Burcham v. Burcham

24 Neb.App. 323

886 N.W.2d 536

David Robert Burcham, appellee,

v.Linda Jean Burcham, appellant.

No. A–15–814.

Court of Appeals of Nebraska.

Filed September 27, 2016.

Alice S. Horneber, of Horneber Law Firm, P.C., for appellant.

Nancy R. Shannon, of Cordell Law, L.L.P., Omaha, for appellee.

Inbody, Riedmann, and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

Linda Jean Burcham appeals from the order of the Dixon County District Court which dissolved her marriage to David Robert Burcham, divided the marital property, awarded custody of the parties' minor children, and calculated child support. For the reasons explained below, we reverse the child support calculation and remand the cause with directions to the district court to recalculate child support excluding the adoption subsidy the parties receive on behalf of their adopted children. We otherwise affirm.

BACKGROUND

Linda and David were married in 2001, and David filed for dissolution of the marriage in November 2013. During the marriage, the parties adopted three siblings: a daughter, H.B., born in 1997; and two sons, A.B., born in 1999, and Z.B., born in 2001. Initially during the dissolution proceedings, the parties shared temporary joint legal and physical custody of the children, following a “week on, week off” schedule; however, in October 2014, the court modified the temporary order and placed physical custody of H.B. with Linda and physical custody of A.B. and Z.B. with David. Linda received parenting time with the boys every other weekend, and David received parenting time with H.B. on alternating weekends but only upon the agreement of Linda, David, and H.B.

When Linda and David first married, they lived in a house David owned prior to the marriage. In 2003, they built the marital residence, located in Newcastle, Nebraska, on 45 acres of land that David had purchased in 1996. David worked at a telephone company throughout the marriage and earned additional income from farming. Linda worked full time during the marriage until reducing her schedule to 80 percent after the children were adopted. During that time, she was primarily responsible for the care of the children. After nearly 8 years, she resumed full-time employment.

All three of the children have special needs. H.B.'s mental health presented the greatest challenge for Linda and David. H.B. was admitted to a mental health facility on two occasions in 2012; the first stay was for 2 weeks and the second stay was for 6 weeks. She was admitted again in March 2013 after cutting herself with a knife. In September 2014, H.B. attempted suicide by overdosing on various pills. Linda took H.B. to the emergency room, and she was admitted to the mental health facility where she remained for 6 to 8 weeks.

Linda testified at trial that she never had any concerns that H.B. would harm A.B. or Z.B., but she acknowledged that an admission report from the mental health facility dated March 5, 2013, indicated that Linda reported finding a graphic drawing H.B. made depicting her assaulting her brothers, that Linda expressed concern about the disappearance of two family cats, that Linda and David expressed concern about H.B.'s safety upon returning home and the safety of other family members, and that Linda reported that H.B. appears to want to hurt the ones who love her the most. At trial, David testified that he does have concerns about the boys' safety around H.B.

The evidence also established that the Department of Health and Human Services substantiated a report of David's physically abusing H.B. in October 2013. H.B. was observed with a bruise on her face from being “smacked” by David after an argument. Although David was allowed visits with H.B. during the pendency of the dissolution proceedings, H.B. had not spent any nights with David after December 2013, and David did not communicate to Linda a desire to spend any time with H.B. Throughout the case, H.B. continued to attend therapy sessions with a counselor and began seeing a psychiatrist at the end of 2014. According to Linda, H.B. responded very well to new medications, and she noticed a significant improvement in H.B.'s depression.

A.B., who was 15 years old at the time of trial, has been diagnosed with mild mental retardation and has “IEPs at school.” He also has a hearing delay. Nevertheless, he participates in football, basketball, and track and is involved in 4–H activities. David described A.B. as “a very happy-go-lucky kid” and acknowledged that he will always need some kind of assistance and guidance. He also said that A.B. is his “right-hand man” and wants to help David with everything. A.B. testified that he enjoys living with David because that way they get to spend more time together. He would like to continue living with David and seeing Linda on the weekends but said that he would like to see H.B. more often. He said that he, H.B., and Z.B. get along well and have a good time together.

Z.B. was 13 years old at the time of trial. He has been diagnosed with “ADHD” and has “IEPs” at school as well. Nevertheless, like A.B., he also participates in football, basketball, and track at school and is involved in 4–H activities. He testified that he enjoys living with David because he can stay in one place instead of moving around so much.

Because of the children's special needs, the parties receive an adoption subsidy of $1,300 per month from the State of Kansas, the state from which the children were adopted. Linda requested that the court return to the joint physical custody arrangement it initially ordered utilizing the week on, week off schedule. She believed it was important for the children to remain together because she and David adopted them as a sibling group so they should remain a sibling group. David testified, however, that he did not believe Linda and he could communicate well enough to share joint physical custody. He believed that splitting the children up was in their best interests because the boys were thriving and comfortable living with him and because there are issues with H.B. that place the boys at risk. He did not believe sharing custody of the boys worked well for them, and now that they have more structure and stability, their grades and behavior have improved.

The district court entered the decree dissolving Linda and David's marriage on August 5, 2015. The court found it was in the best interests of the children that David have legal custody and primary physical custody of A.B. and Z.B. and that Linda have legal custody and primary physical custody of H.B. Linda was awarded visitation with the boys every other weekend.

Linda was also ordered to pay $379 per month in child support for three children, $790 per month for two children, and $588 per month for one child. In calculating the parties' incomes for child support purposes, the court utilized the parties' incomes from their employment and added $200 per month in farming income for David. The court also assigned the adoption subsidy to the parent with custody of the child, meaning David received the subsidy for the boys and Linda received the subsidy for H.B.

The court valued and divided the parties' property utilizing their joint property statement. Ultimately, Linda was ordered to make an equalization payment of $16,829 to David in monthly installments of $500. Greater details regarding the court's classification, valuation, and division of property will be provided in the analysis section below as needed to address Linda's arguments on appeal. Each party was ordered to pay his or her own attorney fees. Linda has now appealed to this court.

ASSIGNMENTS OF ERROR

Linda assigns that the district court erred in (1) its award of custody and visitation of A.B. and Z.B.; (2) its award of child support and dependency exemptions; (3) its division of property, award of the equalization payment, and division of responsibility for outstanding obligations; and (4) its allocation of attorney fees.

STANDARD OF REVIEW

An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Pohlmann v. Pohlmann , 20 Neb.App. 290, 824 N.W.2d 63 (2012). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, and alimony. Id .

In a dissolution of marriage case, an award of attorney fees is discretionary, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Brunges v. Brunges , 260 Neb. 660, 619 N.W.2d 456 (2000).

ANALYSIS

Custody and Visitation.

Linda argues that the district court erred in awarding custody of A.B. and Z.B. to David. We find no abuse of discretion in the custody order.

When custody of minor children is an issue in a proceeding to dissolve the marriage of the children's parents, custody is determined by parental fitness and the children's best interests. See, Maska v. Maska , 274 Neb. 629, 742 N.W.2d 492 (2007) ; Klimek v. Klimek, 18 Neb.App. 82, 775 N.W.2d 444 (2009) ; Neb. Rev. Stat. § 42–364(2) (Cum. Supp. 2014). When both parents are found to be fit, the inquiry for the court is the best interests of the children. Maska v. Maska, supra. Because the district court found that Linda and David were both fit parents, a finding that Linda does not challenge, we consider the children's best interests.

The best interests of a child require a parenting arrangement “for a child's safety, emotional growth, health, stability, and physical care and regular and continuous school attendance and progress.” Neb. Rev. Stat. § 43–2923(1) (Cum. Supp. 2014). The best interests of a child also require that

the child's families and those serving in parenting roles remain appropriately active and involved in parenting with safe, appropriate, continuing quality contact between children and their families when they have shown the ability to act in the best interests of the child and have shared

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