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Cite as 29 Neb. App. 101

Tracy D. Gandara-Moore, appellant, v. 

Michael E. Moore, Jr., appellee.

___ N.W.2d ___

Filed November 17, 2020. No. A-19-1110.

1. Divorce: Appeal and Error. In a marital dissolution action, an appellate 

court reviews the case de novo on the record to determine whether there 

has been an abuse of discretion by the trial judge.

2. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy or admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

3. Court Rules: Waiver. In appropriate circumstances where no injustice 

would result, a district court may exercise its inherent power to waive its 

own rules.

4. Trial: Expert Witnesses: Appeal and Error. It is within the trial 

court’s discretion to admit or exclude the testimony of an expert witness, 

and a trial court’s ruling in receiving or excluding an expert’s opinion 

will be reversed only when there has been an abuse of discretion.

5. Trial: Expert Witnesses. The trial court is the sole judge of the credibility of a witness, and the opinion of any given expert witness is not 

binding on the trier of fact.

6. Expert Witnesses: Trial. A party generally must move to strike the 

testimony of an undisclosed expert witness or move for a continuance to 

gain more time to investigate the witness and secure rebuttal evidence.

7. Visitation. The trial court has discretion to set a reasonable parenting 

time schedule.

8. Trial: Evidence: Witnesses: Appeal and Error. All conflicts in the 

evidence, expert or lay, and the credibility of the witnesses are for the 

fact finder and not for the appellate court.

9. Evidence: Appeal and Error. Where credible evidence is in conflict 

on a material issue of fact, 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/17/2020 09:05 AM CST
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Cite as 29 Neb. App. 101

10. Parent and Child. If a parent has been found to have engaged in 

domestic intimate partner abuse, limits shall be imposed within the parenting plan that are reasonably calculated to protect the child or child’s 

parent from harm.

11. Child Support: Rules of the Supreme Court. As a general matter, 

child support obligations should be set according to the provisions of the 

Nebraska Child Support Guidelines.

12. Child Support. Child support may be based on a parent’s earning 

capacity when a parent voluntarily leaves employment and a reduction 

in that parent’s support obligation would seriously impair the needs of 

the children.

13. Child Support: Proof. In calculating child support, a parent requesting 

a deduction for the amount he or she pays for his or her own health 

insurance, or a credit for the amount paid for a child’s health insurance, 

must submit proof of the cost actually incurred for that portion of the 

health insurance.

14. Property Division: Words and Phrases. Dissipation of marital assets 

is generally defined as one spouse’s use of marital property for a selfish purpose unrelated to the marriage at the time when the marriage is 

undergoing an irretrievable breakdown.

15. Property Division: Proof. The initial burden of proof is on the party 

alleging dissipation, and after sufficient evidence is produced, the burden shifts to the dissipating spouse to prove that the funds were spent 

for marital purposes.

16. Contempt. Civil contempt proceedings are instituted to preserve and 

enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed as modified.

Stephen D. Stroh, of Bianco Stroh, L.L.C., and Ryan D. 

Caldwell, of Caldwell Law, L.L.C., for appellant.

Alex M. Lierz, of Rembolt Ludtke, L.L.P., for appellee.

Pirtle, Riedmann, and Arterburn, Judges.

Riedmann, Judge.

INTRODUCTION

Tracy D. Gandara-Moore appeals from the order of the district court for Lancaster County that dissolved her marriage 
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Cite as 29 Neb. App. 101

to Michael E. Moore, Jr.; awarded custody, parenting time, 

and child support for their minor children; divided the marital estate; and found her in contempt of court. We find that 

the district court abused its discretion in failing to include a 

provision in the parenting plan to protect Tracy from harm, in 

calculating child support, and in dividing the marital estate. 

We therefore modify the court’s order accordingly. We otherwise affirm.

BACKGROUND

Tracy and Michael were married in March 2012, in Lincoln, 

Nebraska. Two children were born during the marriage: a 

daughter in 2012 and another daughter in 2014. Tracy filed a 

dissolution petition in August 2017, after an incident of domestic violence perpetrated by Michael. Tracy was granted temporary custody of the children in January 2018. Michael was 

ordered to pay $1,061 per month in child support, and each 

party was to pay half of all daycare costs and medical bills.

In June 2018, Michael, who had moved back to the east 

coast, filed a motion for parenting time. In July, the district court granted Michael parenting time on the “FaceTime” 

application twice a week for at least 30 minutes. The court 

also ordered Michael to meet with Dr. Michael Keady, the 

children’s counselor, twice before exercising in-person parenting time. The court further stated that if Keady recommended 

in-person parenting time, Michael could have parenting time 

one weekend in August in Lincoln and parenting time from 

August 31 until September 4 in Washington, D.C.

In August 2018, the parties stipulated that Michael was in 

contempt of the January temporary order, as he had failed 

to pay $3,971.20 in daycare expenses. They agreed that he 

should be sentenced to 7 days in jail with the ability to purge 

his contempt by paying $300 per month until the outstanding expenses were paid. The court entered a stipulated order 

accordingly. Michael filed additional motions requesting parenting time in September, November, and March 2019. In 
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response to Michael’s motions for parenting time, the district 

court again ordered that Michael was to have FaceTime parenting time twice a week. The court’s notes from October 12, 

2018, indicate Michael’s parenting time was subject to the 

modification of a no-contact order that had been entered in 

his ongoing criminal case resulting from Tracy’s allegations of 

domestic abuse. In September and November 2018, the county 

court for Lancaster County, in which Michael’s criminal case 

was pending, noted that Michael’s bond could be amended to 

allow him to have FaceTime visitation with the children, consistent with the district court’s order.

Michael filed a motion with the district court in March 2019, 

requesting that Tracy show cause as to why she should not be 

held in contempt for withholding parenting time. According 

to Michael’s motion, he had not had any FaceTime visitations 

with his children since the court ordered it in October 2018 

and he had not spoken to his daughters since the previous summer. In June 2019, Tracy filed an affidavit requesting sanctions 

for Michael’s failure to comply with the purge plan ordering 

him to make monthly payments for past daycare expenses.

As referenced above, while the dissolution case was pending, Michael was charged in the county court for Lancaster 

County with domestic assault in August 2018. Michael was 

arrested on the same day as the charges were filed, and his 

appearance bond ordered him to have no contact with Tracy. 

Following a trial in June 2019, he was convicted of domestic 

assault and placed on probation.

A trial was held on Tracy’s complaint for dissolution, 

Michael’s order to show cause, and Tracy’s request for sanctions. The trial spanned 3 days in May, June, and September 

2019. During the trial, Tracy testified and presented evidence 

regarding her relationship with Michael. She stated that Michael 

started verbally abusing her shortly after they were married. 

Michael became more violent during the marriage, and physically abused her “four or five” times. The last assault occurred 

in July 2017, when Michael punched her in the face, held 
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her against her will in the garage, strangled her, and threatened to kill her and kidnap their children. After the assault, 

Michael left Nebraska and returned to the east coast.

Tracy filed for a protection order after the assault, and she 

indicated on the form that she was not requesting that Michael 

be prohibited from contacting or communicating with her so 

that he could call the children. Tracy further indicated that 

she made “[h]undreds and hundreds” of attempts to communicate with Michael after he left, but Michael refused to 

answer his phone and had only random communication with 

the children.

According to Tracy, after the district court ordered Michael 

to have FaceTime parenting time with the children, she 

attempted to facilitate calls between him and the children until 

August 15, 2018, when a no-contact order was put in place as a 

condition of his appearance bond in the domestic assault case. 

She stated that she spoke to a prosecutor who informed her 

that the no-contact order “trumped” any civil order that was in 

place; therefore, she was unable to facilitate visitation between 

Michael and the children. The appearance bond was modified 

in September and November to allow Michael to have contact 

with the children consistent with the district court’s order.

Tracy stated that Keady, the children’s therapist, was willing to facilitate parenting time between Michael and the 

children after the appearance bond was modified. However, 

Keady testified that it was his recommendation that any parenting time between Michael and the children be therapeutic. 

Keady stated that he met with the children four or five times 

and that they met the criteria for a post-traumatic stress disorder diagnosis. Keady also indicated that he met with Michael 

and the children in August 2018, that the children asked why 

Michael had not apologized to Tracy, and that Michael did 

not respond. Despite Keady’s offer to facilitate therapeutic 

visitation, he stated that Michael did not accept the offer. 

Keady further opined that Tracy was an appropriate and protective mother.
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Tracy also testified regarding her employment and income, 

the children’s health and education, and her continued fear of 

Michael. She stated that at the time of trial, she was unemployed and had been since January 2019. Tracy worked for a 

health insurer from 2016 to 2018, earning about $58,000 per 

year. She explained that she left the job because she could not 

keep up with the demands of the job while she was a single 

parent. She indicated that she receives $400 per week in unemployment benefits and that she was applying for 5 to 10 jobs 

per week. Tracy also testified that she was injured in a car 

accident in June 2019 and her injuries impacted her ability to 

look for work.

Tracy informed the court that the children attend a private 

school and daycare in Lincoln and are doing very well. She 

indicated that the children were significantly delayed in speech 

and language when she registered them for preschool but that 

they have made great progress under her care. According 

to Tracy, the older child has an autoimmune disease which 

requires frequent hospitalizations and requires a complicated 

treatment when she becomes sick, which Michael was not 

aware of. Tracy also stated that she remained in fear of Michael 

and believed that he would eventually try to kill her.

Finally, Tracy testified regarding the parties’ marital assets. 

She stated that she had cashed out her retirement account from 

her prior employment to pay her bills. She explained that the 

parties had numerous debts, including a loan which was used 

to pay basic living expenses during the marriage. Tracy stated 

that a portion of an inheritance that Michael received during 

the marriage was placed in her account to pay bills and that 

the money had been spent. She further indicated that Michael 

had not made all of the payments he was ordered to make for 

daycare expenses, nor had he paid his half of the unreimbursed 

medical expenses for the children. Tracy did not request alimony, but did request approximately $5,000 in attorney fees. 

She also requested that any parenting time that Michael receive 

be therapeutic.
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In his case in chief, Michael testified about the domestic 

assault, as well as his attempts to have parenting time with 

the children. He disputed Tracy’s account of the assault and 

stated that he did not punch her. However, Michael acknowledged that he was found guilty of domestic assault by the 

county court and was placed on probation.

Michael indicated that the last telephonic parenting time he 

had was in March 2019 and that he had not had any other telephonic parenting time since the beginning of 2018. He stated 

that it was difficult to call his children because of the restraining orders and that when he did call, Tracy called the police on 

him. Michael also informed the court that he attended a therapeutic parenting session with his children facilitated by Keady, 

but that the session lasted only 15 minutes and Tracy was in 

the room during the session. Michael stated that he underwent 

an evaluation by Dr. Rick McNeese in October 2018 to demonstrate that he was ready for parenting time. Issues regarding 

McNeese’s testimony and report will be laid out in greater 

detail in the analysis section below.

Michael provided testimony about the marital estate and 

the care he provided for the children during the marriage. He 

stated that Tracy controlled the family’s finances and that 

he was not included in the financial decisions. He stated that he 

received an inheritance and that $5,800 of it was placed into an 

account controlled by Tracy to be used for medical bills, but 

she used the money for other purposes. Michael also testified 

that he provided health insurance for the children and that he 

did not believe that the older child was as sick as Tracy made 

her out to be. Michael testified that he was a stay-at-home 

father during the marriage and was not aware of any concerns 

about his parenting.

In October 2019, the district court dissolved the parties’ marriage and awarded Tracy legal and physical custody 

of the children. Michael was granted parenting time of one 

weekend per month in Lincoln; parenting time alternating 

during either the children’s spring break or winter break in 
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Maryland, Virginia, or Washington, D.C.; and two periods of 

two consecutive weeks of parenting time in the summer in 

Maryland, Virginia, or Washington, D.C. The district court also 

held Tracy in contempt for withholding parenting time. The 

court created a purge plan, ordering Tracy to pay $2,500 in 

attorney fees to Michael.

The court calculated Michael’s child support payments 

using Tracy’s previous earnings of $58,000 per year. The 

court ordered Michael to pay $691 per month in child support for two children and $426 per month for one child. It 

adopted Michael’s division of the marital estate, which indicated that Tracy had dissipated $5,800 from Michael’s inheritance. Accordingly, Michael was ordered to pay an equalization 

payment in the amount of $7,590.39 to Tracy. Finally, the 

court ordered each party to pay their own attorney fees. Tracy 

timely appealed.

ASSIGNMENTS OF ERROR

Tracy assigns, reordered, consolidated, and restated, that 

the district court erred in (1) admitting a nondisclosed exhibit 

and allowing a nondisclosed witness to testify, (2) fashioning a vague parenting plan that was not in the children’s best 

interests and did not include safety provisions, (3) calculating 

child support, (4) dividing the marital estate, (5) finding her in 

contempt, and (6) not awarding her attorney fees.

STANDARD OF REVIEW

[1] In a marital dissolution action, an appellate court reviews 

the case de novo on the record to determine whether there 

has been an abuse of discretion by the trial judge. Burgardt v. 

Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). This standard 

of review applies to the trial court’s determinations regarding 

custody, child support, division of property, alimony, and attorney fees. Id.

[2] A trial court has the discretion to determine the relevancy 

or admissibility of evidence, and such determinations will 

not be disturbed on appeal unless they constitute an abuse of 
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that discretion. Hartley v. Metropolitan Util. Dist., 294 Neb. 

870, 885 N.W.2d 675 (2016).

ANALYSIS

McNeese’s Testimony and Report.

Tracy argues that Michael did not disclose McNeese as an 

expert witness nor list his report as an exhibit on Michael’s 

pretrial memorandum; therefore, the district court abused its 

discretion in allowing McNeese to testify and in admitting his 

report into evidence. We disagree.

In his pretrial memorandum, Michael acknowledged that 

“[h]e will not be permitted to call witnesses, present exhibits 

or otherwise produce any evidence unless the witness, exhibit, 

property and issue timely appear in this Exhibit . . . .” He 

did not list McNeese as a witness, nor did he list McNeese’s 

report as an exhibit to be offered. Nevertheless, McNeese was 

allowed to testify at trial, over Tracy’s objection, and his report 

was received into evidence. Tracy asserts that the court violated 

Rules of Dist. Ct. of Third Jud. Dist. 3-9(D) (rev. 2019), which 

governs a party’s responsibilities for disclosing witnesses and 

exhibits in a pretrial memorandum.

[3,4] The Nebraska Supreme Court has recognized that in 

appropriate circumstances where no injustice would result, a 

district court may exercise its inherent power to waive its own 

rules. Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014). 

Further, it is within the trial court’s discretion to admit or 

exclude the testimony of an expert witness, and a trial court’s 

ruling in receiving or excluding an expert’s opinion will be 

reversed only when there has been an abuse of discretion. 

Zarp v. Duff, 238 Neb. 324, 470 N.W.2d 577 (1991). Thus, 

our analysis of whether the district court abused its discretion 

in allowing McNeese to testify and admitting his report into 

evidence turns on whether or not Tracy was prejudiced by the 

ruling. We find that she was not.

[5] In awarding Michael parenting time, the district court 

relied on McNeese’s report. McNeese’s report indicated that 
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Michael showed no evidence of a major emotional disorder, thought disorder, personality disorder, or substance abuse 

disorder and that he did not appear to have various factors 

found in angry and impulsive individuals. McNeese supported 

Michael’s request for parenting time. His conclusions were in 

contrast to Keady’s testimony that Michael should have only 

therapeutic visitation with the children. Thus, Tracy alleges 

that she was prejudiced by McNeese’s testimony and report 

because the district court relied on it instead of on Keady’s 

assessment. We reject this assertion because the trial court is 

the sole judge of the credibility of a witness and the opinion 

of any given expert witness is not binding on the trier of fact. 

See Way v. Hendricks Sodding & Landscaping, Inc., 236 Neb. 

519, 462 N.W.2d 99 (1990). Therefore, the fact that the district 

court accepted McNeese’s opinion over that of Keady does not 

support a finding of prejudice.

It appears from the discussion that occurred prior to 

McNeese’s testimony that his report had been provided to 

opposing counsel and the court at a hearing more than 6 months 

before trial. Tracy was allowed to cross-examine and voir dire 

McNeese at trial, and she did so, pointing out that he made his 

evaluation without ever having met with the children or Tracy. 

According to McNeese, however, a meeting was scheduled 

with the children, but they did not appear. Tracy does not assert 

how her trial preparation would have differed had McNeese 

been timely disclosed.

Under similar circumstances, the Supreme Court allowed an 

undisclosed expert witness to testify when there was no showing that the appellant’s preparation for trial was hampered by 

the untimely disclosure of the witness. See Nixon v. Harkins, 

220 Neb. 286, 369 N.W.2d 625 (1985). Likewise, here, Tracy 

has not demonstrated how her preparation for trial was hampered by Michael’s late disclosure. Under the circumstances 

of this case, it cannot be said that Tracy was prejudiced by the 

district court’s decision to receive the evidence.
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[6] We recognize that a party generally must move to strike 

the testimony of an undisclosed expert witness or move for 

a continuance to gain more time to investigate the witness 

and secure rebuttal evidence. See Kirkwood v. State, 16 Neb. 

App. 459, 748 N.W.2d 83 (2008). Here, Tracy did neither. 

However, the district court received the evidence subject to 

Tracy’s objection, stating it would take the objection under 

advisement. It did not rule on its admissibility until entering 

its order after trial was concluded. The Supreme Court has 

condemned such practice, stating that “appropriate judicial trial 

practice requires that trial judges rule on matters submitted to 

them in a timely fashion in order that the litigants be in a position to react to the ruling.” Phillips v. Monroe Auto Equip. Co., 

251 Neb. 585, 594, 558 N.W.2d 799, 805 (1997).

Accordingly, because the district court failed to rule on the 

objection when made, Tracy’s failure to seek a continuance or 

move to strike does not preclude her ability to raise the issue 

on appeal. However, because Tracy was not prejudiced by the 

untimely disclosure, we find no abuse of discretion by the district court.

Parenting Plan.

Tracy asserts that the district court erred in awarding 

Michael significant parenting time. She specifically argues that 

the court erred in relying on McNeese’s report, disregarding 

Keady’s opinion, failing to consider the children’s best interests, failing to include adequate domestic violence protections, 

and including a vague and ambiguous transition plan. We agree 

that the district court failed to include adequate protections 

from domestic violence for Tracy, as required by Neb. Rev. 

Stat. § 43-2932 (Reissue 2016). We otherwise affirm the provisions of the parenting plan.

[7] The trial court has discretion to set a reasonable parenting time schedule. Thompson v. Thompson, 24 Neb. App. 349, 

887 N.W.2d 52 (2016). The determination of reasonableness is 

to be made on a case-by-case basis. Id. Parenting time relates 

to continuing and fostering the normal parental relationship 
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of the noncustodial parent. Id. The best interests of the children 

are the primary and paramount considerations in determining 

and modifying visitation rights. Id. The best interests inquiry 

has its foundation in both statutory and case law.

Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) provides that 

in determining custody and parenting arrangements:

[T]he court shall consider the best interests of the minor 

child, which shall include, but not be limited to, consideration of . . . :

(a) The relationship of the minor child to each parent 

prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if of 

an age of comprehension but regardless of chronological 

age, when such desires and wishes are based on sound 

reasoning;

(c) The general health, welfare, and social behavior of 

the minor child;

(d) Credible evidence of abuse inflicted on any family 

or household member[;] and

(e) Credible evidence of child abuse or neglect or 

domestic intimate partner abuse.

In addition to these factors, the Supreme Court has previously held that in determining a child’s best interests, courts

“‘may consider factors such as general considerations 

of moral fitness of the child’s parents, including the 

parents’ sexual conduct; respective environments offered 

by each parent; the emotional relationship between child 

and parents; the age, sex, and health of the child and 

parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and 

stability of each parent’s character; parental capacity to 

provide physical care and satisfy educational needs of the 

child; the child’s preferential desire regarding custody if 

the child is of sufficient age of comprehension regardless 

of chronological age, and when such child’s preference 
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for custody is based on sound reasons; and the general 

health, welfare, and social behavior of the child.’”

Davidson v. Davidson, 254 Neb. 357, 368, 576 N.W.2d 779, 

785 (1998).

Here, the district court awarded Tracy legal and physical 

custody of the children. Michael was granted parenting time 

one weekend a month in Lincoln, beginning Friday evening and 

ending Sunday evening, as well as parenting time in his home 

state during either the children’s spring break or winter break 

and during their summer break. At trial, Tracy argued that 

Michael should be granted only therapeutic parenting time with 

the children. On appeal, she makes similar arguments.

Tracy first asserts that the district court erred in relying on 

McNeese’s report in awarding Michael “substantial parenting 

time.” Brief for appellant at 30. Tracy argues that there are 

numerous flaws in McNeese’s report that the district court 

did not consider. McNeese’s report indicated that Michael 

showed no evidence of a major emotional disorder, thought 

disorder, personality disorder, or substance abuse disorder 

and that he did not appear to have various factors found in 

angry and impulsive individuals. McNeese concluded that 

the absence of such evidence supported Michael’s request for 

parenting time.

Tracy argues that McNeese met with Michael only twice; 

further, she argues that his report does not analyze Michael’s 

criminal case or the domestic abuse protection order, the children’s current feelings toward Michael, Michael’s departure 

from the marital home, or his failure to participate in family therapy. Tracy contends that the court’s error in relying 

on McNeese’s report is exacerbated by Keady’s opinion that 

Michael and the children needed to engage in therapeutic 

visitation to address the various issues in their relationship, 

because Keady met with Tracy, the children, and Michael.

[8] Tracy’s argument is that Keady’s opinion conflicted 

with that of McNeese and was more credible. However, all 

conflicts in the evidence, expert or lay, and the credibility of 
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the witnesses are for the fact finder and not for the appellate 

court. See Pierce v. Landmark Mgmt. Group, 293 Neb. 890, 

880 N.W.2d 885 (2016). The district court heard Keady’s testimony, as well as that of Tracy and Michael; read McNeese’s 

report; and then determined that it was in the children’s best 

interests to award Michael parenting time in both Lincoln and 

his home state. Based on the record, this was not an abuse 

of discretion.

Tracy further asserts that the district court did not consider 

the children’s physical health or emotional well-being in developing the parenting plan. She argues that the court did not 

properly consider Michael’s “purposeful denial of exercising 

FaceTime parenting time offered to be facilitated by . . . Keady.” 

Brief for appellant at 31. As we explain in greater detail below, 

Keady testified that he offered to provide therapeutic parenting time for Michael; however, the district court did not order 

therapeutic parenting time. Michael testified that he had parenting time with the children only twice since the beginning of 

2018. As a result, the district court determined that Tracy was 

in contempt of multiple court orders granting Michael parenting time. Therefore, the court did not fail to consider Michael’s 

lack of parenting time with the children.

Tracy alleged both at trial and on appeal that the older child 

has an autoimmune issue that requires many hospitalizations 

and a respiratory distress plan to be implemented. Michael testified that he did not think the older child’s health was as poor 

as Tracy represented it to be.

[9] Tracy argues that it is an abuse of discretion to require 

the older child to fly on a plane and visit with a parent unfamiliar with her health conditions. However, where credible 

evidence is in conflict on a material issue of fact, 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. Barth v. Barth, 22 Neb. 

App. 241, 851 N.W.2d 104 (2014). There is nothing before us 

to indicate that the district court failed to consider the older 
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child’s health condition before granting Michael parenting 

time in his home state.

Tracy also asserts that the district court failed to ensure that 

there were measures in place to protect her and the children 

from domestic abuse. We agree.

[10] Section 43-2932 states that if a parent has been found 

to have engaged in domestic intimate partner abuse, limits shall 

be imposed that are reasonably calculated to protect the child 

or child’s parent from harm. These limitations may include 

limits on the exchange of the child, restraints on the parent 

from communication with the other parent or child, and any 

other constraints or conditions deemed necessary to provide for 

the safety of the parent or child. See § 43-2932(1)(b). The parent found to have engaged in domestic abuse has the burden of 

proving that having access to parenting time will not endanger 

the child or other parent. See § 43-2932(3).

Here, the district court expressly found that Michael 

assaulted Tracy. Although the court noted that the parties disputed the severity of the assault, the court still made a finding 

that an assault occurred. Despite this finding, the court did 

not include any provisions in the parenting plan providing for 

the safety of Tracy or the children. When there is a finding of 

domestic intimate partner abuse, as happened here, the obligations of § 43-2932 are mandatory. See Fales v. Fales, 25 Neb. 

App. 868, 914 N.W.2d 478 (2018). See, also, Flores v. FloresGuerrero, 290 Neb. 248, 859 N.W.2d 578 (2015). The district 

court abused its discretion in failing to comply with § 43-2932 

by not imposing adequate limitations in the parenting plan to 

protect Tracy from abuse.

Based on our review of the record, adequate limitations 

should be imposed to protect Tracy. There is currently a 

protection order in place which the district court modified 

to allow Michael to pick up and return the children from both 

Tracy’s home and the children’s school. However, at trial, 

Tracy testified that she feared for her safety around Michael 

and believed he would try to kill her. Therefore, to provide for Tracy’s safety, we modify the exchange location for 
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parenting time to require that exchanges occur at a mutually 

agreed-upon public location. If the parties cannot agree on 

a transfer location, exchanges that otherwise would occur at 

Tracy’s house are to occur at the Lancaster County sheriff’s 

office in Lincoln on North 10th Street. We acknowledge that 

the parenting plan requires Michael to provide transportation 

for the children at the start and end of his parenting time; however, given Tracy’s safety concerns, we modify that portion of 

the court’s order as set forth above.

Tracy additionally asserts that the court’s parenting plan 

contained vague provisions in that it did not define “evening,” 

when it ordered that Michael’s parenting time was to run from 

Friday evening until Sunday evening. We disagree. Because 

Michael is required to travel to Lincoln from his home on the 

east coast, it would be difficult for the court to order his parenting time to begin and end at a certain time. While it may 

have been preferable to provide a window of time during which 

Michael was to pick up and return the children, under the circumstances, we cannot find that the court’s use of “evening” 

constitutes an abuse of discretion.

Child Support Calculation.

Tracy asserts that the district court abused its discretion in 

using her previous income of $58,000 per year to calculate 

child support. We disagree.

[11,12] As a general matter, child support obligations should 

be set according to the provisions of the Nebraska Child 

Support Guidelines. Gress v. Gress, 274 Neb. 686, 743 N.W.2d 

67 (2007). In determining income, the court may use earning 

capacity in lieu of a parent’s actual, present income. See Neb. 

Ct. R. § 4-204(E) (rev. 2016). Child support may be based on 

a parent’s earning capacity when a parent voluntarily leaves 

employment and a reduction in that parent’s support obligation 

would seriously impair the needs of the children. Claborn v. 

Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).

Here, the district court adopted Michael’s proposed child 

support calculation. In doing so, the court held Tracy to her 
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previous earning capacity of $58,000 and rejected her request 

to calculate child support using her unemployment benefits 

of $1,733.33 per month. The court determined that Tracy voluntarily left her employment where she earned $58,000 and 

that it would be inequitable to use her unemployment benefits to calculate child support. The record supports the district 

court’s findings.

Tracy asserts that the district court erred in failing to consider the circumstances surrounding her voluntary termination 

of employment. She further argues that due to her car accident, 

she no longer has the capacity to earn $58,000. Tracy testified that in the June 2019 accident, she was driving and was 

“T-boned.” She sustained a concussion, suffered a whiplash, 

and aggravated a preexisting disk degeneration in her spine and 

neck. She claimed that the injuries impacted her ability to look 

for work and to perform work. According to Tracy, she was 

scheduled for a consultation for a “neck fusion” in October. 

She presented no medical records or other documentation 

regarding her injuries.

Although Tracy testified that the June 2019 accident affected 

her ability to work, she voluntarily terminated her employment with the health insurance company in 2018. She worked 

for a short time at a psychiatric rehabilitation center, but was 

terminated in January 2019. She has remained unemployed 

since that date, attributing that situation to the car accident. 

The trial court is the sole judge of the witnesses’ credibility 

and the weight to be given their testimony. See Omaha Police 

Union Local 101 v. City of Omaha, 292 Neb. 381, 872 N.W.2d 

765 (2015). Despite hearing Tracy’s testimony, the court determined that it would be inequitable to use her unemployment 

benefits to calculate child support. We find no abuse of discretion in this determination.

Tracy also argues that the court incorrectly calculated her 

monthly income because it should have been calculated at 

$4,833.33, not $4,977.74. However, Tracy’s most recent pay 

stub from her employment at the insurance company indicates 

that she earned $2,297.42 biweekly; therefore, considering 
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that Tracy was paid 26 times per year, her average monthly 

income equates to $4,977.74. Thus, the district court did not err 

in calculating her monthly income.

Tracy further alleges that the district court erred in attributing a health insurance deduction of $517 to Michael in its 

child support calculation. She argues that Michael’s pay stubs 

indicate that he has only $278.50 deducted for health insurance, not the $517 he claims. We agree that the district court 

abused its discretion in calculating Michael’s child support 

payment, because he did not submit proof of what portion of 

the medical insurance deduction was attributable to coverage 

for him and what portion was attributable to the children.

At trial, Michael testified that his paycheck generally was 

$1,648 for a 2-week pay period and that his net pay after 

health insurance, child support, and taxes were deducted was 

$852.73. Michael explained that he had $530.50 deducted 

from each paycheck for child support; thus, in his brief to this 

court, he stated that he paid $264.77 per paycheck in health 

insurance, which equates to $529.54 per month in health insurance. However, according to that calculation, Michael did not 

pay any taxes on his income. Exhibit 11 contains Michael’s 

pay stubs, which he testified reflect his current income. His 

pay stubs indicate that he pays $128.54 per paycheck in health 

insurance for himself and the children. Michael indicated that 

he is paid every 2 weeks; thus, on average, he pays $278.50 per 

month in health insurance.

[13] Under the Nebraska Child Support Guidelines, a parent is entitled to a deduction for the amount he or she pays 

for his or her own health insurance. Neb. Ct. R. § 4-205(F) 

(rev. 2016). But, the parent requesting the deduction must 

submit proof of the cost actually incurred for his or her health 

insurance. Id. Likewise, a parent is entitled to a credit for the 

prorated portion of the health insurance cost he or she expends 

for the children when that parent submits proof of the cost 

of the children’s health insurance. Neb. Ct. R. § 4-215(A) 

(rev. 2011).
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Here, Michael did not submit proof of the cost of his medical insurance nor the medical insurance of the children. The 

evidence before us demonstrates that Michael paid $128.54 

per paycheck, or $278.50 in insurance per month. His paycheck indicates that his insurance is for himself and the children. However, Michael did not present evidence indicating 

how much of the $128.54 he paid for health insurance went 

toward his own insurance and how much went toward the 

children’s insurance. Thus, he did not submit adequate proof 

of the cost of his own insurance, nor adequate proof of the 

children’s insurance. Accordingly, the district court abused 

its discretion in calculating Michael’s child support payments 

using a deduction of $186.33 for his health insurance and 

applying a credit of $331 per month for the children’s insurance. See Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 

(2001) (trial court erred in granting father deduction for health 

insurance without proof of how much of health insurance premium was attributable to children).

To remedy the district court’s error, we delete Michael’s 

deduction for health insurance on the child support worksheet, 

line 2.f, and his credit for health insurance for the children on 

the worksheet, line 8. Michael’s net monthly income increases 

to $3,563.96, the parties’ combined monthly income becomes 

$7,629, and their annual income increases to $91,548. Michael’s 

monthly income increases to 46.72 percent, and Tracy’s monthly 

income decreases to 53.28 percent. The monthly support from 

table 1 is $1,961, which brings Michael’s share to $916 per 

month for two children and $640 per month for one child. The 

decree is modified to reflect these calculations.

Division of Marital Estate.

Tracy argues that the district court erred in dividing the marital estate because it improperly determined that she dissipated 

$5,800 from Michael’s inheritance. We agree.

[14,15] Dissipation of marital assets is generally defined 

as one spouse’s use of marital property for a selfish purpose 

unrelated to the marriage at the time when the marriage is 
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undergoing an irretrievable breakdown. Harris v. Harris, 261 

Neb. 75, 621 N.W.2d 491 (2001). As a remedy, marital assets 

dissipated by a spouse should be included in the marital estate 

in dissolution actions. Anderson v. Anderson, 27 Neb. App. 

547, 934 N.W.2d 497 (2019). The initial burden of proof is 

on the party alleging dissipation, and after sufficient evidence 

is produced, the burden shifts to the dissipating spouse to prove 

that the funds were spent for marital purposes. See Schnackel 

v. Schnackel, 27 Neb. App. 789, 937 N.W.2d 234 (2019) (citing 

Harris v. Harris, supra, and Brunges v. Brunges, 260 Neb. 660, 

619 N.W.2d 456 (2000)).

The district court accepted Michael’s proposed division of 

marital assets, which included $5,800 from his inheritance 

which Tracy allegedly dissipated. In its order, the court stated 

that half of Michael’s inheritance was deposited into Tracy’s 

account to pay for medical bills. The deposit of the money is 

corroborated by Tracy’s and Michael’s testimony and exhibit 

17, which is an account summary for Tracy’s bank account. 

However, Michael claims that the money was deposited for 

the purpose of paying medical bills and that Tracy failed 

to pay those bills. Tracy disputes the purpose for which the 

money was deposited. Regardless, neither Michael’s testimony, 

nor exhibit 17, demonstrates that Tracy used the $5,800 for 

purposes unrelated to the marriage. Exhibit 17 indicates that 

Tracy used the funds to pay various bills and to pay for insurance, food, and clothing. Although Michael indicated that the 

money was used for a purpose other than that for which it was 

given to Tracy, the standard for dissipation of marital assets is 

whether marital assets were used for a selfish purpose unrelated to the marriage, not whether the funds were used for a 

specified purpose.

In Harris v. Harris, supra, the husband began to make 

large withdrawals from the parties’ savings account after the 

wife asked for a divorce. The husband was able to account, 

through testimonial and documentary evidence, for a portion 

of the withdrawals being used for marital expenses. Id. The 
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remaining portion of the withdrawals were unaccounted for, 

and the court determined that portion, not the portion used 

for marital expenses, had been dissipated. Id. Likewise, in 

the present case, Tracy’s testimony and the documentary evidence indicates that she spent the $5,800 on marital expenses, 

such as the parties’ debts, insurance, cell phones, food, and 

clothing. Therefore, based on the record before us, the district 

court abused its discretion in finding that Tracy dissipated 

$5,800, because the documentary evidence does not indicate 

that she used the money for selfish purposes unrelated to 

the marriage.

To remedy the court’s error, $5,800 should not be attributed 

to Tracy, as demonstrated in exhibit 43, Michael’s proposed 

division of assets. Rather, the total marital debts should remain 

at $20,980.78, which will result in an equalization payment by 

Michael of $10,490.39. Further, pursuant to the court’s purge 

plan for Tracy’s contempt of court, Michael’s equalization payment of $10,490.39 is reduced by $2,500.

Contempt.

Tracy also alleges that the district court erred by finding her 

to be in contempt of various court orders regarding Michael’s 

FaceTime parenting time. We find no error in the district 

court’s finding.

[16] Civil contempt proceedings are instituted to preserve 

and enforce the rights of private parties to a suit when a party 

fails to comply with a court order made for the benefit of the 

opposing party. Martin v. Martin, 294 Neb. 106, 881 N.W.2d 

174 (2016). Willful disobedience is an essential element of 

contempt; “willful” means the violation was committed intentionally with knowledge that the act violated the court order. 

Id. Outside of statutory procedures imposing a different standard, it is the complainant’s burden to prove civil contempt by 

clear and convincing evidence. See id.

The district court found that Tracy willfully and contumaciously violated the court’s orders that Michael was to have 
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parenting time via FaceTime with the children. In three separate orders, the district court ordered FaceTime parenting time. 

Despite these orders, the evidence demonstrates that at the time 

of trial, Michael had not had parenting time with the children 

since March 2019 and had only had one other visitation with 

the children since the beginning of 2018.

Tracy testified that she did not believe she could communicate with Michael due to a no-contact order which was put 

in place by the county court for Lancaster County; therefore, 

she could not facilitate the FaceTime calls. However, the 

appearance bond that implemented the no-contact restriction 

in August 2018 was modified in September and November 

to allow Michael FaceTime visitation with the children, following an October 12 order from the district court to allow 

FaceTime visitation. The district court ordered FaceTime visitation again on October 25 and November 16, as well as on 

March 18, 2019. In light of these orders and the initial July 

2018 order granting Michael FaceTime visitation with the 

children “by calling [Tracy],” we find Tracy’s position questionable at best.

Tracy testified that after the no-contact order was modified, she arranged for Keady to facilitate FaceTime therapeutic 

visitation for Michael with the children. However, the district 

court’s orders did not require Michael’s parenting time to be 

therapeutic. Tracy’s position requiring therapeutic parenting 

time undermines her argument that she did not willfully violate 

the court’s orders. After reviewing the evidence, we agree that 

Tracy willfully and contumaciously violated the court’s orders 

by withholding FaceTime parenting time from Michael.

Attorney Fees.

Tracy asserts that the district court abused its discretion in 

failing to award her attorney fees. We disagree.

Attorney fees and expenses may be recovered only where 

provided for by statute or when a recognized and accepted 

uniform course of procedure has been to allow recovery of 
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attorney fees. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 

(2019). In dissolution cases, as a matter of custom, attorney 

fees and costs are awarded to prevailing parties. Id. In awarding attorney fees in a dissolution action, a court shall consider 

the nature of the case, the amount involved in the controversy, 

the services actually performed, the results obtained, the length 

of time required for preparation and presentation of the case, 

the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services. Id.

Both Tracy and Michael requested the district court to award 

attorney fees. Apart from the fees Tracy was ordered to pay 

as part of the court’s contempt finding, the court ordered each 

party to pay his or her own attorney fees. After reviewing the 

record, we find no abuse of discretion by the district court in 

denying Tracy attorney fees. Each party incurred significant 

attorney fees, each party prevailed on some issues, and each 

party was unsuccessful on others. Consequently, the court 

did not abuse its discretion in refusing to award Tracy attorney fees.

CONCLUSION

For the reasons set forth above, the district court’s decree 

is modified to increase Michael’s equalization payment to 

$10,490.39, from which shall be deducted $2,500 as contempt 

sanctions against Tracy. The decree is further modified to 

increase Michael’s child support payments to $916 per month 

for two children and $640 per month for one child. Finally, the 

decree is modified to provide that parenting time transitions 

are to occur at an agreed-upon public place, not at Tracy’s 

house, and that if the parties cannot agree on a place, they are 

to occur at the Lancaster County sheriff’s office. The decree is 

otherwise affirmed.

Affirmed as modified.