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Schrag v. Spear

Court of Appeals of Nebraska

July 15, 2014

EMBER M. SCHRAG, APPELLANT,
v.
ANDREW S. SPEAR, APPELLEE

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Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge.

AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.

Stephanie R. Hupp and Zachary L. Blackman, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., for appellant.

Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellee.

IRWIN, MOORE, and BISHOP, Judges. MOORE, Judge, concurring in part, and in part dissenting.

OPINION

Page 557

[22 Neb.App. 141] Per Curiam.

Ember M. Schrag appeals from an order of the district court for Lancaster County which modified custody of the parties' daughter, Lillian Schrag, to award her father, Andrew S. Spear (Andrew), primary physical custody; denied Ember's application to remove Lillian from Iowa to New York; removed a visitation restriction on Ember's adoptive mother; and ordered Ember to pay child support based upon a prior earning capacity. For the reasons that follow in our opinion below, we reverse the modification of custody and the denial of Ember's application to remove Lillian to New York. However, we affirm the removal of the visitation restriction on Ember's adoptive [22 Neb.App. 142] mother and the award of child support for the time that Lillian has been in Andrew's primary physical custody.

I. FACTUAL BACKGROUND

Ember and Andrew are the biological parents of Lillian, who was born in November 2007. They were never married and did not live together after Lillian was born. At the time of Lillian's birth, Ember resided in Lincoln, Nebraska, and Andrew resided near Kansas City, Missouri. Ember filed a paternity action in the district court for Lancaster County on November 7, 2007, and a temporary order was entered in March 2008, approving the parties' stipulated agreement. The agreement provided for Ember to have temporary custody of Lillian subject to Andrew's parenting time, which consisted of every other Saturday in Lincoln. Andrew was also ordered to pay child support. On January 21, 2009, the district court entered a final order of paternity awarding Ember custody of Lillian, subject to Andrew's rights of parenting time set forth in the parties' parenting plan, and requiring Andrew to pay Ember child support and half of her incurred childcare costs. Andrew's regular parenting time consisted of every third weekend from 9 p.m. on Thursday until 9 p.m. on Tuesday, together with holiday parenting time and summer parenting time which began as two 1-week periods in 2009 and gradually increased each year, concluding with two 3-week periods in 2012. Andrew provided all transportation for his parenting time and was allocated a $100-per-month reduction in his child support obligation, from $349 per month to $249 per month, because of this. A judgment of $330 per month was also entered against Andrew to cover his share of childcare costs.

Just over 2 weeks later, on February 6, 2009, in response to an order to show cause filed by Ember on December 10, 2008, seeking payment for amounts due from Andrew under the prior temporary order, the district court entered an order adopting an agreement reached by the parties. That agreement included a judgment of $2,085 owed by Andrew to Ember, payable at $100 per month, with said judgment resolving childcare costs owed by Andrew through January 30, 2009. Based [22 Neb.App. 143] on this agreement, the previously entered order to show cause was vacated.

On November 6, 2009, Ember again filed a motion for an order to show cause, claiming that Andrew was behind in child support by $797.27 and in childcare by $2,469.55 and that he still owed $1,988.94 on the judgment entered in the prior contempt proceeding. On December 18, a contempt order was entered against Andrew, committing him to 30 days in the Lancaster County jail, but which provided for a suspension of the sentence as long as Andrew paid the amounts indicated in the contempt order.

A little over a year later, in February or March 2011, Ember moved with Lillian from Lincoln to Decorah, Iowa. She made

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this move because she and Bryan Day, her boyfriend at the time, were not in a good financial situation in Lincoln and Day's parents had offered them a free place to live in their home in Decorah. In April 2011, Ember and Day married. Ember claimed that during a telephone call with Andrew in February, she requested permission from Andrew to move to Decorah. She stated that Andrew seemed " very amicable" when he told her, " 'I don't care if you move anywhere in the world, as long as I still get to see Lillian.'" Ember told Andrew that he would need to sign modification papers, and she was under the impression he was in agreement. He even agreed to change the visitation exchange location to Des Moines, Iowa, and they met in Des Moines on a couple of occasions. But when she gave him the modification papers to sign during an exchange in April (when Andrew was picking up Lillian for his parenting time), he refused to sign the papers. And when he was supposed to meet in Des Moines to return Lillian to Ember, Andrew told Ember that he would no longer consent to meet in Des Moines and that Ember would have to drive to Lincoln, a 7-hour drive for Ember, to pick up Lillian. About 1 hour before the scheduled exchange time in Lincoln, Andrew texted Ember that he would not be bringing Lillian back because he had been given emergency custody of Lillian.

Andrew had filed an action to modify the paternity order and sought emergency custody of Lillian. On April 26, 2011, an order for ex parte custody was entered, awarding Andrew [22 Neb.App. 144] custody of Lillian pending a later temporary custody hearing. On May 31, following the temporary custody hearing, the court restored custody of Lillian to Ember. In that order, the court noted that Andrew's affidavit in support of the ex parte custody order stated that Ember had moved without the court's approval and without Andrew's consent or agreement. The court then stated:

As a result of the most recent hearing where both parties had an opportunity to present affidavits, that statement turns out not to be the case. It is true that the court has not approved the move. It is not true that the move was made without [Andrew's] consent. [Andrew's] own affidavit discloses that he knew of the move and agreed to it.

The court also noted that " [Andrew's] ex parte affidavit also states that he did not know the whereabouts of his child from January, 2011 to April 26, 2011. Again, following the hearing where both parties had an opportunity to present evidence, this proves not quite to be the fact." The court then stated, " These discrepancies are significant in that they formed the basis for the need for ex parte action on the part of the court." The court concluded that the ex parte order " should not have issued," vacated the order, and restored custody of Lillian to Ember.

On February 22, 2012, a modification order was entered which approved a joint stipulation and parenting plan submitted by Ember and Andrew and which granted Ember permission to move Lillian to Iowa. The parenting plan specified that Ember and Andrew would share joint legal custody of Lillian and stated that the parties " shall discuss educational, medical, religious and social decisions concerning the parenting functions necessary to raising the child. In the event of an impasse, [Ember] shall have the final say; however, [Andrew] retains the right to submit the issue to mediation or return to Court." The parenting plan also provided that the principal place of residence of Lillian during the school year would be with Ember. Andrew was provided parenting time which included various school breaks and holidays, together with all of the summer

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break from school except for the first and last full weeks of [22 Neb.App. 145] the summer break. It was agreed that the most effective way to communicate regarding Lillian was for either parent to send an e-mail to the other parent and to follow up with a telephone call. The parties agreed to share transportation responsibilities, and the record shows that they met in Des Moines for parenting-time exchanges. The parties also included a provision in the plan stating that Ember's mother by adoption, Cindy Chesley, would not have any contact with Lillian unless such contact was supervised by either party. The parties further agreed to reside in the states of Nebraska, Missouri (including the Kansas City metropolitan area), and Iowa unless otherwise agreed to by the parties. The parties stated their intention for Nebraska to maintain jurisdiction as the home state for Lillian. Finally, the parties agreed that they " can temporarily change the terms of this Plan as long as they both agree to it in writing," but they also acknowledged that any permanent changes to the plan required court approval before the change would become binding and enforceable.

Lillian spent the summer of 2012 with Andrew, returning to Ember on August 27, 2012. On that day, the parties met at the agreed-upon location in Des Moines. They exchanged cordial conversation, and no mention was made by Ember that she was moving Lillian to New York that day. On August 30, Ember notified Andrew in an e-mail that she had separated from Day. (Ember's divorce from Day was finalized when an Iowa district court entered a decree of dissolution on September 6.) In the August 30 e-mail, Ember also informed Andrew that Day was her only connection to Iowa and that without him, there was no reason to stay in Iowa. Ember explained that she had " spent the summer working on the east coast and developing a new support system in Philadelphia and New York City." Ember noted that she had " gotten an opportunity to move to New York City that will greatly improve Lillian's situation." The e-mail also noted:

Although this is the first you're hearing of it, this is not sudden, and it will be the best for Lillian. I'll be in a much better spot, better able to care for her and spend time with her. We'll be living in a very nice neighborhood in [New York City].

[22 Neb.App. 146] Ember stated that because of New York's age requirements for school, Lillian would be starting kindergarten that fall, and Ember included a list of schools that Lillian could attend. Ember stated, " I'd appreciate your response regarding input into her educational opportunities," and then she provided Internet links to a Montessori school, along with links to two public schools--one school which Lillian would be automatically " zoned" to attend based on where they would live and the other school in a closer location where the children of several of Ember's friends attended. Since Lillian would be in school, Ember noted that Andrew would no longer have to contribute to childcare expenses. In the e-mail, Ember also stated that she would pay for the travel expenses when Andrew had his parenting time, mentioned the " hugely increased cultural opportunities available to Lillian," and indicated that Lillian would be attending a highly regarded dance school (Mark Morris Dance Center). Andrew replied on September 1, saying only, " I do not agree moving Lillian to New York is what's best for her." Within the week, on September 7, he filed a complaint to modify, seeking a change in custody of Lillian. On September 20, Ember filed an answer and counterclaim, wherein she sought the court's permission to move Lillian to New York. That same day, Ember also filed a motion for order to show cause asserting that Andrew was willfully refusing to pay ongoing childcare costs in the amount of $7,758.91, a childcare

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judgment for $962.35, and an attorney fee judgment of $600. An order to show cause was issued on January 4, 2013, showing that the contempt matter would be heard on February 11, the same day the matter was scheduled for trial.

On February 11, 2013, trial was held on Andrew's complaint and Ember's counterclaim. Ember, age 27 at the time of trial, is a folk singer. During the summer of 2012, while Lillian was with Andrew and in light of her separation from Day, Ember was looking for a new living arrangement and support system either in Philadelphia, Pennsylvania, or New York City, New York. Since she and Day had been living with Day's parents, she could no longer stay there, and she had no other family or friends in Decorah. Ember did not consider moving back to Nebraska because the only family [22 Neb.App. 147] there was her adoptive mother, Chesley (who lived in North Platte, Nebraska), and Ember had been estranged from her for 2 years. Ember believed Philadelphia and New York City seemed to offer the best options, so for part of the summer, she was " housesitting in Philadelphia," while she also engaged in musical opportunities. She had a Philadelphia record label put out her second full-length album, and she had a lot of friends with whom she could collaborate musically, so she also played several shows while there. In considering Philadelphia as a possible place to live, Ember evaluated neighborhoods. She had many people tell her that the public schools were not very good, which was also in the news. Ember noted that the " rent wasn't as expensive there as some places," but that it " just didn't feel as safe to me."

Ember ultimately decided to move to New York. Although Ember has no family in the New York area, she had many musician friends there, and she believed that New York would enhance Lillian's quality of life. The educational opportunities were significant, and Ember was going to be able to spend more time with Lillian than ever before. Ember stated, " I'm really happy to be able to pick her up every day, and I feel more relaxed because I'm in a supported place where I can work on my music in a way that doesn't take me away from her."

From the end of August 2012 until the district court's order in February 2013, Ember and Lillian resided with Robert Bannister in his two-bedroom apartment in New York City. Ember and Bannister share one of the bedrooms while Lillian has her own bedroom. Ember met Bannister in March 2011 at a concert. She reconnected with Bannister at a concert in Chicago in May 2012 and began a romantic relationship with him about a month later.

At the time of trial, Bannister was 52 years old and was the director of the quality assurance department at an educational software development company. Bannister had been estranged from his second wife for 5 years, but was not yet legally divorced. He testified that he still supported his second wife by paying certain bills for her. Bannister had a son studying science at a college north of New York City. [22 Neb.App. 148] Bannister shared custody of his son, who, prior to college, resided with Bannister rather than his mother during the week because Bannister's apartment was closer to his high school. When Bannister's son occasionally visits from college, he and Lillian enjoy interacting with each other, including doing science experiments together.

Ember conceded at trial that she is dependent on Bannister to provide Lillian and her with a place to live, but was adamant that her relationship with him did not show any signs of instability. Bannister also testified that he did not anticipate his relationship with Ember would terminate in the foreseeable future.

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Since moving to New York, Ember has essentially become a stay-at-home mother caring for Lillian. Ember testified that while Lillian is at school or asleep, Ember works on composition, rehearsal, and promotion of her music career. During the fall of 2012, Ember traveled to other cities to perform shows and was away from home for only two to three evenings, during which time Bannister cared for Lillian. Ember testified that New York has been beneficial for her career as a musician because she can perform at night while Lillian is sleeping and these performances have more impact on her career.

According to Ember, Lillian did not have much difficulty adjusting to life in New York. Ember described Lillian as outgoing, extroverted, creative, friendly, smart, and confident. Ember indicated that Lillian seems to be comfortable, secure, and happy in New York. Lillian was able to begin kindergarten at a nearby school, and she has generally done well at school. Lillian participates in afterschool programs, including science and music. Lillian attends a creative dance class, and a music instructor comes to their home to give Lillian violin lessons. Letters from her violin teacher and dance instructor were received into evidence and highlighted Lillian's budding abilities. Additionally, Ember presented evidence to suggest that Lillian has developed a strong relationship with Bannister.

Testimony from Ember, Bannister, and a friend and neighbor of Bannister was received concerning the neighborhood they live in and about Ember's care of Lillian. Various [22 Neb.App. 149] photographs of the area were received in evidence. The area is residential with many different types of old buildings, and there are playgrounds and parks nearby. Bannister's friend described the neighborhood as " family oriented." None of these individuals had any concerns about the neighborhood with respect to criminal activity or violence. The building that Bannister lives in has a security doorman. Bannister's friend's youngest daughter and Lillian are close in age, and he sees Lillian and Ember nearly every day before and after school. He has no concerns about Ember's parenting. He testified that Bannister is protective of Lillian and that their home is a supportive environment for Lillian's creativity. Ember walks Lillian to and from school every day. According to Ember, Lillian has friends through school and in the neighborhood. Ember takes Lillian to the nearby playground, parks, and museums. Ember helps Lillian with her homework, cooks the meals, bathes her, and reads to her, and they sing and play instruments together. Bannister engages in and assists with many of these activities.

Ember does not believe that physical custody of Lillian should be modified, because Ember has always been Lillian's primary caregiver and because a change in custody would cause serious disruption. Although the record shows that Andrew was current on child support at the time of the modification hearing, Ember also questioned whether Lillian was a priority for Andrew, since he had not regularly paid his child support in the past. Ember was also concerned about Andrew's contact with Chesley.

Andrew married his wife, Holly Spear, in October 2010. They have a son who was nearly 2 years old at the time of trial, and they were expecting another baby boy due to be born in June 2013. Andrew works as a restaurant general manager for a franchisee of a pizza restaurant. He testified at trial that he was training to become an area manager. Andrew typically works Monday through Saturday, from 8 a.m. to 6 p.m. On Sundays, he and his family attend church together. Andrew earns 3 weeks of vacation each year,

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which he typically takes in the summer when Lillian is with him. Holly also works at a restaurant, and she testified that she will be changing her [22 Neb.App. 150] hours to 9 a.m. to 3 p.m. so that she is available to take Lillian to and from school. Currently, Andrew's aunt provides daycare in her home for Andrew and Holly's son at no charge, and she will also do so for both Lillian and the new baby.

Andrew and Holly are currently renting a home in Liberty, Missouri, and are working toward being able to purchase a home. Photographs of their home were received in evidence, in addition to the public school that Lillian would attend and a nearby park. Andrew testified that Lillian is comfortable in his home and that the consistency he provides to Lillian is good for her.

Andrew has many relatives in the Kansas City area, including his parents, grandmother, brother, aunts and uncles, and numerous cousins. Lillian has several cousins near her age that she enjoys getting together with. Lillian also has friends in Andrew's neighborhood that she plays with. Andrew and Holly testified about some of the activities that they do with Lillian, including crafts, going to museums, and working with flashcards. Andrew and Holly both testified to having a close relationship with Lillian.

Chesley has been visiting Lillian at Andrew's home under his supervision since the previous court order. Chesley testified to her observations of the interaction between Andrew and Lillian. She indicated that Andrew is very tender with Lillian and that there is a lot of cuddling between the two. Chesley believes that Lillian feels safe with Andrew and respects him. According to Chesley, Andrew is firm and there are clear rules in his home, Andrew is very engaged with Lillian, and Lillian has a close relationship with her half brother. Chesley testified regarding concerns that she had about Ember's care of Lillian, but she has not been able to observe the relationship since Chesley and Ember's estrangement in early 2011. Chesley admitted that she has paid a portion of Andrew's attorney fees in connection with this proceeding and that she had previously assisted Ember with her attorney fees.

Andrew believes that Lillian's best interests require a change of custody. Andrew testified regarding his concerns about Ember's parenting, the move to New York, and the new relationship with Bannister. Specifically, he indicated, " I don't [22 Neb.App. 151] think [New York City] is the neighborhood that I want my daughter growing up in." He also pointed to the instability in Lillian's life over the last couple of years with the frequent moves and changes of significant people in her life. Andrew testified that the " nomadic life" is not good for Lillian. Andrew highlighted the stability that he has had in his family life--he has lived and worked in the same area for several years and has regularly exercised the parenting time provided to him by the various orders.

On February 27, 2013, the district court entered its order denying Ember's request for removal and modifying custody of Lillian to Andrew. In its order, the court found that Ember did not have a legitimate motive to move to New York and that removal was not in Lillian's best interests. In granting Andrew's modification request, the court noted that this change in custody was going to be another abrupt change in Lillian's life, but believed that this change would stop the pattern of sudden, dramatic changes. The court also lifted the supervised contact restriction on Chesley, revised the parties' child support obligations, and indicated that the parties had reached an agreement on the contempt matter.

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Ember filed a motion for a new trial. The district court denied this motion, but issued an amended order on March 18, 2013. Ember appeals from this order.

II. ASSIGNMENTS OF ERROR

Ember assigns and argues four errors. She alleges, summarized, restated, and reordered, that the district court erred in (1) modifying custody, (2) denying her application to remove Lillian to New York, (3) removing the requirement that Chesley's visitation with Lillian be supervised, and (4) calculating her child support obligation.

III. STANDARD OF REVIEW

Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).

[22 Neb.App. 152] Modification of child support payments is entrusted to the trial court's discretion, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013).

An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Watkins v. Watkins, supra.

IV. ANALYSIS

1. Modification of Custody

Ember argues that the district court erred when it determined that Andrew should be awarded primary physical custody of Lillian. She claims that there has been no material change in circumstances and also believes that a change in custody is not in Lillian's best interests.

Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Id. The party seeking modification of child custody bears the burden of showing a material change in circumstances. State on behalf of Savannah E. & Catilyn E. v. Kyle E., 21 Neb.App. 409, 838 N.W.2d 351 (2013). A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004).

Prior to the modification of a child custody order, two steps of proof must be taken by the party seeking modification. First, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests. Adams v. Adams, 13 Neb.App. 276, 691 N.W.2d 541 (2005).

According to Neb. Rev. Stat. § 43-2923(1) (Cum. Supp. 2012), the best interests of the child require a parenting [22 Neb.App. 153] arrangement which provides for a child's safety, emotional growth, health, stability, and physical care and regular and continuous school attendance and progress. Donscheski v. Donscheski, 17 Neb.App. 807, 771 N.W.2d 213 (2009). Section 43-2923(6) states:

In determining custody and parenting arrangements, the court shall consider the best interests of the minor child,

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which shall include, but not be limited to, consideration of the foregoing factors and:
(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member. . . . and
(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse.

In addition to the statutory factors relating to the best interests of the child, a court may consider matters such as the moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension, regardless of chronological age, and when such child's preference is based on sound reasons; and the general health, welfare, and social behavior of the child. Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996).

The Nebraska Supreme Court has explained that not every change warrants a change in custody and that " [t]he best [22 Neb.App. 154] interests of the children are not served by constant custody disputes and a shifting of custody control from one parent to the other." Hoschar v. Hoschar, 220 Neb. 913, 915, 374 N.W.2d 64, 66 (1985), disapproved on other grounds, Parker v. Parker, 234 Neb. 167, 449 N.W.2d 553 (1989). The Hoschar court further stated that a decree fixing custody should not be modified " unless there has been a change of circumstances indicating that the person having custody is unfit for that purpose or that the best interests of the children require such action." Id.

Nebraska courts have also held that evidence of the custodial parent's behavior during the year or so before the hearing on the motion to modify is of more significance than the behavior prior to that time. Hoins v. Hoins, 7 Neb.App. 564, 584 N.W.2d 480 (1998) (citing Kennedy v. Kennedy, 221 Neb. 724, 380 N.W.2d 300 (1986), and Hassenstab v. Hassenstab, 6 Neb.App. 13, 570 N.W.2d 368 (1997)).

The focus is on the best interests of the child now and in the immediate future, and how the custodial parent is behaving at the time of the modification hearing and shortly prior to the hearing is therefore of greater significance than past behavior when attempting to determine the best interests of the child.

Hoins v. Hoins, 7 Neb.App. at 569, 584 N.W.2d at 484.

In Kennedy v. Kennedy, supra , a district court modified custody from a mother to a father based on evidence that after the divorce, the mother had at different times cohabitated with two men to whom she was not married. The Nebraska Supreme Court reversed that decision. The Kennedy court pointed out that the mother had lived with her current husband for about 6 months prior to marrying him and that " [a]side from the fact that the parties lived together without first marrying, there is no evidence to indicate that the children were in any other way adversely

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affected by the relationship." 221 Neb. at 726, 380 N.W.2d at 302. In evaluating whether there had been a material change of circumstances for the district court to change custody, the Kennedy court concluded that other than the fact that the mother had at different times lived with three men at times she was not married to any of them, [22 Neb.App. 155] there had been no significant material change in circumstances. The court also concluded that there was no evidence that the children were ...


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