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State v. Anthony W.

Court of Appeals of Nebraska

May 31, 2016

STATE OF NEBRASKA ON BEHALF OF CARTER W., A MINOR CHILD, APPELLEE,
v.
ANTHONY W., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE, AND CYNTHIA H., THIRD-PARTY DEFENDANT, APPELLANT

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

         Jerry L. Soucie for appellant.

         Linsey A. Camplin and Jessica Ledingham, Senior Certified Law Student, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., for appellee.

         INBODY, PIRTLE, and RIEDMANN, Judges.

          OPINION

Page 403

         [24 Neb.App. 48] Pirtle, Judge.

         INTRODUCTION

         Cynthia H. appeals from an order of the district court for Lancaster County determining custody, parenting time, and child support for the minor child, Carter W. Cynthia challenges the court's decision to grant joint legal and physical custody, and she asserts the court failed to follow the local court rules in determining the parties' respective parenting time. For the reasons that follow, we affirm.

         BACKGROUND

         Cynthia and Anthony W. began a relationship in the summer of 2009 and conceived a child in January 2010. They moved in together in the summer of 2010, and their son, Carter, was born in September.

Page 404

Their romantic relationship ended in September 2011.

         Immediately after the parties' separation, Anthony's parenting time with Carter was not specifically scheduled and the time and duration varied. On January 26, 2012, the Lancaster County Attorney filed a complaint to establish support, and Anthony's acknowledgment of paternity was attached. Anthony agreed to the child support calculation proposed by the county attorney. A referee's report was filed stating that Carter resided with Cynthia and that Anthony was able and capable of supporting Carter. The report contained the parties' stipulation to the amount of support to be provided to Cynthia by Anthony. Anthony was not represented by counsel and testified that he was not aware that the referee's report reflected a stipulation that Cynthia had, or should have, sole custody of Carter.

          [24 Neb.App. 49] In April 2013, the parties agreed to split their time with Carter on a " week on/week off" basis. Cynthia said she anticipated the schedule would end in September. In August 2013, Anthony filed a complaint for determination of custody and parenting time and sought decisions regarding issues including temporary and permanent custody, parenting time, and child support. In September, Anthony filed a motion for temporary custody and requested temporary legal and physical custody or, in the alternative, joint legal and physical custody of Carter.

         A hearing on the motion for temporary custody was scheduled for November 18, 2013, and the parties were to be allowed one-half hour to present evidence. The hearing was continued to December 19. Both parties testified, and the court received multiple exhibits without objection. The exhibits included Anthony's affidavit and proposed child support calculation, Cynthia's proposed parenting plan and child support calculation, and the income statements of both parties.

         On December 23, 2013, the district court entered a temporary order granting joint legal and physical custody with an exchange of physical custody occurring on a weekly basis. A hearing on Anthony's complaint for determination of custody and parenting time occurred on November 17, 2014. Cynthia and Anthony both testified.

         Anthony testified that he began working at a retail store in Lincoln on September 27, 2014. He works from 8 a.m. to 5 p.m., except for one night per week, when he closes the store, and he receives $50,000 per year for this occupation. He testified that he decided to work there because the schedule allowed him to spend more time with Carter and that it offered an increased salary. He was previously employed by a detention center and a social services organization. He was still considered an on-call employee for both of those employers, but he had not worked any shifts since he began working for the retail store.

          [24 Neb.App. 50] Anthony testified that he moved multiple times in the year prior to the hearing. He testified that in December 2013, he moved from a one-bedroom apartment to ensure that Carter would have a room of his own. In 2014, he canceled his lease in anticipation of a move into a home with his girlfriend, but the home was not available right away because of remodeling delays. As a result, he moved into his girlfriend's apartment, and then into the home when it became available in November. He testified that he signed ...


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