Opinion
No. A-12-348
03-05-2013
JULIE MARIE ZIMMERMAN, APPELLEE, v. LYNN WILLIAM ZIMMERMAN, APPELLANT.
Kelly T. Shattuck, of Vacanti Shattuck, for appellant. Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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 Howard County: KARIN L. NOAKES, Judge. Affirmed in part, and in part reversed and remanded with directions.
Kelly T. Shattuck, of Vacanti Shattuck, for appellant.
Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz, for appellee.
INBODY, Chief Judge, and SIEVERS and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Lynn William Zimmerman appeals from the order of the district court for Howard County requiring that his parenting time with his three minor children be supervised and restricting his ability to operate a motor vehicle with the children in the car. He also argues that the court erred in calculating the amount of child support and unreimbursed medical expenses for which he is liable. We find no merit to Lynn's arguments regarding the restrictions on his parenting time; however, we find plain error in the calculation of the amount of child support and therefore reverse the judgment and remand the cause as to this issue.
BACKGROUND
Julie Marie Zimmerman and Lynn were married in 1992. Three children were born of that marriage: a daughter in 1998, a son in 2001, and another son in 2005. At the time of trial, all three children resided with Julie, and the parties agreed that Julie should retain physical custody, subject to Lynn's parenting time.
Lynn suffers from dementia, which according to Julie began in 2008 when Lynn developed a tremor in his hands. His daytime balance deteriorated as well as his memory. He began yelling and screaming during his sleep. During these episodes, he would break things, cutting himself in the process, and not remember what had happened. His symptoms progressed to the point he would have episodes in the evening where he would become violent and threaten the children. The next morning, he would not remember the incident. The final episode that caused Julie to file for dissolution occurred shortly after Christmas 2010. Lynn had been sleeping in a chair in the living room, and the children were playing with their Christmas toys. Lynn woke up screaming, and according to Julie, he threatened to kill the older son. He brandished a cane and then a baseball bat, threatening to break everything in the home. Julie and the children fled the house, and when Julie returned the next day, Lynn had no recollection of his actions.
Following this incident, Julie filed a complaint for dissolution. The parties separated shortly thereafter. She remained with the children in the family home, and Lynn moved to their ranch in Custer County.
The ranch is accessible by a 14-mile gravel road. At trial, Julie testified that she did not think it was safe for the children to ride in a motor vehicle operated by Lynn because he was involved in four accidents in less than a 1-year period. In August 2010, he wrecked his pickup in a ravine. Two hours later, Lynn was found in the ravine and he had no idea how he got there. He also flipped a hayrake 3 days after it was purchased, and in April 2011, he was involved in an all-terrain vehicle accident. Also in April, Lynn was charged with driving under the influence after he "rolled" a pickup and horse trailer.
Julie also expressed concern that Lynn owns several guns which are accessible to the children while at the ranch. She voiced concerns about Lynn's judgment and testified that she is concerned about the children's safety while with Lynn. Due to Lynn's dementia and his violent episodes, Julie requested that the court limit Lynn's parenting time to once a month and that it be supervised by a responsible adult. She also requested that Lynn not be allowed to transport the children.
Lynn confirmed that he has been diagnosed with dementia. According to him, Chief Industries terminated his employment in January 2009 because his doctor said that his dementia made him too high of a risk to continue employment with them. Although he suffered physical symptoms at that time, he stated that he received treatment at the Mayo Clinic in February 2009. Lynn said his physical condition improved following treatment and without the stress of his job at Chief Industries, and he denied having any residual symptoms. Julie stated that treatment at the Mayo Clinic and his termination of employment from Chief Industries occurred in 2010.
Lynn denied that he ever threatened the older son, and Lynn attributed the Christmas incident to a reaction he had to Julie's texting someone at 3 o'clock in the morning. He admitted, however, to having threatened that he would beat in the basement walls at that time. He further testified that he was a safe driver and that his dementia did not cause any driving problems for him. He testified that he had recently received a new driver's license and that his job running the family ranch requires him to haul heavy equipment on a daily basis, which he accomplishes without incident.
Lynn confirmed that he owns several guns, including a pistol and "[a] .270. A .22 shotgun. A BB gun." He denied, however, that he kept these weapons loaded, and he testified that he keeps most of them "hanging up on a wall" at the ranch. He requested that he be awarded unsupervised parenting time every other weekend and alternating holidays, along with 6 weeks in the summer. He further requested that he be allowed to operate a motor vehicle with the children in it.
Since the parties separated in February 2011, Lynn exercised parenting time in June, August, October, November, and December. According to Lynn, he has requested more time, but Julie always refuses, stating the children had activities that would not allow it. Their daughter refused to participate in the October visitation, so just their sons went. According to Julie, the older son started texting her and called three times later that night, beginning at 11 p.m. When Julie picked the children up the next morning, they were upset and scared.
Julie's mother testified that she lives less than a mile from Julie. In late 2010, Julie would call her two or three times a week between 9 p.m. and 2 a.m., asking her to come over. When she arrived, the children would be on the couch wrapped in blankets and Lynn would either be in his recliner staring at them or yelling at them and calling them names. Other times, Lynn would be asleep, muttering and flinching, as if he was having a bad dream. Occasionally, Julie would pack up the children and bring them to her mother's house in the middle of the night. On those occasions, the children would be hysterical and very scared.
Julie's mother also testified to an incident in 2009 following a school program. According to Julie's mother, the children wanted to go home with their cousins and Lynn would not let them. He swore at the children, told them to get in his vehicle, and pushed the older son into the vehicle. Julie's mother followed Lynn to the house and found the older son hiding in a tree grove.
Two men who lease pasture from Lynn testified in his behalf. One of the men testified that he sees Lynn at least three to four times per week; the other man testified that he sees Lynn about once a month. Both men have seen Lynn interact with his children and have never observed the children in any danger. Both men also testified that they have observed Lynn operating his pickup and never noticed him having any difficulties with that.
The parties stipulated that Julie's monthly income was $1,776 and that Lynn's monthly income, derived from work on the ranch and Social Security disability benefits, was $2,340. In addition, as a result of Lynn's disability, each child receives $223 monthly in Social Security benefits for a total of $669.
The trial court awarded Lynn parenting time one weekend per month from Friday evening to Sunday evening, conditioned upon supervision by a responsible adult. Lynn was also awarded parenting time for Easter, Fourth of July, Thanksgiving, and New Year's Day in odd-numbered years and Memorial Day weekend, Labor Day, and Christmas in even-numbered years. Julie was responsible for all transportation to and from parenting time. The court further ordered that Lynn not operate a motor vehicle with the children as passengers. The court awarded Julie child support of $1,012 per month and credited toward that amount the $669 per month in Social Security benefits, leaving a remainder of $343 per month for Lynn to pay. As the children reach majority, Lynn was to pay $452 per month for two children and $490 per month for one child. Julie was required to provide health insurance, as well as the first $480 in medical expenses not covered by health insurance. Any medical expenses in excess of $480 per child annually were to be divided equally between the parties.
Lynn timely filed this appeal.
ASSIGNMENTS OF ERROR
Lynn argues that the trial court erred in its award of (1) parenting time, (2) child support, and (3) contribution toward unreimbursed medical expenses of the minor children.
STANDARD OF REVIEW
Parenting time determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. Rosloniec v. Rosloniec, 18 Neb. App. 1, 773 N.W.2d 174 (2009). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and 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.
An award of child support is reviewed de novo on the record and will not be disturbed unless there is an abuse of discretion. Titus v. Titus, 19 Neb. App. 751, 811 N.W.2d 318 (2012).
Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, an appellate court may, at its option, notice plain error. Deterding v. Deterding, 18 Neb. App. 922, 797 N.W.2d 33 (2011). Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Id.
ANALYSIS
Parenting Time.
Lynn argues that Julie failed to present sufficient evidence to the court that Lynn's parenting time should be restricted. We disagree.
The best interests of the minor children are the primary consideration in determining parenting time. Neb. Rev. Stat. § 42-364(1) (Cum. Supp. 2012). As stated in Nebraska's Parenting Act, the best interests of the child require a parenting arrangement which provides for a child's safety, emotional growth, health stability, and physical care. Neb. Rev. Stat. § 43-2923 (Cum. Supp. 2012). Although limits on visitation are an extreme measure, they may be warranted where they are in the best interests of the children. Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001).
We note that Julie agreed Lynn should have parenting time with the children. She testified, however, based upon Lynn's past behavior, that she was concerned for the children's safety. According to Julie, Lynn's dementia caused him to behave erratically and sometimes violently. Julie's mother confirmed that Julie would call for her assistance three to four times a week anywhere from 9 p.m. to 2 a.m. Upon her arrival, she would find the children wrapped in blankets on the couch being berated by Lynn. The evidence further supports that Lynn had episodes in which he would be physically injured, but unable to recall what happened.
Although Lynn testified that his dementia does not cause any physical symptoms and that he is under less stress since leaving Chief Industries, many of the instances of violence to which Julie testified occurred in late 2010, after his Mayo Clinic treatment and termination of employment from Chief Industries. It appears Lynn's episodes occur during the evening or nighttime hours. In light of the remote area in which Lynn lives, combined with the children's young age, their safety and emotional well-being are in jeopardy if Lynn suffers an episode without another adult present. Given Lynn's unpredictable outbursts and the fact that he has no recollection of them afterward, we cannot say the trial court abused its discretion in ordering that a responsible adult be present during Lynn's parenting time. See Fine v. Fine, supra (finding no error in requirement that parenting time be supervised due to concerns of safety for children).
Prohibition Against Transportation.
Lynn argues that because none of his four accidents occurred while his children were present, the court should not have limited his ability to transport the children. We do not view this as a mitigating factor.
It appears from the record that Lynn did not have a recollection of how at least one of the accidents occurred. When he rolled his pickup and was found in the ravine, he did not know how he had gotten there. He attributes the happening of that accident to the medication he was taking at the time. He further attributes his lack of memory to having hit his head upon impact.
As to the all-terrain vehicle accident in April 2011, Julie testified that Lynn could only surmise that the injuries to his face and arms resulted from an all-terrain vehicle accident, although he testified at trial as to the specifics of that accident. As to his driving under the influence charge, Lynn admitted to drinking four "Clamatos" while driving because he was having a bad day. He stated the accident occurred when he dropped his cellular telephone and reached down to get it.
The evidence as to these accidents and the events surrounding them are in dispute. When evidence is in conflict, an appellate court considers, and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
In light of the trial court's order, it is apparent that the trial judge believed Julie's recitation of the facts regarding the accidents rather than Lynn's. One driving under the influence charge, alone, is not sufficient to prevent a parent from transporting his children, but Lynn's candid admission that he consumed alcohol while driving to compensate for a bad day, along with his inability to recall how an all-terrain vehicle accident occurred and how he ended up in a ravine following the pickup accident, raises sufficient concern for the safety of his passengers. Focusing on the children's best interests and safety, we cannot say that the trial court abused its discretion in restricting Lynn's ability to transport the children.
Child Support.
Lynn argues that the trial court erred in calculating child support. The parties stipulated that Julie's monthly income was $1,776 and that Lynn's monthly income was $2,340. In addition, each child receives $223 monthly in Social Security benefits for a total of $669. The court awarded Julie child support of $1,012 per month and gave Lynn a credit of $669 for the Social Security benefits. This resulted in a monthly payment from Lynn of $343 per month for the three children. As the children reach majority, Lynn was to pay $452 per month for two children and $490 per month for one child.
Lynn first argues that it was error for the court to order support in excess of the disability payments that Julie was receiving because that is the only amount awarded in the temporary order previously entered in February 2011. Lynn further argues that there was no evidence that this amount did not meet the children's financial needs. We find no merit to this argument.
A court will consider the status, character, and situation of the parties and attendant circumstances, including the financial condition of the parties and the estimated cost of support in determining the amount of child support to be awarded. Kellner v. Kellner, 8 Neb. App. 316, 593 N.W.2d 1 (1999). The law imposes no requirement that the amount of temporary support be the same as the amount finally ordered in a decree, nor is there any requirement that the amount of Social Security benefits be used as the determining factor in establishing child support. To the contrary, when the court is cognizant of the amount of Social Security benefits being paid and awards an amount in addition thereto, an appellate court will not reverse the award absent an abuse of discretion. See Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985). Considering the parties' incomes and the Nebraska Child Support Guidelines, it was not an abuse of discretion to award child support in excess of the amount of Social Security benefits.
Lynn next argues that the court erred in determining the amount of child support because the amount ordered puts him below the poverty level, in violation of the Nebraska Child Support Guidelines. Neb. Ct. R. § 4-218 (rev. 2012) states:
A parent's support, child care, and health care obligation shall not reduce his or her net income below the minimum of $931 net monthly for one person, or the poverty guidelines updated annually in the Federal Register by the U.S. Department of Health and Human Services under authority of 42 U.S.C. § 9902(2), except minimum support may be ordered as defined in § 4-209.
Lynn claims that his net monthly income is $1,876.84 and that when the child support award of $1,012 is subtracted, his net monthly income is "woefully below the basic subsistence level of $931 per month." Brief for appellant at 19.
We note that the parties stipulated to the monthly income and that those numbers accurately reflect the evidence as to Julie's earnings and Lynn's earnings plus his Social Security benefits. We further note, however, that each of the children receives $223 monthly in Social Security benefits as a result of Lynn's disability. Neither the parties nor the court included this amount when calculating income.
The Nebraska Child Support Guidelines require that "total monthly income should include, with certain exceptions, income derived from all sources. The Guidelines contemplate that income for purposes of child support may differ from taxable income and do not prevent consideration of tax-exempt benefits in determining the amount of a parent's income derived from all sources." Hartman v. Hartman, 261 Neb. 359, 364-65, 622 N.W.2d 871, 876 (2001) (referencing paragraph D of guidelines, renumbered and codified as Neb. Ct. R. § 4-204).
In Hartman, the court determined that Social Security benefits made to a child on account of the custodial parent's disability should be included in calculating that parent's income. In reaching this conclusion, the court determined that dependency benefits are based upon a parent's disability and her prior earnings; therefore, they are in lieu of a party's income. Id. Relying upon Riggs v. Riggs, 261 Neb. 344, 622 N.W.2d 861 (2001), the Hartman court reasoned that Social Security benefits made to a child on account of a parent's disability are not a "means-tested public assistance benefit" which are excluded under § 4-204 of the guidelines and therefore should be included as income when calculating child support.
By failing to include the disability payments, the court deviated from the guidelines. In general, child support payments should be set according to the guidelines pursuant to Neb. Rev. Stat. § 42-364.16 (Reissue 2008). A court may deviate from the guidelines only if it specifically finds a deviation is warranted based on the evidence. Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007). Absent a clearly articulated justification, any deviation from the guidelines is an abuse of discretion. Id.
The trial court did not articulate any reason for excluding the disability payments on behalf of the children; therefore, its deviation from the guidelines was an abuse of discretion.
Applying the Nebraska Supreme Court's instruction in Hartman, supra, we find that the trial court should have included in Lynn's income the amount of disability benefits paid on behalf of the children. We note that the child support calculations that the trial court attached to its decree included two sets of calculations; the calculations differed depending upon the number of exemptions each party claimed. The court then averaged Lynn's share of the obligation to determine the amount of child support he was required to pay. Adding the amount of the disability payments to the parties' combined net income, we arrive at the following calculations:
MOTHER CLAIMING THREE EXEMPTIONS AND
FATHER CLAIMING TWO EXEMPTIONS
+----------------------------------------------------------+ ¦ ¦Mother ¦Combined ¦Father ¦ +----------------------------+---------+---------+---------¦ ¦Monthly net income ¦$1,627.05¦ ¦$2,516.96¦ +----------------------------+---------+---------+---------¦ ¦Combined monthly net income ¦ ¦$4,144.01¦ ¦ +----------------------------+---------+---------+---------¦ ¦Percent contribution of each¦39.26 ¦ ¦60.74 ¦ +----------------------------+---------+---------+---------¦ ¦Support (table 1) ¦ ¦1,568.00 ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Health insurance ¦510.45 ¦ ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Total obligation ¦ ¦2,078.45 ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Monthly share ¦816.00 ¦ ¦1,262.45 ¦ +----------------------------+---------+---------+---------¦ ¦Credit for insurance ¦510.45 ¦ ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Rounded final share ¦306.00 ¦ ¦1,262.00 ¦ +----------------------------------------------------------+
MOTHER CLAIMING TWO EXEMPTIONS AND
FATHER CLAIMING THREE EXEMPTIONS
+----------------------------------------------------------+ ¦ ¦Mother ¦Combined ¦Father ¦ +----------------------------+---------+---------+---------¦ ¦Monthly net income ¦$1,585.14¦ ¦$2,574.71¦ +----------------------------+---------+---------+---------¦ ¦Combined monthly net income ¦ ¦$4,159.89¦ ¦ +----------------------------+---------+---------+---------¦ ¦Percent contribution of each¦38.11 ¦ ¦61.89 ¦ +----------------------------+---------+---------+---------¦ ¦Support (table 1) ¦ ¦1,579.00 ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Health insurance ¦510.45 ¦ ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Total obligation ¦ ¦2,089.45 ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Monthly share ¦796.29 ¦ ¦1,293.16 ¦ +----------------------------+---------+---------+---------¦ ¦Credit for insurance ¦510.45 ¦ ¦ ¦ +----------------------------+---------+---------+---------¦ ¦Rounded final share ¦286.00 ¦ ¦1,293.00 ¦ +----------------------------------------------------------+
Averaging Lynn's rounded final share of $1,262 and $1,293, we arrive at $1,277 as Lynn's monthly support obligation for three children. Although Lynn's current share of monthly child support is $1,277, he is entitled to a $669 credit for the Social Security benefits paid for the children. See Gress v. Gress, 257 Neb. 112, 596 N.W.2d 8 (1999).
In Gress, the Nebraska Supreme Court stated: "We have clearly established that a noncustodial parent is entitled to credit against a monthly child support obligation for Social Security benefits paid to his or her minor child as a result of the noncustodial parent's disability." 257 Neb. at 115, 596 N.W.2d at 12. Therefore, subtracting the $669 from $1,277, Lynn's current monthly contribution is $608.
Whether we use the total amount of child support for which Lynn is liable ($1,277) or the actual amount he is required to pay ($608), neither puts him below the poverty level. Lynn's argument to the contrary is without merit. However, having found that the trial court abused its discretion in failing to include the Social Security benefits on behalf of the children, we reverse the portion of the trial court's order setting the amount of child support to be paid by Lynn. And consistent with the calculations recited above, we remand the cause to the district court with directions to enter an order finding Lynn's obligation to be $1,277 per month, with a monthly credit of $669, for a total payment from Lynn of $608. For two children, the monthly obligation is $1,147, and for one child, the monthly obligation is $878. The amount of Social Security benefits paid should be subtracted from these amounts to arrive at Lynn's monthly contribution.
We recognize that Julie did not raise a cross-appeal requesting additional child support; however, we conclude that the trial court's failure to include the children's Social Security benefits in the child support calculations amounts to plain error. To leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Deterding v. Deterding, 18 Neb. App. 922, 797 N.W.2d 33 (2011). Having found plain error in the trial court's calculations, we are required to accurately calculate the amount of child support for which Lynn is responsible. See Phelps v. Phelps, 239 Neb. 618, 477 N.W.2d 552 (1991) (primary interest in determining the level of child support payments is best interests of children).
Unreimbursed Medical Expenses.
Lynn also argues that the trial court erred in ordering him to pay one-half of the children's unreimbursed medical costs because this will put him below the poverty level. There is nothing in the record to identify what these costs may be. Depending upon the children's needs, Lynn may be required to pay an amount that takes him below the poverty level. The speculative nature of these medical obligations, however, renders it unnecessary for us to comment on whether the court's order violates the guidelines. See Gress v. Gress, 274 Neb. 686, 742 N.W.2d 67 (2007).
CONCLUSION
Focusing on the best interests of the children, we determine that the trial court did not abuse its discretion in requiring supervision for Lynn's parenting time, nor did it abuse its discretion in restricting Lynn from operating a motor vehicle with the children in it. We therefore affirm this portion of the award. We find that failure to include the Social Security benefits on behalf of the children in the child support calculations constitutes plain error, and therefore, we reverse the award of child support and remand the cause with directions to enter an order consistent with this opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.