Glodowski v. Glodowski, No. A-06-201 (Neb. App. 3/6/2007)

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LISA M. GLODOWSKI, APPELLEE AND CROSS-APPELLANT, v. RICHARD A. GLODOWSKI, APPELLANT AND CROSS-APPELLEE.

No. A-06-201.

Nebraska Court of Appeals.

Filed March 6, 2007.

Appeal from the District Court for Colfax County: MARY C. GILBRIDE, Judge. Affirmed.

L.J. Karel, of Karel & Seckman, for appellant.

Pamela Lynn Hopkins for appellee.

IRWIN, CARLSON, and CASSEL, Judges.

IRWIN, Judge.

I. INTRODUCTION

Richard A. Glodowski (Rick) appeals the trial court's order regarding child custody and property division. He further asserts that the trial judge expressed a preference for granting custody to one parent based upon gender. Lisa M. Glodowski cross-appeals the court's order regarding visitation, child support, and property division. Because we find no abuse of discretion, we affirm the judgment of the trial court.

II. BACKGROUND

1. RICK AND LISA

Rick and Lisa were married on August 26, 1989. They had two daughters during the marriage: F.G., born in October 1990, and M.G., born in September 1993. During their marriage, Lisa and Rick resided on a farmstead acreage that they jointly purchased in 1990.

The record indicates that Rick has worked for Glodowski Trucking, Inc., for 18 years. Glodowski Trucking is a family-owned trucking business that hauls commodities and transports livestock and grain. In 1997, Rick and Lisa expanded facilities on their acreage to include a "farrowing-to-finish" hog operation, which the record indicates has been unprofitable. Since 1986, Lisa has worked as a nurse in the adult intensive care unit at an Omaha hospital. She is typically scheduled to work two 12-hour shifts a week, but tries to add extra shifts when they are available.

2. RICK'S AND LISA'S RELATIONSHIPS WITH F.G. AND M.G.

The record indicates that on the days Lisa worked, she would awake at 4:30 a.m., drive F.G. and M.G. to her mother's house, and pick them up between 9 and 10 p.m. Lisa testified that Rick was unable to watch the girls due to his work schedule. Once F.G. began school, Lisa's mother would take her to school when Lisa was working. Lisa testified that she has been "in charge of getting [F.G. and M.G.] to school and taking care of whatever they have for activities." Although Rick did not frequently take the children to school when they were younger, he took them to school "once in awhile" as they grew older. Currently, Lisa serves as the treasurer of the school board and has been involved with the school board for 5 or 6 years. She testified that she is also the parent who arranges for the children's sporting activities. F.G. and M.G. have been involved in sporting activities since first grade, including gymnastics, soccer, basketball, and volleyball. Lisa testified that she coached one of M.G.'s teams for 1 or 2 years and that she generally attends all of the girls' games unless there is a conflict with work. Over the years, Lisa enrolled F.G. and M.G. in religious classes and occasionally taught the children's classes.

Rick testified that he has always been involved in the children's lives. He testified that when they were "very young," he would take them with him in his truck. He testified that he bathed them, cooked for them, and changed their diapers. He went to their gymnastic events. Rick testified that he, F.G., and M.G. enjoy the following activities: "four-wheeling," hunting, target shooting, clothes shopping, and bike riding. Rick testified he feels that he is able to openly and honestly communicate with his daughters and that he has been able to "[s]ince they could talk."

3. 2001 AND 2002 SEPARATIONS

The record indicates that Rick and Lisa first separated in March or April 2001 and that Lisa, F.G., and M.G. moved to her parents' house. They stayed with Lisa's parents until the end of December 2001. In December, they returned to the acreage. Because Lisa and Rick continued to experience marital difficulties, Lisa and the children left the farmstead again in May 2002 and rented a house in town. Lisa testified that F.G. "gradually changed" during that summer. Lisa testified that F.G. did not want to speak with her and that because F.G. did not want to stay in town, F.G. returned to the farm to be with Rick. After F.G. returned to the farm, Lisa's relationship with F.G. worsened, causing Lisa and M.G. to move back to the farm that fall. Rick noticed changes in the family's relationships after Lisa moved to town in May 2002, and he testified that after May 2002, Lisa and F.G. did not communicate very well.

4. 2004 SEPARATION

Lisa filed a petition for dissolution of marriage in May 2004, seeking temporary and permanent custody of F.G. and M.G. and child support. Rick filed a cross-petition for custody. The trial court granted Lisa temporary custody and child support of $896 per month.

At trial, the evidence indicated that both Rick and Lisa had suffered from depression in the past, although neither was currently on medication or being treated for depression. Rick testified that he believed that the children had a "lack of trust" in Lisa because they had called Lisa's work on occasion and she had not been at work after saying she would be. Lisa testified that since the filing of the petition, she and Rick have been unable to agree on issues regarding their parenting. Lisa had been unwilling to get F.G. a cellular telephone for Christmas, and Rick gave F.G. a cellular telephone despite Lisa's disapproval. F.G. and M.G. generally arranged visitation with their father because Lisa and Rick did not speak to each other very often. Rick had recently arranged for F.G. and M.G. to get checking accounts without informing Lisa. Rick testified that he took F.G. to get her learner's permit and did not recall discussing the issue with Lisa. Rick enrolled F.G. in a "student transfer program" for her freshman year of high school. He testified that he had discussed the issue with Lisa in November or December 2004, but that they had never reached an agreement on transferring F.G. to a new school. When M.G. got into trouble for throwing rocks, Rick informed Lisa about the incident 1 week later.

Janell Weeks, a licensed mental health practitioner, testified that F.G. and M.G. were referred to her by the court due to their parents' divorce. She testified that she met with F.G. and M.G. and one parent at a time on seven occasions. Weeks testified that currently, the children had a stronger relationship with Rick, and that they made it very apparent that they were angry with Lisa. Weeks testified that the girls "must have a pretty close bond [with Lisa] to be able to treat [Lisa] this bad[ly] and be this rude with her because they know unconditionally even after all of that she will love them." Weeks testified that she felt that it was more important for Rick to have the girls aligned with him than it was for him to encourage them to have a healthy relationship with their mother. Theresa Stephens, a mental health therapist, also met with F.G. and M.G. on seven occasions. She testified that both girls felt anger toward their mother and that there were "trust" issues. Stephens testified that both girls felt they could speak openly with their father and that in her opinion, it would be in the children's best interests that Rick be granted custody.

Both F.G., age 14, and M.G., age 11, testified separately before the trial judge. Prior to each girl's testimony, the trial judge told a story about her own daughter. The trial judge informed the children that she was telling them the story so that they would understand the importance of having an open relationship with both parents. After the story, the trial judge then asked each girl to tell her the three best things about living with Lisa and the three best things about living with Rick.

In February 2006, the district court entered a decree of dissolution, awarding custody to Lisa. The trial court found, after observing the parties and the children, that joint custody would not be in the children's best interests. The trial court found that because the children had a strong bond with their father, Rick would be awarded a liberal visitation schedule of 5 consecutive days out of every 10 days. The trial court divided the marital estate equally between the parties, awarding Lisa the marital home subject to its mortgage, various bank accounts, Lisa's 401K plan, a joint certificate of deposit (CD) valued at $16,855, certain credit card debts, the hogs and feed, and the hog operating debt. The hog operating debt had existed as a renewable operating note through Rick and Lisa's bank. After the dissolution decree was filed, the parties did not renew the note when it came due in December 2004, and the note was paid in full by cashing in the $16,855 joint CD and by liquidating the hogs and feed. The trial court awarded Rick the trucking equipment and debt, the four-wheelers, and miscellaneous bank accounts and credit card debts. Rick was ordered to pay $674 per month in child support, retroactively commencing August 1, 2005. This timely appeal and cross-appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Rick has assigned four errors, which we consolidate for discussion to three. First, Rick asserts that the trial court erred in awarding custody to Lisa. Second, Rick asserts that the trial court indicated a preference that custody be awarded to one party over the other based upon gender. Third, Rick asserts that the trial court erred in using different dates to determine the value of the marital estate. On cross-appeal, Lisa has assigned four errors. First, Lisa asserts that the trial court erred in awarding liberal visitation that resulted in de facto joint custody. Second, Lisa asserts that the trial court erred in calculating permanent child support. Third, Lisa asserts that the trial court erred in ordering a retroactive reduction in child support. Fourth, Lisa asserts that the trial court erred in classifying, valuing, calculating, and distributing the marital...