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Barth v. Barth

Court of Appeals of Nebraska

August 5, 2014

CHRISTIAN A. BARTH, APPELLEE AND CROSS-APPELLANT,
v.
MINDI J. BARTH, NOW KNOWN AS MINDI J. BOETTCHER, APPELLANT AND CROSS-APPELLEE

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Appeal from the District Court for Lincoln County: DONALD E. ROWLANDS, Judge.

AFFIRMED AS MODIFIED.

Stephanie Flynn, of Stephanie Flynn Law Office, P.C., L.L.O., for appellant.

Shane M. Cochran, of Snyder, Hilliard & Bishop, L.L.O., for appellee.

IRWIN, RIEDMANN, and BISHOP, Judges.

OPINION

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[22 Neb.App. 243] Riedmann, Judge.

INTRODUCTION

Mindi J. Barth, now known as Mindi J. Boettcher, appeals and Christian A. Barth cross-appeals from the order of the district court for Lincoln County which dissolved their marriage. On appeal, Mindi argues that the district court erred in finding that it had jurisdiction over the action, granting Christian custody of the parties' minor child, placing restrictions on cohabitation, and ordering her to pay a portion of an expert witness fee. We find no error in the district court's findings as to jurisdiction, custody, or the expert witness fee. However, the restriction on cohabitation was an impermissible delegation of the court's duty, and we therefore strike that provision from the parenting plan.

On cross-appeal, Christian argues that the district court erred in deviating from the Nebraska Child Support Guidelines without good cause. We agree and modify that portion of the decree as explained below.

BACKGROUND

Christian and Mindi were married in August 2010. Their son, Graham Barth, was born in January 2011. Mindi also has a daughter, Berkley Nielsen, from a previous relationship.

Christian, Mindi, Graham, and Berkley lived in Lincoln, Lancaster County, Nebraska, until January 2012, when they moved to North Platte, Lincoln County, Nebraska. On April 26, Mindi filed a complaint for dissolution of marriage in the district court for Lancaster County. On May 1, Christian filed a complaint for dissolution of marriage in the district court for Lincoln County. Mindi moved to dismiss Christian's action because she filed her complaint first. After a hearing on the motion and consultation with the Lancaster County District Court judge, the Lincoln County District Court determined that the Lancaster County action would be dismissed and the Lincoln County action would proceed. Accordingly, Mindi's motion to dismiss in Lincoln County was denied.

Trial on the issues of property division, custody, and child support was held on June 13 and July 16, 2013. At the time of trial, Christian was working as a firefighter-paramedic for [22 Neb.App. 244] the North Platte Fire Department. He works 24-hour shifts every other day for 9 days and then has 6 consecutive days off. So in an average month, Christian works 10 days of 24-hour shifts and has the other 20 days off. When Christian is working, Graham goes to a 24-hour licensed daycare. The daycare provider cares for Graham in her home and lives on a hobby farm with ducks, chickens, turkeys, dogs, cats, cows, a sheep, and a llama. Graham has his own bed at the daycare provider's home and his

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own drawer there for his clothing. The daycare provider testified Graham is always clean, well groomed, and dressed appropriately. Graham gets along well with the other children and is very good to the animals. According to the daycare provider, Christian and Graham are always happy to see each other when Christian comes to pick up Graham.

Christian's neighbor testified that her children have play dates with Graham and that she would " [a]bsolutely" feel comfortable allowing Christian to watch her children. She said that Graham is happy and well behaved and that it appears that Christian and Graham have a very healthy relationship with positive interactions and good boundaries.

Dr. Rebecca Schroeder, a clinical psychologist whom Christian requested to perform a parental fitness evaluation on him, found that Christian and Graham have a very good relationship and a strong bond, they interact very naturally together, there is open affection between them, and Christian displays appropriate parenting techniques and a loving regard for Graham. Dr. Schroeder cautioned that she had never met Mindi and therefore could not give an opinion as to what was in Graham's best interests. However, she believed that Christian had all of the skills necessary to be a good, effective parent for Graham.

At the time of trial, Mindi was working full time at a plasma center in Lincoln. Although her schedule varies somewhat, she generally worked Monday through Friday from 9 a.m. to 5 p.m. or 10 a.m. to 7 p.m. Graham goes to daycare when Mindi is working. Mindi's best friend testified that she has been friends with Mindi for 7 or 8 years and that her children are the same ages as Mindi's. She said Mindi is a great mother who loves her children. Mindi's best friend allows Mindi to [22 Neb.App. 245] watch her children and said that she has never had any concerns about Mindi's ability to parent.

There was extensive evidence presented at trial regarding Mindi's alcohol use. Christian testified that Mindi's alcohol issues began causing problems in their marriage almost immediately. It appeared to Christian that Mindi tried to hide her drinking because he would find bottles of alcohol in laundry baskets, under clothes, under the bathroom sink, and tucked away in closets. He said it seemed that once Mindi started drinking, she could not stop; if she had one drink, then she would have more, and her drinking increased in amount and frequency the longer they were together. According to Christian, at one point, Mindi told him that she was drinking every day, even when he was at work and she was home alone with Graham and Berkley.

In addition to the amount and frequency of Mindi's drinking, Christian was concerned that Mindi was also taking a number of medications and having adverse reactions to the combination of alcohol and medication. According to Christian, mixing alcohol and medication caused Mindi to cry a lot; become very aggressive, hostile, and angry; and " flip out." Christian ...


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