McNulty v. NcNulty

Citation: Not availableDocket: A-21-446

Court: Nebraska Court of Appeals; March 7, 2022; Nebraska; State Appellate Court

Original Court Document: View Document

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Sean T. McNulty appeals a decree from the Dawson County District Court that dissolved his marriage to Makayla N. McNulty. He argues that the court erred by denying his motion to dismiss for lack of subject matter jurisdiction and for a change of venue. Additionally, he contests the custody and parenting time arrangements and the classification of a house in Kimball, Nebraska, as marital property. 

Makayla initiated the dissolution proceedings on September 20, 2019, claiming residence in Dawson County, while Sean argued that she was not a resident and that the case should be filed in Cheyenne County. The district court rejected Sean’s motion. Subsequently, in December 2019, the court granted joint legal custody of the children to both parties, awarding temporary physical custody to Makayla and establishing a parenting schedule for Sean, alongside a temporary child support order of $1,509 monthly.

In January 2020, Sean filed an answer and cross-complaint seeking custody and equitable distribution of marital property. A stipulation in March 2020 modified the child support amount to $1,092. The trial occurred over two days in March and April 2021, with several witnesses testifying remotely. 

The appellate court affirmed the district court's decisions.

Makayla, 27, and Sean, 33, provided testimonies regarding their relationship and parenting roles during the trial. Makayla is employed at a law firm in Gothenburg, working approximately 40 hours per week, while Sean works as a substation technician for the federal government, with a four-day workweek consisting of 10-hour shifts. Makayla claimed to be the primary caregiver for their children, stating she handled most childcare tasks and characterized Sean's involvement as minimal, noting he would become overwhelmed when left alone with the children. In contrast, Sean described their parenting as collaborative and equal, asserting they understood their respective roles.

Both parents acknowledged using spanking as a form of discipline, though Makayla expressed discomfort with the severity of Sean's methods. They provided differing accounts regarding the use of a spanking stick; Makayla stated she used it only once, while Sean claimed it was frequently employed by her. Makayla highlighted that during their marriage, Sean often withdrew communication as a coping mechanism during conflicts, which she felt negatively impacted their parenting dynamic. She noted that he would undermine her authority in front of the children, making derogatory comments about her, which she characterized as verbal and emotional abuse, occurring regularly and witnessed by the children. Sean denied making negative comments about Makayla in front of the children and refuted her allegations of verbal abuse.

On September 19, 2019, Makayla intended to leave with her children for Gothenburg, asserting that her plans were communicated to Sean. Sean claimed ignorance of her departure plans and threatened to call the police, alleging kidnapping when he attempted to take Blake. Makayla called Sean's mother for assistance, which helped calm the situation. After leaving, Makayla filed for divorce the following day and quit her job. Sean testified about his plans for the weekend, noting he would be at a motocross event while Makayla and the children attended a local festival. He expressed shock over the divorce filing and found that Makayla had removed her and the children's belongings upon his return.

Makayla currently lives with her parents, who assist her with childcare, especially after school for Blake. She plans to remain in Gothenburg but has not moved out of her parents' home due to the divorce. Sean described his weekends with the children as filled with activities, claiming Makayla rarely attended their events, while she argued that travel and scheduling conflicts hindered her participation. Makayla observed behavioral changes in Blake following his weekends with Sean and expressed concerns about the impact of frequent transitions on the children. She advocated for primary custody and suggested a modification of Sean's parenting time to every other weekend, with a more flexible schedule during the summer.

Sean argued for physical custody of the children, believing it would create a better environment for them while maintaining joint legal custody, which he considered fair. He proposed a parenting plan that mirrored the existing temporary order, allowing Makayla parenting time on the first, second, and fourth weekends of each month. Sean's mother expressed her willingness to provide daycare if he gained custody. 

Troy Franzen, Makayla's father, testified that since September 2019, Makayla and the boys lived with him and his wife, Heather, in Gothenburg. He noted that Makayla primarily cared for the children, while he and Heather contributed by managing meals and school routines. The children had separate rooms, although Bennett preferred to sleep with Blake. Troy praised Makayla as an excellent parent, emphasizing her dedication and close bond with the boys. 

Troy observed that after spending weekends with Sean, Blake exhibited behavioral changes, becoming difficult to discipline upon returning home. Michelle Ostergard, a preschool teacher, corroborated this behavior, noting that Blake would act out after visits with Sean, although she acknowledged that such reactions are common in similar situations. Bennett, however, continued to attend daycare regularly without issues.

Jamie Slonecker, a licensed mental health practitioner, testified that she worked with Blake to address behavioral concerns stemming from the parents' separation. Makayla sought her assistance to help Blake express his feelings and establish structure. Slonecker found no concerns regarding Makayla's parenting and had never met Sean.

Sean called four friends as witnesses, all attesting to his love for his children and observing no parenting concerns. One friend noted that both Sean and Makayla provided different types of parenting; Sean was seen as the fun parent, while Makayla was more maternal. 

Regarding financial matters and property ownership, Makayla testified that she and Sean lived together in Colorado from summer 2013 to 2016 and filed taxes as if they were in a common law marriage for 2014 and 2015. Sean disputed the notion of holding themselves out as husband and wife, acknowledging only that they filed taxes together. They maintained separate finances, with no joint bank accounts, and purchased a house in Colorado in 2014, although Sean was uncertain if Makayla was on the mortgage. He confirmed that he solely paid the mortgage.

In 2016, after their marriage, they bought a house in Sidney, Nebraska, with Sean's name on the title and loan, which he stated was beneficial for securing a better interest rate. Makayla's income went into a joint account, while Sean's paycheck went into his separate account.

Concerning a house in Kimball, purchased for Sean’s parents shortly before their wedding, Makayla indicated that Sean likely made payments on it during their marriage, although his parents rarely paid rent. The court confirmed that the house was bought a few months before their wedding, with Sean paying $19,500 in cash for it, asserting that he never had a mortgage on that property. A Special Warranty Deed for the Kimball house was entered into evidence, showing the transaction details.

Sean confirmed that all his assets predated his marriage, including ownership of the Kimball house, which he described as a "deep fixer-upper" with no value increase since purchase. His parents had a flexible verbal rent-to-own agreement with him for the house. Makayla valued the Kimball house at $50,000 based on the county assessor's 2020 valuation. 

The district court's decree on April 29, 2021, dissolved the marriage and divided the marital estate, awarding Makayla $45,800 for property and debt equalization. The court deemed the Kimball house marital property and awarded Makayla legal and physical custody of the children, with Sean granted specific parenting time and a child support obligation of $1,097 per month, retroactive to April 1, 2021. An arrearage of $2,555.29 was established against Sean, and he was ordered to pay $1,000 in attorney fees to Makayla. Sean is appealing the decision.

In his appeal, Sean did not properly assign errors according to appellate rules, which may limit the court's review to plain error. He challenges the court's jurisdiction, custody and parenting time decisions, and the classification of the Kimball house as marital property.

Subject matter jurisdiction in the dissolution action was established as the district court possesses general, original, and appellate jurisdiction in civil matters unless stated otherwise by law. The relevant statutes dictate that dissolution actions must be filed in the district court of the county where at least one party resides. The Nebraska Supreme Court clarified that jurisdiction can only be acquired if one party is a resident of the county at the time the petition is filed. Both parties in this case were residents of Nebraska for the requisite duration prior to filing, allowing the action to be initiated in the county of residence.

The court also noted the authority to investigate and render judgments regarding various aspects of the marriage, including custody, support, and property rights under applicable statutes. Although jurisdiction is a legal question, findings on factual disputes must be upheld unless clearly erroneous. The district court correctly found that one party was living in Dawson County at the time of filing, confirming the court's jurisdiction.

Sean’s request to change the venue was evaluated under the provision allowing transfers for convenience. The district court determined that Dawson County was not inconvenient, and thus, Sean’s motion to dismiss for lack of jurisdiction or change of venue was denied without error.

Sean argues for custody of the children or, alternatively, an additional weekend of parenting time each month. The court prioritizes the child's best interests in custody matters, guided by Nebraska law. Key factors considered include the child’s relationships with each parent, the child’s wishes, their health and welfare, and evidence of any abuse. 

The district court assessed various elements before making its decision, concluding that Makayla was the primary caregiver and had a stronger bond with the children than Sean. Concerns about Sean included his history of physical confrontations, failure to pay child support, and nondisclosure of over $5,000 in COVID-19 stimulus funds, which could have offset his child support arrears. The court found Sean's explanation for this nondisclosure unconvincing. 

While both parents demonstrated adequate capacity to care for the children, Makayla was viewed as providing a more stable environment. The court noted that Sean's care often revolved around his interests, potentially being less suitable for the children's needs. Although a joint custody arrangement was considered, it was deemed not in the children’s best interests due to the parents' inability to communicate effectively, existing distrust, and fundamental disagreements regarding decision-making authority.

The court assessed witness demeanor, including their responses, expressions, and overall comportment, ultimately concluding that this evidence favored Makayla. Sean challenged the district court's interpretation of the evidence, but appellate courts typically defer to trial judges who directly observe witnesses. Upon reviewing the record, no plain error was found in awarding Makayla legal and physical custody of the children or in granting Sean alternating weekend parenting time.

Sean argued that the district court wrongly classified the Kimball house as marital property. In dissolution proceedings, if parties cannot agree on property division, courts are required to equitably divide the marital estate, following a three-step process: classifying property as marital or nonmarital, valuing the marital assets and liabilities, and then calculating the net marital estate for division. Generally, property acquired during marriage is marital, with exceptions for pre-marital assets or those received as gifts or inheritances; the burden of proof lies with the party claiming nonmarital status. Nonmarital interests can be established by credible testimony, including a spouse's own account linking an asset to a nonmarital source.

The district court determined that the Kimball house was marital property, influenced by the parties' circumstances at the time of purchase. Sean and Makayla began cohabiting in 2014 and maintained separate financial accounts, but they jointly contributed to living expenses and their child's needs. The house's deed was recorded shortly before their marriage, indicating its acquisition context.

The parties purchased their Sidney home in October 2016 while considering themselves committed to marriage, as evidenced by their exchange of rings, wedding invitations, the birth of their child in 2015, and mutual support prior to their August 2016 wedding. The court determined the Kimball house to be marital property, justifying its inclusion in the marital estate despite the parties having agreed that the title was acquired before marriage. The trial court's reasoning differed from the appellate court's, which upheld the decision based on the parties' cohabitation and conduct indicative of a marital relationship. Sean failed to prove that post-marriage mortgage payments or other ownership costs were funded by non-marital sources, leading to conflicting evidence. The court affirmed the district court’s determination that the Kimball house was marital property and found no error in the decision. The decree was affirmed in all respects.