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Hiller v. Hiller

Court of Appeals of Nebraska

March 15, 2016


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[Copyrighted Material Omitted]

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Appeal from the District Court for Otoe County: JEFFREY J. FUNKE, Judge.

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

Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.



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[23 Neb.App. 770] Pirtle, Judge.


Corey A. Hiller appeals from the order of the district court for Otoe County entered on January 15, 2015. The order dissolved his marriage to Angela M. Hiller and awarded the parties joint legal custody of their two minor children. The court awarded Angela physical custody of the children and granted her permission to remove the children from Nebraska to Virginia. For the reasons that follow, we affirm.


Corey and Angela married in August 1997 and separated in June 2014. The parties have twin daughters, Brooke Hiller and Hannah Hiller, who were born in 2001. Shortly after the parties separated, they began alternating time in the family home with the children, with each party spending certain days and nights in the home.

Angela filed a complaint for dissolution of the parties' marriage in the district court for Otoe County in August 2014. The complaint requested dissolution, custody of the children, and permission to remove the children from the State of Nebraska. Angela had an offer of employment at the Department of Veterans Affairs (VA) in Washington, D.C., and planned to move to Sterling, Virginia, with the children. She stated the move was in the children's best interests and was " being made for legitimate purposes regarding [Angela's] employment." In November, Corey filed a response, as well as a " cross complaint," in which he also requested custody of the parties' children.

The matter was tried before the district court on November 12 and 21 and December 19, 2014. Angela testified that she was the primary caretaker, seeing to the children's daily needs, including cooking, cleaning, laundry, grocery shopping, assisting with homework, and purchasing clothing, school supplies, and personal care items. She also testified that she took care [23 Neb.App. 771] of the children's medical and dental needs, maintained their schedule of extracurricular activities, and attended their sporting events.

Angela testified that in the time that Corey resided in the home with the children, he failed to keep the house clean, failed to shop for or provide nutritious food for the children, and could not assist with the children's homework at the level that was required. She testified that he lacked organizational skills, he did not maintain the children's schedules, and he did not assist them in getting ready for activities. She testified that after they began alternating time in the family home, she routinely returned to the home after Corey

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stayed there to find dirty and clean laundry commingled and covered in pet hair, dried dog urine on the floor, dirty dishes in the sink, dirty pots sitting on the stove, and unclean bathrooms. Angela and her mother, Judy Moritz, testified that they spent hours cleaning the home after Corey spent time there. Angela testified that she began stocking the refrigerator with fresh fruits and vegetables for the children to eat during the days when Corey stayed with them because he did not always make healthy food purchases for the children.

Angela testified that Corey displayed carelessness with firearm safety in the home. She presented evidence that firearms and ammunition were left unsecured in the home despite her requests that they be placed in a gun safe. She said that in September 2014, Brooke retrieved an unsecured gun from a closet in the home and took it outside to shoot. Corey testified that he did leave firearms outside of the parties' gun safes and acknowledged that it was possible that the children's friends, some of whom may not be well trained in firearm safety, could be in the home.

Angela testified that she holds a bachelor's degree in English and had worked for the VA in Lincoln, Nebraska, for 14 years. Her job title at the VA in Lincoln was " Rating Quality Review Specialist." Her duties included performing quality review of other employees' work and giving feedback [23 Neb.App. 772] to management, who made personnel decisions based on error rates. She also was responsible for mentoring those individuals she reviewed and for conducting training related to the federal regulations governing disability benefits to veterans for injuries incurred during service. She testified that she had looked for positions outside of the VA at times, but found that the skills she uses and the knowledge she has gained at the VA do not transfer well to other positions. She did not apply for any jobs outside of the VA because she was not aware of any positions that she would be qualified for that would have a similar salary.

She testified that prior to the parties' separation, it was her intention to stay in Syracuse, Nebraska, until the children finished school. However, for reasons that will be discussed in further detail in our analysis, she felt her reputation had been damaged because Corey had caused her personal life to become an issue at work. She believed this called her integrity into question, which, in turn, adversely affected her ability to do her job.

Angela accepted a position at the VA in Washington, D.C., on August 29, 2014, which is at the same pay grade as her position in Lincoln, so it is considered a lateral move. She testified that the position in Washington, D.C., paid $101,000, compared to the $93,000 she earned in Lincoln, and that some of the difference in pay is attributable to cost of living expenses. She testified that the position she vacated in Lincoln had been filled by another person and would no longer be available to her. She was aware of only three positions in Lincoln that she could be potentially promoted to, and none were likely to be vacant in the near future. She testified that there is enhanced opportunity for advancement in the Washington, D.C., office and that the next promotion would include a base salary of $108,000.

Angela testified that she had secured a residence in a townhouse in Virginia. She testified that the townhouse is near the school the children would attend and had square footage [23 Neb.App. 773] similar to that of the marital home. The townhouse has three bedrooms, 31?2 bathrooms, a yard, and a basement which would allow Moritz to live with them. Angela testified that she had

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not yet signed the lease, but she intended to sign it on the day of trial.

Moritz testified that she lived with the parties for about a year shortly after the children were born and continued to be present in the home throughout their lives. She said she observed Angela maintaining the children's schedules, helping with homework, and seeing to their daily needs. She said she did not observe Corey helping with schedules or homework and described him as a " slob" who lacked organizational skills. Moritz testified that if Angela were given permission to remove the children, she would move with them to Virginia and would help with transportation and general care of the children. If Angela were not given permission to remove the children, Moritz did not intend to stay in Syracuse. She stated she would not stay because she believed Corey " would never let [her] see the children, and if [she] did get to see the children, [Corey] would want [her] to raise them from sunup to sundown." She testified that Corey lacked some parenting skills. She said, " He can't talk to the girls about certain things without getting angry with them," and stated her belief that he was " always barking orders" instead of trying to reason with them.

Corey testified that he is employed by the Nebraska Army National Guard as an " Initial Active Duty Training Manager." His work location is Camp Ashland, which is located 38 miles from Syracuse. At the time of trial, he had been a full-time employee of the National Guard for 16 years and his rank was " Sergeant First Class." As part of the National Guard, he was deployed twice, once in 2003 to Fort Riley, Kansas, for 67 days and once in 2010-11 to Afghanistan for a period of 10 1/2 months.

He testified that his average workday is from 7:30 a.m. to 4 p.m. and that he has one " drill weekend" per month. He [23 Neb.App. 774] testified that he had at least 4 more years before he was eligible to retire and that he had not decided whether he would retire at that time. He investigated transferring his job to a guard in the Washington, D.C., area, but because he was nearing 17 years of active service, he was unsure whether he would be able to secure a position. If he were to transfer, he would need to go through an application process, and a position in his job skill would need to be available. Corey testified that he liked his job and his position at Camp Ashland.

Corey testified that he attends the majority of the children's extracurricular events, attends the majority of parent-teacher conferences at school, helps with transportation to medical appointments, and has coached a few of the children's softball and soccer teams. He testified that he enjoys spending leisure time with the children, including hunting, rafting, attending football games, fishing, and riding four-wheelers.

Corey testified that he has a support network in Syracuse, including his mother, church members, and several family friends upon whom he could rely if he needed help, or if there was an emergency. He testified that at the time, he was living with his mother, but that he planned to purchase a new home in Syracuse after the divorce. Corey and Angela both testified that they believed their daughters exercise " good judgment for their age" or are " fairly responsible for their age," and both said they believed the children's wishes should be considered by the trial court.

Brooke and Hannah testified that there are activities they enjoy doing with both parents, but both stated that Angela helped more with the day-to-day parenting functions and that they felt more comfortable

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talking with her about personal issues, including boyfriends, makeup, puberty, and shopping for undergarments. They testified that they would miss their friends and Corey in Syracuse, but that they would prefer to move to Sterling and to live with Angela. Hannah testified that she had a closer emotional bond with Angela and felt more comfortable talking with her about problems. She expressed [23 Neb.App. 775] concerns about Corey's ability to take care of daily tasks, such as laundry, and said Angela cooks healthier, does her laundry, and helps with homework. Brooke testified that Angela listens to her, helps make her day better, and " takes better care of us."

Both Brooke and Hannah expressed concerns about how Corey handles stressful situations, including yelling and breaking things. They testified that when they told Corey they would prefer to live with Angela, he refused to speak with them for the rest of the night, and Hannah testified that the next morning he said, " 'I guess I'm not part of your life anymore.'" Brooke testified that on occasion, Corey says things that make her feel bad about herself. They also expressed a belief that if they lived with Corey in Syracuse, they would not be able to see Angela very often.

The district court's order sets out a detailed discussion of the various elements used to determine the custodial issues based on the best interests of the minor children before analyzing the elements used for removal. The court noted that according to Angela, she has been the primary caregiver and has tended to the children's needs, including cooking, laundering clothes, cleaning the home, scheduling, transporting the children to activities and medical appointments, helping with homework, and planning for birthdays and holidays. Angela still performed these duties and prepared schedules and meals ahead of any travel so the children were prepared for school and extracurricular activities and had healthy meals to eat in her absence. The court also noted that the children are age 13 and that Angela suggested the children would need her assistance in dealing with puberty, issues related to their health, and making right choices. Corey testified that he has been active in the children's lives and cared for the children independently while Angela traveled for work and during the parties' rotating parenting time schedule after their separation.

The court also considered testimony regarding Corey's poor housekeeping skills, Angela's alleged extramarital [23 Neb.App. 776] relationships, and the interaction and assistance the maternal and paternal grandmothers have with and provide to the family. The court found the evidence indicated that both parties were fit and proper parents who have been active in the children's lives and that the children's needs are being met. The court considered the testimony of both children, because they were of sufficient age and maturity to understand the need to tell the truth and were able to articulate their desires based on sound reasoning. The children testified that their preference would be to reside with Angela.

Based on the totality of the facts presented, the court found it was in the best interests of the minor children that their physical custody be placed with Angela, subject to rights of reasonable visitation with Corey.

In reaching a determination on the issue of removal, the court presumed that it was not required to consider the factors ordinarily considered in removal cases, as there was no permanent custody order previously entered. However, the court still discussed ...

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