Alberts v. Alberts

JOAN L. ALBERTS, APPELLANT, v. THOMAS A. ALBERTS, APPELLEE.

No. A-18-075.

NEBRASKA COURT OF APPEALS

February 19, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Clay County: VICKY L. JOHNSON, Judge. Affirmed as modified.

Heather Swanson Murray, of Swanson Murray Law, L.L.C., and Melodie T. Bellamy, of Bellamy Law Office, for appellant.

Adam R. Little, of Ballew Hazen, P.C., L.L.O., and Joshua Aaron Johnson, of Conway, Pauley & Johnson, P.C., for appellee.

MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

Joan L. Alberts appeals from the order of the district court for Clay County, which dissolved Joan's marriage to Thomas A. Alberts. On appeal, Joan assigns error to the court's award of custody and attorney fees and the determination and division of the marital estate. For the reasons set forth herein, we affirm as modified.

II. BACKGROUND

The parties were married on August 8, 1997. At the time of their marriage, Joan had three minor children from two prior marriages. These children are no longer minors, and we do not discuss them further, except to note that Thomas cared for them as if they were his own. The parties have two children together--Alika L. Alberts, born in September 1999, and Isaac T. Alberts, born in May 2001.

Thomas is a farmer. He owned one quarter section of land and certain farming equipment prior to the marriage. The parties purchased three additional quarter sections of land and additional farming equipment during the marriage. Joan works in an administrative position at a hospital and earned several degrees during the marriage, which allowed her to advance her career.

Alika has significant developmental issues, including autism. Many of the pretrial disputes between the parties and a great deal of the trial evidence related to Alika's custody, the choice of suitable care givers for Alika, and the parties' approach to her medical care, including the administration of certain medications prescribed for her. However, Alika has reached the age of majority since entry of the decree of dissolution in this case and any issues with respect to her custody have become moot. We limit our discussion of the pretrial activity and trial evidence to that which bears on our analysis of custody with respect to Isaac.

The parties separated in 2011, at which time Thomas moved out of the marital residence and began living on the farm with his mother a few miles outside of Saronville, Nebraska. Joan and the children continued to live in the marital residence in Saronville. However, until the time of an ex parte custody order entered in August 2013, Thomas would come to the marital residence and provide care for the children between the time when Joan left for work and when the children left for school, as well as after school. Child care was also provided at times by Thomas' adult nephew, Phillip Alberts.

On August 14, 2013, Joan filed a complaint for dissolution of marriage in the district court. She sought a determination and division of the marital estate; ex parte, temporary, and permanent custody of the children; temporary and permanent child support; and attorney fees. Joan included an affidavit in support of her request for ex parte custody, in which she stated that she feared Thomas would become "volatile" and try to take the children upon learning that she filed the action. Joan stated that Thomas had a history of anger control issues and his "volatile personality throughout this transition" was cause for concern with regard to how his actions might negatively affect the children. On August 15, the court granted Joan ex parte custody of the children until a temporary hearing could be held, subject to reasonable parenting time by Thomas.

Thomas answered and filed a cross complaint, requesting an equitable division of the marital estate, temporary and permanent child support and custody, and attorney fees.

On September 24, 2013, the district court entered an order granting the parties temporary joint legal custody of the children. Although the court considered awarding temporary joint physical custody, it awarded temporary physical custody to Joan based on Alika's special needs and the fact that during the parties' 2-year separation the children had resided with Joan with Thomas visiting them "apparently only in Joan's home." The court noted that the parties had previously shared parenting responsibilities by having Thomas arrive early in the morning after Joan left for work and having him care for the children after school and urged them to re-implement this plan. The court ordered Thomas to pay child support of $808 for two children and $568 for one child and specified a temporary parenting plan. The parenting plan for Alika involved a transition period over 6 weeks of increasing parenting time with Thomas. The temporary parenting plan for Isaac (and Alika after the transition period) included parenting time with Thomas everyother weekend from 7 p.m. Friday to 5 p.m. Sunday, Wednesday each week from after school until 8 p.m., and holiday parenting time as specified in the order.

During the course of the proceedings, the district court appointed Adam Pavelka of Agri Affiliates to manage the four quarter sections of real property at issue due to the parties' inability to agree on certain matters.

The parties' farm near Saronville was struck by a tornado on May 11, 2014, which caused significant damage to the residence where Thomas lived with his mother, as well as outbuildings and equipment, and required extensive repair work. The planting season had started but was not yet finished. Insurance funds were received for the tornado damage, and a stipulation of the parties was approved by the district court. The court ordered that Thomas was allowed to take possession of and control the insurance proceeds to fix the farm and farmstead at his discretion; that the farm manager was released from any responsibility to manage the funds; and that Thomas was to share with Joan all information given to and received from the parties' insurance company for all claims with respect to the tornado damages.

In December 2014, the parties entered into a bidding agreement, which set forth a process whereby they divided their real and personal property, except for items which the parties had identified in their joint property statement as being disputed. As a result of this process, Thomas took control of the quarter section of real property that he owned prior to the marriage and Joan took control of the remaining three quarter sections. We set forth further details of the bidding agreement in our analysis below.

Trial was held before the district court on December 22-23, 2015; and on January 19 and 21, February 12, March 4, 16, and 23, April 13; and June 1, 2016. The record is voluminous and includes testimony from the parties, their accountant, friends and neighbors, individuals who conducted real estate appraisals, and others. The court also conducted an in camera interview of Isaac and received numerous exhibits. A significant portion of the evidence focused on issues surrounding Alika's care, which we need not detail. Other issues covered by the evidence included the 2014 tornado damage, the insurance proceeds received for the tornado damage, and the division of the marital estate, especially those disputed items not divided by the parties pursuant to the bidding agreement and certain premarital property that one or the other of the parties asserted had been converted, at least in part, to marital property. We have thoroughly reviewed the record, but given its size, we do not further recount the evidence here. We have summarized those portions of the evidence relevant to the issues raised on appeal in the respective sections of the analysis below.

On August 2, 2016, Thomas filed a motion for leave to withdraw his rest in order to submit the 2015 income tax information of the parties as well as attorney fee affidavits. Thomas asserted that 2015 was the first year that the district court "could have a clean picture of what the parties' respective income[s] could be if the land is divided in accordance with the Bidding Agreement, as each of the parties operated their respective farm operations as separate entities in 2015 without comingling of marital assets" and that the court would need this "clean 2015 income information" to calculate child support. Thomas further alleged that the amount of attorney fees could not be completely ascertained during the course of trial as the record had been held open for a posttrial deposition of an out-of-state witness. Thomas noted the detailed and lengthy written closing arguments that had been submitted by the parties' attorneys. Thomas also filed a motion, askingthe court to allow telephonic testimony from the parties' certified public accountant, who lived in Florida, concerning Thomas' 2015 tax return, depreciation taken, and related matters. The court granted Thomas' motions, as well as a request by Joan to submit an attorney fee affidavit. This additional evidence was received at a hearing on September 15, 2016.

On October 3, 2016, the district court entered a temporary order determining custody, indicating that a final decree might not be prepared "for some time" given the complexity of the issues. The court made extensive, detailed factual findings, which it incorporated into the decree of dissolution, which was not entered until September 23, 2017. We discuss those findings in greater detail in the analysis section below. As to the court's actual custody determinations, the court awarded Thomas legal custody of the parties' children and ordered that physical custody be shared on a rotating weekly basis. The court ordered Thomas to pay child support...