Ginn v. Ginn

Patrick k. G inn, aPPellee , v.
Pamela J. G inn, aPPellant.
764 N.W.2d 889
Filed March 17, 2009. 	No. A-08-045.
1. Divorce: Mental Health. The condition which triggers the support and main-
tenance to be paid under Neb. Rev. Stat. § 42-362 (Reissue 2008) is a men-
tal illness.
2. ____: ____. Where the evidence does not clearly and affirmatively establish that
a spouse is suffering from a mental illness or that such mental illness affects
the spouse’s ability to work, it is not an abuse of discretion to deny support and
maintenance pursuant to Neb. Rev. Stat. § 42-362 (Reissue 2008).
3. ____: ____. In making an award of support and maintenance pursuant to Neb.
Rev. Stat. § 42-362 (Reissue 2008), a trial court must have due regard to the
property and income of the parties.
Appeal from the District Court for Clay County: vicky l.
Johnson, Judge. Affirmed.
J. Bruce Teichman for appellant.
Shannon 	J. 	Samuelson, 	of 	Samuelson 	Law 	Office, 	for
appellee.
irwin, sievers, and carlson, Judges.
irwin, Judge.
INTRODUCTION
Pursuant to this court’s authority under Neb. Ct. R. App. P.
§ 2-111(B)(1), this case was ordered submitted without oral
argument. Pamela J. Ginn appeals from a decree of dissolu-
tion entered by the district court, which decree dissolved her
marriage to Patrick K. Ginn, divided the parties’ marital assets
and debts, and awarded custody of the parties’ minor children
and child support to Patrick. On appeal, Pamela asserts that the
district court erred in failing to award her support and mainte-
nance pursuant to Neb. Rev. Stat. § 42-362 (Reissue 2008). For
the reasons set forth below, we affirm.
BACKGROUND
Pamela and Patrick were married on October 3, 1997. There
were three children born of the marriage, a daughter, born
GINN v. GINN 	451
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June 15, 1994; a son, born August 28, 2000; and another
daughter, born February 16, 2005.
For most of the parties’ marriage, Pamela was employed
as a nursing assistant at a medical center and Patrick was a
self-employed truckdriver. In October 2006, Pamela resigned
her employment at the medical center because she had “an
issue being around a group of people that [she did not] know.
Odd strangers, being out in crowds.” Pamela subsequently
began to receive “medical retirement” payments from her pre-
vious employer.
On November 30, 2006, Patrick filed a petition for dissolu-
tion of marriage. Patrick requested that the parties’ marriage be
dissolved and that he be awarded custody of the parties’ three
children and child support.
On March 22, 2007, Pamela filed an answer, counterclaim,
and request for temporary alimony. Pamela sought dissolution
of the parties’ marriage, custody of the children, child support,
and temporary and permanent alimony. In her request for tem-
porary alimony, Pamela alleged that she was suffering from a
mental illness which affected her ability to maintain any kind
of employment.
The district court awarded Patrick temporary custody of the
parties’ three children pending trial and ordered Pamela to pay
temporary child support. The court denied Pamela’s request for
temporary alimony.
On August 3, 2007, trial was held. At the trial, both Pamela
and Patrick testified regarding their relationships with the
children and their monthly incomes and expenses. In addition,
Pamela testified about her mental health problems, about crimi-
nal charges that were currently pending against her, and about
her ability to appropriately parent the children.
On August 22, 2007, the court entered a decree of dissolu-
tion. In the decree, the court awarded custody of the children to
Patrick and ordered Pamela to pay child support in the amount
of $219 per month. The court awarded Pamela “supervised”
visitation with the children “until sufficient psychological evi-
dence is adduced to alleviate concerns about her mental state.”
The court declined to award either party alimony payments.
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Subsequently, Pamela filed a motion for new trial, alleging
that the district court erred in “failing to award alimony to
[her] where the evidence, without rebuttal, showed [she] was
medically unable to work and provide her own support.” The
district court overruled Pamela’s motion for a new trial. Pamela
appeals here.
ASSIGNMeNTS OF eRROR
On appeal, Pamela assigns that the district court erred in
failing to award her support and maintenance pursuant to
§ 42-362 when she demonstrated that she was unable to work
due to a mental illness.
ANALYSIS
In her brief to this court, Pamela argues that the evidence
presented at trial demonstrated that she was mentally ill and
that as a result of her mental illness, she was unable to work.
Pamela further argues that because she is a “mentally ill divorc-
ing spouse,” she is entitled to spousal support and maintenance
pursuant to § 42-362. See brief for appellant at 2.
Section 42-362 provides, in relevant part, as follows:
When a marriage is dissolved and the evidence indicates
that either spouse is mentally ill, the court may, at the
time of dissolving the marriage or at any time thereafter,
make such order for the support and maintenance of
such mentally ill person as it may deem necessary and
proper, having due regard to the property and income of
the parties . . . .
Reasonableness is the ultimate criterion to be applied in test-
ing whether support and maintenance are to be awarded a men-
tally ill spouse under the provisions of § 42-362 and, if so, the
amount and duration thereof. Kearney v. Kearney, 11 Neb. App.
88, 644 N.W.2d 171 (2002). See, also, Black v. Black, 223 Neb.
203, 388 N.W.2d 815 (1986). The support and maintenance
to be awarded under § 42-362 are a matter initially entrusted
to the discretion of the trial judge, which award, on appeal, is
reviewed de novo on the record and affirmed in the absence of
an abuse of that discretion. Kearney, supra.
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In the instant case, the district court did not specifically
address an award of support or maintenance pursuant to
§ 42-362 in the decree of dissolution. However, the district
court did explicitly deny both Pamela and Patrick “any ali-
mony.” In addition, the district court did address the evidence
concerning Pamela’s mental health and her inability to work.
The district court found that “Pamela is not employed and
based on hearsay evidence, she will not be able to work for
years due to a therapist’s recommendation.” The district court
also noted that “Pamela was obviously disoriented at trial
and at times had difficulty articulating.” The court believed
Pamela’s “cognitive abilities” to be impaired.
Based on the language in the decree of dissolution, it
appears that the district court considered evidence regarding
Pamela’s mental health in determining such issues as custody
of the parties’ children, child support, and “alimony.” Although
the court did not make an explicit statement denying Pamela
support and maintenance pursuant to § 42-362, the absence of
such statement, together with the court’s acknowledgment of
Pamela’s mental health problems, evidences an implicit denial
of an award of such support and maintenance. We review the
district court’s implicit denial of support and maintenance for
an abuse of discretion.
In our review of the record, we find limited and conflict-
ing evidence to demonstrate that Pamela was mentally ill and
that as a result of that mental illness, she was unable to work.
Additionally, we find evidence that both parties have limited
financial resources and “struggle” to keep up with their finan-
cial obligations. Accordingly, we do not find that the court
abused its discretion in failing to award Pamela support and
maintenance pursuant to § 42-362.
Evidence of Pamela’s Mental Health.
Pamela asserts that the evidence presented at trial demon-
strated that she was mentally ill and that as a result of that
mental illness, she was “unemployable.” See brief for appellant
at 2. Contrary to Pamela’s assertions, our review of the record
reveals that at the trial, there was limited and conflicting evi-
dence regarding Pamela’s mental health.
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At trial, Pamela testified that she had been diagnosed with
a mental illness and that at the time of the trial, she was still
undergoing treatment for her mental illness. However, when
Pamela was questioned regarding her ability to care for the
children, Pamela testified that she had “gotten the proper treat-
ment and [was] on the proper medications” and could “prop-
erly care” for herself and the three children. Pamela did not
offer expert testimony to provide an explanation regarding her
specific mental health diagnosis or to clarify her limitations as
a result of that diagnosis.
Pamela testified that she was taking multiple medications as
a result of her mental illness, including “Wellbutrin, Lexapro,
Topamax, [and] Lamictal.” She testified that these medications
were for “[d]epression.” However, she did not provide any
further evidence regarding the specific effects of each medi-
cation or the length of time she had taken these medications.
We recognize that the district court observed Pamela to be dis-
oriented and inarticulate at the trial. However, without further
information regarding the side effects of her medication, it is
difficult to know whether Pamela’s behavior was a symptom of
her mental illness or was a side effect of any medication she
was taking.
Pamela testified that she was not able to work because of
her mental illness. She did not provide further explanation or
expert testimony tying her inability to work to her mental ill-
ness other than her own testimony that she has an “issue” being
around groups of strangers. Pamela testified that her therapist
informed her that it would be at least 8 to 10 years before she
could return to a work environment. However, Patrick objected
to this testimony as hearsay and the court sustained the objec-
tion. There is no other evidence in the record to suggest how
long Pamela will be unable to work.
There was evidence that Pamela may assert the defense of
not responsible by reason of insanity to four felony charges
pending against her at the time of the dissolution proceed-
ings. When Patrick questioned Pamela about the possibility
of asserting this defense, Pamela testified that the assertion
that she was legally insane applied only at the time of the
crime and not at the time of the current trial. She stated, “For
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Cite as 17 Neb. App. 451

then and that time period. Not for now.” The outcome of
Pamela’s criminal charges was unknown at the time of the cur-
rent proceedings.
Other than Pamela’s own assertions that she was mentally
ill and unable to work as a result of that mental illness, there
is little evidence to indicate that she is, in fact, suffering
from a mental illness. In addition, Pamela, herself, presented
conflicting evidence regarding her mental health. Pamela’s
testimony reveals her belief that her mental illness caused her
to be unable to work but did not affect her parenting abilities
or her ability to take care of herself. Pamela did not provide
any expert testimony to support these somewhat conflict-
ing assertions.
[1,2] The condition which triggers the support and mainte-
nance to be paid under § 42-362 is a mental illness. See
Kearney v. Kearney, 11 Neb. App. 88, 644 N.W.2d 171 (2002).
Where the evidence does not clearly and affirmatively establish
that a spouse is suffering from a mental illness or that such
mental illness affects the spouse’s ability to work, it is not an
abuse of discretion to deny support and maintenance pursuant
to § 42-362. Contrary to Pamela’s assertions, the evidence did
not clearly and affirmatively establish that she is suffering from
a mental illness or that such mental illness affects her ability
to work.
Circumstances of Parties.
[3] even if we found sufficient evidence to indicate that
Pamela was mentally ill, a review of the evidence regarding
the parties’ financial circumstances reveals that both parties
have limited economic resources. Section 42-362 provides that
a court may award a spouse support and maintenance when the
evidence indicates that the spouse is mentally ill. However, that
section also provides that in making such award of support and
maintenance, the court must “hav[e] due regard to the property
and income of the parties.”
In the decree of dissolution of marriage, the district court
found 	that 	Patrick’s 	adjusted 	gross 	monthly 	income 	was
$2,284.79. While Pamela argued at trial that Patrick’s income
was much closer to $4,000, she does not assign as error the
456 	17 NeBRASKA APPeLLATe RePORTS

court’s final calculation of Patrick’s income. Because Pamela
does not appeal from this finding and because we find support
for the court’s finding in the record, we conclude that Patrick’s
adjusted gross monthly income is $2,284.79.
At the trial, Patrick estimated his monthly expenses to be
$4,740. Patrick testified that he was “struggling to get by” and
that he did not have a surplus of money each month. Pursuant
to the decree, Patrick was awarded custody of the parties’ three
children and was awarded $219 per month in child support.
Patrick was ordered to pay Pamela an equalization payment
of $12,000.
Pamela testified that she received $1,231 per month in
“medical retirement” payments from her previous employer.
Pamela estimated her expenses to be $2,000 a month. She also
testified that she has “a lot of health care expenses” which total
$2,000 a month.
Upon our review of the record and of the district court’s
division of the parties’ assets and debts, it is clear that both
Pamela and Patrick have limited financial resources available
to them. Patrick is struggling to provide for himself and for
the parties’ three children, and Pamela is struggling to pay her
medical bills. Considering the parties’ financial circumstances
and the overall division of the parties’ property in the decree,
we cannot say that the trial court abused its discretion in failing
to award Pamela spousal support pursuant to § 42-362.
CONCLUSION
In light of the conflicting evidence regarding Pamela’s men-
tal health, the evidence regarding the financial circumstances of
the parties, and the overall division of the parties’ property, we
find no abuse of discretion in the trial court’s failure to award
Pamela spousal support pursuant to § 42-362. We affirm.
affirmed.
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