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Kai v. Sebade

Court of Appeals of Nebraska

December 17, 2013

Jennifer Kai, appellee,
v.
Andrew Sebade, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Thurston County: John E. Samson, Judge.

Eric A. Gerrard, of Bartle & Geier, and Stuart B. Mills for appellant.

Michael J. Tasset, of Johnson & Mock, for appellee.

Inbody, Chief Judge, and Moore and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

INTRODUCTION

Andrew Sebade appeals from the order of the district court for Thurston County awarding primary physical custody of the parties' minor child to Jennifer Kai. Sebade argues that in analyzing the child's best interests, the court weighed Sebade's criminal record excessively and failed to properly weigh the fact that Kai is a habitual cigarette smoker. Finding no abuse of discretion by the district court, we affirm.

BACKGROUND

The parties, who never married, are the biological parents of one child, a son born in January 2009. From the time their son was born, both parents were involved in his life even though their romantic relationship had ended. In July 2009, Kai filed a complaint to establish paternity, custody, parenting time, and child support. The court entered a temporary order granting Kai temporary full custody of the child subject to Sebade's parenting time every other weekend and 1 or 2 days during the week.

In July 2011, however, Kai and Sebade informally changed the arrangement so that each parent had the child for 1 week at a time because Kai had moved from Emerson, Nebraska, to Omaha, Nebraska, and the distance made the prior arrangement difficult. This weekly arrangement worked well for the parties at the time. But by the time trial was held in March 2013, the parties were each seeking primary physical custody, because the child would soon begin attending school and they wanted a more consistent schedule for him. They agreed to share legal custody.

At the time of trial, Kai was 28 years old, living in a two-bedroom apartment in Omaha, and working part time as a certified nursing assistant while attending school full time to pursue a degree in psychology. In addition to the child at issue here, Kai is the mother of a 6-year-old daughter who also lives with her full time. Kai testified that her two children are "inseparable" and always doing things together.

Kai is a cigarette smoker but claimed that she was trying to quit. She testified that she does not smoke in front of her children or in her house and that she only smokes in her car when the children are not present. The parties' child suffers from medical issues, which require nebulizer treatments for his breathing. The condition and its cause have not yet been determined, but Kai was planning to take him to see a specialist the week after trial. Sebade testified that when he picks up the child for his parenting time, the child smells like cigarette smoke and coughs frequently. After spending a few days at Sebade's house, however, the child is "good and cleared up, " according to Sebade.

At the time of trial, Sebade was 26 years old, living in his own home in Emerson, and working for his father's feedlot. Sebade's criminal history includes three convictions for minor in possession of alcohol and two convictions for driving under the influence. He also has two convictions for third degree assault and had a third charge dismissed after completing a diversion program. Sebade's record also contains convictions for reckless driving and criminal mischief. Sebade has not had any convictions since his son was born, and he denied having an issue with alcohol abuse at the time of ...


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