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Wathor v. Swift

Court of Appeals of Nebraska

October 22, 2013

Christopher M. Wathor, appellant,
v.
Jessarae A. Swift, appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: John A. Colborn, Judge.

Terrance A. Poppe and Benjamin D. Kramer, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellant.

Darla S. Ideus, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

Moore, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

INTRODUCTION

Christopher M. Wathor appeals from an order of the district court for Lancaster County denying his request for a change of custody of his son, Colby Wathor. Because we find that no material change of circumstances has occurred to warrant a change of custody from Colby's mother, Jessarae A. Swift, to Wathor, we affirm.

BACKGROUND

Wathor and Swift are the biological parents of Colby, born in March 2003. The parties were never married, but dated from 1999 to 2006, and lived near Hickman, Nebraska, during their relationship. From the time Colby was born until the parties' relationship ended in December 2006, the parties lived in the same home with Colby. Following their separation, Colby lived with Swift and both parties continued to live in or near Hickman.

In April 2008, Wathor filed a complaint for paternity, seeking establishment of paternity, custody, and child support. In October, the trial court entered an order of paternity, finding that Wathor is the biological father of Colby and awarding Swift legal and physical custody of Colby, subject to Wathor's reasonable rights of parenting time. Wathor was awarded parenting time every other weekend, every Wednesday evening, and alternating holidays. His summer parenting time consisted of three 1-week periods in 2009 and increased to alternating 1-week periods in 2012.

The order of paternity prohibited Wathor from consuming any alcohol during his parenting time or 24 hours prior to parenting time; prohibited him from taking Colby to any location where alcohol was served; ordered that Wathor was not to allow alcohol to be consumed by other persons present during parenting time; and ordered that Wathor provide an alcohol test to Swift prior to, and at the end of, every parenting time.

In June 2011, Wathor filed a complaint for modification, alleging that there had been a material change of circumstances since the entry of the order of paternity and seeking custody of Colby. The material changes alleged included that Swift's lifestyle and living arrangements are not appropriate for Colby; Swift does not adequately provide for the daily needs and necessities of life for Colby; Swift planned to move to Randolph, Nebraska, and such move would adversely impact Wathor's parenting time with Colby; Swift interferes with Wathor's parenting time; and Swift attempts to alienate Colby from Wathor.

Trial was held on Wathor's complaint for modification in October 2012. The evidence showed that in August 2011, Swift and Colby moved to Randolph, which is about 170 miles from Hickman, or about a 3-hour drive. Swift and Colby moved to Randolph with Swift's boyfriend, Brandon Backhaus, who had taken a job in Norfolk, Nebraska, which is near Randolph. Backhaus started the new job in February 2011, but Swift and Colby remained in Hickman while Backhaus made sure that he liked the job before Swift made a final decision to move to Randolph. The job in Norfolk offered Backhaus an increase in pay, did not involve traveling like his ...


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