Opinion
No. A-11-223
10-18-2011
HEATHER MARIE LAMBERTZ, APPELLEE AND CROSS-APPELLANT, v. JASON MICHAEL KAUP, APPELLANT AND CROSS-APPELLEE
Brian J. Davis, of Berreckman & Davis, P.C., for appellant. Michael J. Synek for appellee.
LAMBERTZ V. KAUP
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 Dawson County: JAMES E. DOYLE IV, Judge. Affirmed.
Brian J. Davis, of Berreckman & Davis, P.C., for appellant.
Michael J. Synek for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
CASSEL, Judge.
INTRODUCTION
In this paternity action, the district court awarded Heather Marie Lambertz sole custody of her child fathered by Jason Michael Kaup. Kaup appeals, arguing that the court erred in not awarding joint custody, in reducing the amount of parenting time he had enjoyed under a temporary order, in failing to calculate child support using a joint custody calculation, and in determining his monthly net income. On cross-appeal, Lambertz urges us to find error in the court's order that each party pay his or her own attorney fees and costs. Because we cannot say that the district court abused its discretion in any of the respects alleged, we affirm.
BACKGROUND
The parties began living together in May 2008, when Lambertz moved into Kaup's house. Although they never married, they are the parents of a son, born in May 2009. The parties' relationship soured, and Lambertz moved out of Kaup's house in November.
In January 2010, Lambertz filed a complaint to establish paternity and requested custody of the child. Kaup filed an answer and amended counterclaim, the latter of which requested custody of the child or, in the alternative, joint custody. On February 26, the district court entered an order on temporary matters. It provided a division of the child's physical custody in which the parties alternated time with the child in three segments: Friday night to Monday morning, Monday night to Wednesday morning, and Wednesday night to Friday morning. The exchanges would occur after one party would drop off the child at daycare in the morning, and the other party would pick the child up from daycare in the evening.
On September 29, 2010, the court conducted a trial. There is no dispute that each party is a fit and proper person to parent the child. The child's daycare provider since October 2009 testified that the parties' daycare arrangement appeared to work well for the child. Lambertz agreed that under the temporary order, there had not been any arguments and that things had gone very smoothly. She did not feel that the schedule had harmed or negatively affected the child. Kaup liked the parenting arrangement under the temporary order, and he preferred for the child to be with Lambertz as much as possible according to that temporary schedule.
Lambertz testified that it was important for her to have sole physical custody so the child would have stability and not be "bouncing back and forth as often as he is." And she testified that prior to the parties' separation, she was the child's primary provider and took the child to his doctor appointments. Lambertz did not believe that an award of joint custody would be in the child's best interests because she did not think that the parties could effectively jointly parent the child. She did not feel the parties communicated effectively because a lot of Kaup's communication was via text message or e-mail, and she had difficulty checking her e-mail without Internet at her home. Lambertz testified that the parties had not been able to communicate and cooperate well in making major decisions for the child's welfare. For example, she testified about calling Kaup to tell him that the child's 1-year medical appointment was coming up and to keep the child on formula until after they had spoken to the doctor about switching the child to milk and Kaup informed Lambertz that he had already began giving the child milk. She testified that the parties also were unable to communicate and cooperate regarding the claiming of the child's dependency tax exemption--Kaup claimed the child on his tax return without discussing the matter with Lambertz. The parties also had not agreed on what church the child would attend. Lambertz testified that, contrary to the terms of the temporary order, Kaup had used daycare providers at times when Lambertz was willing and able to care for the child. She also felt that Kaup's discipline of her older son was inappropriate at times.
Kaup testified that he sought sole custody of the child because Lambertz had not informed him of things concerning the child and Kaup knew that he would keep Lambertz informed of such matters. He testified that in recent months, Lambertz had "gotten better" at keeping Kaup informed of all of the child's appointments. Kaup testified that text messaging was the best communication that the parties had, but that they could communicate through telephone calls in the future.
Kaup had concerns about medical issues with the child. Since entry of the temporary order, the child had seen a doctor 15 times with Lambertz' taking the child 13 of those times. It was determined that nothing was wrong following some of the appointments in which Lambertz had taken the child. Kaup was greatly concerned about one incident that he learned about after obtaining the child's medical records: Lambertz took the child to the doctor saying that the night before, the child had a 102.7 degree fever, that he quit breathing for 15 seconds, that his eyes rolled back, and that he stiffened up like a board. Lambertz did not take the child to the doctor until the next day because she said that when the child began breathing, she called the hospital and was told to either bring the child in or monitor him. Kaup testified that according to the records, the doctor stated that it could have been a febrile seizure and that a followup appointment may be needed. After a week, Kaup discovered that Lambertz had not scheduled an appointment. Lambertz testified that she took the child to the hospital on a Monday, that the doctor said to bring the child back on Thursday to have blood drawn, and that the doctor told her during the Thursday appointment to have the child's blood drawn again in 2 weeks. She did not immediately schedule the followup appointment because she wanted to be sure she had time available to take off work. Eventually, Kaup scheduled the followup appointment before Lambertz did. Kaup felt that he was "more capable of communication skills and going back and forth with each other and informing each other of what's going on."
Kaup owns a construction company and is self-employed as a contractor. He testified that he generally works 7:30 a.m. to 5:30 p.m. on Mondays through Fridays. During June and July, in order "to beat the heat," Kaup would work from 6:30 or 7 a.m. until 4 or 4:30 p.m. Lambertz testified that when the parties lived together, Kaup would work Monday through Friday and often would be up at 5 a.m. and get home at 6 or 7 p.m. He also worked weekends. One of Kaup's former employees testified that on weekends they usually worked from 7 a.m. to 6 or 7 p.m. The employee did not recall when he ceased working for Kaup and testified that it was possible that he had never worked for Kaup after the child's birth. Lambertz testified that Kaup's hours stayed about the same after the child's birth. Kaup testified that on average, he works 9 hours a day during a workweek. Kaup testified that he had reduced his work hours and that he no longer worked weekends.
On December 21, 2010, the district court entered a decree of paternity. The court found that both parties were fit and set forth an extensive discussion of its assessment of the factors bearing on the child's best interests, in which the court ultimately awarded Lambertz legal and physical custody of the child. The court granted Kaup parenting time including alternating Wednesdays from 6 p.m. until 8 a.m. the following Monday, alternating holidays, and extended summer parenting. The court ordered Kaup to pay child support of $782 per month. It ordered each party to pay his or her own costs and attorney fees.
Kaup timely appeals, and Lambertz cross-appeals. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
ASSIGNMENTS OF ERROR
Kaup alleges that the district court erred in (1) failing to grant joint custody of the child to the parties, (2) failing to allocate adequate parenting time, (3) calculating child support without using a joint custody calculation, and (4) determining his net monthly income.
On cross-appeal, Lambertz alleges that the court abused its discretion by failing to order Kaup to pay her attorney fees and costs.
STANDARD OF REVIEW
In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.
A trial court's award of child support in a paternity case will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. Drew on behalf of Reed v. Reed, 16 Neb. App. 905, 755 N.W.2d 420 (2008).
In a paternity action, attorney fees are reviewed de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Id. Absent such an abuse, the award will be affirmed. Id.
ANALYSIS
Joint Custody.
Kaup argues that the district court abused its discretion in not awarding joint custody to the parties. Although the court found that both parents were fit and that neither party was more fit than the other, the court awarded Lambertz sole custody. Kaup primarily relies upon his assessment that the shared custody arrangement under the temporary order appeared to be working. But, as Lambertz points out, she and Kaup never had to see each other under their temporary arrangement because the exchanges occurred at the daycare provider's location: one parent dropped the child off there and the other picked up the child from the same location. Further, as the district court found, the parties did not agree upon a method of communication. Lambertz preferred communication by telephone, while Kaup demonstrated a preference for text messaging. The district court found, and the evidence shows, that there was miscommunication between the parties in addressing the child's health care needs, including visits to doctors.
The district court's reasons for awarding Lambertz sole custody are not untenable. The court found that joint decisionmaking by the parties was not in the child's best interests "due to attitudes of each parent and the apparent irreconcilable differences between the parties as to the best methods and times for communication." The court conducted a best interests analysis and found that several factors weighed in favor of Lambertz. The court considered the relationship of the child to each parent prior to commencement of the action and found that it weighed marginally in favor of Lambertz because it appeared that the child had been more continuously cared for by Lambertz than by Kaup during the first few months of the child's life. The court also found that the establishment of an environment which adequately provided for the child's needs weighed in favor of Lambertz because Lambertz had an older son, which the court said was a positive element. The court further found that Lambertz' experience with her other child weighed in favor of her in the custody decision because Lambertz had already demonstrated that she can successfully raise a healthy child. We cannot say that the trial court's decision to award Lambertz sole custody of the child is an abuse of discretion.
Parenting Time.
Kaup contends that the district court abused its discretion in not allocating equal parenting time to him. He points out that the removal of any joint custody order did not require the elimination of his equal parenting time. A reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent, and the determination of reasonableness is to be made on a case-by-case basis. State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). Although the court awarded Kaup less parenting time than under the temporary order, Kaup received liberal and extended parenting time which included alternating Wednesdays from 6 p.m. until Monday at 8 a.m. Such parenting time allows Kaup and the child to preserve and foster a relationship, and we cannot say that it constitutes an abuse of discretion.
Calculating Child Support.
Kaup next claims that the district court erred in calculating his child support obligation without using worksheet 3. Under Neb. Ct. R. § 4-212 (rev. 2011), there is a rebuttable presumption that child support shall be calculated using worksheet 3 "[w]hen a specific provision for joint physical custody is ordered and each party's parenting time exceeds 142 days per year." Here, the court did not order joint physical custody. The court prepared a worksheet 3 calculation, which showed that the child was in Kaup's custody for 150 days of the year, and stated that it "considered the calculation of child support under [w]orksheet 3 as an indicator of the child support obligation due." After considering the amount determined by worksheet 3 and Kaup's parenting time, the court reduced Kaup's child support by 6 percent. Thus, on worksheet 5, the district court allowed a $50 deviation "[t]o account for [Kaup's] additional parenting time."
We find no abuse of discretion by the district court. Numerous parenting times with a child do not constitute joint physical custody. Drew on behalf of Reed v. Reed, 16 Neb. App. 905, 755 N.W.2d 420 (2008). Living with divorced parents is to be distinguished from cases in which the noncustodial parent has liberal parenting time. Id. In Drew on behalf of Reed v. Reed, supra, we concluded that the trial court abused its discretion in basing its child support calculation on a joint custody worksheet rather than a sole custody worksheet where the noncustodial parent's extensive parenting time was best described as liberal visitation. In the instant case, Kaup's parenting time is similarly best described as liberal visitation and the district court properly used a sole custody worksheet to determine Kaup's child support obligation. This assignment of error lacks merit.
Determination of Net Monthly Income.
Finally, Kaup argues that the district court erred in calculating his personal income, corporate income, and adding back depreciation which led to an incorrect calculation of his average gross monthly income to use in the child support calculation. The record contains Kaup's 2007, 2008, and 2009 personal income tax returns which show that his corporation paid him a salary of $6,000 per year. The record also contains the tax returns for Kaup's corporation for 2008 and 2009, which show that his corporation produced ordinary business income of $27,273 and $37,544, respectively. The corporation deducted depreciation of $10,053 in 2008 and $8,648 in 2009. The court determined that Kaup "had an average income, including depreciation, of between $45,000.00 and $50,960.00," and after considering all of the evidence, it found that Kaup had an earning capacity of $48,400 per year, or a gross monthly income of $4,033.
Kaup first contends that the district court incorrectly calculated his average gross monthly income. He asserts that adding the average amount of depreciation of $9,350 to the corporation's income range along with his $6,000 salary would create an income range of $42,873 to $52,894 which "would be an average annual income of $47,883.50 or a monthly gross income of $3,990.00." Brief for appellant at 41. The difference in the amounts used by the district court and urged by Kaup is only $43. This does not constitute an abuse of discretion.
Next, Kaup asserts that depreciation should not be added back into his corporate ordinary business income. Neb. Ct. R. § 4-204 provides:
Depreciation calculated on the cost of ordinary and necessary assets may be allowed as a deduction from income of the business or farm to arrive at an annualized total monthly income. After an asset is shown to be ordinary and necessary, depreciation, if allowed by the trial court, shall be calculated by using the "straight-line" method, which allocates cost of an asset equally over its useful duration or life. . . . A party claiming depreciation shall have the burden of establishing entitlement to its allowance as a deduction.Here, Kaup only provided 2 years' tax returns. And part of his burden to establish entitlement to a depreciation deduction is showing the court that the deduction does not represent artificial treatment of assets for the purpose of avoiding child support obligations. See Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). Kaup presented no evidence that the depreciation deduction was for ordinary and necessary expenses of doing business. We cannot say that the district court abused its discretion in adding back the corporation's depreciation in determining Kaup's monthly gross income.
. . . . Any party claiming an allowance of depreciation as a deduction from income shall furnish to the court and the other party copies of a minimum of 5 years' tax returns at least 14 days before any hearing pertaining to the allowance of the deduction.
Attorney Fees.
On cross-appeal, Lambertz claims that the district court abused its discretion by failing to order Kaup to pay her attorney fees and costs. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case. Drew on behalf of Reed v. Reed, 16 Neb. App. 905, 755 N.W.2d 420 (2008). Lambertz' argument places blame on the court for not receiving evidence of attorney fees; however, she offered no such evidence. We find no abuse of discretion by the district court in declining to speculate about the costs incurred by Lambertz and in ordering each party to pay his or her own attorney fees and costs.
CONCLUSION
Upon our de novo review, we find no abuse of discretion by the district court in declining to award the parties' joint custody, in determining Kaup's parenting time, in determining Kaup's child support obligation without using a worksheet 3, in determining Kaup's monthly income, or in ordering each party to pay his or her own attorney fees and costs. Accordingly, we affirm the district court's judgment.
AFFIRMED.