Toro v. Toro

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/21/2021 08:12 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
TORO v. TORO
Cite as 30 Neb. App. 158Tammy A. Toro, appellee, v.
Philip E. Toro, appellant.
___ N.W.2d ___
Filed September 21, 2021. No. A-20-875.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: 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. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late 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.
4. Child Custody. While the wishes of a child are not controlling in
the determination of custody, if a child is of sufficient age and has
expressed an intelligent preference, the child’s preference is entitled to
consideration.
5. Visitation. If a parent has been found to have committed child abuse
or neglect, committed domestic intimate partner abuse, or interfered
persist­ently with the other parent’s access to the child, limits shall be
imposed within the parenting plan that are reasonably calculated to pro-
tect the child or child’s parent from harm.
6. Child Support. Before determining a parent’s child support obligation,
there must be a determination regarding the monthly incomes of the
custodial and noncustodial parents.
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TORO v. TORO
Cite as 30 Neb. App. 1587. Taxation. As a general rule, the income of a self-employed person can
be determined from his or her income tax return.
8. Divorce: Property Division. In a divorce action, the purpose of a
property division is to distribute the marital assets equitably between
the parties.
9. Property Division. Equitable property division under Neb. Rev. Stat.
§ 42-365 (Reissue 2016) 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.
10. ____. Although the division of property is not subject to a precise math-
ematical formula, the general rule is to award a spouse one-third to one-
half of the marital estate, the polestar being fairness and reasonableness
as determined by the facts of each case.
Appeal from the District Court for Douglas County: Gary
B. Randall, Judge. Affirmed as modified.
Wesley S. Dodge for appellant.
Lindsay Belmont, of Koenig | Dunne, P.C., L.L.O., for
appellee.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Philip E. Toro appeals the decree entered by the Douglas
County District Court dissolving his marriage to Tammy A.
Toro. He claims errors related to his parenting time, the income
attributed to him for purposes of child support and related
expenses, and the court’s division of the parties’ assets. We
affirm the decree in all matters, but we modify to correct scriv-
ener’s errors in two places: (1) the language regarding the chil-
dren’s nonreimbursed health care expenses and (2) the omis-
sion of a pension fund in the allocation of retirement accounts.
We also modify to clarify an obligation owed by Tammy to
Philip. We affirm as modified.
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TORO v. TORO
Cite as 30 Neb. App. 158II. BACKGROUND
Tammy and Philip were married in 2005. Together they have
two children—Josie Toro, born in 2005, and Jacob Toro, born
in 2014. The parties separated on September 28, 2019. Tammy
filed a pro se complaint for dissolution of marriage on October
16, seeking joint legal and joint physical custody of the parties’
children, child support, and division of the parties’ property
and debts. On December 3, she filed an amended complaint
through legal counsel, now seeking full custody of the parties’
children, subject to Philip’s right to limited and supervised par-
enting time. She also sought child support, an equitable divi-
sion of the parties’ property and debts, alimony, and attorney
fees. In his answer filed on March 27, 2020, Philip alleged that
both parties were fit and proper persons to be awarded legal
and physical custody of the children.
On April 1, 2020, Tammy filed a motion for temporary
order. She sought temporary legal and physical custody of
the children, child support, and attorney fees. She also sought
alimony or, in the alternative, an order for Philip to maintain
the home-related expenses. She alleged that any parenting time
awarded to Philip should take into consideration an ex parte
domestic abuse protection order entered in February. Tammy
also asked that the temporary order restrain Philip, both per-
sonally and financially.
The district court’s temporary order was entered on April
30, 2020. Tammy was awarded temporary legal and physical
custody of the children. Philip was awarded parenting time
every Saturday from 10 a.m. to 5 p.m., as well as one weekday
evening every week from after school (or 5 p.m. if school was
not in session) until 8 p.m. Philip’s significant other was not to
be present during his parenting time. Philip was ordered to pay
temporary child support of $973 per month, commencing retro-
actively to March 1. Temporary alimony was denied; however,
commencing May 1, Philip was to be responsible for the “auto
loan associated with the 2019 Chevrolet Silverado.” Philip
was restrained and enjoined by the court from transferring,
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Cite as 30 Neb. App. 158encumbering, hypothecating, concealing, or in any way dispos-
ing of the property of the parties other than in the usual course
of business or other than for the necessities of life, until further
order of the court. And during the pendency of the proceedings,
Philip was restrained and enjoined from harassing, intimidat-
ing, coercing, bothering, assaulting, or in any other way imped-
ing the peace and enjoyment of Tammy at her residence or any
other location. The court stated that the separately docketed ex
parte domestic violence protection order remained in full force
and effect; however, the parties may communicate “only in
regard to facilitating the temporary parenting time scheduled
as ordered” and/or if there was an emergency affecting the
children. (Emphasis in original.)
On June 4, 2020, Philip filed a motion asking the district
court to conduct an in camera interview with Josie, one of the
parties’ children, alleging that her opinions were relevant to the
court’s determination of parenting time. Tammy objected to an
in camera interview of Josie, alleging that Philip had alienated
Josie from her, unnecessarily involved Josie in the proceedings,
and coached Josie on what to say.
Trial was held on June 15 and July 16, 2020. Tammy and
Philip both testified. Tammy also called other witnesses to
testify on her behalf, and numerous exhibits were received into
evidence. The testimony and exhibits will be discussed as nec-
essary in our analysis. The district court did not conduct an in
camera interview of Josie.
On September 29, 2020, Tammy filed a motion to reopen
trial. Tammy alleged that new material had come to light,
namely that Philip’s girlfriend, Shannon Wood, gave birth
to twins in September and that the twins were immediately
placed into the temporary custody of the Nebraska Department
of Health and Human Services, with placement to exclude
the home of Philip (because of ongoing domestic violence
with Wood) and Wood (because the twins tested positive for
amphetamines at birth). Copies of juvenile court pleadings and
orders, including an ex parte order for immediate temporary
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TORO v. TORO
Cite as 30 Neb. App. 158custody, were attached to Tammy’s motion. Tammy alleged
that the evidence was “integral to the ultimate issues” at trial,
and thus, she sought to reopen trial to provide such evidence to
the district court. Tammy’s motion reflected that an evidentiary
hearing was scheduled for October 22. Philip filed an objection
to Tammy’s motion.
On October 5, 2020, Tammy filed a verified motion for an
ex parte order, citing the juvenile court proceedings regarding
Philip’s newborn twins and asking the district court to require
that Philip’s parenting time with Josie and Jacob be supervised
and that Wood continue to not be present during any super-
vised parenting time. On October 6, the district court granted
Tammy’s motion for an ex parte order, stating that an emer-
gency existed and that Philip’s parenting time with Josie and
Jacob should be supervised until further order of the court. The
matter was also set for hearing on October 22.
Prior to the hearing scheduled for October 22, 2020, on the
matters just described, the district court entered a decree of dis-
solution on October 14. The court divided the parties’ marital
estate. Tammy was awarded legal and physical custody of the
children, subject to Philip’s supervised parenting time which
was to occur every Saturday from 10 a.m. to 5 p.m., as well as
one weekday evening every week from after school (or 5 p.m.
if school was not in session) until 8 p.m. A holiday parenting
time schedule was also established. Additionally, each par-
ent was to have the right to 7 days of uninterrupted parenting
time with the children each year. Wood was prohibited from
being in the presence of the children until further order of the
court. The court identified “Shaul Mediation” as an appropri-
ate agency to supervise parenting time and stated that “the
parties may agree on another appropriate person or agency.”
The court found that Philip had an annual earning capacity of
at least $60,000 per year and ordered him to pay child support
in the amount of $998 per month. Philip was ordered to pay
60 percent of all work-related childcare expenses. He was also
ordered to pay 60 percent of all health care expenses incurred
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TORO v. TORO
Cite as 30 Neb. App. 158on behalf of the children and not covered by insurance, after
Tammy paid the “threshold amount of $250.00 per month [sic],
per calendar year, per child.”
On October 20, 2020, Philip filed a motion to alter the judg-
ment or, alternatively, for a new trial. In support of his motion,
Philip alleged that the district court ordered supervised parent-
ing time, even though “[i]mmediately after trial, it appeared
to the Court that no issues existed that warranted supervision
of parenting time”; “James Shaul ha[d] moved . . . and [was]
not an option as a supervisor”; the court held in abeyance its
decision to hear testimony from Josie, whose desire should
have been considered by the court; Tammy’s ex parte motion
requesting emergency custody, filed after trial but prior to the
decree, alleged unsubstantiated facts which were not presented
to the court in a formal hearing and such issues were still pend-
ing; the evidence presented at trial did not support the $60,000
income the court attributed to Philip for purposes of the child
support calculation; as a result of the court’s child support
calculation, the percentages for childcare and other costs were
not consistent with the evidence; and the court’s division of the
marital assets was unconscionable.
On October 20, 2020, Tammy withdrew her motion to reopen
trial. On October 21, she filed a motion to alter or amend the
decree. As relevant to this appeal, Tammy alleged that the dis-
trict court adopted her proposed parenting plan and attached it
to the decree; however, the parenting plan attached to the decree
was not reflective of the trial exhibit that was marked and
received into evidence. According to the interlineated exhibit
received at trial, Philip was to have parenting time every other
Saturday from 10 a.m. to 5 p.m., not every Saturday. Tammy
requested that the court attach the correct proposed parenting
time exhibit to the decree.
On October 29, 2020, Philip filed a motion to reopen trial,
raising many of the issues asserted in his motion to alter the
judgment or, alternatively, for a new trial.
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TORO v. TORO
Cite as 30 Neb. App. 158An evidentiary hearing was held on November 17, 2020, on
the pending motions. The evidence from the hearing will be
set forth as necessary in our analysis. In its order entered on
December 3, the district court denied Philip’s motion to alter
judgment or, in the alternative, for new trial; denied his objec-
tion to Tammy’s motion to reopen trial; and denied his request
to reopen trial. As relevant to this appeal, the court did adopt
Tammy’s proposed parenting plan, identified as “Exhibit 13”
at trial, wherein Philip was to have parenting time every other
Saturday from 10 a.m. to 5 p.m., not every Saturday.
Philip appeals.
III. ASSIGNMENTS OF ERROR
Philip assigns 12 errors, which we have consolidated into
three categories. He claims the district court erred in (1) its
award of supervised parenting time, (2) its determination of his
income for purposes of calculating child support and related
expenses, and (3) its division of the marital assets.
IV. STANDARD OF REVIEW
[1,2] 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. Doerr
v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees. Id. A judicial abuse of discretion exists if the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.[3] When evidence is in conflict, an appellate court consid-
ers, 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. Donald v. Donald, 296 Neb. 123, 892
N.W.2d 100 (2017).
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TORO v. TORO
Cite as 30 Neb. App. 158V. ANALYSIS
1. Supervised Parenting Time
Philip argues that the district court erred when it awarded
him limited supervised parenting time. His assigned errors
specify problems with “supervision by someone not living
in the central United States,” not hearing from Josie, and
“not allowing the trial to be reopened for further evidence
after the filing of an ex parte [motion] by . . . Tammy” and
“ruling before hearing rebuttal evidence in regard to such ex
parte [motion].”
While Philip assigned error to “supervision by someone
not living in the central United States,” he did not address
this in the argument section of his brief. To be considered
by an appellate court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error. Korth v. Korth, 309 Neb. 115, 958 N.W.2d
683 (2021). However, although she does not cross-appeal,
Tammy also addresses this issue in her brief. She proposes that
we remand “the sole issue of who the supervisor is” because
“[a]t trial, it was learned that Shaul Mediation is no longer in
business.” Brief for appellee at 18 (emphasis in original). In
its decree, the district court identified “Shaul Mediation” as
an appropriate agency to supervise parenting time and stated
that “the parties may agree on another appropriate person or
agency.” Therefore, if the parties are unable to agree, they
have the option of filing a motion in the district court to ask
the court to identify another appropriate person or agency to
supervise Philip’s parenting time.
We now address the errors argued by Philip related to super-
vised parenting time: The district court did not hear from Josie,
and it ruled on parenting time before hearing rebuttal evidence
in response to Tammy’s ex parte motion.
(a) Evidence at Trial
At the time of trial, Tammy was 45 years old, Philip was
44 years old, Josie was nearly 15 years old, and Jacob was 5
years old.
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TORO v. TORO
Cite as 30 Neb. App. 158Tammy testified that during the marriage, Philip threatened
her about what would happen if she were to file for divorce.
She stated that in 2017, “he threatened that he would slice my
throat if he got divorce papers,” and in 2020, he threatened to
“drag it out.” He has also told her that he would make her life
hell. Tammy confirmed that Philip had threatened her in front
of the children: “He’s threatened that if there’s another man at
the house that he would drag him out by his — expletive. He’s
also said he would slice my throat, he would kill me.”
Tammy testified that in the marital home, Philip yelled,
made threats, threw “everything from a raw egg to a remote
control” at her, pushed her down the stairs, and pushed her
when she was running on the treadmill. When asked if the
children had been present for any of those incidents, Tammy
said, “Yes.” She also described an incident of physical vio-
lence against her that occurred in December 2019, after she
told Philip he needed to leave the marital residence. She said,
“[H]e came downstairs after that and he had hit me with his
hand across the left side of my face”; the children were “[r]ight
around the corner” at the time. Philip tried to get the phone out
of Tammy’s hand when she was on the phone with a 911 emer-
gency service dispatch operator, and he left before the police
arrived. Philip was later charged with third degree domestic
assault in relation to the incident. According to Tammy, he
pled guilty to the charge. During his testimony, Philip denied
assaulting Tammy in front of the children and said the children
were sleeping. Philip pled guilty to assaulting Tammy, because
“[m]y lawyer told me that the best way to get out of it was to
just plead guilty to it and to resolve it.” He was also charged
with two counts of child abuse by neglect in relation to the
incident, but Philip said those charges were dismissed because
the children were sleeping.
Tammy filed for, and was granted, a domestic abuse pro-
tection order for herself and the children against Philip in
February 2020. Tammy texted Philip to let him know that the
judge had signed a protection order. Philip’s text response,
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Cite as 30 Neb. App. 158received into evidence, stated, “The [sic] my children and
there’s no cops in this world who’s going to stop me from see-
ing my kids I [sic] rather go to [expletive] prison if you think
I’m not going to see my kids so you can go [expletive] your-
self.” He continued, “They’re my kids and you’re not stopping
me from seeing them not a [expletive] judge not a protection
order I don’t care.”
Two days after the protection order was entered, Tammy
received texts from Philip that she described as suicidal in
nature. The texts, received into evidence, stated, “I can’t do
this anymore I lost everything I done too much badd it’s up
and happens to me soon please make sure My kids know that I
love them,” and “I’ll be honest tammy I don’t want to live any-
more.” According to Tammy, Philip, who has bipolar dis­order,
has been suicidal in the past, but never attempted suicide. She
was concerned about how Philip’s suicidal ideations could
affect the children. During his testimony, Philip acknowledged
sending Tammy the text messages. However, he stated, “I
would never kill myself. I said some stupid things in my life
but I never meant any of it.”
Tammy testified that the protection order was still in place
for her at the time of trial, but it was no longer in effect for the
children. Tammy did not believe that Philip was in compliance
with the protection order, because he had contacted her and
been at the house when it was not related to the children as
required under the protection order.
In June 2020, a criminal complaint was filed charging
Philip with violating the protection order on May 21. Tammy’s
neighbor testified that on May 21, Philip “entered [Tammy’s]
driveway abruptly and exited his vehicle and he began scream-
ing, I want my stuff, I want my shit, I want my money, you
have my money.” Philip proceeded to the backyard, and the
neighbor followed. When the neighbor told Philip he needed
to get the children and go for his visit, Philip accused the
neighbor of “sleeping” with Tammy and threatened to “beat
the shit” out of the neighbor. Philip “slammed” a motorized
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Cite as 30 Neb. App. 158“Vespa-type thing” down three times and it broke, and he
shoved the neighbor. The police were called, and a report
was made. During his testimony, Philip admitted there was a
confrontation with Tammy’s neighbor, but denied putting his
hands on the neighbor.
Tammy also had a harassment protection order, entered in
February 2020, for her and the children against Philip’s girl-
friend, Wood. Additionally, there was a specific provision in
the April temporary custody order prohibiting Philip’s “sig-
nificant other” from being present during his parenting time.
However, Tammy observed Wood to be present during Philip’s
parenting time, including in May. Tammy’s cousin also testi-
fied to observing Wood with Jacob at Philip’s residence on
May 14.
Tammy did not believe it was in the children’s best interests
to be around Wood because Wood “does drugs and she’s vio-
lent.” Tammy said that Philip told her that Wood hit him. In an
April 2020 text message to Tammy, Philip stated:
I’m on my way to the police station to press charges on
[Wood] again she came by my apartment is . . . slapping
this shoot out of me AC dropped a bunch of drugs turn
into drugs into the police and press charges honor but
I need you on standby just in case something happens
to me.
Philip testified that he has never observed Wood using drugs.
He did state that she smashed his car windows and that she was
arrested for that in April.
Tammy testified that Philip also has criminal charges pend-
ing against him for hit and run, leaving the scene of an acci-
dent, and assault; the charges started in December 2019. Philip
addressed the additional criminal charges in his testimony. In
December 2019, he was charged with third degree domestic
assault of Wood, third degree assault of Wood’s ex-boyfriend,
and leaving the scene of a property damage accident. Philip said
the case will go to trial. He claims that Wood’s ­ex-boyfriend
tried to attack him, but that he (Philip) was arrested because
“they called the cops.”
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Cite as 30 Neb. App. 158Tammy testified that Josie is a “daddy’s girl” and looks out
for Philip. If Philip gets arrested, he calls Josie to let her know.
Philip admitted telling Josie to call his boss and his family to
let them know he was in jail because he did not have every-
one’s phone number. Tammy stated, “My 14-year-old is check-
ing Omaha arrests every day to see if her dad’s arrested.”
Tammy described Josie as smart, athletic, accommodat-
ing, and a “social butterfly,” and Tammy said that they had
had a good relationship. However, in the last few months,
Josie had been “vindictive and lying.” Philip had been “put-
ting a wedge” between Tammy and Josie. In the past several
months, Josie called the police three times, “the reason being,
[Tammy] took [Josie’s] cell phone from her, or [Josie] would
make up a lie saying that she fears for her life.” Tammy stated
that Child Protective Services became involved with the fam-
ily, but none of the allegations against her had come back
as “founded.”
Tammy described Jacob as a “sweetheart,” and she said
that he was very nice when he played with other children and
that he shared “up until the last few months.” In the last few
months, Jacob became destructive, yelled, and threw things.
Now Jacob has “a verbal tick, nervous tick.” When asked for
her opinion as to why Jacob’s attitude had shifted, Tammy
stated, “Because his father’s having him lie to me, and Josie
is also supporting those lies, so he’s confused.” Jacob “gets
scared” when he wants to talk to Tammy, because Josie is there
and she “will correct him and bring forth the lie.” For example,
when Tammy asked Jacob if Wood had been present at a visit,
he said yes, but Josie denied that Wood had been present at the
visit and said that it was a neighbor.
Tammy’s mother testified that she was staying with Tammy
in February 2020 and heard Philip yelling at Tammy over a
speakerphone; the children were present too. Since then, Josie
has been “very short and rude,” even though “[s]he never used
to be that way.” And after a visit with Philip, Jacob said, “My
dad’s going to bust you, Grandma.” When she told him that
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Cite as 30 Neb. App. 158was not nice, Jacob said, “‘You mother,’ [and then] caught him-
self [and stopped].” Tammy’s mother stated, “These are things
that that little boy would never ever have said to me.”
Tammy believed Philip involved the children in the divorce,
particularly Josie. Philip denied talking to the children about
the divorce. He said he did not answer Josie’s questions when
she asked about the divorce, but he did use Josie as a messen-
ger to communicate with Tammy.
Tammy wanted Philip’s parenting time to be supervised
because he was “breaking the protection order” by having
Wood in the children’s presence. Tammy was also worried
about “possible drug use”; she stated that in November 2019,
Philip tested positive for opioids. Tammy proposed that Philip
have supervised parenting time one weekday every week after
school and every other Saturday.
Philip testified that he was making efforts to improve and
that he signed up for an anger management class “yesterday.”
He also testified that he was in jail for 10 or 11 days prior to
his July 2020 testimony and that he tested negative for drugs
just prior to his arrest. He proposed joint legal and joint physi-
cal custody with “50/50” parenting time.
(b) No In Camera Interview With Josie
Prior to trial, Philip filed a motion asking the district court
to conduct an in camera interview with Josie; Tammy objected.
At the time of trial, Josie was nearly 15 years old. After
Tammy rested her case, Philip’s counsel stated, “Your Honor,
while we were at lunch, the bailiff mentioned to us that you
might be considering an in camera for later today?” The court
responded, “I don’t know if it’s going to be later today, but,
yes. And we’ll discuss that when we’re done. Probably it won’t
be later today . . . .”
Philip was the only witness called to testify on his behalf.
During his testimony, the following colloquy was had on
the record.
[Philip’s counsel:] Now, it sound[s] like the Judge is
going to — we had filed a motion to have your daughter
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Cite as 30 Neb. App. 158be heard. Your daughter actually delivered a handwrit-
ten note that she was hoping the Judge would look at;
correct?
[Philip:] Yes.
Q. And she gave that to you; correct?
A. Yes.
[Philip’s counsel:] Now, Judge, I don’t know. If I may,
just as a matter of protocol, or whatever. . . . I don’t know
if you would consider a document that she had prepared
in this regard or not, but . . . .
THE COURT: Have you shown it to [opposing
counsel]?
[Philip’s counsel:] I have not.
....
[Philip’s counsel:] I was going to lay some more foun-
dation and then I was going to offer it.
....
[Philip’s counsel:] Now, even though you know of this
document, you’ve seen this document, you haven’t actu-
ally read it; correct?
A. No.
Q. Your daughter prepared it, and you actually dropped
it by my office one day?
A. Yes.
....
Q. And she presented it to me; correct?
A. Yes.
Q. And without saying exactly what she wanted, it
was important to your daughter that somehow or another
her wishes be heard by the Court or understood by the
Court?
A. Yes.
Q. And this is the document you know she presented to
me on that day?
A. Yes.
[Philip’s counsel:] We’d offer this as an exhibit [86].
....
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Cite as 30 Neb. App. 158[Tammy’s counsel:] I would object on the grounds of
foundation, hearsay, relevance. . . . [I]t’s clear that Josie
is intending for this letter in 86 to be her testimony . . . .
THE COURT: Well, you’ve had an opportunity to
review this exhibit so you understand what the testimony
issue is. What I’m going to let both of you do — and
I think it’s important that we would have it — is actu-
ally submit questions that you want me to ask her in the
in camera interview. So why don’t — I’ll go ahead and
receive this, and why don’t you prepare those for me and
we’ll figure out when you can get them to me before I
actually see her.
At the end of his counsel’s redirect examination, Philip was
asked if he still wanted the district court to talk to Josie to see
what she wants and if the court found she was mature and cred-
ible to take her statements into consideration. Philip responded,
“Yes.” And on recross-examination, Philip confirmed his belief
that it was in the children’s best interests for the court to speak
with Josie.
At the conclusion of Philip’s case, his counsel asked the
court if it wanted counsel to set up a time for the court to speak
to Josie. The court told the parties and their counsel that they
were to decide how they wanted to get Josie there and who was
going to do it and that the court then would have someone con-
tact that person and make an appointment. It was also decided
that each counsel would submit questions.
The district court apparently never conducted an in camera
interview of Josie before entering its decree. Philip asserts that
because the court did not interview Josie, it did not have “the
information needed to fully evaluate the best interests of the
child as outlined” in Neb. Rev. Stat. § 43-2923 (Reissue 2016).
Brief for appellant at 17.
[4] In determining custody and parenting arrangements,
the court is to consider the best interests of the minor child,
one such factor of which is “[t]he desires and wishes of the
minor child, if of an age of comprehension but regardless of
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sound reasoning.” § 43-2923(6)(b). While the wishes of a child
are not controlling in the determination of custody, if a child
is of sufficient age and has expressed an intelligent prefer-
ence, the child’s preference is entitled to consideration. Vogel
v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). See, also,
Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020). In
those cases where the child’s preference was given significant
consideration, the child was typically over 10 years old. See,
Vogel v. Vogel, supra; Smith v. King, supra.
Even though the district court did not conduct an in cam-
era interview of Josie, it did have exhibit 86, Josie’s 31⁄2 page
handwritten note with “testimony” written at the top of the
first page. Josie wrote, “From my eyes it feels like only my
dad truly wants me and my brother.” She continued, “[O]verall
im [sic] hoping for 100% with my dad and visitations with
my mom or 50/50 custody.” She explained her reasoning, por-
trayed her father in a positive light, and portrayed her mother
in a negative light. Under the circumstances, exhibit 86 was
sufficient to assess Josie’s “desires and wishes” for purposes
of § 43-2923(6)(b). Moreover, given that Josie’s statements
overwhelmingly favored Philip, we cannot say he was harmed
or prejudiced by the court’s failure to interview Josie.
(c) Ex Parte Information
Philip argues that the district court “failed to protect the
best interest of the minor children when it reviewed ex parte
information submitted . . . by Tammy and issued a ruling on
custody before hearing evidence in response to such ex-parte
[information].” Brief for appellant at 17. Philip “believed that
if the Court had been privy to [the rebuttal] information before
it entered it’s [sic] decree,” which “was entered after reviewing
the ex parte information, it would have ruled differently.” Id.
at 19.
Trial concluded on July 16, 2020. On October 5, Tammy
filed a verified motion for an ex parte order, citing juvenile
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ing the district court to require that Philip’s parenting time
with Josie and Jacob be supervised and that Wood continue
not to be present during any supervised parenting time. On
October 6, the district court granted Tammy’s motion for an ex
parte order and set the matter for hearing on October 22. The
district court’s decree was entered on October 14, awarding
Tammy legal and physical custody of the children, subject to
Philip’s supervised parenting time. On October 20, Philip filed
a motion to alter the judgment or, alternatively, for a new trial.
And on October 29, he filed a motion to reopen trial.
A motion to reopen can be considered a motion for new trial
based on newly discovered evidence, if timely filed. See Yost
v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (2015),
modified on denial of rehearing 23 Neb. App. 732, 877 N.W.2d
271 (2016) (party asked trial court to reopen record, accept
newly discovered evidence, and reconsider its prior decision
based upon belief that new evidence would bring different
result; trial court properly treated motion to reopen evidence as
motion for new trial). See, also, Neb. Rev. Stat. § 25-1144.01(Reissue 2016) (motion for new trial shall be filed no later than
10 days after entry of judgment). Philip’s motion to reopen was
not timely filed, because it was filed more than 10 days after
the entry of the decree. However, Philip’s October 20, 2020,
motion to alter the judgment or, alternatively, for a new trial,
was timely filed and preserved issues regarding ex parte infor-
mation from Tammy’s motion.
A hearing on Philip’s motion to alter the judgment or, alter-
natively, for a new trial was held on November 17, 2020. At
that hearing, the district court heard testimony from various
witnesses called by Tammy and Philip.
Philip’s only witness was Angella Murtaugh, a family sup-
port worker in the juvenile case involving Philip’s twins. She
was assigned to be Philip’s family support worker on October
13, 2020, and she also covered some of his visits with the
twins. She met with Philip “probably twice a week for the
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off everything that he was asked or suggested to do” and that
he even started doing that before Murtaugh began working
with him. He was taking domestic violence classes, and a hair
follicle test in October showed he had been drug free for 6
months. Murtaugh stated that Philip was a good father and that
there was nothing troubling in his interactions with the twins.
She also saw Philip with Josie and Jacob, who were present
during one of Philip’s visits with the twins. Murtaugh stated
that it seemed like Josie and Jacob had a great relationship with
Philip that “would be very much hurt by the fact that they can-
not see their dad anymore.”
Following Murtaugh’s testimony, Tammy called a number of
witnesses. She called a child and family services specialist who
testified that Philip’s twins tested positive for amphetamines at
birth and that during her investigation, Josie and Jacob were
interviewed and Jacob indicated possible substance use by
Philip. Tammy subpoenaed Wood to testify. Wood acknowl-
edged that she has a history of drug use, the twins tested
positive for amphetamines when they were born, and she and
Philip currently resided together. Tammy also testified, stating
that since the last day of trial, Wood had been around Josie
and Jacob. Tammy was concerned for her children’s safety and
wanted Philip’s parenting time to be supervised. Philip also
testified that he was not doing drugs and that he had clean
hair follicle tests and completed two urine tests each week. He
indicated his impression was that he was going to get custody
of his twins “shortly after December.”
In his brief, Philip argues that Murtaugh’s testimony would
have caused the district court to rule differently if it had been
privy to such before it entered its decree. Tammy counters
that “Philip was not unfairly prejudiced or deprived of any
substantial right as a full evidentiary hearing was conducted
on November 17, 2020,” and that “Philip had the opportunity
to be heard in response to [her ex parte] motion.” Brief for
appellee at 20. She notes that the “District Court considered
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counsel, and it chose not to grant a new trial or alter or amend
its rulings as to parenting time.” Id. We agree with Tammy
that the district court had the opportunity to amend its decree
after considering this additional evidence and chose not to do
so. Given the evidence before it, we now consider the court’s
decision to order supervised parenting time before and after
hearing this additional evidence.
(d) Was Supervised Parenting Time
Abuse of Discretion?
Parenting time determinations are matters initially entrusted
to the discretion of the trial court, and although reviewed de
novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion. Bornhorst v.
Bornhorst, 28 Neb. App. 182, 941 N.W.2d 769 (2020). 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. Donald v. Donald, 296 Neb. 123, 892 N.W.2d
100 (2017).
[5] When a court is required to develop a parenting plan,
Neb. Rev. Stat. § 43-2932(1) (Reissue 2016) permits limi-
tations to parenting time or other access for a parent if
the preponderance of the evidence demonstrates the parent
has, among other things, “committed child abuse or neglect,”
committed “domestic intimate partner abuse,” or “interfered
persistently with the other parent’s access to the child.” If a
parent is found to have engaged in such activity, “limits shall
be imposed that are reasonably calculated to protect the child
or child’s parent from harm.” Id. Further, the limitations per-
mitted by § 43-2932 include, but are not limited to, “alloca-
tion of sole legal custody or physical custody to one parent”;
“[s]upervision of the parenting time, visitation, or other access
between a parent and the child”; “[e]xchange of the child
between parents through an intermediary or in a protected
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or proximity to the other parent or the child”; “[d]enial of
overnight physical custodial parenting time”; and “[a]ny other
constraints or conditions deemed necessary to provide for
the safety of the child, a child’s parent, or any person whose
safety immediately affects the child’s welfare.” See, also,
Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001) (although
limits on visitation are extreme measure, they may be war-
ranted where they are in best interests of children; supervised
visitation for mother required until she can make satisfactory
showing she is able to provide safe and stable environment for
unsupervised visitation with her children consistent with their
best interests).
We conclude supervised parenting time is supported by the
evidence. Tammy testified about Philip’s verbally and physi-
cally abusive behaviors. Tammy said Philip “threatened that if
there’s another man at the house that he would drag him out
by his — expletive. He’s also said he would slice my throat,
he would kill me.” In the marital home, Philip yelled, made
threats, threw “everything from a raw egg to a remote control”
at Tammy, pushed her down the stairs, and pushed her when
she was running on the treadmill. Tammy confirmed that the
children had witnessed some of the aforementioned incidents.
She also described an incident of physical violence against her
that occurred in December 2019, when Philip “came down-
stairs . . . and he had hit [her] with his hand across the left
side of [her] face,” while the children were “[r]ight around the
corner.” Philip was later charged with third degree domestic
assault in relation to the incident, and he pled guilty. Tammy
filed for, and was granted, a domestic abuse protection order
against Philip in February 2020. And Tammy’s mother testified
that she was staying with Tammy in February 2020 and heard
Philip yelling at Tammy over a speakerphone; the children
were present, too.
Philip was also involved in a physical altercation with
Wood and her ex-boyfriend that resulted in a criminal charge
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Wood to be around Josie and Jacob, despite a harassment
protection order and the temporary custody order prohibiting
Wood from being present during his parenting time. At the
hearing in November 2020, Wood testified that she and Philip
currently resided together.
The evidence of Philip’s verbal threats and physically abu-
sive behaviors toward Tammy, along with his altercation with
Wood and her ex-boyfriend, and of Philip’s allowance of
Wood to be around Josie and Jacob despite court orders that
prohibited Wood’s presence around the children certainly sup-
ports supervised parenting time. Additionally, there is evidence
suggesting Philip has been improperly influencing the children
against Tammy, which has caused a negative change in the
children’s attitudes and behaviors toward her and at least one
other relative. This type of alienating behavior also supports
supervised parenting time.
Despite Josie’s handwritten note, based upon the evidence in
the record before us, including the testimony from the hearing
on November 17, 2020, we cannot say the district court abused
its discretion by ordering that Philip have supervised parenting
time. Supervised parenting time does not need to be a perma-
nent situation; the ability to return to more typical parenting
time is within Philip’s control. Once he can demonstrate that he
will conduct himself in an appropriate manner and will parent
his children focused on their best interests, adjustments can be
made to his parenting time. Upon proper evidence presented
to the court, a parenting plan is subject to modification. See
State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500,
873 N.W.2d 208 (2016) (right of parenting time is subject to
continuous review by court, and party may seek modification
of parenting time order on grounds there has been material
change in circumstances; best interests of children are primary
and paramount considerations in determining and modifying
parenting time).
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Philip asserts that the district court erred by attributing
an income to him that was not supported by the evidence.
Additionally, he asserts that the division of childcare and
uncovered medical expenses was not in accord with the
Nebraska Child Support Guidelines.
(a) Total Monthly Income
(i) Evidence at Trial
Tammy works as a patient service representative at a pedi-
atric clinic. She earns approximately $3,484 gross per month.
Tammy testified that Philip works construction and earns over
$60,000 per year through his current employer, a property
company. Additionally, Philip does “side work . . . for real-
tors” and extra construction work. She said that he earns extra
money from side jobs that “is not traceable by W-2s or 1099s.”
Philip testified that he is in the construction field. He is
employed by a property company and “[r]emodels, flip[s]
houses for them.” He is “self-employed through the com-
pany” and is paid weekly, but taxes are not taken out. He
stated that he is “salary, so they don’t pay anything extra”;
“they give you a contract, they give you a deadline from this
date to this date”; and “[i]f you don’t have your job done by
that date, you’re working for free until the job is done.” He
denied earning $60,000 per year in the past 3 years, from 2017
through 2019.
The parties’ tax returns and related documents from 2017
through 2019 were received into evidence as exhibits 14
through 16, respectively. The exhibits reveal the following: In
2017, Philip’s “Form 1099-MISC” (1099) from the property
company shows that Philip received $40,900 in “Nonemployee
compensation.” Additional 1099’s show that Philip received
$2,000 in “Nonemployee compensation” from a sealant com-
pany and $1,500 in “Nonemployee compensation” from
Joseph Chalifoux. The total amount of “Nonemployee com-
pensation” Philip received from the three payors was $44,400.
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Proprietorship)” (Schedule C) shows “Gross receipts or sales”
of $44,400. No depreciation was deducted; however, $38,353 in
various expenses was deducted, including $3,540 for car/truck
expenses and $23,385 for “Supplies” that are not counted as
cost of goods sold. The net profit reflected on the schedule was
$6,047. This $6,047 is what was reported as “Business Income”
on the parties’ federal individual income tax return.
In 2018, Philip’s 1099 from the property company shows
that Philip received $65,218.12 in “Nonemployee compensa-
tion.” An additional 1099 shows that Philip received $1,200
in “Nonemployee compensation” from Chalifoux. The total
amount of “Nonemployee compensation” Philip received from
the two payors was $66,418. Philip’s Schedule C shows “Gross
receipts or sales” of $66,418. No depreciation was deducted;
however, $21,486 in various expenses was deducted, includ-
ing $9,116 for car/truck expenses and $7,159 for “Supplies”
that are not counted as cost of goods sold. The net profit
reflected on the schedule was $44,932. This $44,932 is what
was reported as “Business Income” on the parties’ federal indi-
vidual income tax return.
In 2019, Philip’s 1099 from the property company shows
that Philip received $58,860 in “Nonemployee compensa-
tion.” An additional 1099 shows that Philip received $1,240
in “Nonemployee compensation” from Chalifoux. The total
amount of “Nonemployee compensation” Philip received from
the two payors was $60,100. Philip’s Schedule C shows “Gross
receipts or sales” of $60,100. No depreciation was deducted;
however, $29,161 in various expenses was deducted, includ-
ing $16,194 for car/truck expenses and $6,433 for “Supplies”
that are not counted as cost of goods sold. The net profit
reflected on the schedule was $30,939. This $30,939 is what
was reported as “Business Income” on the parties’ federal indi-
vidual income tax return.
Philip wanted the district court to average his last 3 years
of income for purposes of calculating child support, although
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not elaborate) and thus factored that in his proposed calcu-
lation. Philip agreed that he earned about $38,000 per year
“after everything has been deducted.” Philip’s proposed child
support calculation was based on his earning approximately
$38,000 gross annually and resulted in a child support obliga-
tion of $645 per month for two children. In the past, “[w]hen
stuff was really busy,” he made $15,000 to $20,000 extra from
“side work.” He agrees that he is capable of making additional
money from “side work,” but stated that “with the Corona 19
nobody’s even calling [him].” He stated that he “put [his]
phone number out there and Tammy took that phone away, so
nobody knows who [he is] anymore.”
The parties agree that Philip cannot read or write very well
and that in the past, Tammy helped Philip fill out job appli-
cations. Although Philip did not graduate from high school,
Tammy testified that his “skill set is a higher paying job” than
hers; she has an associate degree in hotel/motel management.
(ii) District Court’s Ruling
The district court found that Tammy’s taxable monthly gross
income was $3,484.10 based on her recent paystubs and that
Philip’s taxable monthly gross income was $5,008.33 based
on his 2019 tax returns; the court did not average Philip’s past
incomes. The court further found that Philip “has the annual
earning capacity of at least $60,000.00 per year.” The court
imputed the foregoing monthly gross incomes in its child sup-
port calculation worksheet. In accordance with the court’s child
support calculation, Philip was ordered to pay child support in
the amount of $998 per month for two children.
(iii) Did District Court Abuse Its Discretion?
Philip does not dispute the income attributed to Tammy.
However, he argues that the income attributed to him “was in
no way supported by the evidence.” Brief for appellant at 19.
Philip asserts that the exhibits received into evidence show his
3-year income average from 2017 through 2019 was around
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would be $36,000.” Id. at 20. We note that at trial, Philip
stated he earns about $38,000 per year “after everything has
been deducted,” and he used that amount in his proposed child
support calculation, which was received into evidence; his pro-
posal resulted in a child support obligation of $645 per month
for two children. Tammy asserts that the district court did not
abuse its discretion when it imputed Philip with an annual
earning capacity of $60,000.
[6,7] The main principle behind the Nebraska Child Support
Guidelines is to recognize the equal duty of both parents to
contribute to the support of their children in proportion to
their respective net incomes. See Neb. Ct. R. § 4-201. Before
determining a parent’s child support obligation, there must be a
determination regarding the monthly incomes of the custodial
and noncustodial parents. Gress v. Gress, 271 Neb. 122, 710
N.W.2d 318 (2006). As a general rule, the income of a self-
employed person can be determined from his or her income tax
return. Id.Total monthly income is the income of both parties derived
from all sources, except all means-tested public assistance
benefits which includes any earned income tax credit and
payments received for children of prior marriages. Neb. Ct.
R. § 4-204(A) (rev. 2020). This would include income that
could be acquired by the parties through reasonable efforts. Id.
Section 4-204(E) states:
If applicable, earning capacity may be considered in lieu
of a parent’s actual, present income. Earning capacity is
not limited to wage-earning capacity, but includes moneys
available from all sources. When imputing income to a
parent, the court shall take into consideration the specific
circumstances of the parents, to the extent known. Those
factors may include the parent’s residence, employment
and earnings history, job skills, educational attainment,
literacy, age, health, and employment barriers, including
criminal record, record of seeking work, prevailing local
earning levels, and availability of employment.
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earnings of either party during the immediate past 3 years, the
income may be averaged. See Neb. Ct. R. ch. 4, art. 2, work-
sheet 1, n.5 (rev. 2016). See, also, Gress v. Gress, 274 Neb.
686, 743 N.W.2d 67 (2007) (3-year average to be used when
averaging income).
Philip acknowledged that he did not have a full year of work
in 2017. Accordingly, it would not have been appropriate to
average his income for that year into a 3-year average. And in
looking at Philip’s gross receipts in 2018 ($66,418) and 2019
($60,100), the slight difference in numbers does not reflect the
kind of substantial fluctuations of annual earnings that might
warrant income averaging. In this case, the district court attrib-
uted a $60,100 annual income to Philip and specifically refer-
enced the parties’ 2019 tax return, as well as Philip’s earning
capacity. In 2019, Philip’s gross receipts as a sole proprietor-
ship were $60,100 before deductions for expenses.
Arguably, it may have been an abuse of discretion to use
Philip’s gross receipts to determine his income, since there
were business expenses identified that reduced those gross
receipts to a taxable net profit of $30,939. However, the dis-
trict court may not have been persuaded that all deductions
reflected in the parties’ Schedule C supported reducing Philip’s
income for child support purposes. For example, in 2019,
Philip deducted $16,194 in car/truck expenses, while in the
previous year, that amount had only been $9,116, even though
Philip’s 2018 gross receipts were higher at $66,418 (net profit
of $44,932). In both of those tax years, the car/truck deduc-
tions correlated with mileage associated with using vehicles
for business; in 2019, Philip reported that two vehicles were
driven a combined 27,921 miles for business use, and in 2018,
he reported that one vehicle was driven 16,726 miles for busi-
ness use. There was no evidence adduced as to why there was
such a significant increase in mileage associated with Philip’s
work in 2019, nor any further information provided about why
a second vehicle was claimed in 2019. In both years, the tax
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sonal use.
Regarding Philip’s reported deductions, his attorney began
to question Philip about his “suggestion” that the district court
use a higher income for child support purposes than reflected
by the average of his net profits because he was able “to
deduct [his] truck and some other expenses like that, that if
you weren’t self-employed, you wouldn’t be able to deduct?”
Unfortunately, before Philip could answer, an objection was
made to the form of the question, and when the question
was asked again, it was stated differently. However, Philip
did acknowledge the impact of such deductions on his tax-
able income. When he was later asked on cross-examination
if “expensing more reduces the profit [he] gets[?]” Philip
responded, “Yes.” Although this line of questioning could
have been more fully developed, the district court could have
determined that the mileage expenses Philip was declaring on
the parties’ tax returns should not detract from Philip’s earning
capacity when calculating his responsibility for child support,
especially when the vehicles were being used for work and
personal purposes.
Perhaps more important, Philip also testified that in the past,
he made $15,000 to $20,000 per year from “side work,” which
is not reflected in the parties’ tax returns as business or other
income. There is simply no way to confirm precisely how much
Philip earned in unreported “side work,” but it would have
been appropriate for the court to include an additional $20,000
in earning capacity based upon Philip’s own testimony. A
­party’s total monthly income from all sources must be consid-
ered for purposes of child support. See § 4-204(A). Therefore,
when considering Philip’s reported gross receipts of greater
than $60,000 for 2 consecutive years, plus up to $20,000 in
other unreported “side work” income, we cannot say that the
district court abused its discretion in determining that Philip
has an earning capacity of at least $60,000 per year.
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The entirety of Philip’s argument on this alleged error
consists of one sentence: “When applying the income aver-
aging approach, [Philip] also requests that the Court assign
a proportionate division of uncovered medical expenses and
daycare costs.” Brief for appellant at 20. Because we have
already determined the district court did not abuse its discre-
tion in determining Philip’s earning capacity to be $60,000 per
year, we need not further address Philip’s assignment of error
regarding the division of uncovered medical expenses and day-
care costs.
Although not raised by either party, we do note that para-
graph 19 of the decree first indicates that Tammy “shall be
responsible for paying the first $250.00 per child, per calendar
year of all non-reimbursed health care expenses, which are
reasonable and necessary.” However, it then says, “After the
threshold amount of $250.00 per month, per calendar year, per
child has been met [Tammy] shall pay 40% and [Philip] shall
pay 60% of all non-reimbursed reasonable and necessary health
care costs for the minor children.” (Emphasis supplied.) The
“per month” language is clearly a scrivener’s error in light of
the first sentence in the paragraph, as well as the applicable
rule. See Neb. Ct. R. § 4-215 (rev. 2020) (portion of all non-
reimbursed reasonable and necessary children’s health care
costs in excess of $250 per child per year may be allocated to
the obligor parent). As a matter of plain error, we modify the
language of the decree to conform with § 4-215 by striking
the words “per month.” See Tyler F. v. Sara P., 306 Neb. 397,
945 N.W.2d 502 (2020) (plain error exists where error, plainly
evident from record, prejudicially affects substantial right of
litigant and is of such nature that left uncorrected would cause
miscarriage of justice or result in damage to integrity, reputa-
tion, and fairness of judicial process).
3. Property Division
At trial, both parties offered testimony and evidence regard-
ing the marital and premarital nature of certain assets, the
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party proposed allocating specific assets and debts.
Philip claims that the district court did not (1) value the
marital property retained by each party as supported by the evi-
dence, (2) award him his equitable interest in the marital home,
(3) allocate the proceeds from the sale of a camper between the
parties, and (4) properly divide Tammy’s “Fidelity Rollover
IRA” and “Vanguard 401(k)” to award him his marital portion
of such assets, and (5) properly allocate his “Keybank IRA”
and his “Machinist Money Pension” (Machinist pension) in its
division of the parties’ retirement assets. Tammy argues that
“[w]hat Philip is asking this Court to do is reverse the District
Court and essentially implement a piecemeal division of the
marital assets without taking into consideration the marital
debts.” Brief for appellee at 23. Tammy asserts that “[her] pro-
posal [exhibit 55] balances the entire marital estate,” id., and
that the “District Court largely adopted [her] proposed division,
except it did not order either party to pay a property settlement
payment to the other,” id. at 25.
[8-10] In a divorce action, the purpose of a property division
is to distribute the marital assets equitably between the parties.
Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
Equitable property division under Neb. Rev. Stat. § 42-365(Reissue 2016) is a three-step process. Stanosheck v. Jeanette,
supra. The first step is to classify the parties’ property as mari-
tal or nonmarital. Id. The second step is to value the marital
assets and marital liabilities of the parties. Id. The third step is
to calculate and divide the net marital estate between the par-
ties. Id. The ultimate test in determining the appropriateness
of a property division is fairness and reasonableness as deter-
mined by the facts of each case. Id. Although the division of
property is not subject to a precise mathematical formula, the
general rule is to award a spouse one-third to one-half of the
marital estate, the polestar being fairness and reasonableness as
determined by the facts of each case. Millatmal v. Millatmal,
272 Neb. 452, 723 N.W.2d 79 (2006).
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Cite as 30 Neb. App. 158The district court seemingly adopted Tammy’s proposed
division of the marital estate as set forth in exhibit 55, and
we cannot say it was an abuse of discretion for the court to
rely on the values and allocation of assets and debts presented
in that document. However, there does appear to be another
scrivener’s error in that Philip’s Machinist pension, specifically
identified by both parties on their respective exhibits, was not
set forth in paragraph 25 of the decree pertaining to retirement
accounts; we therefore modify that paragraph to include the
Machinist pension as being awarded solely to Philip.
Philip’s remaining alleged errors regarding the valuation
and division of the marital estate ultimately relate to no equal-
ization being paid to him despite a greater portion of the
marital estate being paid to Tammy. Using Tammy’s values
and proposed division as set forth in exhibit 55, Tammy was
allocated $319,919 in marital assets and Philip was awarded
$53,950 in marital assets. Tammy was allocated marital debts
totaling $204,596, and Philip was allocated marital debts
totaling $3,987. Therefore, Tammy’s net marital estate was
$115,323 and Philip’s was $49,963 (total net marital estate
equals $165,286). There is a difference of $65,360, which
would typically be divided in half to reach an equalization
amount. In this case, Tammy would owe $32,680 to Philip as a
marital equalization amount if the goal was to reach a perfect
50-50 equalization. However, in this case, as calculated above,
the district court was apparently satisfied that Tammy would
receive approximately 70 percent of the net marital estate and
Philip would receive approximately 30 percent. Although this
division does not quite fit within the general rule of awarding a
spouse one-third to one-half of the marital estate, see Millatmal
v. Millatmal, supra, it is close enough that we cannot say that
the award was an abuse of discretion. We therefore affirm the
district court’s division of the marital estate.
However, we do note that exhibit 55 reflects that the pro-
ceeds from the sale of the camper were allegedly divided
equally between the parties, but Philip’s brief suggests that
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TORO v. TORO
Cite as 30 Neb. App. 158division has not taken place. To the extent it has not, the decree
is further modified to clarify that Tammy must pay Philip
the $3,425 for his one-half share of the camper proceeds as
reflected in exhibit 55.
VI. CONCLUSION
For the reasons stated above, we affirm the decree in all
matters, except for (1) modifications to correct scrivener’s
errors in paragraph 19 of the decree regarding nonreimbursed
health care expenses for the children and paragraph 25 of the
decree to reflect the award of the Machinist pension to Philip
and (2) a modification to clarify that Tammy must pay Philip
$3,425 for his one-half share of the camper proceeds, if she has
not done so already.
Affirmed as modified.