Schmeidler v. Schmeidler

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www.nebraska.gov/apps-courts-epub/
04/24/2018 08:08 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
Benjamin J. Schmeidler, appellant, v.
Jessica F. Schmeidler, appellee.
___ N.W.2d ___
Filed April 17, 2018. No. A-17-361.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Appeal and Error. An appellate court’s review in an action for dissolu-
tion of marriage is de novo on the record to determine whether there has
been an abuse of discretion by the trial judge. This standard of review
applies to the trial court’s determinations regarding custody, child sup-
port, division of property, and alimony.
2. Divorce: Child Custody. When custody of a minor child is an issue in a
proceeding to dissolve the marriage of the child’s parents, child custody
is determined by parental fitness and the child’s best interests.
3. Child Custody. When both parents are found to be fit, the inquiry for
the court is the best interests of the children.
4. ____. In determining a child’s best interests under Neb. Rev. Stat.
§ 42-364 (Reissue 2016), 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 par-
ent; the emotional relationship between child and parents; the age, sex,
and health of the child and the parents; the effect on the child as the
result of continuing 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; and many
other factors relevant to the general health, welfare, and well-being of
the child.
5. 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.
6. Child Custody: Appeal and Error. In contested custody cases, where
material issues of fact are in great dispute, the standard of review and
the amount of deference granted to the trial judge, who heard and
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SCHMEIDLER v. SCHMEIDLER
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observed the witnesses testify, are often dispositive of whether the trial
court’s determination is affirmed or reversed on appeal.
7. Child Custody. Joint physical custody must be reserved for those cases
where, in the judgment of the trial court, the parents are of such maturity
that the arrangement will not operate to allow the child to manipulate
the parents or confuse the child’s sense of direction, and will provide a
stable atmosphere for the child to adjust, rather than perpetuating tur-
moil or custodial wars.
8. ____. Courts typically do not award joint legal custody when the parties
are unable to communicate effectively.
9. ____. Where the parties are unable to communicate and trust one
another, joint decisionmaking by the parents is not in the child’s best
interests.
10. Visitation. The trial court has discretion to set a reasonable parenting
time schedule.
11. ____. The determination of the reasonableness of a parenting plan is to
be made on a case-by-case basis.
12. ____. Parenting time relates to continuing and fostering the normal
parental relationship of the noncustodial parent.
13. ____. The best interests of the children are the primary and paramount
considerations in determining and modifying visitation rights.
14. ____. Although limits on visitation are an extreme measure, they may be
warranted where they are in the best interests of the children.
15. Visitation: Courts: Stipulations. It is the responsibility of the trial
court to determine questions of custody and visitation of minor children
according to their best interests. This is an independent responsibility
and cannot be controlled by the agreement or stipulation of the parties
themselves or by third parties.
16. Parent and Child. The best interests of a child require a parenting
arrangement which provides for a child’s safety, emotional growth,
health, stability, and physical care.
17. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), the equitable division of property is a three-step process. The
first step is to classify the parties’ property as marital or nonmarital.
The second step is to value the marital assets and marital liabilities
of the parties. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles contained in
§ 42-365.
18. ____: ____. Property which one party brings into the marriage is gener-
ally excluded from the marital estate.
19. Divorce: Property Division: Proof. The burden of proof to show that
property is nonmarital remains with the person making the claim in a
dissolution proceeding.
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SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
20. Property Division. Marital debt includes only those obligations incurred
during the marriage for the joint benefit of the parties.
Appeal from the District Court for Clay County: Vicky L.
Johnson, Judge. Affirmed as modified.
Scott D. Grafton, of Grafton Law Office, P.C., L.L.O., for
appellant.
Benjamin H. Murray, of Germer, Murray & Johnson, for
appellee.
Moore, Chief Judge, and R iedmann, Judge, and Inbody,
Judge, Retired.
R iedmann, Judge.
INTRODUCTION
Benjamin J. Schmeidler appeals the order of the district
court for Clay County which dissolved his marriage to Jessica
F. Schmeidler, awarded custody and parenting time of the par-
ties’ minor child, and divided the marital estate. We affirm as
modified as explained below.
BACKGROUND
Benjamin and Jessica were married in September 2011.
Their daughter was born in 2014. On May 19, 2016, Benjamin
filed a complaint for dissolution of the marriage.
Trial on the issues of property division, custody, parenting
time, and child support was held on February 23, 2017. At
the time of trial, Benjamin was 28 years old and worked as a
general farmhand. His parents, friends, and boss generally tes-
tified that he was a good, involved father to his daughter and
acted as a “father figure” to Jessica’s older son from a previous
relationship. They testified that they had seen Jessica belittle
Benjamin and yell at him in public. They admitted seeing both
Benjamin and Jessica drink alcohol during the marriage but
denied that Benjamin had a drinking problem.
To the contrary, Jessica testified that Benjamin drank alco-
hol every day when she first met him and that his drinking
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SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
escalated during the marriage. She claimed that he became
angry and violent when he was drinking. Jessica’s mother testi-
fied that Benjamin drank frequently and excessively and that
there were occasions where she was scared for the safety of
Jessica’s older child while he was under Benjamin’s care.
On March 15, 2017, the district court entered an order dis-
solving Benjamin and Jessica’s marriage. The court found that
the parties have “a long history of conflict,” rendering joint
decisionmaking and custody impossible. Thus, the court deter-
mined that the best interests of the child would be served by
placing her legal and physical custody with Jessica, subject to
Benjamin’s parenting time. The court adopted the parenting
plan proposed by Jessica, which granted Benjamin parenting
time with the child every other weekend and every Wednesday
evening. Benjamin was required to provide transportation to
and from his parenting time, and the parenting plan prohibited
the child from having contact with certain family members of
Jessica’s during Benjamin’s parenting time. In addition, the
parenting plan contained a provision that prohibited Benjamin
from consuming alcohol while the child was in his possession,
or for 24 hours prior. Benjamin was also ordered to pay $568
per month in child support.
The court added a “safety plan” to the parenting plan, which
provides that if at any time during Benjamin’s parenting time
Jessica learns Benjamin has been drinking alcohol, it is under-
stood and agreed that Benjamin’s parenting time should end,
and that Jessica, or a responsible adult, is allowed to pick up
the child and Benjamin’s parenting time concludes. In addi-
tion, under the safety plan, if Jessica suspects that Benjamin
has been consuming alcohol during his parenting time, she
is allowed to request that Benjamin perform a breath test. If
Benjamin tests positive at the beginning of parenting time, he
will forfeit that parenting time, and if he tests positive at the
end of a parenting time period, he forfeits his next parenting
time period. The safety plan further requires that Benjamin
“self-report” to Jessica any time he has consumed alcohol
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SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
and that if the child was present while he was drinking, he
forfeits his next parenting time. Finally, under the safety plan,
if Benjamin has an alcohol-related criminal offense, his parent-
ing time is to be suspended, unless supervised by his parents,
until Benjamin and Jessica are able to reach further agreement
for the reinstatement of parenting time or further order of
the court.
The court valued and divided the marital assets and debts
and ordered that Benjamin make an equalization payment to
Jessica in the amount of $5,000. Benjamin timely appeals to
this court.
ASSIGNMENTS OF ERROR
Benjamin assigns, summarized, that the district court erred
in (1) failing to adopt his proposed parenting plan, (2) adopt-
ing Jessica’s proposed parenting plan despite several errors, (3)
impermissibly delegating to Jessica the authority to unilaterally
suspend his parenting time, and (4) classifying and valuing
certain assets and debts of the parties and ordering him to pay
an equalization payment of $5,000.
STANDARD OF REVIEW
[1] An appellate court’s review in an action for dissolution
of marriage is de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. Burcham v.
Burcham, 24 Neb. Ct. App. 323, 886 N.W.2d 536 (2016). This
standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, and ali-
mony. Id.
ANALYSIS
Failing to Adopt Benjamin’s
Proposed Parenting Plan.
Benjamin argues that the district court should have adopted
the parenting plan he proposed as opposed to adopting Jessica’s
proposed parenting plan. We find no abuse of discretion in the
adoption of Jessica’s proposed plan.
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SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
In his parenting plan, Benjamin sought joint legal and
physical custody of the child. Thus, on appeal, Benjamin
argues that the court erred in failing to award joint legal and
physical custody, because imposing joint custody and allow-
ing him additional parenting time is in the best interests of
the child.
[2,3] When custody of a minor child is an issue in a pro-
ceeding to dissolve the marriage of the child’s parents, child
custody is determined by parental fitness and the child’s best
interests. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492
(2007). When both parents are found to be fit, the inquiry for
the court is the best interests of the children. Id. The district
court made no explicit finding, in the present case, that either
Benjamin or Jessica was unfit, and thus, its task was to deter-
mine whether a joint physical custody arrangement was in the
child’s best interests.
[4] In determining a child’s best interests under Neb. Rev.
Stat. § 42-364 (Reissue 2016), courts may consider factors
such as general considerations of moral fitness of the child’s
parents, including the parents’ sexual conduct; respective envi-
ronments offered by each parent; the emotional relationship
between child and parents; the age, sex, and health of the child
and the parents; the effect on the child as the result of con-
tinuing 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; and
many other factors relevant to the general health, welfare, and
well-being of the child. Maska v. Maska, supra.
Benjamin claims that upon an examination of these factors,
the best interests of the minor child require joint legal and
physical custody with the parties. We disagree.
[5,6] In this case, both Benjamin and Jessica presented evi-
dence concerning their own parenting strengths and the weak-
nesses of the other. The trial court determined that Jessica was
a more credible witness. Where credible evidence is in conflict
on a material issue of fact, the appellate court considers, and
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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. Barth v. Barth, 22 Neb. Ct. App. 241, 851
N.W.2d 104 (2014). In fact, in contested custody cases, where
material issues of fact are in great dispute, the standard of
review and the amount of deference granted to the trial judge,
who heard and observed the witnesses testify, are often disposi-
tive of whether the trial court’s determination is affirmed or
reversed on appeal. Id.
The court additionally concluded that Jessica had been the
primary parent of the child, Benjamin had a history of domes-
tic violence and abuses alcohol in a way that poses a danger
to the child, and placing the child’s custody with Jessica will
allow the child to have a stronger relationship with Jessica’s
older child.
[7-9] More importantly with respect to the issue of joint
custody, the court found that the parties have a long history of
conflict, rendering joint decisionmaking and custody impos-
sible, and that therefore, joint custody was not in the child’s
best interests. The Nebraska Supreme Court has repeatedly
held that joint physical custody must be reserved for those
cases where, in the judgment of the trial court, the parents are
of such maturity that the arrangement will not operate to allow
the child to manipulate the parents or confuse the child’s sense
of direction, and will provide a stable atmosphere for the child
to adjust, rather than perpetuating turmoil or custodial wars.
See, e.g., Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100
(2017); Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
And this court has acknowledged that courts typically do
not award joint legal custody when the parties are unable to
communicate effectively. See State on behalf of Maddox S. v.
Matthew E., 23 Neb. Ct. App. 500, 873 N.W.2d 208 (2016). Where
the parties are unable to communicate and trust one another,
joint decisionmaking by the parents is not in the child’s best
interests. See Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d
914 (2009).
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SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
Given the evidence presented at trial, our standard of
review, and deference to the trial court’s observation of the
witnesses, we cannot find that the district court abused its dis-
cretion in declining to award joint custody and instead award-
ing custody of the child to Jessica.
Jessica’s Proposed Parenting Plan.
Benjamin challenges the parenting plan as ordered in sev-
eral respects. He claims that the court erred in ordering that
the minor child have no contact with certain family members
of Jessica, ordering that Benjamin provide all transporta-
tion to and from his parenting time, and only granting him
2 weeks of summer parenting time, rather than the 6 weeks
he requested.
[10-14] The trial court has discretion to set a reasonable
parenting time schedule. Thompson v. Thompson, 24 Neb. Ct. App.
349, 887 N.W.2d 52 (2016). The determination of the reason-
ableness of a parenting plan is to be made on a case-by-case
basis. Id. Parenting time relates to continuing and fostering the
normal parental relationship of the noncustodial parent. Id. The
best interests of the children are the primary and paramount
considerations in determining and modifying visitation rights.
Id. Although limits on visitation are an extreme measure, they
may be warranted where they are in the best interests of the
children. Aguilar v. Schulte, 22 Neb. Ct. App. 80, 848 N.W.2d
644 (2014).
In the instant case, the district court found Jessica’s tes-
timony credible. Jessica testified that certain of her family
members have threatened her and drive by her house on almost
a daily basis. Based on this evidence, we cannot find that the
district court abused its discretion by placing a limitation on
Benjamin’s parenting time and not allowing contact between
the child and these family members.
With respect to transportation and summer parenting time,
the district court has the authority to impose a reasonable
parenting plan according to the best interests of the child. The
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record is unclear as to the distance between Benjamin’s and
Jessica’s current residences; however, it appears they live some
distance apart. Prior to imposition of the temporary order in
September 2016, the parties would share transportation and
“meet halfway” in Clay Center, Nebraska, in order to exchange
the child. The parenting plan attached to the decree requires
that Benjamin pick up the child from Jessica at the beginning
of his parenting time and return the child to Jessica at the
conclusion of his parenting time. We conclude that requiring
Benjamin to provide all transportation constitutes an abuse
of discretion given his limited parenting time, particularly
on Wednesday evenings. We therefore modify the parenting
plan to require that the parties meet in Clay Center in order to
exchange the child for Benjamin’s Wednesday evening parent-
ing time.
Further, although the district court is not required to grant
equal parenting time to the parents, Nebraska’s Parenting Act
recognizes the importance of both parents remaining active
and involved in parenting in order to serve the best inter-
ests of the child. See, Neb. Rev. Stat. § 43-2923(3) (Reissue
2016); Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009).
Indeed, the parenting plan adopted by the district court in this
case acknowledges that the best interests of the child will be
maintained through the ongoing involvement of both Jessica
and Benjamin. And parenting time relates to continuing and
fostering the normal parental relationship of the noncustodial
parent. Thompson v. Thompson, supra. Thus, we conclude that
the district court abused its discretion in awarding Benjamin
only 2 weeks of summer parenting time absent evidence that it
would be in the child’s best interests.
As such, we modify the parenting plan to allow Benjamin 6
continuous weeks of parenting time during the child’s school
summer vacation. As currently required in the parenting plan,
Benjamin must notify Jessica, in writing, not later than May 1
of each calendar year of the dates he will exercise his summer
parenting time. All other provisions contained in the current
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SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
parenting plan with respect to summer parenting time remain
the same.
Benjamin additionally argues that there is confusion with
respect to the Christmas holiday as provided for in the parent-
ing plan, and we agree. The plan defines the Christmas holiday
as beginning at 5 p.m. on the day the child is released from
school for the Christmas holiday and concluding at 12 p.m.
on the day before the child returns to school. The plan then
divides the Christmas vacation into two visitation periods: the
first period runs from 5 p.m. on the day the child is released
from school and ends at 9 a.m. on December 25, and the sec-
ond period runs from 9 a.m. on December 25 and ends at 9
a.m. on January 1. The ending dates of the defined Christmas
holiday and the second visitation period are inconsistent. We
therefore modify the second visitation period to end at 12 p.m.
on the day before the child returns to school. We otherwise
affirm the parenting plan.
Safety Plan.
Benjamin argues that the district court erred in including
the safety plan in the parenting plan, because it impermissi-
bly grants Jessica unilateral authority to suspend Benjamin’s
parenting time upon her belief that he has been drinking.
The Nebraska Supreme Court has previously upheld a provi-
sion in a parenting plan that restricted a parent’s ability to
consume alcohol during parenting time, or for a reasonable
time prior thereto. See Von Tersch v. Von Tersch, 235 Neb.
263, 455 N.W.2d 130 (1990). A similar provision appears in
the present parenting plan, and Benjamin does not argue error
with its inclusion. Rather, it is the inclusion of the safety
plan that Benjamin contests because of the authority it grants
Jessica. We find merit in his argument and conclude that the
district court’s order giving Jessica the discretion to suspend
Benjamin’s parenting time is an unlawful delegation of the
trial court’s duty.
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SCHMEIDLER v. SCHMEIDLER
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[15] It is the responsibility of the trial court to determine
questions of custody and visitation of minor children accord-
ing to their best interests. This is an independent responsibility
and cannot be controlled by the agreement or stipulation of
the parties themselves or by third parties. Deacon v. Deacon,
207 Neb. 193, 297 N.W.2d 757 (1980), disapproved on other
grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d
898 (2002). In Deacon v. Deacon, supra, the Supreme Court
reversed an order which granted a psychologist the authority
to effectively determine visitation and to control the extent and
time of such visitation, concluding that such an order was an
unlawful delegation of the trial court’s duty that could result
in the denial of proper visitation rights of the noncustodial
parent. As authority for its conclusion, the Deacon court cited
Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d
40 (1978). In Lautenschlager, the court observed:
The rule that custody and visitation of minor children
shall be determined on the basis of their best interests,
long established in case law and now specified by statute,
clearly envisions an independent inquiry by the court.
The duty to exercise this responsibility cannot be super-
seded or forestalled by any agreements or stipulations by
the parties.
201 Neb. at 743-44, 272 N.W.2d at 42.
The Supreme Court in Deacon specifically took note that
the reasoning of Lautenschlager was being extended to third
parties. The reasoning of Deacon has also been applied in
other contexts. See, In re Interest of D.M.B., 240 Neb. 349,
481 N.W.2d 905 (1992) (finding plain error in juvenile court’s
requirement that parent participate in support group and fol-
low all directions of counselor); Ensrud v. Ensrud, 230 Neb.
720, 433 N.W.2d 192 (1988) (disapproving of district court
order authorizing child custody officer to control custody and
visitation rights of minor child); In re Interest of Teela H., 3
Neb. Ct. App. 604, 529 N.W.2d 134 (1995) (holding that juvenile
court order granting psychologist authority to determine time,
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manner, and extent of parental visitation was improper delega-
tion of judicial authority).
In Barth v. Barth, 22 Neb. Ct. App. 241, 851 N.W.2d 104
(2014), this court disapproved of the district court’s order
granting the child’s father, the custodial parent, the discre-
tion to withhold overnight visitation with the child’s mother,
the noncustodial parent, if she cohabits with someone of the
opposite sex. We concluded that the rationale of the aforemen-
tioned cases applies with equal force when it is the custodial
parent who is granted the authority to determine the visitation
privileges of the noncustodial parent, because setting the time,
manner, and extent of visitation is solely the duty of the court.
The same holds true in the present case.
Jessica argues that the authority to determine whether
Benjamin is permitted parenting time with the child is not
delegated to her, but, rather, to Benjamin himself. She claims
that the choice to drink belongs to Benjamin, knowing that if
he does so, he is not entitled to visitation with the child. The
same could be said for the parties in Barth v. Barth, supra,
however. There, the choice to cohabit with someone of the
opposite sex belonged to the mother, and she knew that if she
did so, she would not be entitled to overnight visitation with
the child.
Although we agree with Jessica that drinking is a conscious
decision of Benjamin’s, it is the sole responsibility of the dis-
trict court to determine questions of visitation regarding the
child according to her best interests, including the time, man-
ner, and extent of visitation. This independent responsibility
cannot be delegated to Jessica. More problematic is the fact
that the safety plan allows Jessica to retrieve the child during
Benjamin’s parenting time if she “learns that [Benjamin] has
been drinking alcoholic beverages.” There is no requirement
that such information be confirmed, which essentially permits
Jessica to unilaterally terminate Benjamin’s parenting time
based on an unconfirmed belief that he has been drinking. This
authority has the potential to become problematic, particularly
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given the parties’ history of conflict, and could result in the
denial of proper visitation rights of the noncustodial parent.
See Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980),
disapproved on other grounds, Gibilisco v. Gibilisco, 263 Neb.
27, 637 N.W.2d 898 (2002).
[16] In addition, we note that the safety plan requires
Benjamin to report to Jessica if “he has slipped from his plan
not to consume alcohol.” There is no requirement that such
consumption occur in the presence of the child or pose any
danger to the child; he is required to report all alcohol con-
sumption. The best interests of a child require a parenting
arrangement which provides for a child’s safety, emotional
growth, health, stability, and physical care. See § 43-2923.
Although limits on visitation are an extreme measure, they
may be warranted where they are in the best interests of the
children. Aguilar v. Schulte, 22 Neb. Ct. App. 80, 848 N.W.2d
644 (2014). Because the requirement to “self-report” is not
confined to alcohol consumption during the time period in
which he has or will have the child, it is an inappropriate
provision to be included in the parenting plan. We therefore
conclude that the district court abused its discretion in includ-
ing the safety plan, which allows Jessica to determine whether
Benjamin is entitled to visitation and prohibits Benjamin
from consuming alcohol even outside the presence of the
child. We therefore modify the parenting plan to remove the
safety plan.
Valuation and Division of Property.
Benjamin challenges the district court’s valuation and divi-
sion of the parties’ property in several respects. We modify the
decree as explained below.
[17] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the
equitable division of property is a three-step process. The first
step is to classify the parties’ property as marital or nonmarital.
The second step is to value the marital assets and marital lia-
bilities of the parties. The third step is to calculate and divide
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the net marital estate between the parties in accordance with
the principles contained in § 42-365. Burcham v. Burcham, 24
Neb. Ct. App. 323, 886 N.W.2d 536 (2016).
[18,19] Benjamin first challenges the classification of fenc-
ing supplies, a Shop-Vac, and some hay as marital assets. He
claims these assets were his nonmarital property and should
not have been included in the marital estate. Property which
one party brings into the marriage is generally excluded from
the marital estate. Id. The burden of proof to show that prop-
erty is nonmarital remains with the person making the claim in
a dissolution proceeding. Id.
Benjamin testified that he owned the fencing supplies prior
to the marriage, and therefore, they are not marital property.
In addition, Benjamin and both of his parents testified that the
Shop-Vac was a Christmas gift to Benjamin from his parents,
and his mother testified that the gift was given prior to the
marriage. Jessica did not testify as to the fencing supplies or
the Shop-Vac. Because the undisputed evidence establishes
that these items are Benjamin’s nonmarital property, the dis-
trict court erred in classifying them as marital property. The
court valued the Shop-Vac at $100 and the fencing supplies
at $3,000. We therefore decrease Benjamin’s portion of the
marital assets by $3,100.
The evidence with respect to the hay is less clear. Benjamin
testified that the parties did not own any hay at the time of
the divorce. He later explained that the hay was food for
the horses owned jointly by the parties. Jessica first testified
that Benjamin has an unlimited supply of hay, but she later
stated that they both had an unlimited supply of hay at the
time they were married. She said the hay was a “bonus” from
Benjamin’s job. Because the record is unclear as to whether
the hay was in existence as a separate asset or was Benjamin’s
separate property, he has not met his burden to show the prop-
erty is nonmarital. We therefore affirm the inclusion of the hay
in the marital estate.
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Finally, Benjamin asserts that the district court erred in valu-
ing a Farm Service Agency (FSA) loan. The court accepted
Jessica’s value of $20,000 for the loan, but Benjamin claims it
should be valued at $32,000.
As of March 2016, the FSA loan had an available balance
of $32,000 total. Benjamin testified that initially, he used
$22,000 of the available balance to purchase 11 cows at a cost
of $2,000 each. He explained that he attempted to breed the
cows to have calves in the spring of 2017, but sold the cows
that did not become pregnant. He was advanced an additional
$7,900 from the FSA loan to buy cows to replace those he had
sold. This apparently occurred after he filed the complaint for
dissolution of the marriage in May 2016.
[20] Marital debt includes only those obligations incurred
during the marriage for the joint benefit of the parties. Millatmal
v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006). Thus, any
increase in the debt amount that occurred after the parties sepa-
rated was not for the joint benefit of the parties and should not
be considered a marital debt. Thus, the additional $7,900 that
Benjamin received after he filed for dissolution of the marriage
does not constitute a marital debt.
Jessica valued the FSA loan at $20,000, but she did not
provide evidence as to how she arrived at that value. Thus,
accepting such value without supporting evidence constitutes
an abuse of discretion. The undisputed evidence presented at
trial supports assigning a value of $22,000 to the loan, and
we therefore modify Benjamin’s portion of the marital liabili-
ties accordingly.
Based on the foregoing modifications, the total mar-
ital assets equal $60,577.41 and the marital debts equal
$24,414.44. Due to our modifications, Benjamin’s portion of
the marital assets has decreased by $3,100 and his portion of
the marital debts has increased by $2,000. Thus, the value
of Benjamin’s portion of the net marital estate now equals
$20,612.97 and Jessica’s portion equals $15,550. As a result,
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
SCHMEIDLER v. SCHMEIDLER
Cite as 25 Neb. Ct. App. 802
we modify the equalization payment due from Benjamin to
Jessica to a total of $2,531.
CONCLUSION
We find no abuse of discretion in the district court’s deci-
sion to decline to impose joint custody of the parties’ minor
child and award custody to Jessica. We modify the parenting
plan, the valuation and distribution of the marital estate, and
the equalization payment as explained above. The district
court’s order is otherwise affirmed.
A ffirmed as modified.