Czapla v. Dennis ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
CZAPLA V. DENNIS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
BRENT J.T. CZAPLA, APPELLEE,
V.
ERIKA M. DENNIS, NOW KNOWN AS ERIKA M. ROBINSON, APPELLANT.
Filed May 21, 2013. No. A-12-670.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Jeff T. Courtney, P.C., L.L.O., for appellant.
James M. Buchanan, P.C., L.L.O., for appellee.
INBODY, Chief Judge, and IRWIN and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Erika M. Dennis, now known as Erika M. Robinson (Erika), appeals from the paternity
decree entered by the district court for Douglas County, which determined that Brent J.T. Czapla
(Brent) was the father of the parties’ minor child, awarded sole legal custody to Brent and joint
physical custody to the parties, and calculated child support. Erika challenges the custody award
and the court’s determination of Brent’s income for child support purposes. Because we find no
abuse of discretion, we affirm.
BACKGROUND
Erika and Brent are the biological parents of Aiden Czapla, who was born in June 2010.
Prior to Aiden’s birth, the parties had a relationship while both were living in Omaha, Nebraska.
Aiden was born in South Dakota where Erika lived at the time, although she has since moved
back to Omaha. Erika was 22 years old at the time of Aiden’s birth, and Brent was 23. After
Aiden’s birth, the parties verbally agreed and attempted to follow a “week-on and week-off”
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parenting time arrangement. On July 30, the parties signed a parenting plan that included a joint
custody arrangement. The events surrounding the signing of that plan and its details are
discussed more thoroughly below.
Brent filed a complaint for determination of paternity in the district court on July 27,
2010. Brent alleged that he had voluntarily submitted to genetic testing proving him to be
Aiden’s father, with the results expected on July 28. Brent attached his voluntary
acknowledgment of paternity. Brent alleged that Erika had wrongfully attempted to “procure the
child from [him] in an effort to remove the child from the State of Nebraska” and asked the court
for an order granting him temporary possession of Aiden to keep him in Nebraska during the
pendency of the paternity action. Brent sought sole custody of Aiden, subject to Erika’s visitation
rights, and a determination of child support.
On July 30, 2010, both parties filed affidavits with the court, stating, among other things,
that they had “discussed [Aiden] and agree[d] that [they] should both take a cooperative and
active role in raising [him].” The parties informed the court that they had discussed Aiden’s best
interests; organized their discussion into a parenting plan, which they had signed; and asked the
court to approve the terms of the parenting plan.
The district court entered a temporary order on August 2, 2010. The court found that
based on the genetic testing performed, Brent was Aiden’s father. The court also found that the
July 30 parenting plan submitted by the parties was in Aiden’s best interests. The court awarded
the parties temporary joint legal and physical custody of Aiden. A child support calculation was
completed, but the parties agreed that no child support would be owed by either party since they
were equally contributing to Aiden’s care. The court found that this deviation from the child
support guidelines was fair, equitable, and in Aiden’s best interests. The parenting plan was
attached to the order and provided for parenting time on a 2-week rotating basis, subject to
holiday and special visitation provisions, which were also set forth in the plan. The plan provided
that during the first week, Brent would have Aiden from 9 a.m. Monday until 9 a.m. Wednesday,
Erika would have Aiden from 9 a.m. Wednesday until 9 a.m. Saturday, and Brent would have
Aiden from 9 a.m. Saturday until 9 a.m. Monday. During the second week of the schedule, Erika
would have Aiden from 9 a.m. Monday until 9 a.m. Tuesday, Brent would have Aiden from 9
a.m. Tuesday until 9 a.m. Saturday, and Erika would have Aiden from 9 a.m. Saturday until 9
a.m. Monday. The plan also provided each party with the right of first refusal any time in which
daycare or a babysitter was needed for a period of 3 hours or more.
Erika filed an answer and countercomplaint on January 6, 2011. In her countercomplaint,
Erika sought, among other things, an award of sole temporary and permanent custody, and a
determination of child support.
On February 8, 2011, Erika filed a motion to strike the previously filed parenting plan
and replace it with a temporary order. She also filed a motion for a temporary order, in which she
requested temporary custody and child support. The outcome of these temporary motions is not
apparent from the record on appeal.
Trial was held before the district court on March 15, 2012. Erika and Brent both testified,
as did Erika’s husband, Jesse Robinson (Jesse). Additionally, Dr. Theodore DeLaet, a
psychologist, testified about his psychological evaluation of Erika.
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Both parties testified about the events that led to the signing of the July 2010 parenting
plan. In approximately the second or third week of July 2010, Brent had taken Aiden to Omaha
per the parties’ verbal shared-custody arrangement. Erika testified that although she thought she
would be able to abide by their verbal agreement, as a “first-time mother,” she found it difficult
to be separated from Aiden. A few days after Brent took Aiden to Omaha for his first block of
parenting time, Erika traveled to Omaha and told Brent she wanted to take Aiden back to South
Dakota where she then lived. She also informed Brent that she had hired an attorney in South
Dakota. Erika’s intention at the time was to have full custody of Aiden and raise him in South
Dakota. When she arrived in Omaha, she attempted to see Aiden, but according to Erika, Brent
would not let her see Aiden until she signed the parenting plan. Brent expressed remorse at trial
for not letting Erika see Aiden when she came to Omaha; however, he feared that Erika would
take Aiden back to South Dakota and that he would not be able to see Aiden for a long time.
According to Brent, the parenting plan was to be signed on Friday at the end of what had been
his week under their verbal arrangement, and he told Erika she could not see Aiden until the plan
was signed “because we had the week time frame.” Erika testified that Brent told her that she
could not see Aiden for 2 to 3 months unless she signed the parenting plan.
Erika went to the office of Brent’s attorney to sign the parenting plan, and she agreed that
she had the opportunity to consult with her attorneys in South Dakota prior to doing so. Erika
agreed that she was able to see Aiden once she arrived at the attorney’s office. Erika testified that
although she signed the July 2010 parenting agreement, she did not feel that it was in Aiden’s
best interests at that time or at the time of trial. She testified that when she signed the plan, her
main focus was on seeing Aiden and the chance to see him was what motivated her to sign the
plan.
The parties have basically followed the parenting time set forth in the July 2010 parenting
plan, although there have been deviations, some of which were voluntary. Because of the right of
first refusal in the temporary parenting plan, Erika was able to see Aiden most weekdays, but
once Brent changed jobs, she was able to see him less frequently. According to Erika, prior to
this job change, Aiden was in her possession 75 percent of the time. Erika testified that Brent has
rarely asked her for extra time with Aiden. Erika stated that Brent is sometimes late in picking
Aiden up and that there have also been occasions when he has not shown up at all for a custody
exchange. According to Erika, she has never failed to exercise her parenting time and has never
been more than 15 minutes late to pick Aiden up. Erika has prevented Brent on occasion from
having parenting time, including one occasion when Aiden was sick and Erika had concerns
about a winter storm.
Aiden has severe asthma for which he takes medication and uses a nebulizer, and Erika
said she felt that the temporary parenting plan did not provide Aiden with enough stability due to
his condition. Erika expressed concerns about Brent’s taking Aiden to work with him, especially
in cold weather due to Aiden’s asthma. According to Erika, she is the one who takes Aiden to
most of his doctor appointments. Brent testified that Erika was the parent who took the main
responsibility for Aiden’s medical care, because she would not allow Brent to do so.
Erika testified that the custody schedule in the temporary parenting plan was convoluted
and unwieldy. She asked the court for sole physical custody of Aiden and a visitation plan that
would give Brent visitation every other weekend and maybe one night during the week at her
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discretion. She felt that a more routine schedule would be better for a child Aiden’s age and
testified that the current plan would not work at all once Aiden reached school age.
Brent felt that the temporary parenting time schedule was in Aiden’s best interests
because it allowed him to spend nearly equal time with both parents. He did note that the
temporary schedule gave him slightly more parenting time than Erika and suggested an
alternating parenting time schedule of Monday through Tuesday, Wednesday through Thursday,
and Friday through Sunday. Brent testified that his proposal would provide more stability and
less chance of conflict with Erika because there would be fewer custody changes. We note that
there are in fact the same number of custody exchanges in Brent’s proposal; his plan simply
equalizes the number of days each parent has custody during a 2-week period in comparison to
the temporary plan. Brent asked the court for full custody of Aiden, but he also testified that
Erika should have just as much time with Aiden. He did feel that there needed to be one person
designated to make final decisions if the parties could not get along. Brent testified that it is in
Aiden’s best interests for both parties to continue to have as much parenting time as possible.
Although Brent agreed that the shared custody arrangement could be difficult once Aiden
reached school age, he believed that his plan would be sustainable if the exchanges took place at
school.
The parties both testified about their communication issues and difficulty getting along
with one another. According to Erika, the parties communicate primarily through text messaging
and sometimes e-mail. Verbal communication occurs during custody exchanges. There have
been physical altercations between the parties, and the police have been called on numerous
occasions, although charges have never been filed as a result of these altercations. Both parties
testified to violence against them by the other party. Erika testified that the parties exchange
custody of Aiden at the police station for the safety of both parties because of the potential for
violence between them.
Erika agreed that Aiden is bonded to Brent but admitted that she has previously asked
Brent to relinquish his parental rights, the most recent occasion being a couple of weeks prior to
trial. Erika also agreed that she has offered Brent money to relinquish his rights, but she testified
that she was not serious in her offer of money. Erika denied that her requests stemmed from a
desire for her husband, Jesse, to adopt Aiden. She testified that it stemmed from a desire to put
Aiden in a happy and stable environment and that she would not force Aiden or Jesse into an
adoption. She testified that she was not attempting to exclude Brent from Aiden’s life.
Erika and Jesse married on April 6, 2011. Jesse has full custody of his 9-year-old son
from a prior relationship. According to Jesse, Erika is a “mother figure” to this child. Erika and
Jesse also have one son together, who was 7 weeks old at the time of trial. According to Jesse, he
treats Aiden the same as his sons, and Aiden integrates well when he is there. Jesse feels that
there is a brotherly bond between his oldest son and Aiden.
Erika has not been employed since July 2011 when she quit her job at a daycare where
she was earning minimum wage. Prior to that job, she was in a job where she earned $11 per
hour. Since July 2011, she has been a “stay-at-home mom” and has attended school via online
courses.
Prior to trial, the court ordered that either party could obtain a psychological evaluation
of the other. Brent sought an evaluation of Erika, and she was evaluated by DeLaet in August
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and September 2011. The evaluation was solely a psychological evaluation and not a custody
evaluation. DeLaet did not offer any opinion on Erika’s parenting ability. DeLaet diagnosed a
generalized anxiety disorder and offered a “rule-out diagnosis” for an unspecified depressive
disorder. Erika had been previously diagnosed with and treated for depression, but she was not
on any antidepressant medication at the time of DeLaet’s assessment. DeLaet felt that anxiety
was her current predominant clinical symptom. He also diagnosed attention deficit hyperactivity
disorder (ADHD). Erika was previously diagnosed with ADHD in elementary school and took
medication for it until around age 17 or 18. DeLaet did not diagnose any personality disorder, but
he noted some significant personality factors that he found relevant to treatment and of potential
interest to the court. Erika did reveal the presence of narcissistic, obsessive-compulsive, and
histrionic traits with sadistic features. According to DeLaet, someone with narcissistic traits will
tend to be more focused on themselves than others. Individuals with obsessive traits will tend to
think or worry too much about things, and those with compulsive traits develop repeated or
compulsive behaviors to help calm their anxiety. People with histrionic traits tend to be very
emotional, potentially overly emotional, and tend to be more highly reactive to things that go on.
People with sadistic features to their personality may hold grudges and want to get even when
they feel they have not been treated well. DeLaet noted that Erika had a significant level of
distress associated with her “highly conflicted relationship” with Brent, but Erika did not appear
to show active symptoms of posttraumatic stress disorder based on DeLaet’s observation and the
available information. Erika was 17 weeks pregnant at the time of the assessment, and DeLaet
took into consideration hormonal and mood changes often associated with pregnancy in offering
his diagnostic impressions. DeLaet recommended that Erika enter into individual outpatient
mental health therapy to address the issues identified in his report, that she consult with her
physician about the need for a mood-stabilizing medication and ADHD medication, and that she
familiarize herself with either a class for divorcing parents or any recommended reading
material.
Erika testified that she was not on medication for ADHD at the time of trial. She attended
therapy following the evaluation, but stopped within approximately 90 days of trial due to
complications with her pregnancy and scheduling issues caused by frequent doctor visits.
During the pendency of the action, Brent lived in Omaha and had recently moved to
La Vista, Nebraska, at the time of trial. Brent lives alone in a two-bedroom apartment with
Aiden. He testified about Aiden’s schedule when he has parenting time and about the things they
do together. On September 27, 2011, Brent was hired as an independent subcontractor for C-ME
Inspections to complete work as a mortgage field inspector. His job involves performing field
inspections, which includes taking pictures of the exteriors of houses from his car, as well as
doing interior inspections, which includes entering empty homes and taking pictures inside.
Brent does not have set work hours. He does occasionally take Aiden with him when he is
performing exterior field inspections, but he usually works on days that he does not have Aiden.
On the days when Brent has Aiden with him, he typically works only 2½ to 3 hours. Brent feels
that Aiden is safe with him when he is working.
Since he is self-employed, Brent pays his own expenses and taxes from his gross
earnings. Brent spends about $700 a month on fuel. Other expenses include food and vehicle
maintenance. He testified that his monthly work expenses average between $900 and $1,100.
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Brent is paid per order or inspection rather than by the hour. His income varies because he does
not receive the same number of orders each month. Between September 27, 2011, and the end of
2011, Brent received total income from C-ME Inspections of $17,448, or approximately $5,816
per month. Brent estimated that he currently earns an average of $5,200 or $5,300 per month
before taxes and expenses. Brent submitted proposed child support calculations assigning him
total monthly income of $4,100, which is his estimate of gross income after deduction of his
business expenses.
Following closing arguments, the district court informed the parties that it would not
announce its decision that day, but before adjourning, it took time to admonish the parties as
follows:
You’ve got to get along. It’s as simple as that. You’ve got to communicate
appropriately. You don’t need to be yelling and screaming and things of that nature. And
anytime -- any pick-up or drop-off should be at each others’ respective dwellings, not at
some police station.
I mean, if the two of you can’t get along because -- and you have to have the
police station to protect yourselves, well, that means one or both of you aren’t very good
parents because you’ve got to get along because that’s what [is] in the best interest of the
child. If it’s in the best interest of the child and if you love your child, then you’ll do that.
Again, if your selfishness rises above your level -- or the love for your child, then you
won’t do that. It’s as simple as it gets.
On May 11, 2012, the district court entered a paternity decree. The court found that both
parties were fit and proper persons to be awarded joint physical custody of Aiden, but it awarded
sole legal custody to Brent. The court stated, without further elaboration, that its custody award
was based on the evidence submitted and the parties’ testimony. The court accepted the
parenting plan submitted by Brent with some modifications to the parties’ regular parenting time
and vacation time. Specifically, the court ordered that beginning at 9 a.m. on Monday, April 2,
Erika would have parenting time until 9 a.m. on Wednesday; Brent would have parenting time
from 9 a.m. Wednesday until 9 a.m. Friday; and Erika would have parenting time from 9 a.m.
Friday until 9 a.m. on Monday. The court ordered the rotation to continue in this fashion unless
agreed upon by the parties and subject to the holiday and vacation time set forth in the plan. As
to vacation time, the court found that the parties would each have two 1-week periods with
Aiden during the summer months, and it set forth details of how the parties were to choose their
1-week periods.
Based upon the joint physical custody arrangement, the court ordered Brent to pay Erika
$242 per month in child support. The court attached a series of child support worksheets showing
its calculations, which took into account Jesse’s child from a prior relationship, Erika and Jesse’s
child, and the joint physical custody award in this case. In calculating child support, the court
assigned $4,100 per month as Brent’s total monthly income and $1,906 as Erika’s total monthly
income, based on her prior salary of $11 per hour.
Erika filed a motion for new trial, which was overruled by the district court on June 13,
2012. Erika subsequently perfected her appeal to this court.
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ASSIGNMENTS OF ERROR
Erika asserts that the district court erred in (1) awarding Brent sole legal custody, (2)
awarding the parties joint physical custody, and (3) determining Brent’s income for purposes of
calculating child support.
STANDARD OF REVIEW
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. Jeffrey B.
v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012). In such 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. Citta
v. Facka, 19 Neb. Ct. App. 736, 812 N.W.2d 917 (2012). A judicial abuse of discretion exists when
a judge, within the effective limits of authorized judicial power, elects to act or refrains from
acting, and the selected option results in a decision which is untenable and unfairly deprives a
litigant of a substantial right or a just result in matters submitted for disposition through a judicial
system. See Hill v. Hill, 20 Neb. Ct. App. 528, 827 N.W.2d 304 (2013).
While a paternity action is one at law, the award of child support in such an action is
equitable in nature. Citta, supra. A trial court’s award of child support in a paternity case will not
be disturbed on appeal in the absence of an abuse of discretion by the trial court. Id.
ANALYSIS
Legal Custody.
Erika asserts that the district court erred in awarding sole legal custody to Brent. She
argues that there are no facts in the record which would support this award and that, at a
minimum, the parties should have been awarded joint legal custody. Joint legal custody has been
generally defined as joint authority and responsibility for making major decisions regarding the
child’s welfare. Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). The record shows that
the parties do not get along well with one another and have communication issues. Brent testified
to his belief that there needed to be one person to make final decisions involving Aiden. Further,
Erika’s attempts to obtain a relinquishment of parental rights from Brent put into question her
decisionmaking abilities relative to Aiden. We find no abuse of discretion in the award of sole
legal custody to Brent.
Physical Custody.
Erika next asserts that the district court erred in awarding the parties joint physical
custody of Aiden. She argues that she should have been awarded sole physical custody, subject
to Brent’s reasonable parenting time.
Joint physical custody means mutual authority and responsibility of the parents regarding
the child’s place of residence and the exertion of continuous blocks of parenting time by both
parents over the child for significant periods of time. Elsome, supra; Hill, supra.
We first discuss the propriety of awarding joint physical custody in this case where
neither party specifically requested it. When a trial court determines at a general custody hearing
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that joint physical custody is, or may be, in a child’s best interests, but neither party has
requested this custody arrangement, the court must give the parties an opportunity to present
evidence on the issue before imposing joint custody. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d
365 (2007). In this case, the parties both requested sole custody in their pleadings and at trial.
Brent, however, also asked the court at trial to award equal parenting time, and the temporary
parenting plan contained a joint physical custody arrangement. The parties both presented
evidence on the issue of joint custody at trial. Accordingly, we do not find, nor does Erika allege,
any due process error with respect to the joint physical custody award.
We next discuss whether the district court erred in not making a specific finding that joint
physical custody was in Aiden’s best interests. Neb. Rev. Stat. § 42-364(3) (Cum. Supp. 2012)
provides that in dissolution cases, if the parties do not agree to joint custody in a parenting plan,
the trial court can award joint custody if it specifically finds that it is in the best interests of the
child or children. State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565 (2010). In
State ex rel. Amanda M., the Nebraska Supreme Court discussed the requirement of such a best
interests finding in the context of a paternity case subject to the Parenting Act. After determining
that the Parenting Act applied to the case, the court discussed the interplay between the Parenting
Act found in chapter 43 of the Nebraska statutes and the dissolution of marriage statutes found in
chapter 42. The court noted Neb. Rev. Stat. § 43-2929 (Reissue 2008) of the Parenting Act,
which requires a parenting plan serving the best interests of the child, and Neb. Rev. Stat.
§ 43-2923 (Reissue 2008), which identifies best interests of the child requirements. The Supreme
Court then determined that the trial court had created a parenting plan that included a custody
provision following the statutory criteria listed in § 43-2923. The court observed that in contrast
to § 42-364 of the dissolution of marriage statutes, the Parenting Act does not explicitly require
that a trial court make a specific finding that joint custody is in the best interests of the child
when ordering joint custody in a paternity case. State ex rel. Amanda M., supra. The Supreme
Court found no evidence that the minor child’s best interests did not guide the trial court’s
decision in its award of custody. The court stated, “Although it is preferable to make a finding
that the best interests of the child dictate the result, it is not error under the Parenting Act in a
paternity case to fail to make a specific finding of best interests.” Id. at 280, 777 N.W.2d at 571.
Similarly, we find no error in this case in the district court’s failure to make a specific finding of
best interests.
Finally, we address whether the district court erred in awarding joint physical custody.
On the one hand, the parties in this case clearly have had serious communication and relational
problems, including instances of physical violence and verbal abuse. There is no evidence in the
record about how these incidents impacted the child, although Brent testified about one incident
that occurred in Aiden’s presence that involved Erika kicking Brent in the stomach. On the other
hand, it is clear that both parents are very bonded with Aiden and understand the importance of
Aiden’s having the other parent in his life. Aiden has been in the parties’ joint physical custody
for essentially his entire life, and the parties have generally been able to follow the terms of the
temporary joint custody agreement for nearly 2 years. Having reviewed the record de novo, and
giving weight to the fact that the trial court heard and observed the parties, we can find no abuse
of discretion in the court’s award of joint physical custody of Aiden, and we conclude that such
is in his best interests. We impress upon the parties the importance of complying with the terms
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of the parenting plan adopted by the trial court, particularly as it relates to positive
communication and cooperation to foster and promote a safe, secure, and loving environment for
Aiden.
Child Support.
Finally, Erika asserts that the district court erred in determining Brent’s income for
purposes of calculating child support. The court assigned Brent total monthly income of $4,100,
which is the figure used by Brent in his proposed child support calculations. Erika argues that the
evidence indicated Brent’s income was at least $5,300 per month in the months leading up to
trial and that Brent’s “speculative costs” should not have been factored into the child support
calculation. Brief for appellant at 8. Brent is a self-employed contractor, responsible for his own
expenses and taxes. Brent testified that his monthly business expenses average between $900 and
$1,100, most of which is gas, and that once these business expenses are taken out, his monthly
income, before taxes, is $4,100. The district court did not abuse its discretion in assigning Brent
total monthly income of $4,100 for purposes of child support.
CONCLUSION
We find no abuse of discretion by the district court in its award of sole legal custody to
Brent, in its award of joint physical custody to the parties, and in its calculation of Brent’s total
monthly income. We affirm the decree in all respects.
AFFIRMED.
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