Schurman v. Wilkins ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
SCHURMAN V. WILKINS
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).
ASHLEY SCHURMAN, APPELLEE,
V.
MATTHEW WILKINS, APPELLANT.
Filed January 23, 2018. No. A-17-018.
Appeal from the District Court for Cedar County: PAUL J. VAUGHN, Judge. Affirmed in
part, and in part reversed and remanded with directions.
Matthew S. McKeever, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for
appellant.
Wanda Howey-Fox, of Harmelink, Fox & Ravnsborg, for appellee.
PIRTLE, RIEDMANN, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Matthew Wilkins appeals from an order entered by the district court for Cedar County
which established paternity and determined custody, parenting time, and child support for the
parties’ minor child. Matthew argues the district court abused its discretion in determining
numerous aspects relating to custody, parenting time, and child support, as well as overruling his
motion to dismiss for lack of jurisdiction and venue. For the reasons set forth below, we affirm the
district court’s order in all respects except its provision regarding telephonic parenting time and
payments of work-related childcare costs.
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BACKGROUND
Matthew and Ashley Schurman have one child together, Ruby, born in 2013. Ashley filed
a complaint to determine paternity and establish custody in the district court for Cedar County on
January 2, 2015. Matthew filed a motion to dismiss the complaint on February 3, arguing that the
district court for Cedar County lacked jurisdiction and venue because he had filed a complaint in
the district court for Sarpy County on December 1, 2014. The district court for Cedar County
overruled Matthew’s motion to dismiss on February 10, 2015. The court found that Ashley and
Ruby were domiciled in Cedar County at the time of the filing of the complaint and that the district
court for Sarpy County had dismissed Matthew’s complaint.
The case proceeded to trial on May 20, 2016. At the time of trial, Ashley was 32 years old.
She had graduated from high school and earned some college credit, but did not have a college
degree. Ashley was employed as a licensed physical trainer and as manager of a fitness center. The
position was full time, but only required her to work 32 to 35 hours per week. She was diagnosed
at a young age with obsessive compulsive disorder, but currently manages her condition with
medication. Ashley testified that she has learned to live with the disorder and does not believe it
hinders her ability to parent Ruby.
The parties met in 2012 and began living together in February 2013. They lived together
in Sarpy County until Ruby’s birth in June 2013, when Ashley stayed with her parents in Cedar
County for approximately 8 months. The parties resumed cohabitating in Sarpy County until
November 2014, when Ashley and Ruby moved back to Cedar County to live with Ashley’s
parents. Ashley and Ruby have remained in Cedar County. More recently, Matthew moved to the
Crofton area to be closer to his daughter.
Ashley testified that she moved herself and Ruby to Cedar County because of the unsafe
living conditions in Sarpy County. Ashley was concerned about the number of guns in the home,
as well as Matthew’s penchant for leaving guns unattended in the home. Additionally, Matthew’s
brother lived in the home and Ashley believed his behavior was not appropriate around a young
child.
Ashley has been the primary caregiver for the child since her birth. At the time of trial,
Matthew worked for a railroad. His schedule required that in a 2-week period, he would work 8
straight days followed by 6 days off. His work typically involved extensive travel. At the time of
trial his work location was in Texas. Ashley testified that she keeps Ruby on a routine in order to
instill morals and discipline. She believes that when Ruby returns from Matthew’s parenting time,
Ruby is tired to the point of exhaustion. Ashley testified that it takes a couple of days to return
Ruby to her normal schedule after Matthew’s parenting time.
Ashley called numerous witnesses. Most of her witnesses were members of her family.
Ashley’s father and brother testified about an occasion where Ashley had found a gun that Matt
had lost in the backseat of a vehicle. Ashley’s family testified that before Matthew moved to the
Crofton area, he would spend most of his time in the area hunting instead of interacting with Ruby.
With respect to Ashley, her family testified that she was a loving and caring mother.
At the time of trial, Matthew was 35 years old. He served 12 years in the Army National
Guard and had been deployed a number of times. Matthew had some college education and had
been employed as a journeyman for a railroad company for 9 years. Matthew testified that he
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owned a number of guns which he stored in a locked gun safe. Matthew also has a concealed carry
permit. Matthew testified that he has only hunted a few times a year since Ruby was born.
Matthew also had numerous family members testify at trial. Matthew’s brothers and
parents testified that Matthew was a loving parent. His neighbors testified that he interacted well
with Ruby and they engaged in age-appropriate activities.
Matthew testified that if he were granted primary physical custody, he would switch to a
job within the railroad to work a more traditional Monday through Friday schedule. He stated that
as a member of the union, and given his seniority, he could easily change to a more traditional
schedule. However, at the time of trial and entry of the district court’s decree, Matthew had not
changed positions.
After the conclusion of trial, the district court entered a decree awarding sole legal and
physical custody to Ashley. Matthew has parenting time every other Wednesday from 9 a.m. until
the following Sunday at 5:30 p.m. during his time off from work. Matthew was ordered to pay
child support. The parties were ordered to divide the costs for childcare and healthcare with
Matthew providing health insurance coverage for Ruby.
ASSIGNMENTS OF ERROR
Restated and consolidated, Matthew argues the district court erred in (1) overruling his
motion to dismiss based on jurisdiction and venue, (2) awarding physical and legal custody to
Ashley, (3) failing to apportion childcare costs equally, (4) failing to accommodate Matthew’s
work schedule for holiday parenting time, (5) failing to apportion transportation for parenting time
equally between the parties, (6) failing to provide him a summer abatement for child support, (7)
only providing 1 day of telephone contact when Matthew did not have his parenting time, (8)
failing to provide in the parenting plan provisions for the parties to notify each other of Ruby’s
healthcare appointments, and (9) failing to make sufficient factual findings.
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. Shandera v.
Schultz, 23 Neb. App. 521, 876 N.W.2d 667 (2016). 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. Id.; Citta v.
Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012).
Domestic matters such as child support are entrusted to the discretion of trial courts.
Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015). An appellate court reviews a trial
court’s determinations on such issues de novo on the record to determine whether the trial judge
abused his or her discretion. Id.ANALYSIS
MOTION TO DISMISS FOR LACK OF JURISDICTION
Matthew argues the district court erred by failing to grant his motion to dismiss based on
Ashley’s failure to establish Cedar County as her domicile prior to Matthew’s filing of a paternity
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action in Sarpy County. Matthew argues that Ashley and Ruby remained domiciled in Sarpy
County in that she had not established a domicile in another county at the time of the filing of his
paternity action.
The record demonstrates that Ashley and Ruby left the residence in Sarpy County on
November 28, 2014. Ashley moved into her parent’s residence that same day, and she remained
living there at the time of the motion to dismiss. Matthew filed his complaint for paternity in Sarpy
County on December 1, but did not obtain service on Ashley until January 20, 2015. Ashley filed
her complaint for paternity in Cedar County on January 2 and obtained service on Matthew that
same day. Matthew filed a motion to dismiss the Cedar County action on February 3. The district
court for Cedar County entered its order overruling Matthew’s motion to dismiss on February 10.
It is clear from the order and the record that the district court for Sarpy County dismissed
Matthew’s paternity action based on a motion to dismiss filed by Ashley in the Sarpy County
district court on February 5, reasoning that under Nebraska law, Cedar County was the proper
venue for the paternity action. Therefore, when the district court for Cedar County overruled
Matthew’s motion to dismiss, it was the only court where a paternity action was pending. We also
note that our record does not demonstrate that Matthew filed an appeal from the Sarpy County
order dismissing his paternity action.
Neb. Rev. Stat. § 43-1411 (Reissue 2016) provides in pertinent part, “A civil proceeding
to establish the paternity of a child may be instituted, in the court of the district where the child is
domiciled or found . . . .” Domicile is obtained only through a person’s physical presence
accompanied by the present intention to remain indefinitely at a location or site or by the present
intention to make a location or site the person’s permanent or fixed home. Catlett v. Catlett, 23
Neb. App. 136, 869 N.W.2d 368 (2015). The absence of either presence or intention thwarts the
establishment of domicile. Id. Once established, domicile continues until a new domicile is
perfected. Id. At common law, the domicile of a minor is the same as the domicile of the parent
with whom he or she lives. Palagi v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765 (2001).
It is clear from the record that Ashley was physically present in Cedar County after leaving
the residence in Sarpy County as of November 28, 2014. Ashley and Ruby were living with her
parents at the time of the hearing with the intention to remain in Cedar County indefinitely.
Ashley’s affidavit received for purposes of Matthew’s motion to dismiss and in support of
temporary custody outlined numerous circumstances in Matthew’s home which made clear that
Ashley no longer would live there and supported her beliefs that it was an inappropriate
environment for Ruby. Also admitted into evidence was the order of the Sarpy County district
court dated February 4, 2015, dismissing Matthew’s complaint. On the record we find the district
court did not err in overruling Matthew’s motion to dismiss based on lack of jurisdiction.
AWARD OF PHYSICAL AND LEGAL
CUSTODY TO ASHLEY
Matthew asserts the district court erred in awarding Ashley physical and legal custody of
Ruby. Matthew argues that the district court should have at least awarded joint physical and legal
custody, if not awarded him sole physical and legal custody. Matthew argues that the best interests
of the child are satisfied by having both parents in her life.
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Child custody is determined by parental fitness and the child’s best interests. Maska v.
Maska, 274 Neb. 629, 742 N.W.2d 492 (2007). When both parents are found to be fit, the inquiry
for the court is the best interests of the child. Id. In making such a determination under Neb. Rev.
Stat. § 42-364 (Reissue 2016), the court may consider factors such as moral fitness of the child’s
parents; the parents’ sexual conduct; the respective environments offered by each parent; the
emotional relationship between child and parents; the age, sex, and health of the child and parents;
the effect on the child as the result of continuing or disrupting an existing relationship; the attitude
and stability of each parent’s character; parental capacity to provide physical care and satisfy the
educational needs of the child; as well as other factors relevant to the general health, welfare, and
well-being of the child. Maska v. Maska, supra.The district court found that both parties are fit parents. However, the court found that
Ashley had been Ruby’s primary caregiver since her birth. The court further found that based on
Matthew’s work schedule, it would be impractical to award him sole or shared physical custody.
The court concluded that an award of sole custody to Ashley was in the best interests of the child.
We agree with the district court that both Ashley and Matthew are fit and clearly love their
child. Each party is employed on a full time basis and each has adequate housing. The evidence
shows that Ashley has been the primary caregiver and provider for Ruby for the entirety of her
life. Numerous witnesses testified that she is an attentive, loving mother. While evidence was
adduced addressing Ashley’s mental health, there was no evidence that Ashley’s mental health
condition had in any manner impaired her ability to provide care for Ruby. The evidence further
established that Matthew, while involved with Ruby, had not played as active a role as Ashley,
particularly in the early stages of Ruby’s life. Moreover, the evidence did establish that Matthew
works in remote locations for 8 of every 14 days wherein he would not be able to provide care.
While he testified that he could transfer to a different job, he had not made an application to do so
as of the date of trial. Therefore, there was little certainty in the evidence as to if and when such a
change would occur. Accordingly, the district court did not abuse its discretion in determining that
it is in the child’s best interests for Ashley to have primary physical custody.
With respect to legal custody, under § 42-364, the court may award joint legal custody of
minor children when both parents agree to such or if the court specifically finds that joint custody
is in the best interests of the minor children regardless of parental agreement or consent. When
making custody determinations under § 42-364, if both parties do not agree, the court can award
joint custody only if it holds a hearing and makes the required finding that joint custody is in the
best interests of the children. See Kay v. Ludwig, 12 Neb. App. 868, 686 N.W.2d 619 (2004). The
parties did not agree to joint legal custody as each parent sought sole custody. The district court
did not find that joint legal custody was in the Ruby’s best interests.
The evidence demonstrated that Ashley had been Ruby’s primary caregiver since birth.
She took Ruby to nearly all of her healthcare appointments. Until shortly before trial, Matthew had
not met any of Ruby’s healthcare providers. The evidence further demonstrated that the parties
have had a difficult time communicating with one another. Little evidence was adduced which
indicated any cause for concern as to Ashley’s decisionmaking. We further note that under the
court’s parenting plan the custodial parent is required to notify the noncustodial parent at a
meaningful time and freely discuss the issue to be decided before making any decision. Upon the
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record before us, we find that the district court did not abuse its discretion in awarding Ashley sole
legal custody of Ruby.
CHILDCARE COSTS
Matthew argues the district court erred in not directing Ashley to pay childcare costs or
provide proof to Matthew that she has paid childcare costs. Matthew argues that both parties should
be required to pay their share of childcare costs after providing written documentation of the
charges.
The paternity order states:
[A]ll childcare costs incurred relative to the parties’ minor child while the parties are at
work shall be allocated between the parties with the Plaintiff, Ashley Schurman, being
responsible for thirty (30%) percent of the childcare costs and the Defendant, Matthew
Wilkins, being responsible for seventy (70%) percent of the childcare costs[.]
(Emphasis supplied.) The order next requires Matthew to pay his share of childcare costs within
10 days of being provided with documentation of these costs. No similar 10-day requirement is
placed on Ashley should Matthew incur work-related childcare costs.
From the order it is clear both parties are required to pay a portion of work-related childcare
costs. While we understand that it is unlikely Matthew will incur work-related childcare costs since
his parenting time occurs on his days off, we cannot discount the possibility that on occasion he
could incur such costs. We see no reason why Ashley should not be held to the same
reimbursement schedule. Therefore, we find that we must reverse the decision of the district court
in this respect and remand with directions to include a provision in the decree that Ashley shall
pay her childcare costs within 10 days of being provided with written documentation of childcare
costs incurred by Matthew.
HOLIDAY PARENTING TIME
Matthew argues the district court erred in setting holiday parenting time that may conflict
with his work schedule. Matthew argues essentially that the district court should have not
specifically allocated holiday parenting time at all, leaving the regular parenting schedule in place.
Based on the evidence presented it is unclear which holidays Matthew is required to work.
The best interests of the child require that holiday parenting time be equal and certain. This allows
each parent to spend time with the child on important holidays and family events. Following a set
schedule based on Matthew’s work could result in consistent denial of holiday parenting time to a
party. Moreover, Matthew testified to having significant leave time available to him which could
be utilized for holiday parenting time. Therefore, we find that the district court did not abuse its
discretion in allotting holiday parenting time.
TRANSPORTATION
Matthew argues the district court erred in requiring him to provide all transportation for his
parenting time. Matthew argues it would be equitable if both parties were required to equally share
the transportation responsibilities. Based on our review of the record, we find that the district court
did not abuse its discretion in determining transportation for parenting time. From our review of
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the record and the order of the court, Ashley is bearing the largest share of the day-to-day
responsibilities for Ruby’s care and rearing. We do not find it onerous to require Matthew to drive
Ruby twenty minutes to and from her mother’s residence twice per 2-week period.
SUMMER ABATEMENT OF CHILD SUPPORT
Matthew argues the district court erred when it failed to adjust his child support for his
parenting time during the summer months. Matthew argues that he should receive a 40-percent
reduction of child support during June, July, and August.
The Nebraska Child Support Guidelines provide:
Visitation or parenting time adjustments or direct cost sharing should be specified in the
support order. If child support is not calculated under § 4-212, an adjustment in child
support may be made at the discretion of the court when visitation or parenting time
substantially exceeds alternating weekends and holidays and 28 days or more in any 90-day
period. During visitation or parenting time periods of 28 days or more in any 90-day period,
support payments may be reduced by up to 80 percent. The amount of any reduction for
extended parenting time shall be specified in the court’s order and shall be presumed to
apply to the months designated in the order.
Neb. Ct. R. § 4-210. Deviation from the guidelines is left within the discretion of the district court.
See Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014)
Under the parenting plan, Matthew would receive 36 out of 90 days of parenting time
during the summer months. Therefore, Matthew potentially qualifies for a parenting time
adjustment in his child support pursuant to Neb. Ct. R. § 4-210. However, we note that the rule
does not direct that an adjustment be made, but merely allows for such a possibility. The rule
places the issue squarely within the discretion of the court. Here, the court was presented a full
picture of the parties’ relative financial circumstances as well as their history of financial support
for Ruby. Given the totality of these factors, we cannot say that the district court abused its
discretion in failing to provide Matthew a child support adjustment based on his summer parenting
time.
TELEPHONE/VIDEO CONTACT
Matthew argues the district court erred in failing to award him substantial telephone contact
during Ashley’s parenting time. Matthew argues that the record is very clear that he wishes to
maintain contact with Ruby while she is in Ashley’s care. The record reveals that under the
temporary order the parties experienced significant difficulties regarding telephonic and video
parenting time.
The district court ordered that the noncustodial parent shall have parenting time through
telephone contact with Ruby on Thursday every other week between 7 and 7:30 p.m. for not less
than 15 minutes, a sharp reduction from the temporary order. The record demonstrates that
Matthew attempts to maintain contact with Ruby while he is away for work. Based on our review,
we believe the district court abused its discretion in ordering only 1 day of telephone contact during
the 10-night period of time that Ruby is in Ashley’s possession. Therefore, we believe the current
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Thursday telephone contact should remain in place. However, we find that Matthew should have
an additional 15-minute period of telephonic parenting time every week.
We further find that Matthew’s telephonic contact with Ruby should be by way of
Facetime, Skype, or other video-call platform if the parties possess the telephonic capabilities to
utilize such a video connection. We recognize that the residence Ashley was moving into may not
have internet access. However, we also recognize that her technological connectivity may improve
over time. Therefore, we find that on remand the district court should allow for video-call
communication between Matthew and Ruby, if available.
We remand this issue to the district court to determine the specific time period when this
period of telephonic/video contact should be scheduled and to provide for the possibility of
video-call contact.
NOTIFICATION OF HEALTHCARE APPOINTMENTS
Matthew argues the district court erred in not providing in the parenting plan that the parties
must notify one another about healthcare appointments for Ruby. Matthew argues it would be in
the best interests of the child if each parent was given adequate notice of nonemergency healthcare
appointments.
The parenting plan provides:
The parent with legal and physical custody of the child . . . shall have the final say in
choices regarding the child’s . . . medical needs. [T]he custodial parent shall . . . notify the
noncustodial parent at a meaningful time in advance of any decision regarding . . . the
beginning of healthcare.
While Ashley ultimately has the final decision-making authority, the district court has required her
to consult with Matthew in advance of the beginning of healthcare treatment. There was little
evidence adduced that Matthew has been actively involved in Ruby’s healthcare decisions. Based
on the parenting plan, we find that the district court did not abuse its discretion by refusing to
include an additional notice provision for healthcare in the parenting plan as it had already
provided such a provision.
SUFFICIENCY OF FINDINGs
Matthew did not specifically argue this assignment of error. Errors must be specifically
assigned and argued to be considered by an appellate court. Stephens v. Stephens, 297 Neb. 188,
899 N.W.2d 582 (2017). Therefore, we will not consider this assigned error.
CONCLUSION
We conclude that the district court did not err in overruling Matthew’s motion to dismiss
based on jurisdiction and venue. The court did not err in awarding physical and legal custody to
Ashley. The district court scheduled appropriate holiday parenting time. The transportation
between parenting time was apportioned appropriately. The court did not err in refusing to allow
a summer abatement for child support for Matthew. There was no error in the parenting plan
regarding notification of healthcare treatment. Matthew did not specifically assign and argue his
assigned error that the district court order was not supported by the evidence. We do find, however,
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that the district court erred by not requiring Ashley to pay her share of work-related childcare
expenses incurred by Matthew during his parenting time. We also find that the district court erred
in providing only one period of telephone contact between Matthew and Ruby during Ashley’s
parenting time.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED WITH DIRECTIONS.
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