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Covington v. Riggle

Court of Appeals of Nebraska

July 16, 2013

Benjamin W. Covington, appellee,
v.
Kristeena E. Riggle, now known as Kristeena E. Brittain, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lincoln County: Donald E. Rowlands, Judge.

James C. Bocott, of Law Office of James C. Bocott, P.C., L.L.O., for appellant.

R. Bradley Dawson, of Lindemeier, Gillett & Dawson, for appellee.

Inbody, Chief Judge, and Irwin, Judge.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

INBODY, CHIEF JUDGE.

INTRODUCTION

Kristeena E. Riggle, now known as Kristeena E. Brittain (Brittain), appeals the denial of her complaint to modify custody of the minor child, Cortney Ann Covington.

PROCEDURAL BACKGROUND

In December 2003, Brittain gave birth to Cortney. On July 20, 2005, Benjamin W. Covington commenced an action to determine Cortney's paternity, and on that same date, he received ex parte temporary custody of Cortney. In August 2005, the district court took legal custody of Cortney and gave each party shared physical possession of Cortney, alternating every other week. In February 2007, the district court granted temporary custody of the minor child to Covington pending trial, which was held in August 2007.

On August 14, 2007, the district court entered an order retaining legal custody of Cortney and placing physical custody of Cortney with Covington. The court stated that "[i]n reaching the placement decision . . ., the Court has considered and given substantial weight to the report of the guardian ad litem (See Exhibit 1)." (Emphasis in original.) The district court specifically noted that it was accepting the guardian ad litem's opinion that Covington provided greater stability for Cortney than Brittain, although the court noted that it had concerns about the stability and fitness of both parents.

After the passage of several years, in July 2011, Brittain filed a complaint to modify custody, and trial thereon was held on May 9 and 10, 2012. At the time of the previous trial in August 2007, Covington had been employed at a Walmart distribution center earning $17 per hour with health insurance benefits. At the time of his dismissal from that employment in 2008, he was earning $19.60 per hour. During the intervening years until 2012, Covington had at least eight employers (Fat Dog, North Platte Telegraph, Antelope Sprinklers, Red Arrow Truck Wash, Nebraska Department of Roads, North Platte Public Schools, Time Tool, and Ag & Auto Diesel), but at the time of the current trial, Covington had been employed with Pepsi for 2 months and was earning $10.50 per hour, working from 11 a.m. to 6 p.m., Monday through Friday. He testified that his current job situation is better than it was in August 2007, because he knows exactly when he is working, he has better benefits, and eventually, he will get his commercial driver's license through his employment with Pepsi. During his work hours, Covington's mother assists him by picking Cortney up from school and caring for her until Covington gets off work.

Covington testified that he and Cortney have lived in a two-bedroom house in North Platte, Nebraska, for the past 1½ years prior to trial. At the time of the trial, he was 35 years old and had never been married; he has primarily been a single parent and the sole support for Cortney. Covington testified that he takes care of Cortney's everyday needs: meals, taking her to school, and homework if she has not already completed it. He attends her parent-teacher conferences, school programs, and takes her to counseling sessions. They also do fun things like ride four-wheelers together, go swimming, and go to the recreation center to play basketball and volleyball. Covington testified that Cortney has friends in her neighborhood and that he intended to sign her up for gymnastics, since she expressed an interest in it, along with soccer and swimming lessons.

Brittain has been married to her husband since April 2006. Brittain testified that at the time of the previous trial in 2007, she was newly married and pregnant and her family was struggling financially, but that at the time of trial in 2012, her family's financial situation was more secure. The family moved to McCook, Nebraska, for Brittain's husband to take a better job as a mechanic earning approximately $50, 000 to $55, 000 annually. They have rented a three-bedroom home in McCook for the past 16 months. The family's more secure financial situation allows Brittain to be a stay-at-home mother, so she is available for the parties' children, five of whom reside with them. Brittain and her husband have two biological children, ages 5 and 3. Brittain has another daughter, age 10, who has been adopted by her husband. Also residing with them are Brittain's husband's daughter and son from a prior relationship, age 17 and age 16, respectively. Cortney gets along with her siblings, and Brittain's husband testified that when Cortney ...


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