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Garza v. Garza

Supreme Court of Nebraska

May 23, 2014

DONNA L. GARZA, NOW KNOWN AS DONNA L. FAUST AMAN, APPELLEE AND CROSS-APPELLANT,
v.
ARTURO GARZA, APPELLANT AND CROSS-APPELLEE

Page 627

[Copyrighted Material Omitted]

Page 628

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge.

AFFIRMED.

Wendy J. Ridder, of Law Offices of Daniel P. Bracht, P.C., L.L.O., for appellant.

Benjamin M. Belmont, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 629

Heavican, C.J.

I. INTRODUCTION

Arturo Garza filed an application to modify child support and parenting time. The district court found a material [288 Neb. 214] change in circumstances, made certain changes to the parties' parenting time, and reduced Garza's child support obligation. Garza appeals, and Donna L. Garza, now known as Donna L. Faust Aman (Faust Aman), cross-appeals. We affirm.

II. BACKGROUND

Garza and Faust Aman were married in July 2005. The parties separated in December of that same year, and Faust Aman filed for divorce on December 22. One child, a son, was born of the marriage in December 2005, after Faust Aman filed for divorce. A decree and parenting plan was entered on May 2, 2007.

The original decree and parenting plan awarded sole primary and legal custody to Faust Aman. As relevant to the current application for modification, Garza was awarded alternating weekend visitation and was ordered to pay $500 per month in child support.

In approximately February 2010, Garza, who had been unemployed, moved from Omaha, Nebraska, to Lenexa, Kansas, to take a new job. On February 2, 2012, Garza filed an application, and later an amended application, for modification of the decree and parenting plan, alleging that his move to Kansas was a material change in circumstances. On March 2, Faust Aman filed an answer; on March 5, she filed a motion for an order to show cause why Garza should not be held in contempt of court for " willfully and contemptuously violating the terms and conditions of the Decree of Dissolution."

Following a hearing, Garza was found in contempt because he owed Faust Aman $7,683.89 in child support, $10,601 for childcare expenses, and $31,000 for the divorce property settlement. Garza was allowed to purge the contempt by paying $3,000 in child support; being current in his payments of child support and childcare expenses when making his regular payments in April, May, and June; and paying attorney fees. Garza was purged of the contempt on May 7, 2012.

In the midst of the contempt proceedings, on or about March 30, 2012, Garza was laid off from his job. On September 12, Garza filed a second amended application for modification. He alleged a material change in circumstances for various [288 Neb. 215] reasons, notably his relocation to Lenexa, the fact that the minor child was now school age, Faust Aman's new job, and the loss of his job.

Garza was still out of work at the time of the trial on his application for modification. Garza testified that he had been looking for a job since he was laid off and testified that he had searched in Lenexa, Omaha, and surrounding areas. Garza testified that he was willing to take a job in a field other than his chosen field of medical equipment planning and that he had even applied for food services jobs, all to no avail.

Garza has numerous complaints about Faust Aman and his access to their son.

Page 630

As relevant to this appeal, Garza complains that after moving to Lenexa, he asked Faust Aman on more than one occasion to transport their son to Mound City, Missouri, or roughly halfway between Omaha and Lenexa, so that Garza could exercise his visitation. But Faust Aman informed Garza that she was " 'not able to meet [him] halfway.'" She testified that oftentimes, she could not meet with her " upper management" until late in the day, and that therefore, she was not able to leave work early on Friday afternoons on a regular basis.

Following trial on the application for modification, the district court found Garza's move to Kansas was a material change in circumstances. But the district court noted that the move on Garza's part was voluntary. As such, it denied Garza's request that Faust Aman should have to transport the couple's son to the halfway point for visitation so long as Garza remained unemployed, but granted his request for transportation under limited circumstances once Garza was again employed. Specifically, once Garza was again employed, Faust Aman would be required to meet Garza at a ...


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