Anderson v. Anderson

27 Neb.App. 547

934 N.W.2d 497

Brandi J. ANDERSON, appellee and cross-appellant,

v.Donald J. ANDERSON, appellant and cross-appellee.

No. A-18-754.

Court of Appeals of Nebraska.

Filed September 3, 2019

Mark Porto, of Porto Law Office, for appellant.

Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O., Hastings, for appellee.

Riedmann, Arterburn, and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Donald J. Anderson appeals from the decree of dissolution entered in the district court for Hall County, which dissolved his marriage to Brandi J. Anderson. On appeal, Donald challenges the court’s property distribution and the calculations of his child support and alimony obligations. On cross-appeal, Brandi challenges the court’s visitation schedule, alimony award, and attorney fees determination. For the reasons that follow, we affirm the decision of the district court as to child support, alimony, the visitation schedule, and attorney fees. We modify in part the district court’s decision as to property division.

II. BACKGROUND

Donald and Brandi were married on September 25, 1999, and had three children together: a son, S.A., born in 2006; a daughter born in 2008; and a son born in 2015. After nearly 17 years of marriage, the parties separated in July 2016, and Brandi filed an amended complaint for dissolution of marriage on August 15.

After a hearing on October 14, 2016, the court entered temporary orders that found the children’s need for a "significant amount of stability in their lives" made it inappropriate for the court to order joint custody with weekly transitions. Thus, the court gave Brandi temporary legal and physical custody of the children and allowed Donald to have parenting time every other weekend from Friday at 5 p.m. until Sunday at 7 p.m. During the weeks when Donald did not have weekend parenting time, he had 2 hours of parenting time with S.A. and his sister, individually, on one weeknight each. The parties subsequently agreed that Donald’s weekend parenting time would begin on Thursdays instead of Fridays. They also agreed that Donald would have parenting time with all the children on Thursday evenings during weeks when he did not have weekend parenting time. The court also ordered Donald to pay temporary child support of $1,251 per month and temporary spousal support of $1,100 per month.

Trial was held on February 1 and 13, 2018. At trial, Brandi testified that she had obtained a student loan prior to the marriage, a portion of which was repaid during the marriage. In November 2017, the principal balance was $21,785, while interest payments totaled over $31,897 during the loan’s lifetime, which began in 1990. The loan financed Brandi’s education, which enabled her to become a licensed teacher. Brandi worked as a schoolteacher from the time the parties married in 1999 until 2006, when S.A. was born. When S.A. was born, Brandi quit teaching and began caring for him full time. She testified that no daycare would accept him, because he rarely slept as an infant and cried, screamed, and needed to be rocked nearly constantly for several years. S.A. was later diagnosed with Asperger’s syndrome (Asperger’s).

S.A. developed violent tendencies and was prone to outbursts if unexpected or unplanned events occurred. Brandi testified that inconsistency in rules and consequences oftentimes led to S.A.’s bad behavior. Jealousy and seeing his siblings receive attention also led to S.A.’s outbursts. S.A. experienced suicidal thoughts, and in April 2017, he began talking about suicide in more detail and began acting out a plan to commit suicide. Brandi admitted S.A. to a hospital at that time.

Brandi offered testimony from a licensed independent mental health practitioner, Joan Schwan, who counseled S.A. from October 2016 through January 2018.

Schwan also met the other children briefly. Schwan testified that because S.A. has Asperger’s, he needs a calm, structured living environment. She worked with him to process his feelings and handle anger. Schwan said that S.A. needs consistency across both parents' homes and that it was detrimental for him to view visitations with Donald as more fun because it was just the two of them. After a 5-day visit with Donald, S.A. told Schwan that he had not taken his medications and showered only once during that time. She knew that S.A. had "blowups" and "meltdowns" during which he would scream, kick, and hit others, particularly after spending one-on-one visitations with Donald.

Schwan opined that one-on-one visitations were not appropriate for S.A., because he viewed the individual attention as indicating that he was more special than his siblings. Schwan described that S.A. demands increasing amounts of his parents' attention, especially once they respond by giving him attention. Schwan said that because of that attention-seeking cycle, one-on-one visitations may be appropriate for other children but were not appropriate for S.A., because "he plays it" and sees the additional attention as indicating that he is special, which leads to him demanding more time. She testified that it was important for S.A. to see Donald giving time to S.A.’s siblings and to "actually witness that [his sister] is just as important as he is." She testified that her understanding was that S.A. would return from one-on-one visitations with Donald and brag and bully his sister about it. Schwan said that S.A.’s attitude similarly affects his schoolwork and recalled an instance of S.A.’s calling a classmate "a jerk because he wasn't getting his way immediately." Brandi also testified that S.A. returned from visitations with Donald and taunted his siblings but that S.A.’s behavior was much better when he returns from visitations that all the children attend.

Brandi described S.A.’s need for consistent routines and said that he "holds it all together during the school day" but can become volatile for a few hours after school until he gets into a routine again. However, she testified that S.A. does very well in school and had not had any disciplinary problems in school for the past 2 years. Her opposition to individual parenting time with Donald was based on her concern for the number of transfers and disruptions to their routine that it caused. Brandi testified that she did not want to keep the children from Donald. Donald similarly testified that S.A. does "great in school" and had no more behavioral problems than any other student. Donald said that individual parenting time with S.A. was important to him in order to enjoy quality time together and described that the youngest child requires most of his attention when all the children are together.

Beginning in 2006, when S.A. was born, Donald was the family’s sole income earner. Donald worked as a business development manager at a construction company from sometime before the parties were married through 2003. He then worked briefly as a personal banker before beginning to work at Credit Management Services, Inc. (Credit Management), in 2005. Donald left Credit Management in 2013 after having difficulties with his boss and because he was traveling for 7 to 10 nights each month. When he left Credit Management in 2013, he was making an estimated $112,000 per year. From October 2013 through June 2014, Donald worked for an insurance company, earning commission only. He testified that the job required extensive travel and staying in hotels a minimum of three nights per week. Donald began working for Axis Capital, Inc., in 2014, earning a base salary of $45,000 plus commission. When he was promoted in 2015, his base salary was raised to $70,000 plus commission. Tax documents show that the couple earned $132,200 in wages during 2015, the vast majority of which came from Donald’s work at Axis Capital. In 2016, after disclosing an affair with a colleague, Donald was demoted and his pay was reduced by $2,000 per month. Donald then left his job with Axis Capital at the end of July, having earned $98,000 from January through July 2016.

Donald then worked for another construction company for 2 months, where his annualized salary was approximately $81,000 before commission. In October 2016, he began working for Providence Capital, which paid him approximately $6,000 per month plus commission during a 120-day probationary period. He resigned from Providence Capital in February 2017 and returned to Credit Management from March through May 2017. At that time, Credit Management paid Donald an annual salary of $50,000 plus commission, which he said "wasn't significant." His territory included western Nebraska and eastern Kansas, which he said was not conducive to visitations with his children, because the divorce proceedings had begun by that time. When he left Credit Management in May 2017, he started his own firm, while also "actively seeking" other employment. He testified that he made approximately $4,400 through that venture.

In September 2017, Donald began working for Hamilton Telecommunications and remained employed there at the time of trial. Hamilton Telecommunications paid Donald an initial base salary of $55,000 per year plus commission. His base salary would decrease by $5,000 per year as commissions built up, eventually bottoming out at a $35,000 minimum. His salary was projected to grow significantly year to year if he met his sales goals.

In 2007, Donald and Brandi purchased a home together in Grand Island, Nebraska, for $145,000. They added a bedroom and remodeled the master bathroom. Brandi testified that at the time of trial, the home’s roof was in "horrible shape" and needed repairs because the area around the chimney leaked when it rained. She said that roof repairs were estimated to cost $12,500. Brandi also testified that the windows were caving in, needed to be propped up, and let cold air blow inside. Brandi offered testimony from a real estate appraiser, who valued the home at $150,000. He testified that his appraisal accounted for the renovations...