Kuchta v. Kuchta

Mary J. Kuchta, appellee, v. Andy J. Kuchta, appellant.

No. A-21-040

Court of Appeals of Nebraska

August 10, 2021

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 Wayne County: James G. Kube Judge.

Michelle M. Schlecht, of Copple, Rockey, Schlecht &amp Mason, P.C., L.L.O., for appellant.

Tracey L. Buettner, of Stratton, DeLay, Doele, Carlson, Buettner & Stover, P.C., L.L.O., for appellee.

Riedmann, Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

ARTERBURN, JUDGE.

INTRODUCTION

Andy J. Kuchta appeals from a decree of dissolution entered by the district court for Wayne County, which decree dissolved his marriage to Mary J. Kuchta, divided the marital assets and debts, awarded Mary sole legal and physical custody of the parties' four minor children, and ordered Andy to pay child support. On appeal, Andy asserts that the district court erred by awarding Mary sole legal and physical custody of their minor children, calculating child support based on sole custody to Mary, and in ordering Andy to pay 50 percent of the nonreimbursed health care costs beyond the first $480 per child per year for each of the children. Upon our review of the record, we find that the district court erred in ordering Andy to pay 50 percent of all unreimbursed health care expenses and modify the decree accordingly. We affirm the district court's order in all other respects.

BACKGROUND

Andy and Mary were married in August 2009. Four children were born during the course of the marriage: Daniel, born in 2010 Sarah, born in 2011; Rachel, born in 2013; and Elizabeth, born in 2016. On January 9, 2019, Mary filed a complaint for dissolution of marriage. In the complaint, she specifically asked that the parties' marriage be dissolved, that the marital assets and debts be equitably divided, that she be awarded primary physical custody of the parties' minor children, and that an order of child support be entered. Three months later, on April 16, Mary filed a motion for temporary custody and support. Therein, she asked that the district court enter an award awarding Mary custody of the children subject to reasonable supervised parenting time for Andy.

On May 1, 2019, after an uncontested hearing, the district court entered a temporary order awarding temporary custody to Mary. Mary was also awarded possession of the marital residence. Andy was awarded parenting time every other weekend from Friday at 6 p.m. until Sunday at 6 p.m. and one evening per week from 6 p.m. until 9 p.m. Andy did not file an answer until August 1. In his answer, he requested that the parties receive joint physical and legal custody of the children.

Trial was held on May 26 and October 13, 2020. The primary witnesses were Andy and Mary. In addition, Mary called the director of the daycare for their children. Andy called his sister, his mother, his sister-in-law, and a family friend as witnesses. After the first day of trial, the court entered an order providing for the parties to have equal parenting time for the summer of 2020 on a week on/week off basis. Once school resumed, Andy's parenting time reverted to the every other weekend with one evening a week schedule. We note that though supervised visitation was ordered in the May 2019 temporary order, Mary never required visits to be supervised.

When the parties married, Mary was an 8th grade math teacher in Norfolk Public Schools. She began working toward a Master's degree in 2010, obtaining it in 2013. Mary testified that during this period, Andy provided care for the children while she was studying or attending class. She became an assistant professor at Wayne State College in 2014. As a condition of employment, Mary was required to obtain a doctoral degree. She began work toward her Ph.D. in 2015 and finished it in 2019. Her program was primarily online, but did require attending class one night a week in Vermillion, South Dakota.

At the time of the marriage, Andy worked as a network administrator at a bank in Laurel, Nebraska, a job he had held since 2004. The parties lived in Randolph, Nebraska. Shortly after Mary obtained her position with the college, the family moved to Wayne, Nebraska. Andy was terminated from his position at the bank in July 2017. He then attempted to start his own technology startup business providing computer related services to clients and developing web-based products. He also worked on occasion for his father on his farm. During this period, the parties utilized savings to make up for the shortfall in income they experienced. The startup business was not successful. In February 2019, Andy obtained a job with the hospital in West Point, Nebraska, as a server administrator. That employment ended in October 2019. Since that time he has again tried to establish his own technology related business and has provided labor for his father's farming operation. As of the date of trial, his business had not yet provided sufficient income to meet expenses, resulting in Andy drawing money from his retirement account to fill the deficit.

Mary testified that she began to notice behavioral changes in Andy beginning in 2016. She explained that Andy became more distant from her, quieter, and paranoid. She provided an example that he told her that while he was at work, he could hear "them talking about him when he was in the office." Andy requested that she turn off her cell phone when she was not using it because he told her that somebody could listen to them through their cell phones. Mary also testified that there was an occasion when everyone at the bank was assigned a room or spot at the bank to clean and Andy spent the entire night cleaning a closet without coming home from work until the end of the next day. Mary explained that this behavior concerned both her and the bank. She also testified that Andy was staying at work late into the night on a frequent basis, thus spending less time with the children. When informed that Andy's job with the bank ended in July 2017, Mary did not believe that Andy left voluntarily. She confronted Andy about why his job ended and he told her, "I'm considering what Suzie said and I can't talk about it." She testified that she still does not know the specific reason why this job ended. Andy testified later in the trial that his job ended due to his asking bank personnel for references for another job. He testified that bank officers were aware of his hope to start his own business.

After Andy's job with the bank ended, he began to work on creating his own technology start-up business from home. During this time, Mary explained that despite working at home, Andy became more distant from the children. Mary testified that Andy offered to keep the two youngest children home while he worked, but Mary enrolled them in preschool or daycare to ensure that the children had structure and to minimize distractions for Andy. While working to establish his technology start-up, Andy would frequently work late into the night and sleep more during the day. The parties agreed that Andy should have 6 months to get his business launched. Thereafter, Andy asked for two 6-month extensions. During this 18-month period, Andy did not develop a marketable product. According to Mary, Andy completed one project for a client which he did for free. Andy stated that he did perform a few small side jobs, but reported little income. During this period, Mary was working full time as a professor, working to obtain her Ph.D., and was, in her view, providing the majority of the care for the children. Andy contended that he remained actively involved with the children.

The parties continued to live together for a period of time after the petition was filed in January 2019. Both testified that they hoped for reconciliation. After Andy obtained the job in West Point, he began attending weekly meetings of a professional organization in Fremont, Nebraska, at night. He also attended networking events and seminars in Lincoln, Nebraska, and Omaha, Nebraska, for people hoping to start technology related businesses. Both parties testified that Andy often did not get home until the early morning hours and then left for work by 6 a.m. Mary testified that this schedule did not allow Andy to spend time with the children. She testified that he often slept excessively on weekends after following this schedule. Andy testified that these activities were helpful to him to gain contacts and ideas for potential web-based products relative to his technology start-up business. He explained that the lateness of his arrival home was due to making frequent stops to avoid falling asleep while driving.

Mary also testified as to her concerns regarding Andy's parenting ability. While she conceded that Andy has been actively involved in the children's activities, she has been the primary contact for daycare, school, and extracurricular activities. Mary also explained that one child has an individualized learning plan which requires the parents to meet with the teachers, at least once per year. Andy did not attend these meetings. After the parties separated, Andy initially would not spend time with all four children at once. During Andy's parenting time, he would frequently call Mary asking for help with discipline or getting the children settled down to go to sleep. Mary worked with Andy to structure bedtime when the children were with Andy. According to Mary, when the children expressed that they did not want to go with Andy for parenting time, Andy would say, "you may ask whoever you wish." On the first day of trial, Mary testified that Andy had not taken all four children for a full weekend,...