Opinion
No. A-10-1017.
10-11-2011
Kent E. Jones, appellee and cross-appellant, v. Ruby Denise Jones, appellant and cross-appellee.
Kristi L. Hilliard and Sara Bockstadter, of Snyder & Hilliard, P.C., L.L.O., for appellant. Luke T. Deaver, of Person Law Firm, and David P. Broderick, of Waite, McWha & Schreiber, for appellee.
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 Lincoln County: DONALD E. ROWLANDS, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.
Kristi L. Hilliard and Sara Bockstadter, of Snyder & Hilliard, P.C., L.L.O., for appellant.
Luke T. Deaver, of Person Law Firm, and David P. Broderick, of Waite, McWha & Schreiber, for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Ruby Denise Jones appeals and Kent E. Jones cross-appeals from a decree of annulment in the district court for Lincoln County declaring the parties' marriage null and void. Ruby challenges the court's award of custody of the parties' minor child to Kent, the admission of certain evidence, the division of property, and the time limit set for trial. On cross-appeal, Kent challenges the court's deviation from the child support guidelines and the court's award of certain property to Ruby. Based on the reasons that follow, we affirm in part, and in part reverse and remand for further proceedings.
BACKGROUND
Ruby and Kent were purportedly married on March 3, 2006. The parties separated in November 2008, and on December 12, Kent filed a complaint for dissolution of marriage. On January 9, 2009, the trial court granted Kent temporary physical custody of the parties' minor child born in 2006. In the summer of 2009, Kent discovered that Ruby was never divorced from her previous husband. On September 4, Kent filed an amended complaint for annulment of marriage. Ruby subsequently filed an answer and cross-complaint.
A 2-day trial on Kent's complaint and Ruby's cross-complaint was held on August 19 and September 3, 2010. Prior to the commencement of trial, the trial court entered an order limiting each party to 6 hours of trial time. At trial, both parties testified and both called numerous witnesses to testify on each party's behalf. The evidence at trial focused on each party's parenting strengths and weaknesses, the division of the parties' property, domestic abuse by Kent, an attempted bigamy conviction of Ruby, and a charge of child endangerment against Ruby.
On September 14, 2010, the trial court entered a decree of annulment finding that "[the] marriage was null and void because [Ruby] had not obtained a decree of dissolution of her marriage from a prior husband in the state of Texas." The court found Ruby unfit to have custody and awarded Kent custody of the parties' child, subject to the right of reasonable visitation in Ruby. The court determined that based on the Nebraska Child Support Guidelines, Ruby would pay $513.09 per month in child support, but the court deviated from the guidelines and ordered Ruby to pay $150 per month in child support because "[Ruby] supports two other children without any support from the father." The trial court also divided the parties' property, but stated that it did not enter a property equalization judgment because the action was for an annulment rather than a dissolution of marriage action.
ASSIGNMENTS OF ERROR
Ruby assigns, restated, that the trial court erred in (1) restricting the amount of time to present the case, (2) finding her unfit to have custody of the minor child and not using the best interests of the minor child standard in determining custody, (3) relying on inadmissible evidence to determine custody, (4) failing to find Kent committed domestic intimate partner abuse, and (5) failing to distribute the assets and debts equitably.
On cross-appeal, Kent assigns that the trial court erred in (1) entering a child support order that deviated from the guidelines without good cause and (2) awarding Ruby property belonging to Kent's children from a previous marriage.
STANDARD OF REVIEW
We note that prior to this case, no Nebraska appellate court has discussed the interplay between the standard of review for an annulment of the legal status of the marriage itself vis-a-vis the standard of review for the ancillary issues related to an annulment such as child support, custody, division of property, et cetera.
First, Nebraska jurisprudence has clearly stated that an action to annul a marriage sounds in equity. As such, an appellate court reviews annulment cases de novo on the record. Hicklin v. Hicklin, 244 Neb. 895, 509 N.W.2d 627 (1994).
Second, is the question of what is the appropriate standard of review for the ancillary issues related to the annulment, such as those mentioned above. We conclude that the standard of review is de novo on the record to determine whether there has been an abuse of discretion by the trial court. We conclude this because Neb. Rev. Stat. § 42-373 (Reissue 2008) states that "[a]ctions for annulment of a marriage shall be brought in the same manner as actions for dissolution of marriage and shall be subject to all applicable provisions of sections 42-347 to 42-381 pertaining to dissolution of marriage . . . ." In actions for dissolution of marriage, 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. Myhra v. Myhra, 16 Neb. App. 920, 756 N.W.2d 528 (2008).
Having now determined that the standard of review for the status of a marriage in an annulment action is de novo on the record and sounds in equity and that the standard of review for ancillary matters in an annulment action is de novo on the record to determine whether there has been an abuse of discretion by the trial court, we move on to the analysis.
ANALYSIS
Limitation on Trial Time.
We first address Ruby's assignment that the trial court erred by limiting the time each party had to present their case. Ruby contends that there was not enough time to appropriately address each issue to its fullest. Before trial started, Kent filed a motion in limine requesting a time management order. Kent made this request in response to supplemental discovery answers served by Ruby 2 days before trial that identified a total of 40 witnesses to be called at trial. The motion was argued immediately prior to the start of trial. The court adopted a trial schedule where it limited each party to 6 hours of trial time.
It is undisputed that a trial judge has broad discretion over the general conduct of a trial. See Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008). We therefore review Ruby's claim for an abuse of discretion.
In Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994), a construction lien foreclosure case, the trial court allowed each party 10½ hours to present his or their case and used stopwatches to monitor the amount of time that had been used by each side. The Nebraska Supreme Court did not determine that the trial court abused its discretion by limiting the time the parties had to present evidence. However, it cautioned trial courts against the use of limitations on time and stated that "[s]uch methods of controlling the course of trial might well overly restrict the presentation of evidence and could prejudice a party's right to fully present that party's case." Id. at 30, 516 N.W.2d at 599.
In Gohl v. Gohl, 13 Neb. App. 685, 700 N.W.2d 625 (2005), a dissolution action, counsel both agreed on appeal that at trial they had to operate under severe time limits imposed by the district court. This court found that a review of the record revealed a hurried evidentiary presentation caused by the trial court's imposition of arbitrary time limitations. As a result, the record was incomplete and inadequate for the court to decide the issues presented on appeal. We recognized that arbitrary time limits can easily become the enemy of justice in our adversarial system, but also acknowledged that a trial court can impose reasonable time constraints on the conduct of trials. Id., citing Robison v. Madsen, supra. The Gohl court further suggested that if limitations are imposed, that it be done on the record with the court stating the reasons therefore. We concluded that the time limits imposed in Gohl were not reasonable as demonstrated by the record.
In the present case, in accordance with the guidelines set forth in Gohl, supra, the trial court noted its findings on the record by stating that it agreed with Kent that 40 witnesses were not necessary in this annulment action and that a time management order would be beneficial.
Even with the time limitation, the parties called a total of 29 witnesses, and upon our review of the record, each issue was thoroughly covered. Both parties knew what the set time limitation was when the trial started, and the time limitation required both parties to plan and manage their time and did not prejudice one party to the benefit of the other. We conclude that the trial court did not abuse its discretion in limiting the trial time for each party to 6 hours.
Ruby's Fitness to Have Custody.
Ruby next assigns that the trial court erred in finding her unfit to have custody of the minor child and not using the best interests of the minor child standard in determining custody. In regard to Ruby's fitness, the court stated as follows: "Taking into consideration all of the evidence in this case, I find that [Ruby] is not a suitable or fit person to have custody of the minor child." Despite this finding, the court found that the testimony of several witnesses called on behalf of Kent to testify in regard to Ruby's inability to properly parent the minor child was "substantially rebutted" by the witnesses called on behalf of Ruby. The court further noted that multiple teachers from the Sutherland School District testified that they had seen Ruby at sporting events with the minor child and her other children from a prior marriage and that the minor child was always properly supervised. The former principal and superintendent of the Sutherland School District also testified that Ruby does a good job of parenting, that there were no discipline problems with her children, and that her children were always clean, on time, and dressed appropriately. The court also acknowledged that from the minor child's birth until December 2008 when Kent was given temporary custody, Ruby was the primary caretaker of the minor child.
However, the court found Ruby unfit based on evidence that she had recently been convicted of attempted bigamy; that she had been fired from four jobs since 2005; and that in 2004, she was charged with driving under the influence, which was reduced to endangering a child, and she was put on deferred adjudication probation. Ruby argues that the evidence relied on by the court in concluding that she is unfit does not support a finding that she is unfit to have custody of the minor child, especially given the other evidence noted by the court showing that she is a good parent. Ruby also argues that the evidence in regard to the bigamy conviction and the endangering a child charge was inadmissible.
In regard to the attempted bigamy conviction, Ruby was charged as a result of her marriage to C.J. White that had not been dissolved when she married Kent. Ruby pled no contest and was fined $150. Ruby claimed that she thought she was divorced from White in the State of Texas. She called her former attorney as a witness, who testified that it was his fault that the dissolution of marriage in Texas was dismissed for lack of prosecution. The trial court found, however, that based on other evidence Ruby knew prior to entering into the purported marriage with Kent that she had not been divorced from White in Texas.
We conclude that the evidence of Ruby's attempted bigamy conviction was admissible to show that a ground for granting an annulment existed. Neb. Rev. Stat. § 42-103 (Reissue 2008) provides that "[m]arriages are void (1) when either party has a husband or wife living at the time of the marriage . . . ." Therefore, the attempted bigamy conviction was admissible to prove the statutory basis for the annulment action.
In regard to the endangering a child charge, the evidence shows that in 2004, Ruby was charged with driving under the influence and the charge was reduced to endangering a child. Ruby pled guilty, but the court deferred a finding of guilt and placed her on deferred adjudication probation for 10 years. In 2008, the court released Ruby from probation and dismissed her case.
Ruby argues that evidence of the charge was brought in through a private investigator's report, which was inadmissible hearsay, lacked foundation, and was not the best evidence. She also argues that evidence of the charge was inadmissible credibility evidence under Neb. Rev. Stat. § 27-609(1) (Reissue 2008).
The pertinent question, however, is not Ruby's credibility, but instead is her character as a potential custodial parent, and this question focuses our evidentiary analysis on relevance. In determining child custody issues, courts look at numerous factors, including the attitude and stability of each parent's character. See McDougall v. McDougall, 236 Neb. 873, 464 N.W.2d 189 (1991). Thus, Ruby, by seeking custody of the minor child, placed her character in issue. Character may be proved by testimony as to reputation or by testimony in the form of an opinion. See Neb. Rev. Stat. § 27-405(2) (Reissue 2008). Thus, evidence regarding the child endangerment charge was relevant to Ruby's fitness and the minor child's best interests. The court did not abuse its discretion in admitting this evidence.
We determine that although the evidence that Ruby challenges was admissible, such evidence when considered in conjunction with the evidence as a whole, does not support a finding that Ruby is unfit to have custody of the minor child. The reasons used by the court to find her unfit do not affect or have any bearing on her ability as a parent. The evidence of the attempted bigamy conviction and the endangering a child charge may be a consideration in determining best interests, but does not make her unfit to have custody. Accordingly, we reverse the trial court's determination that Ruby is unfit and remand the matter to the district court with directions to make a determination as to what is in the best interests of the child, based on the existing record.
Intimate Domestic Partner Abuse.
Ruby next assigns that the trial court erred in not finding by a preponderance of the evidence that Kent committed intimate domestic partner abuse. On this matter, the trial court stated that it had a "major concern" about "past domestic violence which may have been committed by [Kent]." It noted that based on the evidence, Kent was charged with first degree false imprisonment and third degree domestic assault in November 2008, but that the case was dismissed by the county attorney on December 7, 2009.
Neb. Rev. Stat. § 43-2932 (Reissue 2008) provides that if a preponderance of the evidence demonstrates that a parent who would otherwise be allocated custody has committed domestic intimate partner abuse, the court shall not order legal or physical custody to be given to that parent without making special written findings that the child and the other parent can be adequately protected from harm.
Ruby argues that there was sufficient evidence to show Kent committed domestic partner abuse and that the court should have made written findings that Ruby and the minor child can be adequately protected from harm before awarding Kent custody.
The record contains evidence of a domestic dispute that arose in November 2008, when Kent suspected that Ruby was cheating on him and he was trying to find out with whom she was cheating. There was evidence that Kent sat on Ruby until she could not breathe and then picked her up and carried her into the bathroom and would not let her out. During the altercation, Ruby's oldest child, who was born in May 1998, got a gun and was standing outside the bathroom and said he was going to use the gun if Kent did not let Ruby go. Kent exited the bathroom, got the gun away from the oldest child, and then put the gun to his own chin and told the oldest child that if he wanted him dead he could pull the trigger. Kent was arrested following the altercation and charged with first degree false imprisonment and third degree domestic assault. However, the charges were subsequently dismissed.
Based on the evidence presented in regard to the incident in November 2008, we conclude that such evidence showed by a preponderance that Kent committed intimate domestic partner abuse and that the trial court should have made written findings regarding whether Ruby and the minor child can be adequately protected, which it did not do. Upon remand, the trial court is to make such special written findings. These findings should be taken into account when the court considers the best interests of the minor child for custody purposes.
Distribution of Assets and Debts.
Ruby next contends that the trial court erred in failing to equitably distribute the parties' assets and debts. The court stated in its order that it did not enter a property equalization judgment because this case is an action for annulment rather than one for dissolution.
Section 42-373 provides that "[a]ctions for annulment of a marriage shall be brought in the same manner as actions for dissolution of marriage and shall be subject to all applicable provisions of sections 42-347 to 42-381 pertaining to dissolution of marriage . . . ."
Further, Neb. Rev. Stat. § 42-365 (Reissue 2008) provides that the purpose of a property division is to distribute the marital assets equitably between the parties. The court's distribution of assets awarded Kent a net award of $20,004.38 and awarded Ruby a net award of $3,563.30. Ruby would receive only about 15 percent of the parties' total assets under the trial court's decree. Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Klimek v. Klimek, 18 Neb. App. 82, 775 N.W.2d 444 (2009). Clearly, the district court's distribution is untenable because there is nothing in the record to justify such an unequal division of property, and the trial court gives no reason for such an unequal division, other than stating that this case is an action for annulment rather than one for dissolution. We conclude that the trial court erred in its distribution of the parties' assets and debts, and therefore, we remand the matter to the district court to equitably distribute the parties' assets and debts.
On cross-appeal, Kent assigns that the trial court erred in awarding Ruby property belonging to Kent's children from a prior marriage. At trial, when Kent was testifying as to how he wanted property to be divided, he testified that the items listed under section L, entitled "Plaintiff's Children's Items," on the property statement were items belonging to his children from a prior marriage and that he wanted the items for his children. In regard to these items, Ruby testified that only item 29 under section L, the "Little People barn and play set," belonged to the minor child. She did not dispute that the other items belonged to Kent's children. Despite the testimony regarding the items under section L, the trial court awarded all of the items to Ruby. Upon remand, the section L items, with the exception of item 29, should be awarded to Kent for the benefit of his children from a prior marriage.
Child Support.
On cross-appeal, Kent also assigns that the trial court erred in entering a child support order that deviated from the child support guidelines without good cause. The child support calculation attached and incorporated into the trial court's order resulted in a child support obligation of $513.09 per month. The trial court deviated from the guidelines and reduced the amount of support to $150 on the basis that Ruby supports two other children without any support from their father.
The child support guidelines are to be applied as a rebuttable presumption to both temporary and permanent support, and any deviation from the guidelines must take into consideration the best interests of the children. Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005). A court may deviate from the guidelines when one or both of the parties have provided sufficient evidence to rebut the presumption. Id.
The guidelines provide that a deviation is permissible whenever the application of the guidelines in an individual case would be unjust or inappropriate. Neb. Ct. R. § 4-203(E). The guidelines also allow for a deduction in determining monthly net income for biological or adopted children for whom the obligor provides regular support. Neb. Ct. R. § 4-205(E).
We conclude that although the court could consider Ruby's support of her other children when calculating child support under the guidelines, Ruby did not provide sufficient evidence to rebut the presumption that the guidelines should be applied. She did not ask for a deviation from the guidelines, and her own child support calculation that she presented to the court did not include a deduction for her other children for whom she provides regular support. Further, it was improper for the court to deviate from the guidelines on the basis that Ruby does not get any child support from her other children's father. The child support to be paid to Kent for the benefit of the minor child should not be based on whether White, the father of Ruby's other children, had paid any child support. Kent testified that Ruby told him that she intentionally did not seek child support from White in the past because she did not want White to know where she was living. The record further shows that in July 2010, a decree of dissolution was entered in the district court for Lincoln County ending the marriage between Ruby and White, and ordering White to pay $1,300 per month in child support.
Because Ruby did not provide sufficient evidence to rebut the presumption that the guidelines should be applied, the trial court erred in entering a child support order that deviated from the child support guidelines.
CONCLUSION
We conclude that the trial court did not err in limiting the time for trial and did not err in admitting evidence of Ruby's attempted bigamy conviction and child endangerment charge. We further conclude that the trial court erred in finding Ruby unfit to have custody of the minor child, in failing to find that Kent committed intimate domestic partner abuse, in failing to equitably distribute the parties assets and debts, and in entering a child support order that deviated from the guidelines without good cause. Accordingly, the judgment of the trial court is affirmed in part, and in part reversed and remanded for further proceedings consistent with this opinion.
Affirmed in part, and in part reversed and
remanded for further proceedings.