Araujo v. Araujo

DENA M. ARAUJO, APPELLANT, v. DAVID R. ARAUJO, APPELLEE.

No. A-16-453.

NEBRASKA COURT OF APPEALS

July 18, 2017

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 Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed as modified.

Christopher Perrone, of Perrone Law, for appellant.

Edith T. Peebles and Tosha Rae D. Heavican, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

The Sarpy County District Court dissolved the marriage between Dena M. Araujo and David R. Araujo. A decree was entered from which Dena has appealed and assigned numerous errors related to parenting time and other contact with the children, child support, property, debts, contempt, military retirement pay, alimony, and guardian ad litem (GAL) and attorney fees. We affirm the decree as modified herein.

II. BACKGROUND

Dena and David were married in June 1997; both were 32 years of age at that time. They had four children, namely: Tyler (born 1997), Zachary (born 1999), Dylan (born 2001), and Natalie (born 2004). David had been in the Marine Corps as a computer programmer for four years, andthen joined the Air Force as an accountant. He then transferred and worked in space administration and operations until his retirement in 2006. After that, he worked with a company called SAIC at Strategic Command headquarters doing planning and operations. Dena attended 3½ years of college, but did not obtain a degree. She speaks English and Swedish, and has worked as a chiropractic assistant, worked in a department store at a cosmetics counter, and worked for a company organizing events in different places. At the time of trial, she was working as a "para" for special education students earning $11.27 per hour.

In 2006, David was diagnosed with a sphincter of oddi dysfunction. According to David, this was "an unfortunate side effect" of having his gallbladder removed in 2005. At the time of his gallbladder surgery, he was diagnosed with pancreatitis. In 2009, David had a pancreatic attack that put him in the hospital for a month; he lost significant weight and was unable to work for a couple of months. David's pancreatitis kept getting worse; there were times he could do things and times he could not.

In May 2013, Dena filed a complaint for legal separation. The following month, David filed an answer and "counter-complaint" for dissolution of the marriage. Dena asked for sole legal and physical custody of the children, and while David pled he was the fit and proper person to have legal and physical custody of the children, his prayer asked that he and Dena be granted legal and physical custody. Each asked for child support and an equitable division of their assets and debts. Dena also asked for the parties to share medical and childcare expenses. Dena requested that David's parenting time be supervised, that a GAL be appointed for the children, and that David be ordered to undergo a psychological evaluation. Dena also asked for spousal support. David requested a non-hypothecation order restraining both parties from certain actions related to their real and personal property, except in the usual course of business or for the necessities of life.

In June 2013, David went to visit his brother in Utah and reconnected with a past friend, Kimberli Doxey. By July, David and Kimberli had discussed Kimberli moving to Nebraska to help David after a surgery he had planned in December. By the end of 2013, David rented a home for Kimberli and two of her children, Andrew Doxey (age 25) and Bridger Doxey (age 15). According to Kimberli, Andrew quit his job in Utah to help her provide 24-hour care for David.

In December 2013, David had surgery to remove his pancreas, spleen, and part of his stomach. Complications from surgery caused stomach fluid to leak into his abdominal cavity and it caused him to have a seizure and go into a coma. He was in a coma for about two weeks; he was hospitalized from December 2013 until February 2014. From February to July 2014, David tried to work about 14 hours per week, but the pain in his abdomen was excruciating. Eating caused the most pain. David has a feeding tube 24 hours a day, and as a result of losing his pancreas, he is diabetic and on insulin. It is difficult for him to stand more than 10 minutes; he cannot stand without a cane as he "just get[s] too shaky. [His] muscles just won't let [him]." David's last day of work was July 31, 2014; he cannot work due to his physical limitations.

Trial was held on August 18 and 19, and October 1 and 2, 2015. David and four other witnesses testified on his behalf. Dena and one other witness testified on her behalf. The district court issued findings dated November 19, 2015, and entered a decree of dissolution on February 4, 2016, with the court's findings attached and incorporated into the decree. Dena was awarded custody of the children subject to David's graduated and "therapeutic" parenting schedule. The schedule begins with bi-monthly therapeutic parenting time for five months and increasesthereafter until after 11 months when David would have parenting time every other weekend from 8 a.m. on Saturday until 5 p.m. on Sunday. Holiday parenting time was also scheduled. David was ordered to pay $1,535 per month in child support, maintain the children on his Tri-Care health insurance plan, and pay 60-percent of nonreimbursed healthcare expenses incurred by the children after the first $480 per child has been paid by Dena. Dena was awarded the marital residence and "$270.00 of [David's] net disposable military pension." Property and debts were divided, the right to claim the children for tax purposes was equally divided between the parties, neither party was awarded alimony, and each party was ordered to pay their own attorney fees and costs. The parties were ordered to pay the GAL fee of $1,726.73, with each to pay 50-percent of that fee. Dena was ordered to pay a property equalization amount of $9,528.77 within 180 days of entry of the decree.

Dena timely appealed.

III. ASSIGNMENTS OF ERROR

Dena assigns, reordered, that the district court erred: (1) by awarding David parenting time that was not in the best interests of the children; (2) by failing to prohibit the Doxey family from having contact with the children; (3) by calculating the child support incorrectly; (4) by not awarding Dena all four tax exemptions for 2015; (5) by failing to find David in contempt or otherwise ruling on pending contempt actions filed by Dena; (6) by failing to give Dena full credit for temporary order arrears; (7) in its division of the marital estate by (a) miscalculating the equity in the marital residence, (b) miscalculating the division of household goods and gifts, (c) including a $4,500 loan as a marital debt, and (d) determining the 2012 tax debt was a marital debt; (8) by failing to include standard provisions in the decree to protect Dena's interests in David's military retirement pay; (9) by failing to award alimony to Dena; and (10) by failing to equitably divide the GAL fees and failing to order David to pay any of Dena's attorney fees.

IV. STANDARD OF REVIEW

In actions for dissolution of marriage, 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. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015). This standard of review applies to the trial court's determinations regarding custody, child support, the division of property, alimony, and attorney fees. Id.

Child custody and 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 normally be affirmed absent an abuse of discretion. See State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208 (2016).

An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.

In child custody cases, where the 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 judge heard and observed the witnesses and accepted one version of the facts rather than another. Id.

V. ANALYSIS

1. PARENTING TIME AWARDED TO DAVID

The district court found that both Dena and David were fit and proper persons to have the care, custody, and control of their minor children, but that it was in the best interests of the minor children that custody be awarded to Dena, subject to David's graduated and "therapeutic" parenting schedule. The schedule begins with bi-monthly therapeutic parenting time for five months and increases thereafter until after 11 months when David would have parenting time every other weekend from 8 a.m. on Saturday until 5 p.m. on Sunday. Holiday parenting time was also scheduled.

Dena argues that the amount of parenting time awarded to David "is far in excess of that which he is physically capable of exercising at this time, not in line with the recommendation of the expert witness, and not in the best interests of the minor children." Brief for appellant at 16. Dena claims that David's "physical health is a real problem," and the family's therapist, Traci Penrod-McCormick, "clearly indicated that it would not be in the best interests of the children to extend visitation longer than 3-4 hours at a time." Brief for appellant at 16.

Penrod-McCormick has been the...