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Vesper v. Francis

Court of Appeals of Nebraska

October 8, 2013

Bruce Vesper, appellant,
v.
Dawn Francis, appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Saunders County: Mary C. Gilbride, Judge.

Shane J. Placek, of Sidner, Svoboda, Schilke, Thomsen, Holtorf, Boggy, Nick & Placek, for appellant.

Patrick T. Carraher and Christine A. Stolarskyj, of Legal Aid of Nebraska, and Adam R. Tripp for appellee.

Moore, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

INTRODUCTION

Bruce Vesper appeals the order of the district court for Saunders County finding it was in the minor child's best interests to place his care, custody, and control with the child's mother, Dawn Francis, subject to Vesper's right of reasonable visitation. For the reasons that follow, we affirm.

BACKGROUND

Vesper and Francis are the biological parents of Alexander Francis. Vesper and Francis met in July 2010, moved in together 4 months later, and lived together for approximately 6 months. After they separated, Francis notified Vesper that she was pregnant, and their last correspondence prior to the birth of the child was in February 2011. In June 2011, Vesper filed a petition to establish paternity and custody.

During the pregnancy, Francis met Keylee Bonney, a woman who had obtained a harassment protection order against Vesper. Francis contacted Bonney to find out information about the protection order. Bonney did not know Vesper personally, but at the time of the protection order, Bonney's current husband was going through a divorce from Vesper's second cousin. Unbeknownst to Bonney, Vesper was videotaping Bonney's 6- and 8-year-old children. The police were called, and Vesper was found on the Bonney property with a camcorder. The videotapes included footage of the children engaging in activities such as going to school, playing with friends, and jumping on a trampoline over the course of about 3 months. Vesper was charged with disturbing the peace and trespassing, and Bonney successfully obtained a 1-year protection order. A few days after the issuance of the order, Bonney saw Vesper approximately one block away from her home, again recording video. The police were called, and Vesper was removed from the property. Bonney shared this information with Francis, because she was concerned Vesper would do the same thing to her.

Francis did not want Vesper to be present at the hospital during the delivery of their child because their relationship was not very good and she felt it would not be good for her or the child for Vesper to be present. Alexander was born in September 2011. Francis did not notify Vesper that Alexander was born or that he was in neonatal intensive care at the hospital for 2 weeks after his birth. She believed Vesper would start a confrontation during labor and delivery.

In October 2011, Vesper filed a motion for genetic testing, and the test confirmed that Vesper was Alexander's biological father. After the results of the test, Vesper sought temporary custody of Alexander, and his request was denied. Vesper was granted temporary visitation with Alexander on Saturdays from 10 a.m. to 5 p.m. and on Wednesdays from 6 to 8 p.m. Vesper filed his amended petition to establish paternity and custody on November 17. In January 2012, he sought an increase in parenting time. Vesper provided notice, in compliance with Neb. Rev. Stat § 42-364 (Cum. Supp. 2012) on September 7 that in the event he was not granted full physical and legal custody of the child, he requested joint legal and physical custody.

The parties appeared for trial on November 13, 2012, to determine paternity, child support, child custody, and parenting time.

At the time of trial, Vesper resided in Fremont, Nebraska, in a duplex he had rented for over a year. He was single and employed full time as a "locating technician, " locating "underground . . . OPPD wires." His work schedule was roughly 8 a.m. to 5 p.m. Monday through Friday, and his hours decreased during the winter due to reduced demand. Vesper also testified that he is paid cash to plow snow for a friend as needed and that he has done this for the past four winters.

Vesper testified that he completed a 16-week parenting program and a nutrition education program. A family life educator testified that Vesper was an active participant in a parenting support group.

Vesper's second cousin testified that Vesper is like a brother and that he has helped her to parent her children, especially during times when she was in training or stationed abroad with the U.S. Army National Guard. She said Vesper is a stable, positive role model for her children.

At the time of trial, Francis resided in Cedar Bluffs, Nebraska. She was the primary caregiver for Alexander, who was approximately 14 months old at that time. She was divorced from Eddie Guerrero prior to her involvement with Vesper. Francis and Guerrero had three children together, and after the divorce, Guerrero consented to Francis' moving from Texas to Nebraska with their children. The children are older half siblings to Alexander, and at the time of the trial, their ages were 11, 9, and 5. Francis was unemployed and relied on food stamps, "WIC, " Medicaid, and child support to care for the children. Francis participated in a court-ordered parenting course, as well as "parenting classes through WIC, " and a parenting class for divorcing couples, at the time of her divorce from Guerrero.

Guerrero testified that he had no concerns about his children or their safety with Francis and that he was happy and satisfied with how she was raising their children. Guerrero and Francis consistently communicate via text, "Skype, " and telephone calls regarding "medical, school, other important events, and developments" concerning their children. He said that his children were very excited to have a little brother and that "they love him very much, they play with each other and it's very cohesive."

Bonney testified that Francis is a loving, kind, and funny person who "interacts with [her children] all the time" and meets their educational and medical needs. She said she had no concerns with Francis' parenting skills or with the cleanliness, safety, or space available in the home.

Both parties testified regarding Vesper's relationship with Francis' children when they resided together. Vesper testified that he provided supervision for the children when she was not available and that he fed them, assisted them with homework, and put them to bed without issue. Vesper testified that he and Francis separated because she had a problem ...


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