State on behalf of Emery W. v. Michael W. , 28 Neb. Ct. App. 956 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/13/2020 12:07 AM CDT
- 956 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
State of Nebraska on behalf of Emery W., a minor
child, appellee, v. Michael W., defendant
and third-party plaintiff, appellant,
and Mallory B., third-party
defendant, appellee.
___ N.W.2d ___
Filed October 6, 2020. No. A-20-007.
1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Evidence: Appeal and Error. In a de novo review, when the evidence
is in conflict, the appellate court considers, and may give weight to, the
fact that the trial court heard and observed the witnesses and accepted
one version of the facts rather than another.
4. Child Custody: Visitation. The Parenting Act does not require any
particular parenting time schedule to accompany an award of either sole
or joint physical custody, and there exists a broad continuum of possible
parenting time schedules that can be in a child’s best interests.
5. ____: ____. Where a parenting plan effectively establishes a joint physi-
cal custody arrangement, courts will so construe it, regardless of how
prior decrees or court orders have characterized the arrangement.
6. Child Support: Rules of the Supreme Court. In general, child sup-
port payments should be set according to the Nebraska Child Support
Guidelines.
- 957 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Affirmed in part as modified, and in part
reversed and remanded with directions.
Linsey Moran Bryant, of Sidner Law, for appellant.
Avis R. Andrews for appellee Mallory B.
Moore, Chief Judge, and Bishop and Welch, Judges.
Moore, Chief Judge.
INTRODUCTION
Michael W. appeals from the order of the district court for
Dodge County, which modified a previous child support order
in this paternity action and awarded custody and parenting time
of his children with Mallory B. Michael assigns error to the
court’s characterization of the physical custody award as being
an award of sole, rather than joint, physical custody; its calcu-
lation of child support based upon the sole physical custody
calculation worksheet; and its failure to specifically terminate
a prior award of cash medical support to Mallory. For the rea-
sons set forth herein, we affirm in part as modified, and in part
reverse and remand with directions.
BACKGROUND
Michael and Mallory are the parents of Emery W., born
in 2017. At some point, the State initiated a paternity action,
which resulted in a stipulated child support order entered on
February 7, 2018. The court found that Michael, who had
signed a notarized acknowledgment of paternity, was Emery’s
father, and it ordered Michael to provide child support for her
in the amount of $373 per month. Because neither party had
dependent health or medical insurance available to them at a
reasonable cost, the court ordered Michael to pay medical sup-
port of $32 per month.
Subsequent to the entry of that support order, the par-
ties had another child, Elise W., born in 2018, which birth
prompted the modification action at issue in this appeal. On
- 958 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
February 28, 2019, Michael filed a complaint to modify, alleg-
ing a substantial and material change of circumstances since
the entry of the 2018 support order based on the birth of Elise.
Michael also alleged that the parties had experienced a change
in income such that application of the child support guidelines
would result in a variation by 10 percent or more of the cur-
rent child support obligation. Michael asked the court to award
the parties temporary and permanent joint legal and physical
custody of both children, establish parenting time, modify
child support based on a joint custody calculation, order the
parties to share in the cost of nonreimbursed medical expenses
and childcare expenses, and allocate the federal income tax
dependency exemption for the children.
Mallory filed an answer and a cross-complaint in which
she sought a determination of Elise’s paternity; sole legal and
physical custody of the children or, alternatively, joint legal
and sole physical custody; adoption of a parenting plan; a
determination of Michael’s obligation to pay child support
and other expenses for the children; and allocation of the tax
dependency exemption.
On April 11, 2019, the district court entered a temporary
order awarding Michael and Mallory temporary joint legal
custody and awarding Mallory temporary physical custody
of the children. The court awarded Michael parenting time
on alternating weekends from 6 p.m. on Thursday to 6 p.m.
on Sunday and, during the weeks when Michael did not have
weekend parenting time, from 6 p.m. on Wednesday to 6 p.m.
on Thursday. The court ordered Michael to pay child support
of $373 and ordered that childcare expenses be split with
Michael’s paying 63 percent and Mallory’s paying 37 percent.
With respect to the cash medical payment, the court stated that
neither parent had dependent health or medical insurance avail-
able to them at a reasonable cost, and it ordered Michael to pay
medical support of $38 per month, specifying that this was to
supersede the previously ordered amount of $32.
Trial was held on October 30, 2019. The district court heard
testimony from the parties and their mothers and received
- 959 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
various documentary exhibits, including the parties’ proposed
child support calculations, paystubs from both parties, a 2018
“Tax Return Transcript” for Michael, and information about
Mallory’s current health insurance coverage. In addition, the
parties had entered into a partially mediated parenting plan
which provided that they would share joint legal custody of
the children.
Prior to the start of testimony, the parties had a discussion
with the district court regarding medical insurance. Michael’s
attorney indicated that the State had been involved in the
case previously “due to a Medicaid application,” but because
Mallory was currently providing private health insurance for
the children, he asked the court to “incorporate that typical
language that would reflect that” and to terminate Michael’s
prior obligation of paying “cash medical” support. Mallory’s
attorney confirmed that Mallory was carrying health insurance
for the children but indicated that “there is still Medicaid as a
secondary for the children.”
At the time of trial, Mallory was 24 years old; Emery and
Elise were 2 years old and 11 months old, respectively. Mallory
was employed as a certified nursing assistant and medication
aide at an assisted living facility, working 40 hours per week
and earning $14.50 per hour.
Mallory testified about the parties’ relationship and living
arrangements. She indicated that they began dating in about
2013. At the time of Emery’s birth in 2017, Mallory still lived
with her parents (who divorced at some point not clear in the
record). In July 2017, Mallory and Emery began living with
Michael and his parents. They lived there until July 2018
(prior to Elise’s birth in December). After Mallory’s separation
from Michael, she and Emery stayed briefly with her father
and then moved in with her mother. According to Mallory, she
tried to continue keeping Michael involved in the children’s
lives, but she indicated that the parties frequently argued. She
also testified about having issues trusting Michael and his
mother. At the time of the modification action, Mallory and the
children lived in Fremont, Nebraska, with Mallory’s mother
- 960 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
and siblings. She testified about her plans to move with the
children (without her mother and siblings) to an apartment in
Fremont with income-based rent in the near future. Michael
continued to reside in Omaha, Nebraska, with his parents and
brother, about 40 miles (or “20 to 30 minutes”) away from
where Mallory then lived.
When asked what kind of involvement Michael should have
with the children, Mallory testified, “Enough involvement that
routines aren’t disrupted and school isn’t disrupted and that
they both know that he still cares.” She noted that she had
had visitation with her own father every other weekend and
felt that such a parenting time schedule had still provided her
with a positive connection with her father. Mallory testified
that sole physical custody with her would be in the children’s
best interests. She requested a parenting time schedule very
similar to that imposed in the temporary order, which she
agreed had been working well for the children. Mallory testi-
fied that Michael had exercised all of his parenting time since
entry of the temporary order, except on one occasion, although
Michael’s parents sometimes returned the children early if they
had to do something when Michael was at work. She agreed
that he is a good father and that the children appear to enjoy
their time with him.
Mallory testified about various expenses and her current
health insurance coverage. The childcare cost was $145 per
week. Mallory has maintained insurance coverage through her
employer for the children since July 2019. The cost per month
to add the children to her insurance was $21.50 for dental, $82
for health, and $14.34 for vision. The children also still had
Medicaid coverage. Mallory contributes to a 401K retirement
plan, pays rent to her mother, pays car insurance, and contrib-
utes to the cost of groceries and other supplies for the chil-
dren. The children also receive food from the “Women Infant
Children’s program,” and they are involved in a low-income,
family-based program called Sixpence, which provides certain
supplies and can help children “reach their milestones” and
get into an early learning program. According to Mallory, she
- 961 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
learned the month before trial that through the Sixpence pro-
gram, she could enroll the children in early preschool. Mallory
testified that she had informed Michael of Emery’s eligibil-
ity to start preschool the following year during a parenting
time exchange.
Mallory’s mother affirmed Mallory’s testimony about her
current and previous living arrangements. She indicated that
Mallory had talked about getting her own place to live, but
she was unaware of any formal plans Mallory might have to
move to an apartment. Mallory’s mother testified that Mallory
contributes financially to their current household by paying
rent of $200 and helping with the cost of groceries. In addition
to Mallory’s parenting the children when she is home, Mallory
also performs various household chores. Mallory’s mother
provides some childcare assistance because Mallory has to
be at work at 5:30 a.m. Accordingly, Mallory’s mother wakes
the children, dresses them, and takes them to daycare on days
when Mallory works and the children do not go to Michael’s.
Mallory’s mother described Mallory as a very good parent and
indicated that she had no concerns about Mallory’s parent-
ing ability.
Michael was 25 years old at the time of trial and employed by
a convenience store chain, earning $12.50 per hour. Generally,
he works 40 hours per week from 2 to 11 p.m. with Thursdays
and either Mondays or Tuesdays off. Michael had lived with
his parents for approximately 3 years because of his financial
circumstances, but he was current on his child support and cash
medical support obligations and provided the children with
food, formula, clothes, and anything else they needed during
his parenting time.
Michael testified about the parties’ success in coparent-
ing during the time they lived together. However, the parties
were “fighting a lot” when they separated in July 2018, and
Michael stated he did not want Emery to be around this behav-
ior. Michael testified about his involvement with the children
after the parties’ separation and before and after Elise’s birth.
He testified that he ended up filing the modification action
- 962 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
due to the limitations placed on his parenting time despite his
efforts to resolve issues with Mallory. Michael also testified
about his parenting time with the children after entry of the
temporary order. When the children are with him, he changes
them, clothes them, feeds them, and plays with them. He has
attended appointments for the children about which Mallory
has informed him, although there were some she did not tell
him about. He agreed that Mallory is a good mother.
Michael confirmed that he agreed to the joint legal custody
as mediated by the parties, and he asked the district court to
award joint physical custody as well, with a week-on-week-off
parenting time schedule. Michael was willing for the children
to attend school in Fremont, as long as one of the parties con-
tinued to live there. He indicated his willingness to transport
Emery from Omaha to Fremont during his parenting time once
she started preschool and to move to Fremont if necessary.
If Michael had to work during his parenting time, either his
parents or a babysitter who came to the house would provide
childcare. Michael explained that in the event of a week-on-
week-off parenting time schedule, he would try to switch to
the day shift and would hire a babysitter to provide in-home
childcare during the day. Michael indicated that the commute
from Omaha to Fremont was not an impediment to exercising
parenting time. He testified that he was willing to make sac-
rifices to spend more time with the children. Finally, Michael
testified that he believed he could communicate with Mallory
and that he wanted to be involved in decisions regarding
the children.
On cross-examination, Michael admitted that he had not
yet made significant efforts toward finding a residence and
employment closer to Mallory or changing his work schedule
at his current employment, but he felt he could make joint
custody work based on his current circumstances. If he moved,
he would need a roommate, and he testified about his inten-
tions in that regard. He expressed that he had not been aware
until trial that Mallory intended to enroll Emery in preschool
in Fremont. Michael testified that this knowledge did not
- 963 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
affect his ability to “do joint custody from Omaha,” that he
intended to move to Fremont prior to when Emery started
preschool, and that he would do whatever it took to get Emery
where she needed to go. Michael also expressed his interest in
being involved in the Sixpence program in which Emery was
enrolled and his hope that Mallory would discuss such deci-
sions with him in the future.
Michael’s mother confirmed that he lived in Omaha with her,
his father, and his brother. She indicated that while Michael
did not have sufficient funds to live on his own at that time,
he had talked about moving to Fremont on several occasions.
Michael’s parents provide childcare for the children while
Michael works and assist him with transporting the children
for parenting time exchanges when needed. Michael’s mother
enjoys her time with the children, and she has also provided
childcare for Mallory on occasion. Michael’s mother testified
about Michael’s care for the children when he is home during
his parenting time, and she described him as an engaged and
devoted parent.
At the close of trial, the district court made oral findings
from the bench, and it subsequently entered an order memori-
alizing its findings. The court found that Michael was Elise’s
father, that a material change in circumstances warranting
modification of the previous support order existed, and that
orders of custody and parenting time were in the children’s
best interests. The court awarded the parties joint legal custody
and designated Mallory as the “[t]ie breaker” in the event the
parties were unable to agree on major decisions for the chil-
dren after a good faith discussion. It awarded physical custody
to Mallory, subject to the parenting plan adopted by the court.
The parenting plan provided for Michael’s parenting time,
alternating between from 6 p.m. on Tuesday until 6 p.m. on
Sunday during one week and from 6 p.m. on Tuesday until
6 p.m. on Thursday during the following week, with the parties
to share transportation. The parenting plan also provided that
the parties were to take vacation during their regular parenting
- 964 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
time and established holiday parenting time. The court ordered
Michael to pay child support of $646 per month for two chil-
dren and $467 for one child; it also specified division of the
income tax dependency exemption. The court ordered Mallory
to provide health insurance through her employment as long
as it was available at a reasonable cost, and it ordered Michael
to pay 52 percent of nonreimbursed health care expenses for
the children after the first $480 per child had been paid by
Mallory. It also ordered Michael to pay 52 percent of childcare
expenses. In its written order, the court stated that all other
terms of the previous support order not in conflict with the
modification order were to remain in full force and effect.
ASSIGNMENTS OF ERROR
Michael asserts that the district court abused its discretion in
(1) characterizing the physical custody of the children as sole
physical custody when custody was effectively joint physical
custody, (2) calculating child support based upon the sole phys-
ical custody calculation worksheet, and (3) failing to terminate
cash medical support.
STANDARD OF REVIEW
[1,2] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of
discretion by the trial court, whose judgment will be upheld
in the absence of an abuse of discretion. Tyler F. v. Sara P.,
306 Neb. 397, 945 N.W.2d 502 (2020). A judicial abuse of
discretion exists if the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposi-
tion. State on behalf of Ryley G. v. Ryan G., 306 Neb. 63, 943
N.W.2d 709 (2020).
[3] In a de novo review, when the evidence is in conflict, the
appellate court considers, and may give weight to, the fact that
the trial court heard and observed the witnesses and accepted
one version of the facts rather than another. Id.
- 965 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
ANALYSIS
Physical Custody.
Michael asserts that the district court abused its discretion
in characterizing the physical custody of the children as sole
physical custody when custody was effectively joint physical
custody. During its statements from the bench at the close of
trial, the court noted that the parties were both living with their
parents. It stated:
This should be a case that moves forward to shared cus-
tody, 50/50. You’re not there yet so I cannot wish and
hope that that’s going to happen. It should happen. It
would be reasonable to happen. The father needs to get
on his own. He needs to move to Fremont like he testified
he’s going to, get a better paying job to support these chil-
dren. Mother needs to do the same, get out on her own,
support these children. So, until that happens, you’re not
in the position for a split custody. That should happen.
That should be a goal, and I hope it does happen.
Despite expressing these sentiments and awarding Mallory
“sole physical custody,” the court awarded Michael parenting
time every other week from 6 p.m. on Tuesday until 6 p.m.
on Sunday, and in the alternating weeks from 6 p.m. on
Tuesday until 6 p.m. on Thursday. The court also confirmed
that the award was for “seven overnights out of 14.” We agree
with Michael’s assertion that this was effectively an award
of joint physical custody, and we modify the court’s order
accordingly.
[4] “Physical custody” is defined by the Parenting Act as
“authority and responsibility regarding the child’s place of res-
idence and the exertion of continuous parenting time for sig-
nificant periods of time.” Neb. Rev. Stat. § 43-2922(20) (Supp.
2019). “Joint physical custody” is defined as “mutual author-
ity and responsibility of the parents regarding the child’s place
of residence and the exertion of continuous blocks of parent-
ing time by both parents over the child for significant periods
of time.” § 43-2922(12). And, “[p]arenting time” is defined
- 966 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
as “communication or time spent between the child and par-
ent.” § 43-2922(19). The Parenting Act does not require any
particular parenting time schedule to accompany an award of
either sole or joint physical custody, and there exists a broad
continuum of possible parenting time schedules that can be in
a child’s best interests. State on behalf of Kaaden S. v. Jeffery
T., 303 Neb. 933, 932 N.W.2d 692 (2019).
[5] In State on behalf of Kaaden S., the Nebraska Supreme
Court found that an alternating week-on-week-off parenting
time schedule requires the child to spend roughly the same
amount of time at each parent’s residence and allows both par-
ents to exert continuous blocks of parenting time for significant
periods of time and, thus, meets the statutory definition of joint
physical custody. The court held that where a parenting plan
effectively establishes a joint physical custody arrangement,
courts will so construe it, regardless of how prior decrees or
court orders have characterized the arrangement. Id.
Here, the district court awarded parenting time on a rotating
schedule, which results in each parent having seven overnights
with the children in every 14-day period. While the blocks
of continuous parenting time are not as extensive as that in
a week-on-week-off schedule, they do allow each parent to
have continuous blocks of parenting time for significant peri-
ods. We conclude that the parenting plan adopted by the court
effectively established a joint physical custody arrangement.
As stated by the Nebraska Supreme Court in State on behalf
of Kaaden S., “[I]t is the trial court’s allocation of parenting
time that drives the physical custody label, not the other way
around.” 303 Neb. at 948, 932 N.W.2d at 705. Accordingly, we
modify the court’s December 17, 2019, order and the parenting
plan to reflect an award of joint physical custody.
Child Support Calculation.
Michael asserts that the district court abused its discretion
in calculating child support based upon the sole physical cus-
tody calculation worksheet, and he argues that the court should
- 967 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
have used worksheet 3, the joint physical custody worksheet.
Given our modification of the December 2019 order and par-
enting plan to reflect an award of joint physical custody, and
in light of the amount of time the children are in each parent’s
physical custody, we agree.
[6] In general, child support payments should be set accord-
ing to the Nebraska Child Support Guidelines. Lasu v. Lasu, 28
Neb. Ct. App. 478, 944 N.W.2d 773 (2020). Neb. Ct. R. § 4-212
(rev. 2011) of the child support guidelines sets forth the appli-
cation of worksheet 3 as follows:
When a specific provision for joint physical custody
is ordered and each party’s parenting time exceeds 142
days per year, it is a rebuttable presumption that support
shall be calculated using worksheet 3. When a specific
provision for joint physical custody is ordered and one
party’s parenting time is 109 to 142 days per year, the
use of worksheet 3 to calculate support is at the discre-
tion of the court. . . . For purposes of these guidelines,
a “day” shall be generally defined as including an over-
night period.
Michael notes, “A calculation of [his] parenting time for
calendar year 2020, shows that he will have overnight [par-
enting time] on 183 days, and Mallory with 182 days.” Brief
for appellant at 18. He also argues that there was no evidence
presented that would rebut the presumptive use of work-
sheet 3, given the amount of parenting time awarded to each
party. While the court made certain comments from the bench,
expressing its belief that the parties were not ready for “split
custody,” it awarded the parties essentially equal parenting
time. We interpret the court’s comments more as the court’s
assessment that the parties were not ready for a week-on-
week-off ­parenting time schedule, and we do not see anything
in the record to rebut the presumption that worksheet 3 should
be used in this case. The court abused its discretion in failing
to do so. Accordingly, we reverse the court’s child support
order and remand the cause for recalculation using the joint
physical custody worksheet 3.
- 968 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
Cash Medical Support.
Michael asserts that the district court abused its discretion
in failing to terminate cash medical support. In the original
February 2018 support order, the court ordered Michael to pay
cash medical support of $32 per month, since neither party had
insurance available to them at a reasonable cost at that time.
The parties still did not have insurance available at the time
of the April 2019 temporary order, and the court then ordered
Michael to pay cash medical support of $38 per month. The
evidence at the modification trial showed that Mallory had
been providing medical, dental, and vision insurance for the
children through her employer since July 2019; the children
were also still covered under Medicaid. In its December 2019
final order, the court ordered Mallory to maintain health insur-
ance for the children, but it did not specifically address elimi-
nation of the prior award of cash medical support and did not
include an order of cash medical support. The order provided,
however, that all other terms of the previous support order not
in conflict with the modification order were to remain in full
force and effect.
The award of cash medical support was clearly based on
the fact that neither party had health insurance available at
the time of either the original 2018 support order or the April
2019 temporary order. By the time of the modification trial,
Mallory had obtained health insurance for the children, and
she was ordered to maintain that insurance. Thus, an award of
cash medical support was inconsistent with the previous sup-
port order. Therefore, we modify the language of the December
2019 order to eliminate Michael’s obligation to pay cash
medical support retroactive to the date of the December 2019
final order.
CONCLUSION
Because the parenting plan adopted by the district court
effectively established a joint physical custody arrangement,
we modify the language of the court’s December 2019 order
- 969 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE ON BEHALF OF EMERY W. v. MICHAEL W.
Cite as 28 Neb. Ct. App. 956
and the parenting plan to reflect an award of joint physical
custody. We reverse the court’s child support order and remand
the cause for recalculation using the joint physical custody
worksheet 3. Finally, we modify the language of the December
2019 order to eliminate Michael’s obligation to pay cash medi-
cal support retroactive to the date of the December 2019 order
as indicated above.
Affirmed in part as modified, and in part
reversed and remanded with directions.