Opinion
No. A-11-237.
01-17-2012
LEANNE ROBEY, APPELLEE, v. ROBERT ROBEY, APPELLANT.
Robert Robey, pro se. Christopher Perrone and Michael Brewer, of Perrone Law, 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 Sarpy County: MAX KELCH, Judge. Affirmed in part, affirmed in part as modified, reversed in part, and in part vacated and set aside.
Robert Robey, pro se.
Christopher Perrone and Michael Brewer, of Perrone Law, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
SIEVERS, Judge.
Robert Robey appeals from an order of the district court for Sarpy County dissolving his marriage to Leanne Robey. He contests the court's order regarding visitation, child support, and property division. Pursuant to Neb. Ct. R. App. P. § 2-111(E)(6) (rev. 2008), we ordered that this case be submitted for decision without oral argument.
BACKGROUND
The parties were married on June 8, 1997. They are the parents of three children: twins born in January 2001, and adopted by the parties in November 2005, and a son born to the parties in January 2006. Leanne works as a registered nurse, and Robert worked for Omaha Public Power District (OPPD).
In November 2007, Robert was charged with 20 counts of possession of child pornography, each a Class IV felony, and with 1 count of first degree sexual assault, victim at least 12 years of age, but less than 16 years of age, a Class II felony. In January 2009, pursuant to a plea bargain, Robert pled guilty to seven counts of possession of child pornography, each a Class IV felony. He also pled no contest to one count of attempted first degree sexual assault, victim at least 12 years of age, but less than 16 years of age, a Class III felony. He was sentenced on April 3, 2009. His cumulative sentence is 15 to 37 years' imprisonment. The victim of the attempted sexual assault was a neighbor child, and Robert's children were in the room when the attempted sexual assault occurred--but whether Robert's children observed the attempted sexual assault is not clear from our record. Robert's criminal acts precipitated the divorce.
Leanne filed her complaint for dissolution in February 2008. In May, a temporary order was entered, placing custody of the children with Leanne, awarding supervised visitation to Robert, ordering Robert to pay child support in the amount of $400 per month, and ordering Robert to pay one-half of each child's unreimbursed health costs after Leanne paid the first $480 in such costs for each child. In June 2009, the court entered an order suspending Robert's temporary child support obligation of $400 per month until the time of trial in response to his motion requesting the suspension of support because in April, he was sentenced to a term of imprisonment, and because he did not have any income.
Trial was held on September 17 and December 17, 2010. Robert was represented by counsel on September 17, but appeared pro se on December 17. The only witnesses to testify at trial were Leanne and Robert's mother. Robert did not testify; however, his affidavit was received into evidence. Further details will be set forth as necessary in our analysis.
On February 4, 2011, the district court entered a decree of dissolution. In its decree, the district court incorporated by reference its separate "Findings and Opinion." Although the "Findings and Opinion" was signed by the district judge on January 3, 2011, it was not file stamped. The decree was signed and file stamped on February 4. We shall make no distinction between the "decree" and the "Findings and Opinion" and shall collectively refer to both as the decree. The district court dissolved the parties' marriage, determined custody and visitation issues, and divided the parties' marital estate. The court awarded sole custody of the children to Leanne, subject to the "supervised reasonable rights of parenting time" by Robert. Robert's parenting time was set forth as follows:
A. [Robert] shall have supervised parenting time as agreed to by the parties and the parenting time shall not be at a prison facility. All costs associated with supervised parenting time shall be paid by [Robert].The district court set off a $140,000 inheritance to Leanne as nonmarital property. Leanne was awarded the marital home subject to its mortgage; the 2004 Kia with a value of $4,900; the 2002 Ford "250" pickup with a value of $4,200; and all personal property held in her "separate capacity" and not otherwise disposed of by the decree. The court further awarded to Leanne, as property settlement and not as alimony, 50 percent of Robert's OPPD retirement account and 50 percent of Robert's OPPD pension fund. Leanne was ordered to pay a student loan in the amount of $26,062. Robert was awarded 50 percent of his OPPD retirement account; 50 percent of his OPPD pension fund; and all personal property held in his "separate capacity" and not otherwise disposed of by the decree. The court ordered that "any delinquent child support that has accrued through the date of the entry of a Decree in this case, less the offset of $4,250.00 for the Ford pickup, shall be preserved as a judgment" against Robert. The court further ordered that the medical debt for the parties' children incurred by Leanne in the amount of $1,104 should be divided equally between the parties, and Robert's share of $552 would be a judgment against Robert until paid in full. Robert was also ordered to pay $10 per month for child support. Other facts will be discussed in the relevant context. Robert's motion to alter or amend the decree was denied. Robert now appeals.
B. [Robert] shall have the right to telephonic visitation each day for a period not to exceed 15 minutes per telephonic visitation. The time of the telephone contact shall be agreed upon by the parties.
C. [Leanne] shall provide an e-mail address to [Robert] for contact with the minor children.
D. At [Robert's] cost, [Leanne] shall provide and allow video conferencing via the internet to [Robert] for contact with the minor children.
E. [Robert] shall have other reasonable parenting time as agreed to by the parties.
ASSIGNMENTS OF ERROR
Robert assigns that the district court erred in (1) ordering that Robert should have supervised parenting time as agreed to by the parties but also ordering that the parenting time shall not be at a prison facility; (2) ordering that, as an alternative to personal visits with the children at a prison facility, Leanne should provide an e-mail address and allow video conferencing via the Internet; (3) denying Robert's request for a continuance so that he could obtain and provide a deposition of his testimony; (4) awarding Leanne 100 percent of the marital assets; (5) determining that Robert was $8,800 in arrears in his child support obligation, and awarding the Ford truck to Leanne as an offset against the child support arrearage; (6) awarding Leanne one-half of Robert's pension and retirement plans; (7) setting a judgment in the amount of $552 against Robert for his half of a medical debt for the parties' minor children; and (8) failing to consider the issue of Robert's tools and to which party they should be awarded.
STANDARD OF REVIEW
An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Id.
ANALYSIS
Denial of Continuance.
Robert argues that the district court erred in denying his request for a continuance so that Robert could obtain and provide a deposition of his testimony at trial--he claims to have made the request for continuance at the hearing on December 13, 2011. We find that some procedural history will help put this issue in context.
Trial was held on September 17 and December 17, 2011. On September 17, Robert, who was incarcerated, did not appear at trial either in person or telephonically, but he was represented by counsel and counsel did appear and participate at trial on that date. Counsel asked for a continuance to allow Robert to participate in some way, appearing either telephonically or by making a deposition. A discussion was then had between counsel and the court about a miscommunication that occurred between Robert's counsel, the bailiff, and the judge a few days prior to trial. Before trial, Robert's counsel contacted the bailiff and inquired as to whether Robert could participate in the trial via telephone. The bailiff then apparently asked the judge whether "somebody can testify" telephonically, to which the judge replied no. The bailiff informed counsel that Robert could not participate via telephone, rather than that he could not testify by telephone. After the miscommunication was laid out at trial, the judge informed counsel that Robert could certainly appear telephonically--in the sense that Robert could "listen in" and communicate with his counsel. The judge stated that any testimony by Robert, however, would need to be done via deposition. The court gave defense counsel the opportunity to call Robert so that he could listen to that day's proceedings. Counsel, however, stated that if Robert was just going to listen, that counsel would get a "transcript" of the day's proceedings and give such to Robert before taking his deposition. The court ultimately proceeded with the trial that day, having Leanne present her case, but did grant counsel's continuance in part so that Robert's deposition could be taken.
On December 6, 2011, Robert's counsel filed a motion to withdraw as counsel, alleging that Robert had instructed counsel to withdraw and that Robert had filed various pro se pleadings with the court. At a hearing on December 13, Robert did not object to his counsel's withdrawing, and the court did allow counsel to withdraw (the record is unclear as to whether Robert appeared at the hearing in person or telephonically, but we presume he appeared telephonically). The court informed Robert that he would be allowed to participate in the trial to be held on December 17, but informed Robert that he could not testify over the telephone. When Robert asked if he would be able to make a deposition, the court informed Robert that he could make a deposition but that he only had until December 17. Robert then asked the court to allow him "sufficient time to learn or study the laws." The court denied Robert's request for more time because the matter had already been continued for 3 months. The court informed Robert that he could ask Leanne's counsel, who was not present at the hearing, to agree to a continuance. The court also informed Robert that he could file a motion to continue to be heard on December 17, and since Leanne's counsel would have notice of the motion, the motion could be taken up on December 17. There is nothing in the record showing or even suggesting that Robert asked Leanne's counsel to agree to a continuance or that Robert filed a motion to continue. Trial resumed on December 17 with Robert's appearing telephonically. On December 17, Robert did not offer his deposition or seek a continuance. He did, however, offer his affidavit, which was received into evidence over Leanne's objection.
The record reveals that at the hearing on December 13, 2010, Robert did not request a continuance so that he "could obtain and provide a deposition of his testimony at trial," as he now argues on appeal. Rather, he asked the court for "sufficient time to learn or study the laws pertaining." Thus, his motion to continue was for time to study the law, not to obtain a deposition. And an appellate court will not consider an issue on appeal that the trial court has not decided. Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008). That said, the trial court did not abuse its discretion in proceeding with the scheduled trial on this long-pending case despite Robert's request for time to study the law. This assignment of error is without merit.
Parenting Time and Visitation.
Robert assigns that the district court erred in ordering that he should have supervised parenting time as agreed to by the parties but also ordering that the parenting time shall not be at a prison facility. Robert also argues that the district court erred in ordering that, as an alternative to personal visits with the children at a prison facility, Leanne should provide an e-mail address and allow video conferencing via the Internet.
The evidence in the record is that Robert was convicted of seven counts of possessing child pornography and one count of attempted first degree sexual assault, victim at least 12 years of age, but less than 16 years of age. The victim of the attempted sexual assault was not one of Robert's children, but his children were in the room when the attempted sexual assault occurred--whether Robert's children actually witnessed the attempted sexual assault is unknown from our record. The district court found, "Ultimately the minor children became aware of this matter and the evidence indicated that [Robert's] conduct had a negative effect on their lives. [Leanne] indicated that the children have participated in counseling, and are presently handling the situation better." Despite the district court's finding, Leanne merely testified that the children "knew something inappropriate had happened" when the police came to the door "several days later" to arrest Robert. Leanne also testified that the time after Robert's arrest was "very difficult" on the children because "[a]ll of a sudden we didn't have some of the same relations we had with neighbors. Their father was out of the house. Everything changed in one day. Their world changed. . . . They had some behavior issues, but they are doing a lot better now." Leanne testified that "both," apparently two, of the children had seen therapists, presumably the twins, being the older children.
From our de novo review of the record, it appears that the children's difficulties stemmed from Robert's arrest, his subsequent absence from the family, and the effect the situation had on neighborhood relationships. The negative ramifications experienced by the parties' minor children were not shown to be specific or causally related to the specific crimes of which Robert stands convicted. Rather, such consequences are or could be the result of any criminal conviction of a parent resulting in incarceration such as a conviction for drug possession or theft. Thus, we cannot say that the nature of the crimes, standing alone, on this record, justify denying visitation. And we have said that visitation cannot be denied solely on the basis of a parent's being incarcerated. See Bruce v. Bruce, 11 Neb. App. 548, 656 N.W.2d 281 (2003).
Bruce, supra, was a divorce case in which the father was denied visitation with his minor children while he remained incarcerated. The father had previously had visitation with the children during his incarceration. However, at some point, the father was involved in an altercation at the prison and was placed into "lock-down"; as a result, the only way he could have visitation was in handcuffs and shackles. At the time of the hearing, the father was out of lock-down and no longer had to wear shackles and chains. When asked why she did not want the father to have visitation, and specifically asked whether the children had any problems while visiting their father, the mother did not testify that visitation had any adverse impact on the children. The mother only testified that she did not think such young children should have to see their father in handcuffs and shackles-- a situation which was no longer the case. In its decree, the district court ordered that the father was to have no parenting time until released from incarceration. On appeal, we reversed the district court's order and said:
Nebraska appellate courts have never upheld a trial court's denial of visitation where the record did not contain at least minimal evidence to support a determination that such denial was in the best interests of the children. In Casper [v. Casper, 198 Neb. 615, 254 N.W.2d 407 (1977)], the custodial parent presented testimony concerning the impact visitation with the incarcerated noncustodial parent had on the children. In Nielsen [v. Nielsen, 217 Neb. 34, 348 N.W.2d 416 (1984)], the custodial parent presented expert testimony that visitation with the incarcerated noncustodial parent would have an adverse impact on the children. Even such minimal evidence does not exist in the record presented to us.Bruce v. Bruce, 11 Neb. App. at 552, 656 N.W.2d at 284.
. . . Without any evidence at all to support a determination that visitation is not in the best interests of the children, the district court's order denying [the father] visitation solely on the basis of his incarceration is an abuse of discretion.
Similarly, in the instant case, Leanne did not present even minimal evidence that visitation with Robert would have an adverse impact on the children. She simply testified that she does not want the children to visit Robert because he is a convicted "pedophile, child molester"; he is in prison; and visitation will be "disruptive to our family, or schedules with activities." While these sentiments are likely only natural in these circumstances, they do not evidence any negative impact on the children from visitation in a prison setting. And, we note that the evidence shows that Robert had supervised visits with the children three times per week from the time of his arrest until his incarceration. However, Leanne presented no testimony concerning the impact such visitation with Robert had on the children, nor was there expert testimony that prison visitation with Robert would have an adverse impact on the children. Accordingly, we find that the district court's decree granting Robert "supervised parenting time as agreed to by the parties" but effectively negating such by ordering that "parenting time shall not be at a prison facility" was an abuse of discretion. We therefore order that Robert's supervised parenting time can occur at a prison facility, and we modify the decree as follows:
Robert's mother--the children's grandmother--previously supervised Robert's visitation with the children prior to his incarceration. She testified that she would be willing to transport the children for visits with Robert at the prison. The children currently live in Omaha, and Robert is housed at the Nebraska State Penitentiary in Lincoln, which she said is a 45-minute drive. Robert's mother also testified that she would be willing to work with Leanne's schedule for visitation. And in his brief, Robert recognized that "visits with his minor children at a prison facility would have to be scheduled so as not to significantly interfere with the structure [Leanne] provides in their home life, and for schooling and extracurricular activities." Brief for appellant at 23. Therefore, we order that Robert shall have one supervised visit per month with his minor children. Robert's mother shall be allowed to transport the children for visitation with Robert. And the monthly visit is to occur on a day and time as arranged between Leanne and Robert's mother, which visit, of course, must also comport with the penitentiary's visitation schedule for inmates.
We note Robert also argues that the district court erred in ordering that, as an alternative to personal visits with the children at a prison facility, Leanne should provide an e-mail address and allow video conferencing via the Internet. Robert argues that inmates are not allowed Internet access, and thus, the court's award of e-mail contact and video conferencing do not serve as a viable alternative to parenting time. We agree. The Nebraska Administrative Code provides that "[t]he Department of Correctional Services will not send or receive facsimile transmissions, telegrams, express mail, e-mail or any other electronic transmission of correspondence for an inmate." 68 Neb. Admin. Code, ch. 3, § 011 (2008). Despite the district court's error in ordering that Robert could have contact with the children via the Internet, communication which is prohibited by prison regulations, we have remedied the situation by awarding Robert one personal visit per month at the prison facility. For the sake of consistency and clarity, we vacate this provision of the decree.
Tools.
Robert argues that the district court erred in failing to consider the issue of Robert's tools and to which party they should be awarded. He further argues that "many of the tools were gifts from [Robert's] father and deceased grandfather" and thus implies that the tools are nonmarital property. See brief for appellant at 44. At trial, there was no evidence that the tools, other than a ratchet set, were Robert's nonmarital property. Therefore, the tools, with the exception of the ratchet set, are considered marital property. See Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006) (burden of proof to show that property is nonmarital remains with person making claim in dissolution proceeding).
At trial, Leanne testified that when Robert left the marital home, he took "[t]ools, [a] saw, whatever he wanted out of the garage," including his "work tools." She testified that "ratchets" were left at the parties' home and that she was willing to give those to Robert. Leanne testified that there was a nine-drawer toolbox left at the home which she was using and wanted to keep. In his affidavit which was received into evidence, Robert merely stated that "an equitable determination of the property of the parties hereto should grant to [Robert] all rights of possession of his tools" so that upon his release from prison he is "left capable of earning a living in his trade." No value was assigned to the tools by either party.
In its decree, the district court ordered that "except for the matters and property specifically set forth in this opinion, each party shall retain and maintain, free and clear of any claim thereon by the other, all personal property held in the separate capacity of each, and not otherwise disposed of by this Decree." Because the tools were not otherwise disposed of by the decree, they fell within the catchall provision set forth above. Therefore, each party was awarded whatever tools they had in their possession at the time of the decree. However, in his "suggestions to the court" received into evidence as exhibit 17, Robert stated that "the ratchet set is premarital" and had been his paternal grandfather's. Leanne did testify that some "ratchets" were left in the marital home and that she was willing to give those to Robert. Accordingly, we find that such ratchets should be, and hereby are, awarded to Robert.
Robert's Pension and Retirement Plans.
Robert argues that the district court erred in awarding Leanne one-half of his pension and retirement plans. In his brief, Robert argues that he should have been awarded 100 percent of his retirement and pension plans. We disagree because the pension and retirement plans were marital property. See Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006) (that portion of pension which is earned during marriage is part of marital estate). Although Robert argues in his brief that he began contributing to his OPPD retirement and pension plans 2 years prior to the marriage, there is no evidence in the record before us to support that argument. Thus, Robert has not met his burden of proof to have those 2 years' worth of contributions set aside as nonmarital property. See Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006) (burden of proof to show that property is nonmarital remains with person making claim in dissolution proceeding).
Robert further argues that Leanne is not entitled to any pension and/or retirement funds earned after the parties' separation in October 2007. The date upon which the marital estate is valued should be rationally related to the property composing the marital estate. Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002). And the trial court has broad discretion in valuing and dividing pension rights between the parties. Webster v. Webster, supra.
It is undisputed that Robert had an OPPD pension plan and an OPPD retirement plan. In its decree, the district court awarded Leanne 50 percent of both Robert's 457 retirement account and his retirement plan with OPPD and set forth the valuation date to be used regarding each account. The district court stated that it had "limited evidence as [to] how either of [Robert's] plans operate or the options available at the time of [Robert's] retirements such as whether the payout is in a 'lump sum' or monthly annuity." However, we find that the record contains rather comprehensive information as to what benefits can be taken, and when, from the retirement plan in the letter from the OPPD benefits manager that is in evidence. The district court noted that exhibits 5 and 22 reflect Robert's accumulated contributions and earnings in the 457 retirement account through December 13, 2010, and therefore, the court awarded Leanne 50 percent of Robert's "accumulated contributions and earnings plus interest" in the 457 retirement account as of December 13, 2010, to be divided via a qualified domestic relations order. The district court also noted that it was "advised" that Robert had a separate OPPD pension plan. The district court held that "in the event" that Robert has a separate pension plan, Leanne is awarded 50 percent of the marital portion of Robert's "accumulated contributions plus interest" in the pension account as of December 17, 2010 (which was the last day of trial). We believe that for clarity, the trial court's use of the predicate phrase "in the event" with reference to Robert's OPPD retirement plan is misleading in the sense that there is no doubt that Robert has such a plan. Attached to his affidavit that was received in evidence is a letter from OPPD's "Manager-Compensation and Benefits." This letter of September 4, 2009, is addressed to Robert and it explains that OPPD is "offering a new Cash Balance Option" to the retirement plan--which Robert could take advantage of if he was actively employed by OPPD on January 1, 2008. The record does not reveal whether Robert was so employed. But if he was, the letter explains that he can elect the "Traditional Option," which entitles him to a monthly benefit of $1,596.42 commencing at age 65. Alternatively, if employed on January 1, 2008, he could elect the "Cash Balance Option," which would give Robert "a benefit of $57,716.24 as of January 1, 2008, plus any contributions and interest through your separation date." These two options could appropriately be titled "cash out" and "annuity."
Despite the trial court's somewhat tenuous description of this retirement plan, the evidence shows that Robert has a retirement plan in addition to the 457 retirement account. And the trial court provided for a division, via a qualified domestic relations order, between Robert and Leanne of the retirement plan for both the "cash out" and the "annuity" options set forth in the benefits manager's letter that we earlier alluded to. The division was an equal division. And, although the district court did not specify the actual value of such accounts in its decree, that is no basis to change the division as each party was awarded an equal share.
The district court did not have any evidence before it as to the value of the pension and retirement accounts as of the date of the parties' separation. Furthermore, there is undisputed evidence that Robert took out a $20,000 loan against his 457 retirement account during the parties' separation which he had failed to repay at the time of trial. That, in addition to the fact that Leanne had been solely responsible for the household expenses and the children's expenses, given that she has received, and will continue to receive, a minimal amount of child support from Robert due to his incarceration, leads us to conclude that the district court did not abuse its discretion setting December 2010 valuation dates for both the retirement and pension accounts. Finally, we reject any claim that Leanne's award from the retirement accounts is improper. Robert will be unable to meaningfully support the children for a good number of years, and thus, the trial court gave Leanne 50 percent of these accounts to in some measure make up for the support that Robert will no longer be able to provide for his children. Any claim that this division is inequitable is without merit.
Child Support Arrearage and Truck Offset.
Robert argues that the district court erred in determining that he was $8,800 in arrears in his child support obligation and in awarding the Ford truck to Leanne to offset the child support arrearage.
We agree with Robert that the district court erred in determining that he owes delinquent child support in the amount of approximately $8,800. In an order filed on May 8, 2008, Robert was ordered to pay temporary child support in the amount of $400 per month, commencing on May 1. In an order filed on June 25, 2009, the district court entered an order suspending Robert's temporary child support obligation until the time of trial. At trial, the Department of Health and Human Services' child support payment history, received into evidence as exhibit 21, showed that Robert owed a total of $2,540.11 in outstanding child support as of November 10, 2010. Although Leanne testified that Robert was $8,800 in arrears in child support, her testimony was clearly wrong--such an amount would necessarily include an accruing monthly obligation during the 15 months that Robert's support obligation was suspended from July 2009 until trial commenced in September 2010. Accordingly, the determination by the district court that Robert was $8,800 in arrears was in error. Upon our de novo review, we find that Robert's child support arrearage was $2,540.11 as of November 10, 2010.
Robert further argues that the district court erred in awarding the Ford truck to Leanne to offset the child support arrearage. The district court awarded Leanne the "2002 Ford 250 pickup with a value of $4,250.00" to offset Robert's delinquent child support obligation. In his brief, Robert argues that the truck was not a Ford 250 valued at $4,250, but, rather, it was a Ford F-150 worth more than $9,000. We find that the court's description of the truck as a Ford "250" was a typographical error, as all of the evidence in the record shows that the truck was a Ford F-150. The only evidence in our record regarding the truck's value is found in exhibit 6, which was received into evidence via stipulation of the parties. Exhibit 6 is a computer printout from the Kelly Blue Book Web site showing that the trade-in value of a "2002 Ford F150 Regular Cab Short Bed" truck in "good" condition was $4,250 on September 17, 2010 (the first day of trial). As this was the only evidence of the truck's value provided at trial, the district court did not abuse its discretion in assigning such value to the truck. The question now is whether the district court abused its discretion in awarding Leanne the truck to offset the delinquent child support.
We find that the district court did not abuse its discretion in awarding Leanne the truck to offset the delinquent child support. Leanne has received, and will continue to receive, a minimal amount of child support from Robert due to his incarceration. Furthermore, given his incarceration, it is unlikely that Robert will be able to pay his delinquent child support anytime in the foreseeable future. Thus, the district court's award of the truck to Leanne to offset Robert's child support delinquency was a proper use of the court's equitable powers.
As stated above, the district court miscalculated Robert's child support arrearage. In its decree, the district court found that Robert's child support arrearage was approximately $8,800. Thus, even with an offset of $4,250 for the truck, Robert would still have a child support delinquency. The district court held that "[a]ny delinquent child support that has accrued through the date of the entry of a Decree in this case, less the offset of $4,250.00 for the Ford pickup, shall be preserved as a judgment against [Robert]." In actuality, because Robert's child support arrearage was only $2,540.11 as of November 10, 2010, the value of the truck ($4,250) exceeded the value of the arrearage by $1,709.89. Accordingly, there was no delinquent child support to "preserve as a judgment" against Robert, and we therefore vacate and set aside the entry of such judgment against Robert.
By awarding Leanne the truck to offset Robert's delinquent child support, she was effectively awarded an "extra" $1,709.89. However, the district court's award of the truck to Leanne was still not an abuse of discretion because the overall property division of the parties, which we will set forth later in this opinion, was still equitable.
Medical Debt.
Robert argues that the district court erred in awarding Leanne a judgment in the amount of $552 against him for his half of a medical debt for the parties' minor children. We agree. Leanne testified that the marital liability included a medical debt regarding their youngest child. A hospital bill, received into evidence as exhibit 10, shows an outstanding balance of $1,104.93. When asked by her own counsel if she wanted "all the debts of the marital estate" to be assigned to her, Leanne responded, "That is correct." Furthermore, in her "suggested distribution of marital property" received into evidence as exhibit 2, Leanne assigned the medical debt to herself. Because Leanne did in fact ask that the entire debt be assigned to her, we find that the district court abused its discretion in setting a judgment in the amount of $552 against Robert for his half of a medical debt. We reverse this portion of the district court's decree, assign the outstanding medical debt to Leanne, and vacate and set aside the judgment for unpaid medical expenses in the amount of $552 against Robert.
Division of Marital Assets.
Robert argues that the district court erred in awarding Leanne 100 percent of the marital assets. However, Leanne was not awarded 100 percent of the marital assets. Robert ignores the fact that he was awarded 50 percent of both his OPPD pension and retirement accounts which, as we found previously, was part of the marital estate. Therefore, we will review the district court's overall property division for an abuse of discretion.
Under § 42-365, the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). 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. Id.Millatmal v. Millatmal, 272 Neb. 452, 458-59, 723 N.W.2d 79, 86 (2006). After our de novo review of the record, we find that the district court did complete the three-step process and equitably divided the marital estate appropriately, considering the circumstances of the parties. However, because we have modified the decree in previous sections of the analysis, we have constructed our own table to illustrate the division of property and debts.
+--------------------------------------------------------+ ¦ ¦Leanne ¦Robert ¦ +-------------------------------+-------------+----------¦ ¦Value of the house ¦$228,055.00 ¦ ¦ +-------------------------------+-------------+----------¦ ¦2002 Ford F-150 truck ¦4,250.00 ¦ ¦ +-------------------------------+-------------+----------¦ ¦Reduction in child support debt¦ ¦$2,540.11 ¦ +-------------------------------+-------------+----------¦ ¦2004 Kia ¦4,900.00 ¦ ¦ +-------------------------------+-------------+----------¦ ¦OPPD retirement account ¦50% ¦50% ¦ +-------------------------------+-------------+----------¦ ¦OPPD pension fund ¦50% ¦50% ¦ +-------------------------------+-------------+----------¦ ¦Mortgage ¦(213,260.00) ¦ ¦ +-------------------------------+-------------+----------¦ ¦Student loan ¦(26,062.00) ¦ ¦ +-------------------------------+-------------+----------¦ ¦Medical debt for parties' minor¦ ¦ ¦ +-------------------------------+-------------+----------¦ ¦children (hospital bill) ¦(1,104.93) ¦ ¦ +-------------------------------+-------------+----------¦ ¦NET ESTATE ¦($ 3,221.93)*¦$2,540.11*¦ +--------------------------------------------------------+ *The value of the net estate awarded to each party does not take into account the actual value for each party's 50 percent of the OPPD retirement plan and the 457 plan. Thus, although it appears that Leanne's portion of the net estate is a negative value, it is not. However, from the information in the record, her portion of the net estate is $5,762.04 less than Robert's portion of the net estate--and the unknown values for retirement plans are still equally divided.
Although Leanne was awarded the lion's share of the parties' marital assets, she was also given all of the parties' debt. Furthermore, there is undisputed evidence that Robert took out a $20,000 loan against one of the accounts during the parties' separation which he had failed to repay at the time of trial--essentially $20,000 of marital assets he used for his own purposes. A very material consideration in making an equitable division in this case is the fact that Leanne has been solely responsible for the household expenses and has received, and will continue to receive, a minimal amount of child support from Robert due to his incarceration. Accordingly, we conclude that the division of property was more than reasonable to Robert.
CONCLUSION
For the reasons stated above, we find that the district court's decree granting Robert "supervised parenting time as agreed to by the parties" but stating that "parenting time shall not be at a prison facility" was an abuse of discretion. We therefore order that Robert's supervised parenting time can occur at a prison facility, and modify the decree so that Robert shall have one supervised visit per month with his minor children. Robert's mother shall be allowed to transport the children for visitation with Robert. And the monthly visit is to occur on a day and time as arranged between Leanne and Robert's mother--although we note that the visitation must also comport with the penitentiary's visitation schedule. We therefore modify this portion of the decree.
We find that the district court did not abuse its discretion in awarding to each party any tools they had in their possession at the time of the decree. However, we find that the ratchets should be, and hereby are, awarded to Robert. We therefore affirm this portion of the decree as modified.
We find that the district court did not abuse its discretion in awarding each party 50 percent of the OPPD retirement and pension accounts. We further find that the district court did not abuse its discretion in setting December 2010 valuation dates for both the retirement and pension accounts. We therefore affirm this portion of the decree.
We find that the district court erred in determining that Robert was $8,800 in arrears in his child support obligation. Upon our de novo review, we find that Robert's child support arrearage was $2,540.11 as of November 10, 2010. We further find that the district court's award of the truck (valued at $4,250) to Leanne to offset Robert's child support delinquency was a proper use of the court's equitable powers. However, because the value of the truck ($4,250) exceeded the value of the child support arrearage, there was no delinquent child support to "preserve as a judgment" against Robert, and we therefore vacate and set aside the entry of such judgment against Robert.
We find that because Leanne asked that the entire medical debt to the hospital be assigned to her, the district court abused its discretion in setting a judgment in the amount of $552 against Robert for his half of a medical debt. We reverse this portion of the district court's decree, assign the outstanding debt to the hospital to Leanne, and vacate and set aside the judgment in the amount of $552 against Robert.
Finally, we find that the division of property, as modified herein, was more than reasonable to Robert, and we affirm it as modified.
AFFIRMED IN PART, AFFIRMED IN PART AS MODIFIED,
REVERSED IN PART, AND IN PART
VACATED AND SET ASIDE.