Opinion
No. A-11-068.
09-27-2011
JAMES C. HALLSTED, APPELLANT, v. MANDI R. HALLSTED, APPELLEE.
Andrea D. Miller, of Simmons Olsen Law Firm, P.C., Audrey M. Elliott, of Kovarik, Ellison & Mathis, P.C., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
HALLSTED V. HALLSTED
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 Dawes County: BRIAN C. SILVERMAN, Judge. Affirmed in part, and in part reversed and remanded with directions.
Andrea D. Miller, of Simmons Olsen Law Firm, P.C.,
Audrey M. Elliott, of Kovarik, Ellison & Mathis, P.C., for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. James C. Hallsted appeals from an order of the district court for Dawes County dissolving his marriage to Mandi R. Hallsted. James challenges the court's award of joint custody of the parties' children and its child support calculation. Based on the reasons that follow, we affirm in part, and in part reverse and remand with directions.
BACKGROUND
James and Mandi were married on September 9, 2000, and had two children: a daughter born in 2001 and a son born in 2003. On March 30, 2009, James filed a complaint for dissolution of marriage seeking sole custody of the parties' children. Mandi subsequently filed a responsive pleading and a cross-complaint also requesting sole custody of the children. On July 20, a temporary order was entered based on a temporary settlement agreement between the parties, ordering that the parties have joint legal and physical custody of the minor children, with the parties rotating physical custody on a weekly basis. This temporary order remained in effect until the date of trial.
Trial was held on October 25, 2010. The evidence showed that the son was born with a congenital heart defect which has required him to undergo four open heart surgeries and that he will eventually require a heart transplant. He takes numerous medications on a daily basis to help his heart function, and he has a pacemaker. He receives $608 per month in Social Security benefits for his disability, which benefits are paid to Mandi.
The evidence also showed that both parties are fit and proper parents to have custody, despite James' concerns about Mandi's parenting. James has concerns about Mandi and her live-in boyfriend smoking around the children, especially the son with his heart condition. The parties have been instructed by the son's doctor that the son not be around or have limited exposure to secondhand smoke. Mandi and her boyfriend are trying not to smoke in the home when the children are present. Mandi testified that it had been a couple of months since she last smoked in the home with the children present.
James testified that he is also concerned about the overall cleanliness of Mandi's home due to the fact that when she moved out of her former residence at the end of May 2009, it was very dirty and cluttered. Mandi testified that she was pregnant at the time and had been put on bed rest by her doctor. In addition, she testified that she had only a few days' notice that she had to move out so she had to quickly take what she wanted and what was left in the house was in disarray. Mandi also no longer has any cats or chinchillas in her home. Further, James has never been to Mandi's current home so he could not speak to its condition.
James also is concerned about the way the children are dressed when they are in Mandi's care. He claims that oftentimes their clothes are either too big or too small. The son's teacher testified that there was one instance where the son wore the same pair of pants to school for 3 days. The pants were too big, the teacher testified, so she tied some yarn around the waist because the son was having "a hard time keeping them up."
James also claims that Mandi gets frustrated with the children, lacks patience in dealing with them, and lacks interest in being with them. Mandi admitted that when she and James lived together, she would become frustrated and impatient with her children, but she said that she was depressed at that time and that she has now come out of that depressive state. A friend of the parties' also testified that she has observed a change in Mandi's demeanor since her separation from James in that she seems happier, more attentive to her children, and more patient with them. James admitted that he has not observed Mandi's parenting since the parties separated in March 2009.
On December 29, 2010, the trial court entered a decree dissolving the parties' marriage. The court awarded the parties joint legal and joint physical custody of the children, with each party's having the children for 1 week at a time on an alternating basis. The court further ordered James to pay $128.08 in monthly child support based on the Nebraska Child Support Guidelines.
James timely appeals.
ASSIGNMENTS OF ERROR
James assigns that the trial court erred in (1) ordering joint custody of the parties' minor children and failing to award him sole custody and (2) failing to include the son's Social Security benefits as income attributed to Mandi when calculating child support.
STANDARD OF REVIEW
In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion. Thompson v. Thompson, 18 Neb. App. 363, 782 N.W.2d 607 (2010).
ANALYSIS
Joint Custody.
James contends that the trial court erred in awarding the parties joint custody because he was not given notice that the court was considering awarding joint custody or an opportunity to be heard on the issue of joint custody.
Neb. Rev. Stat. § 42-364(3) (Cum. Supp. 2010) provides:
Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both, (a) when both parents agree to such an arrangement in the parenting plan and the court determines that such an arrangement is in the best interests of the child or (b) if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent.
In the present case, the parties did not agree to a joint custody arrangement. Rather, both parties sought sole custody of their children. The trial court conducted a hearing in open court which focused on custody. After considering the evidence, the court entered an order awarding the parties joint custody.
In Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007), the Nebraska Supreme Court determined that a trial court's authority under § 42-364(5) (Cum. Supp. 2006) to order joint physical custody when the parties have not requested it must be exercised in a manner consistent with due process requirements. In Zahl, supra, both parties sought sole custody of their child during divorce proceedings. The trial court first awarded the mother temporary custody, but then modified its temporary order and placed temporary custody of the child with the father. At trial, both parties testified that they did not communicate well, but the mother conceded that she would cooperate on a joint custody schedule if definite custody times were set forth. After trial, the court found that both parties were manipulative and did not get along, but that they each recognized the other as a fit parent and sought the best interests of the child. The court ordered joint custody.
On appeal, the Nebraska Supreme Court concluded that the father had not received adequate notice that the court might order joint custody or an adequate opportunity to present evidence on the issue. The court determined that "when a trial court determines at a general custody hearing that joint physical custody is, or may be, in a child's best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody." Zahl, 273 Neb. at 1054, 736 N.W.2d at 374.
This court has distinguished the Zahl case in a case similar to the one at hand, albeit in an unpublished opinion. In Jirsa v. Jirsa, No. A-07-669, 2008 WL 2835472 (Neb. App. July 22, 2008) (not designated for permanent publication), both parties sought sole legal and physical custody of their children. The trial court had awarded the parties temporary joint legal and physical custody, and following trial, the court entered a decree awarding the parties joint legal and physical custody.
On appeal, the father argued that the court erred in awarding joint custody because he was not put on notice that the court was considering a joint custody arrangement. We held that the case was distinguishable from Zahl, supra, because, unlike in Zahl, the temporary custody arrangement was joint custody. The court had ordered temporary joint custody despite the fact that neither party had requested joint custody. We held that it was reasonable to conclude that these circumstances put the parties on notice that the district court was contemplating joint custody as the permanent custody arrangement. We further held that the parties were given the opportunity at trial to present evidence on the issue of joint custody. We concluded that the father's due process rights were not violated by the failure of the court to hold a hearing that specifically addressed joint custody.
Although Jirsa, supra, is not binding precedent, it is factually similar to the present case and is instructive in our analysis. James and Mandi both sought sole custody in their pleadings, and the court awarded them temporary joint legal and physical custody. The parties had agreed to a joint custody arrangement on a temporary basis. They operated under this arrangement from July 20, 2009, until October 25, 2010, the date of trial, and it seemed to be working fairly well, despite the limited communication between the parties. Thus, it is reasonable to conclude that James was put on notice that the district court was considering joint custody as the permanent arrangement, especially given that the parties agreed to it on a temporary basis pending trial. In addition, as in Jirsa, supra, the parties were given the opportunity at trial to present evidence on the issue of joint custody. James was asked what type of parenting he would like to have if he was not awarded sole custody, to which he responded, "I would like to have no less than what I have now," i.e., every other week. Mandi also testified that if she was not granted full custody, she would continue to work on the joint custody arrangement.
We conclude that James received adequate notice that the trial court was considering implementing a joint custody arrangement and had an opportunity to present evidence on the issue of joint custody. Accordingly, the trial court did not violate James' due process rights when it ordered joint custody.
However, § 42-364(3)(b) (Cum. Supp. 2010) requires the court to make a specific finding that joint custody is in the best interests of the children regardless of parental agreement or consent for joint custody. The trial court's order does not contain an express finding that joint custody was in the best interests of the parties' children.
In Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007), in addition to concluding that the district court erred in ordering joint physical custody because due process requirements were not met, the court held that the district court abused its discretion by failing to specifically find that joint custody was in the child's best interests as required by statute. The Zahl court rejected the mother's argument that the district court implicitly found that joint custody was in the child's best interests, stating that implicit findings cannot satisfy procedural rules requiring explicit findings. The Zahl court compared the trial court's failure to make a specific finding on best interests to Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). In Torres, the Nebraska Supreme Court reversed a judgment of the Workers' Compensation Court for failing to make explicit findings as required by Workers' Comp. Ct. R. of Proc. 11 (1998), despite the review panel's conclusion that the factual findings were implicit in the order. The Torres court explained that "[w]ithout such findings, there can be no meaningful appellate review." 258 Neb. 863-64, 606 N.W.2d at 102. The same reasoning applies in regard to the requirement under § 42-364(3)(b) that the trial court make a best interests finding. See Zahl, supra.
As previously stated, in the instant case, the district court did not find that joint custody was in the children's best interests. The decree simply states: "The parties shall have joint legal and joint physical custody of the minor children. Each party shall have the children for one week in duration, exchanging the children on Sundays at 5:00 p.m. at the Dawes County Sheriff's office." Accordingly, the trial court erred by failing to specifically find that joint legal and physical custody was in the children's best interests as required by § 42-364(3)(b). Therefore, we reverse, and remand with directions to the trial court to amend its order to include specific findings whether the court's custodial decision now being appealed is in the best interests of the children.
Child Support.
James also assigns that the trial court erred in failing to include the son's Social Security benefits as income attributed to Mandi when calculating child support. The son receives Social Security benefits due to his heart condition, and the monthly payments are made to Mandi. The trial court did not take the Social Security benefits into account in any way in calculating child support.
In Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007), the father argued that the trial court erred in disregarding Social Security benefits paid on behalf of the youngest of four children when calculating the father's child support obligation. The Nebraska Supreme Court held that it is not appropriate to offset child support costs where the Social Security benefits are intended to mitigate the additional costs that accompany disabilities, and concluded that the trial court did not abuse its discretion when it disregarded the Social Security benefits. Thus, the trial court did not err here in failing to include the son's Social Security benefits as income attributed to Mandi when calculating child support. We affirm the lower court's child support calculation in this case.
CONCLUSION
We conclude that the district court erred by failing to specifically find that joint legal and physical custody was in the best interests of the parties' children as required by § 42-364(3)(b). We also conclude that the trial court did not abuse its discretion when it failed to include the son's Social Security benefits as income attributed to Mandi when calculating child support, and we affirm the district court's child support calculation. Accordingly, we affirm in part, and in part reverse the district court's judgment and remand the cause with directions to the district court to amend its order to include specific findings whether the court's custodial decision is in the best interests of the children. The specific findings shall be based on the record as it existed at the time this appeal was perfected. The matter is affirmed in all other respects.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED WITH DIRECTIONS.