
she sought their help “[m]ainly after school for Blake” because “[m]y mom and Blake get out of
school at the same time”; Makayla’s mother works at the school Blake attends. Makayla planned
to move out of her parents’ home, but she had not yet done so “because of this divorce.” She plans
to stay in the Gothenburg area.
Sean testified that when the children are with him on the weekends, he makes them
breakfast and they go to the track and ride dirt bikes or play with children in the neighborhood, but
“the weekends usually are filled with their events from wrestling or races”; both Blake and Sean
do motocross races. Sean said that he attends all of the children’s activities, but that Makayla does
not; “she does not attend not even ten percent” of the activities that occur on the weekends that
Sean has the children. In response, Makayla stated, “I always want to go wherever my kids are.
It’s hard when their majority [of events] are in Western Nebraska, they’re in Colorado, they’re in
Wyoming.” She explained that the activities are often on the weekends when the children are with
Sean, and Makayla had already driven roundtrip to Paxton to do the parenting time exchange at
the beginning of Sean’s weekend, and she would have to do the same at the end of Sean’s weekend.
Makayla stated that when Blake comes back from a weekend with Sean, Blake “doesn’t
want to listen.” When he is not returning from a weekend with Sean, Blake is “just in his routine
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a lot better.” The temporary order gave Sean three weekends per month, so there was only one
weekend a month that Blake did not have to go anywhere. When asked if she felt that the constant
changing was difficult for Blake, Makayla responded, “I do.” Makayla believed it was in the
children’s best interests to remain in her primary custody, and that Sean having parenting time
every other weekend would be better for the children, but she agreed that Sean could have every
other week in the summer.
Sean, however, believed he could provide a better environment for the children and that it
was in the children’s best interests for the district court to grant him physical custody; he thought
continuing with joint legal custody was “fair.” Sean’s proposed parenting plan was for Makayla to
have parenting time on the first, second, and fourth weekends of every month; that was the same
parenting time Sean had under the temporary order. Sean’s mother testified that she would be
available to provide daycare for the children if Sean received custody.
Troy Franzen (Troy) is Makayla’s father. He testified that Makayla and the boys have lived
with him and his wife, Heather Franzen (Heather), in Gothenburg since September 2019. He said
that Makayla takes Bennett to daycare, and Heather takes Blake to school because she works at
his school. Heather usually picks both boys up because they are done by 4 p.m. and Makayla works
until 5 p.m. According to Troy, Makayla provides that majority of the care for the children, but
“[w]e all kind of just chip in, help with pretty much everything.” At their home, Troy makes
breakfast, Heather makes the evening meal, and Makayla “usually takes care of the noon [sic] and
everything else; bathing, bedtime.” The boys each have a bed in their own rooms, but Bennett
“likes to sleep with . . . Blake.” Sean testified that at his house, the boys sleep in bunk beds in the
same room because “they would not sleep in separate rooms,” “it was a battle to get them to go to
bed.”
Troy stated that Makayla is “an awesome parent” and that she would do anything for the
boys, “[t]hey’re always first.” For discipline, Makayla “usually sits down with them and talks to
them and tells them what -- kind of what they did wrong and lets them know that that is not
allowed[.]” Troy believed that Makayla and the children had a “[v]ery close” bond and they were
“always doing something together.”
Prior to September 2019, Troy and Heather tried to visit Makayla and her family “at least
once a month.” From what Troy observed, “Makayla pretty much had to do everything. Sean
probably was most the time either out in the garage working on something or doing something
else.” Since the parties’ separation, when Blake comes back from spending a weekend with Sean,
Blake is “completely different than when he goes there”; he is “very mouthy” and does things he
knows he is not supposed to be doing, “he is very hard to discipline,” and “usually it takes a couple
days for us to kind of get him back into his routine again.”
Michelle Ostergard testified that she was a preschool teacher at a childcare center in
Gothenburg. Blake attended the childcare center from November 2019 until August 2020, when
he started kindergarten. While Blake was at the childcare center, Ostergard observed a pattern
where Blake would push and hit following weekends he spent with Sean; the behavior would last
2 or 3 days. On cross-examination, Ostergard acknowledged that it was not unusual for a child to
act out after visiting a noncustodial parent, and that Blake’s behavior was not different from other
children in similar situations. Bennett still attended the center 5 days each week and Ostergard had
no concerns about him.
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Jamie Slonecker testified that she is a licensed independent mental health practitioner.
Slonecker saw Blake four times between February and August 2020 because Makayla had
concerns about behaviors Blake was displaying, like pushing boundaries and rules; Makayla
wanted Blake to have someone to talk to about his parents’ separation and to be able to express his
feelings and learn to communicate better about what he was experiencing. Slonecker stated that
Makayla contacted her four or five times since August to talk about how Blake was doing and
asking for “suggestions for structure and routine and . . . being able to communicate and express
feelings.” Slonecker did not observe anything in counseling that gave her cause for concern
regarding Makayla’s parenting. Slonecker never met Sean.
Sean called four friends to testify on his behalf. The collective testimony was that Sean
loves his children, and that no cause for concern was observed regarding his parenting. One of
Sean’s friends stated that when the parties were still together, the friend observed neither one
providing more care for the children than the other parent; “it was just different types of parenting.”
“Sean was definitely more on the side of . . . the fun one, you know, played a lot more with them,
where Makayla was more the maternal parent.”
(b) Evidence Regarding Finances and Kimball House
Makayla testified that she and Sean lived together in Colorado from the summer of 2013
until 2016; according to her testimony, they filed under Colorado common law marriage for their
2014 and 2015 tax returns. Sean denied that the parties ever held themselves out to be husband
and wife while living together in Colorado; they never called each other husband or wife. However,
Sean “believe[d]” they “filed together for tax purposes.”
Sean testified that while living in Colorado, the parties did not have any joint bank accounts
and they kept their bills separate. The parties initially rented a place to live, however they
purchased a house in 2014. Sean said his name was on the mortgage, but he could not recall if
Makayla’s name was on the mortgage or not. When asked who paid the mortgage, Sean replied,
“I did.” And when asked if Makayla paid any rent to him for the mortgage, Sean replied, “No.” In
2016, the parties bought their house in Sidney, Nebraska, after they got married. Sean’s “name is
on the house,” but Makayla’s name is not; Makayla’s name was not on the loan for the house
either, because, according to Sean, “It was at [sic] our best interest to only have my name on the
loan as we got a better interest rate.” Sean did not dispute that the house in Sidney was “marital.”
After the parties were married, Sean’s paycheck went into his own separate account; Makayla did
not have access to that account. Makayla’s paycheck went into the parties’ joint account.
Both parties also testified about a house in Kimball. Makayla testified that “[a] couple
months before we got married in 2016,” the house in Kimball was purchased for Sean’s parents.
Makayla was asked further questions regarding the Kimball house.
Q [by her counsel]. Was there a -- a loan or a mortgage on that property that you’re
aware of?
A. I assume so, yes.
Q. Do you know what the value of that mortgage was?
A. I don’t.
Q. Do you know whether Mr. McNulty continued to make payments towards that
home --
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A. Yes.
Q. --while you were married?
A. Yes.
Q. And did his parents or his family provide any rent to you to live in that home?
A. No. If they did, it was very rare.
Q. Okay. Are they still residing in that home, to your knowledge?
A. Yes.
The district court further inquired of Makayla regarding the house in Kimball.
THE COURT: [T]he home in Kimball. When was that purchased?
[Makayla]: I believe it was purchased a few months before our wedding ceremony.
....
THE COURT: All right. How was that paid for?
[Makayla]: I believe by Sean.
THE COURT: Did he pay for it while you were married?
[Makayla]: Yes. I would assume so.
THE COURT: So the payments occurred a month or two before you were married
and then after you were married.
[Makayla]: Yes.
Sean testified that he purchased the Kimball house for his parents. The house was a
“foreclosure” and a “fixer-upper,” and he paid $19,500. A “Special Warranty Deed” for the
Kimball house was received into evidence as exhibit 48. The deed, executed on July 26, 2016, and
recorded on August 15, states that the bank conveyed the house to Sean for consideration of
$19,500. Sean testified that he paid cash for the house and “never had a loan or mortgage” on the
house. When asked if it was all money he had prior to the marriage, Sean replied, “Yes. Correct.”
Sean still owned the house; Sean’s parents were purchasing the house and had a “verbal”
rent-to-own agreement with him, with “very flexible” payments as his parents “are not in a
financially fit position.”
Sean does not believe that the value of the Kimball house has increased since he purchased
it because “it is a deep fixer-upper” and “it’s not in great shape at all.” However, on the property
statement prepared for trial, Makayla valued the house at $50,000, based on the Kimball County
Assessor’s 2020 value of $49,570; the assessor’s value was received into evidence as exhibit 13.
3. DISTRICT COURT’S DECREE
In its decree entered on April 29, 2021, the district court dissolved the parties’ marriage
and divided the parties’ marital estate, resulting in a judgment of $45,800 in favor of Makayla and
against Sean for equalization of the property and debt division; a payment plan was established.
As relevant to the appeal, the court determined that the Kimball house was marital property.
The district court awarded the legal and physical custody of the children to Makayla.
Pursuant to the court’s parenting plan, Sean was to have parenting time with the children every
other weekend from 6 p.m. on Friday until 6 p.m. on Sunday. During the summers, the parties
were to have parenting time on alternate weeks, with exchanges occurring on Fridays at 6:30 p.m.
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A holiday parenting time schedule was also established. The parties were to meet in Paxton for all
parenting time exchanges. Sean was ordered to pay child support in the amount of $1,097 per
month for the parties’ two children, retroactive to April 1, 2021. The court stated that “[t]he
retroactive commencement of child support and the unpaid temporary child support establishes an
arrearage of $2,555.29,” and a judgment for such amount was entered against Sean and in favor of
Makayla; a payment plan was established. Neither party was awarded alimony. The court entered
a judgment of $1,000 against Sean and in favor of Makayla as an award of attorney fees.
Sean appeals.
III. ASSIGNMENTS OF ERROR
Sean’s brief does not contain a separate section assigning error to the district court. While
the brief’s argument section does contain headings purporting to assign error, the Nebraska
Supreme Court has emphasized that such headings do not satisfy the requirements of our appellate
rules. See, In re Interest of Mekhi S. et al., 309 Neb. 529, 960 N.W.2d 732 (2021); Neb. Ct. R.
App. P. § 2-109(D)(1) (rev. 2021). This affects our standard of review. In re Interest of Mekhi S.
et al., supra.
IV. STANDARD OF REVIEW
Where the assignments of error consist of headings or subparts of arguments and are not
within a designated assignments or error section, an appellate court may proceed as though the
party failed to file a brief, providing no review at all, or, alternatively, may examine the
proceedings for plain error. Id.
Plain error is error plainly evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020).
A jurisdictional question which does not involve a factual dispute is determined by an
appellate court as a matter of law. In re Interest of Mekhi S. et al., supra. See, also, Camden v.
Papio-Missouri River NRD, 22 Neb. App. 308, 854 N.W.2d 334 (2014) (question of jurisdiction
is question of law, which appellate court resolves independently of trial court; however, findings
as to any underlying factual disputes will be upheld unless clearly erroneous).
V. ANALYSIS
Sean claims the district court erred by denying his motion to dismiss for lack of subject
matter jurisdiction or, in the alternative, to change venue. He also challenges the court’s award of
custody and parenting time, and the court’s finding that the house in Kimball was marital property
rather than his premarital property.
1. SUBJECT MATTER JURISDICTION AND VENUE
We begin, as we must, by determining whether the district court had subject matter
jurisdiction over the dissolution action.
Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the
general class or category to which the proceedings in question belong and to deal with the general
subject matter involved. D.W. v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019).
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Pursuant to Neb. Rev. Stat. § 24-302 (Reissue 2016), district courts have general, original,
and appellate jurisdiction in all matters, both civil and criminal, except where otherwise provided.
Dissolution actions “shall be brought in the district court of the county in which one of the parties
resides.” Neb. Rev. Stat. § 42-348 (Reissue 2016). In Small v. Small, 229 Neb. 344, 347, 427
N.W.2d 42, 44 (1988), the Nebraska Supreme Court stated, “The district court for a county cannot
acquire jurisdiction over dissolution proceedings unless one of the parties is a resident of that
county at the time the original petition is filed.” In Huffman v. Huffman, 232 Neb. 742, 750, 441
N.W.2d 899, 905 (1989), the Nebraska Supreme Court explained, “[I]f one of the parties to a
dissolution action has had a Nebraska domicile for the duration prescribed by § 42-349, a party
may commence a dissolution action under § 42-348 in the county where one of the parties lives
and is not required to commence the action in the domiciliary county of either party to the
dissolution action.”
In the present case, both parties had a Nebraska domicile for 1 year prior to the filing of
the complaint, thus meeting the requirement of Neb. Rev. Stat. § 42-349 (Reissue 2016). Section
42-349 having been met, the dissolution action could be commenced in the county where one of
the parties lived. See Huffman v. Huffman, supra. See, also, Neb. Rev. Stat. § 42-352 (Reissue
2016) (proceeding under §§ 42-347 to 42-381 shall be commenced by filing complaint in district
court; proceeding may be heard by county court or district court as provided in § 25-2740). In
proceedings under sections Neb. Rev. Stat. §§ 42-347 to 42-381 (Reissue 2016 & Cum. Supp.
2020), the court shall have jurisdiction to inquire into such matters, make such investigations, and
render such judgments and make such orders, both temporary and final, as are appropriate
concerning the status of the marriage, the custody and support of minor children, the support of
either party, the settlement of the property rights of the parties, and the award of costs and
attorney’s fees. § 42-351.
Even though the question of jurisdiction is a question of law, which an appellate court
resolves independently of the trial court, findings as to any underlying factual disputes will be
upheld unless clearly erroneous. See Camden v. Papio-Missouri River NRD, supra. We find no
error in the district court’s finding that Makayla was living in Dawson County at the time her
complaint was filed. Accordingly, the Dawson County District Court had subject matter
jurisdiction over the dissolution proceeding.
As to Sean’s request to change venue, Neb. Rev. Stat. § 25-410 (Cum. Supp. 2020) does
allow the district court to transfer any civil action to the district court of any other county in the
state for the convenience of the parties or witnesses. We find no plain error in the district court’s
finding that Dawson County was not an inconvenient forum. Accordingly, we find no plain error
in the district court’s decision to overrule and deny Sean’s motion to dismiss for lack of subject
matter jurisdiction or, in the alternative, to change venue.
2. CUSTODY AND PARENTING TIME
Sean contends he should have been awarded custody of the children, or alternatively, he
should have been awarded an additional weekend of parenting time each month.
When deciding custody issues, the court’s paramount concern is the child’s best interests.
Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020). Neb. Rev. Stat. § 43-2923(6) (Reissue
2016) provides that in determining custody and parenting arrangements:
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[T]he court shall consider the best interests of the minor child, which shall include, but not
be limited to, consideration of . . . :
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member. . . ;
and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.
Other pertinent factors include the moral fitness of the child’s parents, including sexual conduct;
respective environments offered by each parent; the age, sex, and health of the child and parents;
the effect on the child as a result of continuing or disrupting an existing relationship; the attitude
and stability of each parent’s character; and parental capacity to provide physical care and satisfy
educational needs of the child. Smith v. King, supra.
The district court thoroughly considered the relevant factors before making its custody and
parenting time decision. For example, the court found that Makayla “was the primary caregiver
and nurturer of the children,” and that the children were attached to both parents, “but the
attachment and the bonds between the children and Makayla are more extensive, complete, and
potent than those between the children and Sean.” The court expressed concern about Sean’s
record of engaging in physical confrontations with others, Sean’s failure to regularly pay child
support, and Sean’s “receipt, retention, and concealment of the COVID-19 stimulus funds he
received during the pendency of the case.” It noted that Sean did not disclose the funds on the joint
property statement or in his testimony; it was only revealed during cross-examination. The court
pointed out that the “stimulus funds of more than $5,000” could have been paid towards Sean’s
child support arrearage. The court added, “Sean’s explanation for his non-disclosure of the funds
was incredible and unconvincing.”
The district court also found that “[t]he history of the parents’ care for the children supports
the conclusion the stability and security offered by Makayla is greater.” “Makayla was focused on
the children in a more wholistic manner than Sean. Sean provided substantial care for the children,
but much of such care centered around activities of importance to him, such as the motocross and
wrestling,” and “there was evidence to support the inference Sean is less flexible and more
demanding of the children than is appropriate for their age.” The court found that both parents
have a “satisfactory capacity” to provide for the children’s physical care and emotional needs, but
Makayla has “more fully realized” her capacity than has Sean. The court indicated it had
considered a joint custody arrangement, but that
[u]nder the facts of this case, joint decision-making by the parents is not in the children’s
best interests. The parents are unable to communicate appropriately face-to-face, there’s a
level of distrust, and it appears there is an issue of a fundamental disagreement over how
much and to what extent Sean can exercise control over the decision-making of Makayla.
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The court described how it considered the demeanor of witnesses as they testified, such as
directness of answers, emphasis placed on words, facial expressions, eye movements, “furtive or
meaning glances, shrugs, yawns, self-possession or embarrassment.” The court concluded that
“[t]he demeanor evidence weighed strongly in Makayla’s favor.”
Sean largely takes issue with the district court’s view of the evidence. However, when
evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial
judge heard and observed the witnesses and accepted one version of the facts rather than another.
Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017).
Having reviewed the record, we find no plain error in the district court’s decision to award
legal and physical custody of the parties’ children to Makayla, subject to Sean’s parenting time as
set forth in the court’s parenting plan. Nor do we find any plain error in the court’s decision to
award Sean parenting time on alternating weekends.
3. KIMBALL HOUSE
Sean contends the district court improperly characterized the Kimball house as marital
property.
In a dissolution of marriage proceeding, “‘[i]f the parties fail to agree upon a property
settlement ... the court shall order an equitable division of the marital estate.’” Dooling v. Dooling,
303 Neb. 494, 507, 930 N.W.2d 481, 495 (2019). Under Neb. Rev. Stat. § 42-365 (Reissue 2016),
the equitable division of property is a three-step process. Dooling v. Dooling, supra. The first step
is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property
to the party who brought that property to the marriage. The second step is to value the marital
assets and marital liabilities of the parties. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles contained in § 42-365. Dooling v.
Dooling, supra. The ultimate test in determining the appropriateness of the division of property is
fairness and reasonableness as determined by the facts of each case. Id. Generally, all property
accumulated and acquired by either spouse during a marriage is part of the marital estate. Id.Exceptions include property that a spouse acquired before the marriage, or by gift or
inheritance. Id.The burden of proof rests with the party claiming that property is nonmarital. Marshall v.
Marshall, supra. A nonmarital interest in property may be established by credible testimony.
Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). A spouse’s own testimony can
establish a “‘“tracing link,”’” i.e., tracking an asset to a nonmarital source. Id. at 364, 934 N.W.2d
at 495. See, also, Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). Of course, triers of fact
have the right to test the credibility of witnesses by their self-interest and to weigh it against the
evidence, or the lack thereof. Burgardt v. Burgardt, supra. Evidence not directly contradicted is
not necessarily binding on the triers of fact, and may be given no weight where it is inherently
improbable, unreasonable, self-contradictory, or inconsistent with facts or circumstances in
evidence. Id.In concluding that the Kimball house was marital property, the district court stated:
The determination of the classification of the Kimball home is determined, in part, by the
circumstances of the parties at the time the property was purchased. The parties began
cohabiting in a committed, exclusive, intimate relationship in 2014 while living in
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Colorado. Both during the cohabitation and after their August 2016 marriage, Sean and
Makayla maintained separate bank accounts and it appears the earnings of each were
deposited in such separate accounts. Nevertheless, the parties throughout the committed,
exclusive, intimate relationship contributed to the living expenses of themselves and their
first-born child. The deed to the Kimball house was filed 12 days before the parties’
marriage and was purchased while the parties were living in Colorado. The parties
purchased their Sidney home and moved there in October of 2016. The evidence was clear
and convincing the Kimball house property was purchased at a time when the parties
considered themselves bound by their expressed intentions to marry and they actively held
themselves out as bound to one another under the bonds of marriage. This was evidenced
by the manner in which they manifested their intention to enter into a marital relationship,
including their exchange of rings; their sending of invitations to their wedding; and other
incidents of their cohabitation, including the 2015 birth of their oldest child, and the manner
in which they supported each other, before the August 2016 wedding. The Kimball house
was acquired at a time when Sean and Makayla were living together with all the indicia of
a marital relationship, including an expressed intention to enter into a marital relationship
and their conduct of mutual support and their commitments to each other in their exclusive,
intimate relationship. The Kimball house is marital property and is included in the martial
estate.
We find no plain error in the district court’s inclusion of the property as marital, but for a
reason different than that contained in its order. See Keith v. Data Enters., 27 Neb. App. 23, 925
N.W.2d 723 (2019) (if trial court arrives at correct result even though it uses reason different from
that expressed by this court, its judgment will be upheld).
The district court included the property as a marital asset, in part, due to it being “acquired
at a time when Sean and Makayla were living together with all the indicia of a marital relationship.”
However, neither party asserted at trial that a marital relationship existed at the time the property
was acquired; rather, both agreed title was acquired prior to marriage. However, Sean failed to
meet his burden of proof because the evidence was controverted as to whether a mortgage existed
that was paid postmarriage and there was no evidence that all the other costs of ownership were
paid by either Sean’s parents or with premarital funds. Although Sean’s testimony was evidence
for the district court to consider in determining whether the asset was tracked to a nonmarital
source, the court nevertheless had the right to test the credibility of witnesses by their self-interest
and to weigh it against the evidence, or lack thereof. See Burgardt v. Burgardt, supra.Given the limited and conflicting evidence from the parties on this issue, we cannot say the
district court’s determination that the Kimball house was marital property constitutes plain error.
VI. CONCLUSION
For the reasons stated above, we affirm the decree in all matters.
AFFIRMED.
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