Santillano v. Santillano-Escobar

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 Madison County: Mark A. Johnson, Judge. Affirmed as modified.

Andrea Finegan McChesney, of M | F Law Omaha, for appellant.

Melissa A. Wentling for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

INTRODUCTION

Oscar Santillano-Escobar appeals from a decree of dissolution entered by the district court for Madison County, which dissolved his marriage to Emma Santillano, divided the marital assets and debts, awarded custody of the parties' two minor children, and calculated child support. On appeal, Oscar asserts that the district court erred in awarding Emma the marital home and Oscar the rental home, failing to require Emma to refinance the marital home in her name only, awarding Emma sole physical custody of their minor children and giving her final decision making authority, and calculating child support based on sole custody to Emma. Upon our de novo review of the record, we find that the district court erred in failing to require Emma to refinance the marital home in her name only. We affirm the district court's order in all other respects.

BACKGROUND

Oscar and Emma were married on January 16, 2009, and two daughters were born of the union, one in 2010 and one in 2017. Emma filed a complaint for dissolution of the marriage in July 2019. The district court entered a temporary order in July, awarding temporary physical custody of the minor children to Emma, subject to parenting time in Oscar. The order temporarily granted Emma the use of the marital home, and Oscar the use of the rental home owned by the parties.

Trial was held in November 2020 and the following evidence was adduced. Two parcels of real estate were purchased during the marriage, the marital residence and a rental property. Each party requested that they be awarded the marital residence and the opposing party be awarded the rental home. Oscar is the only party listed on the mortgage for the marital residence. Emma has been paying the mortgage payment on the marital residence since Oscar left the home. She testified that she plans on refinancing the mortgage in her name and has a co-signer available, but Emma had not taken steps toward actually refinancing the mortgage. The rental property is mortgaged in both Oscar and Emma's names.

Emma requested that primary legal and physical custody of the children be awarded to her. She testified that she is not able to coparent with Oscar. Her relationship with her children is very close, and she described them as "momma's girls". Prior to the separation, Oscar worked outside the home, including overtime, and as a result, according to Emma, he was not present at home as much as she was. She stated that she was the primary caretaker, caring for the children when they were sick, and taking them to the doctor and school. As a result of Emma's caretaker role, she described the children as being "super attached" to her. Emma explained that following the extended summer visitation with Oscar following their separation, the older daughter needed counseling for depression and that counseling has been helping. She also stated that the children have a very good relationship with their half sibling, Emma's son from another union.

Oscar requested joint legal and physical custody with alternating weeks of parenting time. Oscar testified that prior to the separation, he and Emma worked together to help with the children; he assisted with the children after school, helping them with homework, making meals, and helping with baths. As of March 2020, Oscar took a different position with his employer that altered his work hours to 8 a.m. to 4:30 p.m. and reduced his opportunities for overtime, in order to have more time with his daughters including taking them to school. He testified that his relationship with his older daughter was "very good," "normal," and that his daughter was close to both him and Emma. After discovering that his older daughter was in therapy, he contacted both of her therapists, neither of whom gave him concern about her emotional well-being.

Oscar testified that the week on/week off summer visits went "good" and there were not any issues during the weeklong visits. He did ask Emma to stop texting the children as much during his parenting time because, according to him, she was texting them from the time they woke up until they went to bed. He explained that during the pendency of the case, he has asked for additional time with the children, but Emma repeatedly denied additional parenting time beyond what was court ordered. Both parties agreed that the primary mode of communication between them was via text. Oscar stated that he believed he and Emma could coparent the children, and that he could put aside their personal differences in order to do so.

The marriage was dissolved by decree on February 3, 2021. The district court found that both parents were fit and proper parents to be awarded the care, custody, and control of the minor children. Emma was awarded sole physical custody of the minor children, subject to alternating weekend parenting time with Oscar from Thursday evening to Monday morning. In determining the best interests of the children, the district court relied on the parties' difficulty in communicating and that Emma was the children's primary care provider prior to the separation. Based upon the sole custody worksheet, the district court ordered Oscar to pay child support of $446 when there are two minor children, and $273 when there is one minor child.

The district court awarded Oscar and Emma joint legal custody of the children. In the event the parties are unable to resolve their differences as to any decision involving the children, Emma was awarded the final decision-making authority to resolve the disagreement.

Emma was awarded the marital residence, subject to an existing mortgage of approximately $73, 000. Oscar was awarded the rental home, subject to an existing mortgage of $7, 000. Both parties were directed to hold harmless the other party regarding the financial obligations on the properties. Oscar appeals.

ASSIGNMENTS OF ERROR

Restated, Oscar assigns that the district court erred by (1) awarding sole physical custody of the parties' minor children to Emma, (2) awarding Emma with final decisionmaking authority despite awarding joint legal custody to both parties, (3) awarding Emma the marital home and Oscar the rental home, (4) failing to require Emma to refinance the marital home in her name only, and (5) determining the child support amounts without considering actual parenting times.

STANDARD OF REVIEW

In a marital dissolution action, 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. Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Id. An abuse of discretion occurs when the trial court's decision is based upon reasons that are untenable or unreasonable or its action is clearly against justice or conscience, reason, and evidence. Adams v. Adams, 13 Neb.App. 276, 691 N.W.2d 541 (2005).

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. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015); Kashyap v. Kashyap, 26 Neb.App. 511, 921 N.W.2d 835 (2018).

ANALYSIS

Sole Physical Custody.

Oscar assigns that the district court abused its discretion by awarding sole physical custody of the minor children to Emma, given that both parties were found to be fit and the best interests of the children would be served by having equal parenting time with both parents. We disagree.

Oscar argues the district court should have granted joint physical custody of the minor children because both parents are fit, have good quality relationships with the minor children, and no safety concerns existed related to the children. Physical custody is the authority and responsibility regarding the child's place of residence and the exertion of continuous parenting time for significant periods of time. State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019). Joint physical custody means mutual authority and responsibility of the parents regarding the child's place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time. Id.

All determinations of custody and parenting time are based on factors affecting the best interests of the child. Id. In determining the best interests of the child, the statutory factors that the court considers include: the relationship of the minor child to each parent; the desires and wishes of the minor child, if of an age of comprehension, but regardless of chronological age, when such desires and wishes are...