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State ex rel. Maddox S. v. Matthew E.

Court of Appeals of Nebraska

January 12, 2016

STATE OF NEBRASKA ON BEHALF OF MADDOX S., A MINOR CHILD, APPELLEE,
v.
MATTHEW E., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT, AND STEPHANIE S., THIRD-PARTY DEFENDANT, APPELLEE

Page 209

Appeal from the District Court for Lancaster County: Steven D. Burns, Judge.

Terrance A. Poppe and Andrew K. Joyce, of Morrow, Poppe, Watermeier & Lonowski, P.C., for appellant.

Stephanie S., Pro se.

PIRTLE, RIEDMANN, and BISHOP, Judges.

OPINION

Page 210

[23 Neb.App. 501] Bishop, Judge.

Matthew E. appeals from the decision of the district court for Lancaster County modifying the parties' paternity decree.

Prior to this most recent modification, Matthew and Stephanie S. shared joint legal and physical custody of their son, Maddox S. The parties had a " 9/5" parenting time schedule so that in every 14-day period Matthew had Maddox 9 days and Stephanie had Maddox 5 days. As for the day-to-day decisionmaking, the parties' parenting plan provided that if the parties were in disagreement on any issue involving Maddox, they were to mediate the issue.

Pursuant to the current modification, the district court maintained the joint legal and physical custody of Maddox with the parties. The court modified the parenting time to reflect an equal 50-50 split with a weekly rotating parenting time schedule; ordered that the party having parenting time be the short-term decisionmaker for Maddox; ordered Stephanie to be the final decisionmaker with regard to extracurricular and sporting activities and recurring or long-term medical, [23 Neb.App. 502] dental, and eye care needs; and ordered Matthew to be the decisionmaker with regard to Maddox's education and religious upbringing. We affirm.

BACKGROUND

Matthew and Stephanie are the biological parents of Maddox, born in August 2007. A paternity decree was entered on September 30, 2008. Pursuant to the written stipulation of the parties, the court awarded legal and physical custody of Maddox to Stephanie, subject to Matthew's specific rights of parenting time. The court ordered Matthew to pay $400 per month in child support. Matthew was also ordered to provide health insurance for Maddox as long as it was available through his then-current employer or a subsequent employer at a reasonable cost.

In July 2010, Matthew sought to modify the paternity decree, and a modification order was filed on June 22, 2011. In its June 22 order, the district court approved the written stipulation of the parties and (1) awarded legal and physical custody of Maddox jointly to the parties with parenting time as allocated in the parenting plan, (2) ordered Stephanie to pay $145 per month in child support, and (3) ordered Matthew to provide health insurance for Maddox. Pursuant to the parenting plan, Stephanie was to have parenting time with Maddox " [e]very other weekend beginning on Wednesday at 5:00 p.m. (or the conclusion of school or school activities, whichever [was] later) until the following Monday at 8:00 a.m. (or the commencement of the school day, whichever [was] earlier)." This was a " 9/5" parenting plan where, in each 14-day period, Matthew would have parenting time with Maddox 9 days and Stephanie would have parenting time 5 days. During the summers, the parties were to have alternate weeks of parenting time, with the transition occurring on Sundays at 5 p.m. A specific holiday schedule was set forth in the plan. As for the day-to-day decisionmaking, the parties' parenting plan provided that if the parties were in disagreement on [23 Neb.App. 503] any issue involving Maddox, they were to mediate the issue; however, Matthew was given the authority to decide which school Maddox would attend after discussing the options with Stephanie. The parties also agreed that Maddox would be raised in the Catholic faith.

Page 211

The court ordered that all other terms and provisions " of the Order entered September 30, 2008 and subsequent Order of December 8, 2010 not hereinbefore specifically modified shall remain in full force and effect." (The December 2010 order does not appear in our record.)

In December 2011, Matthew again filed an application to modify, seeking to increase Stephanie's child support obligation and to further reduce her parenting time. In an order filed in June 2012, the district court " overruled" Matthew's application to modify, finding that there had not been a material change in circumstances since the June 2011 modification.

In July 2013, Matthew filed a motion for a court order prohibiting Stephanie from visiting, contacting, or entering on the premises of Maddox's daycare. The court entered a temporary order in August and a permanent order in September (apparently upon Stephanie's agreement), excluding Stephanie from the premises of the daycare except to pick up Maddox at the commencement of her parenting time or to drop him off at the commencement of school.

On October 22, 2013, Stephanie filed an " Application to Modify Parenting Plan," alleging that there had been a substantial and material change in circumstances warranting a modification. Stephanie alleged that in the previous 2 years, Matthew had not exercised all of his parenting time and allowed Maddox to spend a minimum of six overnights per 4-week schedule with his maternal grandparents. Stephanie asked the court to modify the parenting plan to allow for a true " 50/50, week on week off" parenting schedule. Matthew filed a responsive pleading and " cross complaint" on February 19, 2014. He denied the allegations in Stephanie's application and asked the court to dismiss the same. In his " cross [23 Neb.App. 504] complaint," Matthew sought a modification of Stephanie's child support obligation on the basis that her earnings and earning capacity had increased such that application of the Nebraska Child Support Guidelines would increase her obligation by more than 10 percent.

On October 22, 2013, Stephanie also filed an affidavit and application for order to show cause, asking the court for an order requiring Matthew to show cause why he should not be held in contempt for failing to maintain health insurance on Matthew as ordered and for repeatedly violating the parenting plan. An order to show cause was entered on November 1, directing Matthew to appear and show cause why he should not be held in contempt; the contempt action was heard at the same time as the modification hearing on March 17, 2014.

On February 25, 2014, Matthew filed an application for an order to show cause, asking the court for an order requiring Stephanie to appear and show cause why she should not be held in contempt for failing and refusing to allow Matthew to have parenting time on December 27, 2013, from noon to 7 p.m. as set forth in the court-ordered parenting plan. An order to show cause was entered on March 5, 2014, directing Stephanie to appear and show cause why she should not be held in contempt; the contempt action was heard at the same time as the modification hearing on March 17.

The hearing on the modification and contempt actions was held on March 17, 2014. Stephanie appeared pro se. She was 37 years old at the time of the hearing and had been unemployed since December 2013, but said she was interviewing for property management jobs. In the past, she had been an assistant property manager and a dancer. At the time of the hearing, friends were helping her with her living expenses.

Page 212

Stephanie testified about the difficulties she has had with Matthew. Stephanie testified that Matthew had made " significant" religious decisions without her input; she said that Matthew had Maddox baptized and chose godparents without her agreement and that Matthew did not inform her of [23 Neb.App. 505] the ceremony. Stephanie testified that Matthew would not let Maddox participate in extracurricular activities such as gymnastics or soccer. She testified that Matthew violated her " phone visitation" with Maddox by not taking her calls, not returning her calls, or interrupting or distracting Maddox when she was able to speak to him. Stephanie testified that Matthew failed to involve her in day-to-day decisionmaking and that if she requested mediation, Matthew said that they had already mediated and did not need to mediate again, even if the issue was new. Stephanie also testified that Matthew had repeatedly failed to provide health insurance for Maddox and that even when Maddox was insured, Matthew would not provide her with the insurance cards, causing her to incur out-of-pocket expenses for doctor visits and prescriptions. Stephanie testified that she thought Maddox needed counseling or therapy, but that Matthew would not cooperate or allow Maddox to attend. Stephanie testified that Matthew would threaten her with contempt if she did not agree with him.

Stephanie testified that Matthew let her father and her stepmother, with whom Stephanie had a difficult relationship (collectively maternal grandparents), have Maddox 6 overnights a month and that she only got Maddox 10 overnights each month. Stephanie asked the court to award joint legal and physical custody, with a " 50/50" " week on/week off" parenting schedule. Stephanie told the court she wanted the right of first refusal if Matthew was not going to use all of his parenting time; there was no right of first refusal referenced in the June 2011 parenting plan. She also wanted updated insurance and prescription cards for Maddox. Stephanie wanted Maddox to be able to participate in extracurricular activities with the parties splitting the cost. She also wanted regular " phone visitation" with Maddox without interruptions or distractions.

Matthew was 41 years old at the time of the hearing and was self-employed selling insurance. He has three other children [23 Neb.App. 506] besides Maddox, who is the youngest. Matthew testified that he was not aware of any court order requiring telephone parenting time between Stephanie and Maddox, but that he had allowed it to take place. He testified that he had Maddox " conditionally baptized" because Maddox's school required a baptismal certificate for kindergarten and Stephanie never provided Maddox's certificate to him; he did not invite Stephanie to the baptism because she would not produce the certificate, she did not invite him to the original baptism, and he did not want a " scene."

Matthew testified that Maddox was not involved in organized extracurricular activities at the time; Matthew has three other children and has them all during the same parenting time and said " it's just not conducive to the schedules." Matthew testified that his other children were not involved in activities until they were older. Matthew said that extracurricular activities at Maddox's age were " nothing more than a glorified recess" and that Stephanie could take Maddox on her time but that he, Matthew, had too much going on. Matthew said that it was more important for Maddox to spend time with him than to be involved in activities.

Matthew testified that Maddox was covered by Medicaid as of the month of the hearing and that there had been a couple

Page 213

months when he was not insured. Matthew testified that Stephanie never notified him when she set up doctor or dental appointments for Maddox--he just got the bills later. Matthew did not give Stephanie insurance cards in the past because he was " tired of just getting ...


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